As Ontarians prepare to head to the polls on June 2, 2022, businesses and organizations who engage or are planning to engage in the political process should be mindful of Ontario's Election Finances Act (EFA) and the rigorous third party political advertising regime that came into effect last year (see previous Blakes Bulletin here).
THIRD PARTY OBLIGATIONS
Under these rules, for the period starting June 14, 2021, and in
the run up to the next provincial election set for June 2, 2022
(Pre-Election Period), third parties are limited to spending an
aggregate amount of C$654,600 in political advertising and cannot
spend more than C$26,184 in any one electoral district.
"Political advertising" includes a broad range of
advertising related to public policy and is not limited to partisan
ads specifically promoting or opposing a candidate or party. In
particular, it includes "issue advertising", which may
apply to a wide range of public policy issues which are closely
associated with a political leader, candidate or party. According
to guidance for third parties issued by
Elections Ontario, "determining whether a given issue is
"closely associated" with a party, its leader, or a
candidate will depend on which issues are likely to be addressed in
the upcoming election campaign, or which are distinctly associated
with a particular party, leader, or candidate in the public
discourse."
As a result, third parties should carefully monitor public policy
topics that political leaders, candidates and parties take a
position on during the Pre-Election Period. Advertisements on
public policy topics may initially not be caught by the EFA but
subsequently classified as issue advertising as the Pre-Election
Period progresses. The EFA sets out detailed criteria to help
determine whether issue advertising is political advertising.
Third parties must register with Elections Ontario upon incurring
C$500 or more in political advertising expenses in either the
Pre-Election Period or during an election period, in addition to
filing interim reports in certain instances.
Third parties may not circumvent or attempt to circumvent the
maximum Pre-Election Period spending amount, including by splitting
themselves into two or more third parties for the purpose of
circumventing the maximum amount or acting in collusion with
another third party so that their combined Pre-Election Period
amount exceeds the maximum amount.
Contravention of the EFA can result in steep fines and reputational
consequences.
CONSTITUTIONAL CHALLENGE BASED ON RIGHT TO VOTE
In June 2021, Justice Morgan of the Ontario Superior Court
struck down third party spending restrictions under the EFA for
infringing on freedom of expression rights under
the Charter. The Ontario government subsequently
invoked section 33 of
the Charter (Notwithstanding Clause) and
reintroduced the third party advertising restrictions, which are
now in effect. In Working Families Coalition (Canada) Inc. v.
Ontario , a second constitutional challenge was
brought arguing that the third party spending restrictions violated
the right to vote under section 3 of the Charter, which is not
subject to the notwithstanding clause.
In reasons released in December 2021, Justice Morgan dismissed the
new application and upheld the amendments. He stressed that the
analysis under section 3 is distinct from the analysis under
section 2(b) of the Charter. Relying on previous
Supreme Court jurisprudence, he held that Section 3 encompasses the
notion that restrictions on spending for political advertisements
can enhance (rather than infringe) citizens' exercise of the
right to vote by helping to foster the equality of information
among voters necessary for fair and meaningful participation in the
electoral process.
Contrary to the applicants' arguments, Justice Morgan held that
the amendments did not restrict a third party's ability to
meaningfully participate in the electoral process. He found that
there are myriad relatively low-cost and effective avenues
available to third parties to advertise, such as op-eds, press
releases, interviews, radio spots, mass mailings and social media.
While the spending limits may realistically curtail the widespread
use of television advertisements, they do not prevent third parties
from conveying "important public policy" information.
Justice Morgan held that while the spending restrictions must leave
room for third parties to participate, they "need not ensure
that any third party can mount an expensive media campaign with the
potential for determining election results."
As a result, he found that the third party spending restrictions do
not infringe the right to vote under section 3 of
the Charter. In this case, the restrictions were
sufficiently tailored to the objective of fostering egalitarian
elections. While the tailoring was neither "skintight nor to
everyone's taste", it was "careful enough to be
appropriate to the suit this time around."
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