Top court finds Ontario spending limits on third-party election ads unconstitutional

By Canadian Press on March 7, 2025.

The Supreme Court of Canada has found an Ontario law that limits spending on third-party election advertising violates the constitutional right to vote.

The country’s highest court dismissed the Ontario government’s appeal with a split 5-4 decision and struck down that part of the law.

Before 2021, third parties in Ontario could spend up to $600,000 on advertising in the six months before a provincial election call.

That year, Premier Doug Ford’s government stretched the restricted spending period to one year while keeping the spending limit the same.

The Progressive Conservative government argued the extended restriction was necessary to protect elections from outside influence, but critics said it amounted to the government trying to silence criticism ahead of the 2022 provincial election.

The top court’s ruling says the spending limit law is so disproportionate that it allows political parties to “drown out” the voices of third parties.

“The statutory provisions create an absolute disproportionality in the broader political discourse that deprives voters of a broad range of views and perspectives on issues during a critical period in the democratic cycle,” said Friday’s decision, authored by Justice Andromache Karakatsanis.

“This undermines the voter’s right to an informed vote and to meaningful participation in the electoral process.”

Several third-party groups, including teachers’ unions, challenged the law and a lower court agreed and struck it down based on free speech grounds.

The province responded by tabling a new version of the bill that used the notwithstanding clause, a provision under the Charter of Rights and Freedoms that allows a government to temporarily override some rights.

But the third parties appealed the new law under a different section of the Constitution — the right to vote.

The Court of Appeal for Ontario said the use of the notwithstanding clause was legitimate, but it still found the law to be unconstitutional because violating the free expression rights of third-party advertisers ultimately led to the violation of the right to meaningful participation in the electoral process.

That right was not subject to the notwithstanding clause as written in by the government.

The court gave the government one year to create new, Charter-compliant legislation.

But Ontario’s attorney general sought an appeal to the Supreme Court of Canada, which was granted in late 2023.

Prior to a 2017 law enacted by the Liberal government at the time, there were no limits on third-party election advertising in Ontario.

In the 2014 election, third parties had spent $8.64 million, which amounted to 17 per cent of all election spending.

Unions were some of the largest third-party advertisers. The Working Families Coalition, known for its anti-Tory ads, spent $2.5 million during the campaign, with contributions from some of the province’s biggest unions.

The coalition and several teachers’ unions were part of the case before the Supreme Court, while there were more than a dozen interveners, including the attorneys general of Canada, Alberta and Quebec along with the Canadian Civil Liberties Association and the Chief Electoral Officer of Ontario.

This report by The Canadian Press was first published March 7, 2025.

Liam Casey, The Canadian Press