In the months leading up to the next provincial election in Ontario in June, spending for third parties has been rigorously restricted during the pre-election period.
Changes to election laws often go unnoticed, but these new regulations could have major implications for the freedom of expression exercised by both people and organizations in Ontario over the coming months.
The Ontario government could take action to address freedom of expression concerns while maintaining the spirit of their changes.
The pre-election period consists of a set amount of time, prior to an election period with a fixed election date, during which third parties have spending limits on political advertisements.
Prior to the changes to the law made in April 2021 by the Doug Ford government, this period lasted six months, spending limits were set at $600,000 and only political advertisements (ads that directly or indirectly promote or oppose a party, leader or candidate) were regulated.
Under the modified law, the pre-election period was extended to 12 months and now includes issues-based advertisements, which also fall under the $600,000 contribution limit. These types of advertisements are used by third parties to raise awareness about specific policy issues.
Even though a ruling from the Ontario Superior Court of Justice struck down these new sections for going too far in impinging upon freedom of expression, the Ontario government chose to use Sec. 33 of the Charter of Rights and Freedoms — known as the notwithstanding clause — to retain them.
It’s important to note that the provincial government attempted to make these laws work within the framework that has guided Canadian regulations of third-party spending.
Known as the egalitarian model, it seeks to promote fairness and equality by limiting third-party spending during regulated election periods and to reduce the impact of wealth on the electoral process. In practice, this prevents affluent third parties from dominating politics by outspending other, less affluent third parties.
Looking to other jurisdictions, there are adjustments that can be made to the existing law that would maintain the spirit of these new amendments while lowering the impact on the freedom of expression of third parties.
In the United Kingdom, issues-based advertisements are exempt during its 12-month regulated period so long as they are not sufficiently close or publicly associated to a party, parties or candidate.
Greg Essensa, the province’s chief electoral officer, has stated that issues-based advertising should not be regulated between elections, but said he’d recommended regulating political advertisements between elections. Regulating political advertisements, while excluding issues-based advertising, would strike a “balance between the competing concerns of freedom of speech and electoral equality,” he said.
Therefore, removing Ontario’s limitations on issues-based advertising (while retaining the 12-month window) could be one approach to amending the law. That would give more freedom to third parties who are advocating for specific policy issues while simultaneously reducing the influence of political advertisements prior to an election period.
Alternatively, the Ontario government could choose to go back to having the pre-election period set at six months rather than 12 but hold onto its limits on issues-based ads. This would be similar to how it works via the fixed election date federally — the pre-election period begins on June 30 and ends on the day before a general election is called.
Even though issues-based advertisements are not regulated at the federal level during the pre-election period, a shorter six-month pre-election period in Ontario would reduce the risk of unduly infringing upon freedom of expression.
Must provide an explanation
If the Ontario government reverts back to a six-month period but keeps its restrictions on issues-based advertisements, it would probably have to demonstrate to those concerned about freedom of expression why maintaining these restrictions is necessary. That’s especially since other jurisdictions have found it sufficient to only regulate political advertisements, not ads focused on issues, during their pre-election periods.
While the principles of fairness and equality among third parties during the pre-election period should be upheld, over-regulation during this period could have the reverse effect and prevent participation in the democratic process.
This is because third parties would be limited on how much they can spend to express their views about various policy issues — not their opposition to or promotion of political parties or candidates — through the use of advertisements for an entire year.
Instead of continuing to override the ruling from the Ontario Superior Court of Justice, the government could work within the parameters articulated by Canadian courts to ensure that future electoral law decisions fairly balance people’s Charter rights with meeting legislative objectives.
If the Ontario government decides to revisit this ruling after the June election, it should look to other jurisdictions with pre-election periods to compare best practices — and determine what regulations will achieve the most fair and equal outcome for voters.