Just days after Ford’s new election law, the Protecting Ontario Elections Act, was struck down by the Ontario Superior Court, the government recalled the legislature to invoke the notwithstanding clause.
Ford’s changes to Ontario’s election finance regime have been under scrutiny for months. The law has been mired in controversy because of the draconian limits it places on the ability of third-party groups, including private citizens, to spend to advertise in advance of provincial elections.
The new law builds on a similar law introduced under the Wynne government. Under the old legislation, third parties could spend as much money as they wanted to spend on political advertising until six months before the election, when a $600,000 spending limit came into place.
Evidence from the 2018 election hints at the motivations behind the Ford government’s new election law. Prior to the six-month pre-writ period in 2018, third-party groups in Ontario spent $5 million on political advertising. Much of the spending came from union groups in the form of attack ads against Ford’s Progressive Conservatives.
So the Ford government lengthened the period third-party groups would be subject to spending limits. Rather than a six-month timeframe, the Ford government’s legislation established a twelve-month limitation period and imposed a new spending cap of $637,200.
At the time of the legislation’s first passage in February, many rightly expressed concerns about just how far Ford’s legislation went in terms of limiting free speech.
The law doesn’t just target big unions – it tramples on the free speech of small third-party groups who want to focus on issues that might get ignored.
Ford’s attempt to counter union ads will drown out many other voices.
Such draconian limits on the ability of third parties to participate in the political process mean that political parties will dominate public discourse during election campaigns. Ontarians who don’t feel adequately represented by any political party will find it quite difficult to make their voices heard.
Canada’s long march to deny free expression by Peter Menzies
Unsurprisingly, third-party groups immediately sought to challenge the Ford government’s legislation in court. Ontario Superior Court Justice Ed Morgan ruled that the legislation was unconstitutional, noting that the 12-month ban was the most severe across the country and unduly limits free speech.
The Ford government’s response to Morgan’s ruling is nothing short of a temper tantrum. Because the PC government didn’t get its way, Ford decided to invoke the notwithstanding clause without even glancing at more reasonable options.
Ford leads a strong majority government. He could have recalled the legislature and amended the law. Ford could also have appealed Morgan’s ruling to a higher court. Using the notwithstanding clause should be a last resort, not the first one.
With an election coming next year, Ford short-circuited any democratic debate to enforce the 12-month pre-election ban.
Ford’s motivations here are entirely of self-interest.
Ontarians deserve better—any limits on free speech merit thoughtful consideration and public engagement. By using the notwithstanding clause to silence his critics, Ford is betraying the democracy he claims he is trying to protect.
Jay Goldberg is the Interim Ontario Director for the Canadian Taxpayers Federation.
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