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Charter - Democratic Rights (s.3) (2). Ontario (Attorney General) v. Working Families Coalition (Canada) Inc.
In Ontario (Attorney General) v. Working Families Coalition (Canada) Inc. (SCC, 2025) the Supreme Court of Canada dismissed an appeal, this from an appeal to the Ontario Court of Appeal which was allowed and held that an Ontario Election Finances Act (EFA) "spending limit violated the right to vote under s. 3" ['Democratic rights of citizens'] of the Charter.
Here the court summarizes their ruling, regarding third party advertising:[1] This appeal concerns the right to vote, which lies at the heart of our constitutional democracy. Canada was founded as a democracy (Reference re Alberta Statutes, 1938 CanLII 1 (SCC), [1938] S.C.R. 100, at pp. 145-46, per Cannon J.), and the Canadian Charter of Rights and Freedoms constitutionally entrenched the right of all citizens to participate in elections. Section 3 of the Charter guarantees each citizen the right to vote in elections of members of the House of Commons and the provincial legislative assemblies, and the right to be qualified for membership therein.
[2] This Court has long recognized that s. 3’s protection must be interpreted broadly and extend to the conditions under which the right to vote is formally exercised (Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, at para. 11; Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3, at paras. 25 and 27). The right to vote is more than “the bare right to place a ballot in a box” (Dixon v. B.C. (A.G.), 1989 CanLII 248 (BC SC), [1989] 4 W.W.R. 393 (B.C.S.C.), per McLachlin C.J., at p. 403). It is exercised within a framework of institutions and actors, including regular elections and sittings of the legislatures guaranteed by ss. 4 and 5 of the Charter, political parties, candidates, campaigns, electoral districts, laws regulating conditions for voting, and more (Y. Dawood, “Electoral fairness and the law of democracy: A structural rights approach to judicial review” (2012), 62 U.T.L.J. 499, at p. 519; P. Thibault, “Les droits démocratiques (articles 3 à 5)”, in E. Mendes and S. Beaulac, eds., Canadian Charter of Rights and Freedoms (5th ed. 2013), 563, at pp. 564 et seq.).
[3] This appeal requires the Court to consider whether the limit on third party spending on political advertising in the year before an election period, set out in s. 37.10.1(2) of the Election Finances Act, R.S.O. 1990, c. E.7 (EFA), infringes s. 3 of the Charter.
[4] Third parties are defined broadly in s. 1 of the EFA as any person or entity that is not a registered candidate, constituency association, or political party. They encompass a diverse range of citizens and groups who aim to provide information to other citizens and draw attention to issues of importance to them. Third party political advertising is a medium through which voters receive different views on political candidates, parties, and important public issues. This information helps voters identify the views of others in their community and informs the key issues on the election agenda. As this Court has recognized, third party advertising adds fresh perspectives to the political discourse (Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, at para. 55). It may give voice to vulnerable or underrepresented groups. It may help voters to assess their options or identify important issues absent from the election agenda, and to push political parties and candidates to address them. Third party advertising thus assists citizens in casting an informed vote (Harper, at para. 55).
[5] The challenged spending limit restricts the amount that third parties can spend on political advertising in the year before a provincial election period (the pre-writ year). The election period begins when the writ is drawn up, one month before election day (also called the writ period). Third parties are capped at $600,000 in advertising spending for the entire pre-writ year (EFA, s. 37.10.1(2)(b)). By contrast, registered political parties may spend up to $1,000,000 in advertising; this limit applies for only six months before the election period (s. 38.1). In the first six months of the pre-writ year, political parties face no limits on political advertising.
[6] The application judge relied on expert evidence suggesting that both a 6- and 12-month spending limit for third parties would promote electoral fairness, and concluded that the challenged provision did not violate s. 3 of the Charter. He determined that third parties could still advertise within the spending limit, and that expensive television advertisements did not contribute to policy debates. The application judge thus concluded that the law respected the right of voters to meaningfully participate in the electoral process through an informed vote.
[7] With respect, I disagree. An examination of the extent of low-cost advertising that third parties can still engage in does not capture the broader impacts of the spending limit that, by design, creates absolute disproportionality, or a disproportionality that is so marked on its face that it allows political parties to drown out the voices of third parties on political issues from reaching citizens during an entire year of legislative activity.
[8] This Court’s interpretation of s. 3 has been “guided by the ideal of a ‘free and democratic society’ upon which the Charter is founded” (Reference re Prov. Electoral Boundaries (Sask.), 1991 CanLII 61 (SCC), [1991] 2 S.C.R. 158 (Saskatchewan Reference), at p. 181; Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912, at paras. 26-27). To interpret the scope of s. 3’s protection, this Court has emphasized free and open participation, respect for the diverse interests of a broad range of citizens, fairness in political discourse, and the importance of citizen participation in political life for public faith in our laws and institutions (Saskatchewan Reference, at pp. 181-82 and 188; Figueroa, at paras. 27-30; Harper, at paras. 70 and 72).
[9] In this way, this Court has held that the purpose of s. 3 is for voters to be effectively represented in government, and to play a meaningful role in the electoral process. A legislative measure that undermines or interferes with citizens’ ability to meaningfully participate in the electoral process will infringe the right to vote. And meaningful participation requires that citizens be able to vote in an informed way (Harper, at paras. 71 and 73). An informed vote is foundational to the health of the electoral system and a properly functioning democracy.
[10] An egalitarian model of elections — endorsed by this Court in Libman v. Quebec (Attorney General), 1997 CanLII 326 (SCC), [1997] 3 S.C.R. 569, and Harper — aims to achieve a balance in the political discourse, such that no one participant in the electoral system can exert undue influence. These participants include candidates, political parties and third parties (Harper, at para. 87). Assessing whether spending limits may lead to a disequilibrium in that discourse is necessarily a comparative analysis. Given the competitive nature of elections, the capacities of different actors to participate fairly in the electoral process are interconnected and will be affected by how all actors are regulated (Figueroa, at para. 49). In principle, spending limits may level the playing field and ensure wealth cannot be mobilized to drown out other voices (Harper, at para. 72). However, limits that restrict rather than promote citizens’ access to diverse information and views may violate their right to meaningfully participate in the political process (Harper, at para. 74).
[11] This Court’s jurisprudence is clear that s. 3 does not require that all participants in the electoral system be treated equally. However, s. 3 will be infringed if spending limits allow any political actor or third party a disproportionate voice in the political discourse given their role in the electoral process, thus depriving voters of a broad range of views and perspectives on social and political issues.
[12] The issue in this case is not whether the evidence establishes that third parties can still provide some information to the public. It is about whether legislation that on its face limits third parties during a critical time in the democratic cycle, while imposing no limits at all on political parties for half that period, undermines voters’ right to an informed vote that reflects their views. The application judge erred in law by failing to engage with the qualitative differences that permit political parties to drown out the voices of third parties.
[13] In my view, the spending limit infringes s. 3 of the Charter. The spending limit applies to issue-based political advertising during a full quarter of the standard life of a legislative assembly, during which citizens’ s. 3 rights are engaged and the government is engaged in policy development and lawmaking. It has the clear potential to severely curtail voters’ exposure to different views on the political issues that define their community in the year before the election period. During this period, the legislature will sit, as it must do under s. 5 of the Charter, debating policies and influencing the election agenda. Third parties are strictly limited in their ability to inform citizens while political parties face no restrictions in the first six months of the pre-writ year. This differential treatment creates a disproportionality in the political discourse. Further, this disproportionality in political discourse persists over the second six months: if third parties do provide their perspective during the first six months of the pre-writ year, they may be unable to contribute meaningful information closer to the election. As a result, on their face, 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. This undermines the voter’s right to an informed vote and to meaningful participation in the electoral process. . Toronto (City) v. Ontario (Attorney General)
In Toronto (City) v. Ontario (Attorney General) (SCC, 2021) the Supreme Court of Canada consider Charter s.3 electoral rights:[45] Section 3 guarantees citizens the right to vote and run for office in provincial and federal elections, and includes a right to effective representation. The text of s. 3 makes clear, however, that it guarantees “only the right to vote in elections of representatives of the federal and the provincial legislative assemblies” (Haig, at p. 1031 (emphasis added)) and “does not extend to municipal elections” (p. 1031 (emphasis added), citing P. W. Hogg, Constitutional Law of Canada (3rd ed. 1992), vol. 2, at p. 42‑2). Simply put, ss. 2(b) and 3 record distinct rights which must be given independent meaning (Thomson Newspapers Co. v. Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 S.C.R. 877, at paras. 79‑80; Harper, at para. 67). Effective representation is not a principle of s. 2(b), nor can the concept be imported wholesale from a different Charter right.
[46] In any event, effective representation connotes voter parity which, while not exhaustive of the requirements of effective representation, is the overarching concern and the condition of “prime importance” (Reference re Prov. Electoral Boundaries (Sask.), 1991 CanLII 61 (SCC), [1991] 2 S.C.R. 158, at p. 184). What matters is the relative population of the wards, not their absolute size. To hold otherwise implies keeping the population of wards relatively constant by increasing the number of councillors to keep pace with population growth, a notion unknown to Canadian law (in s. 3 or elsewhere) and which would not be without its own difficulties, including potentially unwieldly growth in the size of Toronto City Council (M. Pal, “The Unwritten Principle of Democracy” (2019), 65 McGill L.J. 269, at pp. 298‑99; J. C. Courtney, Commissioned Ridings: Designing Canada’s Electoral Districts (2001), at pp. 15 and 19).
[47] And even were effective representation to apply as a consideration here, we would not find that the principle has been violated due only to the larger population sizes of the wards created by the Act. It is not disputed that the 25‑ward structure of the Act enhanced voter parity, relative to the 47‑ward structure preferred by the City (which was not even designed to achieve voter parity until 2026) (A.F., at para. 150; R.F., at paras. 35, 38, 133, 143 and 148). Indeed, the Toronto Ward Boundary Review’s reasoning for having rejected the 25‑ward structure was criticized on this very basis (R.R. (short), vol. II, at pp. 65, 69, 72-73 and 77-78). While the principle of effective representation encompasses more than simple voter parity, those who rely upon the principle of effective representation here fail to identify any other factors — geography, community history, community interests and minority representation — that could conceivably justify a departure from parity (see Reference re Prov. Electoral Boundaries (Sask.), at p. 184).
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