The Constitutionality of Third-Party Political Advertising Restrictions in Ontario

  • November 03, 2021
  • Melanie Zetusian

In February 2021, the Ontario legislature enacted the Protecting Ontario Elections Act, 2021, which amended the Election Finances Act (the “Act”).[1] Previously, a third party was prohibited from spending more than $600,000 in the six months preceding the issuance of an election writ. The amendments doubled the pre-election restricted spending period from six months to 12 months while maintaining the $600,000 spending limit. Working Families Ontario, the Elementary Teachers’ Federation of Ontario, the Ontario English Catholic Teachers’ Association, and the Ontario Secondary School Teachers’ Federation (the “Applicants”) brought an application challenging the constitutionality of the amendments.

LEGISLATIVE FRAMEWORK

The Act defines “political advertising” in section 1(1) as advertising that promotes or opposes a party, leader, or candidate and “includes advertising that takes a position on an issue that can reasonably be regarded as closely associated with a registered party or its leader or a registered candidate.”[2] This definition is supplemented by a non-exhaustive list of factors that the Chief Electoral Officer must consider in determining whether an advertisement constitutes “political advertising”.[3] The definition of “political advertising” excludes several forms of expression, including speeches, editorials, communications with members, employees, or shareholders of an organization, and non-commercial internet transmission of personal political views.[4]

In addition, the Act contains anti-collusion, reporting, and penalty provisions that seek to promote compliance with the spending limits. For instance, section 37.10.1(3) prohibits third parties from circumventing spending limits by coordinating with other third parties. Section 37.5 imposes a registration requirement in the pre-election period on third parties that incur $500 or more in political advertising expenses. Finally, sections 46 to 49 impose penalties for contraventions of the spending limits and reporting requirements under the Act, while section 45.1 imposes administrative penalties of up to $100,000 for each contravention by a third party.