Overview
Every four years marks a new provincial election cycle in Ontario. Each cycle, registered political parties are forced to contend with how, and through what mediums, they will drive Ontarians to the polls and communicate their political messaging. These considerations are increasingly important as advertisement media shifts and Ontarians’ central concerns evolve from cycle to cycle.
This is not a concern for registered political parties alone, however. Third parties, who are defined under the Ontario Election Finances Act, RSO 1990, c E.7 (“EFA”) as “a person or entity, other than a registered candidate, registered constituency association or registered party” and by the Supreme Court of Canada (“SCC”) more colloquially in Ontario (Attorney General) v. Working Families Coalition (Canada) Inc., 2025 SCC 5 (“Working Families”) as “citizens and groups who aim to provide information to other citizens and draw attention to issues of importance to them”, are also engaged in political advertising.
In Working Families, the core issue was whether the limit on third parties’ spending on political advertising in the year preceding an election period infringes the right to vote protected by s. 3 of the Charter. The impugned provision of the EFA capped third party spending at $600,000 during the 12 months before a provincial election (the “pre-writ” period). This was in stark contrast with the legislature’s $1,000,000 spending limit on the same political advertisements by registered political parties for the six months before the issue of the election writ. The SCC addressed this contrast in considering the following question: is the EFA’s limitation on third party political advertising an infringement on third parties’ democratic rights under s.3 of the Canadian Charter of Rights and Freedoms (“Charter”)? The brief answer is yes. This article sets out the SCC majority’s reasons for holding that the third party spending limit in the EFA infringes s. 3 of the Charter, and is not justified under s. 1 because the law is not minimally impairing.
Analysis
Canadian citizens’ right to vote is protected by s. 3 of the Charter.
The central issue in Working Families was whether the $600,000 spending limit on political advertisements placed upon third parties under s. 37.10.1(2)(b) of the EFA during the pre-writ period infringed their s.3 Charter rights. In determining the same, the majority juxtaposed the EFA’s political advertisement spending ceiling of up to $1,000,000 for registered political parties with that of its $600,000 ceiling for third parties; the ceiling for the latter applied to advertising spending for the entire pre-writ year.
Unlike third parties, registered political parties’ $1,000,000 maximum only applied during the six months before the election. In other words, The EFA placed no restrictions on the registered political parties’ political advertisement spending during the first six months of the pre-writ year.
The majority opened its ruling by emphasizing the importance of s. 3 of the Charter to the foundation of a free and democratic society. The purpose of this section, per the Majority, “is for voters to be effectively represented in government, and to play a meaningful role in the electoral process” (Working Families at para 9). Legislative measures that curtail citizens’ meaningful participation in the electoral process will infringe citizens’ voting rights. According to the Majority, “meaningful participation requires that citizens be able to vote in an informed way” (Working Families at para 9). Third party advertisements have a role to play in informing voters.
In a nutshell, the matter turned on whether the EFA’s limitation on third party spending—a limitation that was not equally placed upon registered political parties—violated “voters’ right to an informed vote that reflects their views” (Working Families at para 12). The Majority found that it did:
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. (Working Families at para 13)
The Majority emphasized the diversity of voices that comprise third parties, together with the host of topical issues that would be impacted by the EFA’s political advertisement spending limits, given the broad definition of political advertising in the legislation.
In the end, the majority of the SCC ruled that the EFA’s spending limits on third parties infringed their s. 3 Charter rights and that the infringement was not saved under s. 1. The majority held that the impugned provision was not minimally impairing and deviated from other Canadian jurisdictions’ treatment of third-party spending, some of which had no spending limit during the pre-writ period at all, or had shorter limitation periods. The provision was declared to be of no force or effect under s. 52(1) of the Constitution Act, 1982.
Conclusion
Now that the $600,000 ceiling on third party spending limits under the EFA has been held to be unconstitutional, Ontarians can expect to see a diversity of ideas in the next election cycle from, potentially, a whole host of voices beyond those of the province’s registered political parties.
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