Ford government to invoke notwithstanding clause to restrict election spending

ANALYSIS: The Tories are calling MPPs back to the legislature to reinstate an election law that was struck down on Tuesday — this time with the notwithstanding clause
By John Michael McGrath - Published on Jun 09, 2021
The government of Premier Doug Ford intends to reintroduce its election law when the house reconvenes on Thursday. (Frank Gunn/CP)

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Before even getting a chance to settle into their summer break, MPPs will be back at the legislature on Thursday afternoon, having been summoned back to Queen’s Park by the government of Premier Doug Ford after a key piece of legislation was struck down by an Ontario court earlier this week. The Tories intend to reintroduce their election law when the house reconvenes at 3 p.m. on Thursday, and this time they’ll make it court-proof by invoking Section 33 of the Charter, the so-called notwithstanding clause.

If the legislation is passed, it would mark the first time in Ontario’s history that Section 33 has been used. The Ford government threatened to use the notwithstanding clause early in its mandate, when a court briefly interrupted the government’s interference in Toronto’s city-council elections, but the Tories prevailed in an appeals court, so the law was never passed.

The government is seeking to reverse the decision of Justice Edward Morgan, who nullified an Ontario law placing tight limits on the ability of third parties — any group outside of the officially recognized political parties — to advertise for a year prior to an election. Morgan also declined to suspend his judgment, noting that Ontario is already less than one year from the next election. 

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The government says it’s looking to protect Ontario’s election from the influence of “American-style” politics, which sees heavy involvement from well-financed outsiders, and will use “every tool in our toolbox to protect our democracy."
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While the Tories had historically been on the receiving end of third-party attack ad campaigns in elections from 1999 to 2014 — particularly from Working Families (an alliance of various labour unions) in the 2018 election — the rise of such online groups as Ontario Proud, funded by real-estate developers and construction firms, put the Tories on a more even footing. Nevertheless, once in power, they opted to dramatically curtail the spending powers of third parties: earlier this year, they introduced Bill 254, the Protecting Ontario Elections Act, which continued a spending cap previously introduced by the Liberals — $600,000 in the six months leading up to an election — and extended it to 12 months without increasing the dollar figure allowed.

Morgan found that the 12-month extension to the spending cap for third parties infringed on the Charter right to free expression and couldn’t be saved by any other constitutional principle.

The opposition parties at Queen’s Park, several of which had cheered Morgan’s verdict only days before, were unanimous in their condemnation of the premier for invoking the notwithstanding clause.

“At a time when Canada is in mourning from horrific tragedies in Kamloops and London and still battling a pandemic, Doug Ford is worried most about Doug Ford. He wants to crush dissent,” said NDP leader Andrea Horwath.

“It took Doug Ford 415 days to deliver a half-hearted paid sick leave for essential workers and only 48 hours to use the constitutional nuclear option to protect his own political skin,” said Liberal leader Steven Del Duca.

The Canadian Civil Liberties Association was an intervenor in the court case, and its executive director (and former Ontario attorney general) Michael Bryant described the invocation of the notwithstanding clause as a “nuclear constitutional option” and said the government should instead seek an injunction and file an appeal of Morgan’s decision.

“The notwithstanding clause was designed to be a democratic safety valve, not a brazen power grab to tilt election rules in a government’s favour,” Bryant added.

The new legislation the government seeks to introduce on Thursday will need to be debated over several days, at least, unless opposition parties at Queen’s Park allow for speedy passage — which seems highly unlikely. While the opposition parties have tools at their disposal to delay the passage of this legislation, the substantial Progressive Conservative majority in the legislature means that the bill will almost certainly pass and receive Royal Assent, barring a change of heart from the premier’s office itself

Using Section 33 of the Charter, the notwithstanding clause, will very likely insulate the new law from any subsequent Charter challenge. While there are exceptions to the use of the notwithstanding clause — it can’t be used to restrict mobility rights or to extend the time between elections beyond the five years required by the Constitution — they aren’t likely to apply in the case of reviving Bill 254. The only remaining limit: the law will need to be renewed in five years’ time, unless the priorities of the government — or the party forming government — change.

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