Ontario's Controversial Use of Notwithstanding Clause: Examining the Ford Government's Election Finance Law

The Ford Government's Controversial Move

In a surprising turn of events, Ontario Premier Doug Ford has recalled the legislature during its summer break. The reason? To invoke the notwithstanding clause, a rarely used constitutional provision that allows provincial governments to override certain Charter rights for a five-year period. This move comes in response to a recent court ruling that struck down the government's attempt to extend restrictions on third-party election advertising.

Background on the Court Ruling

Earlier this week, an Ontario Superior Court judge ruled against the provincial government on a key election financing issue. The Ford government had sought to extend the period during which unions and other groups are restricted from running political advertisements from six months to 12 months before an election. The judge deemed this extension unconstitutional, citing it as an infringement on free speech.

The Government's Response

In response to this ruling, the Ford government has decided to reintroduce the law using the notwithstanding clause. This controversial decision effectively allows the government to bypass the court's ruling and implement the extended restrictions on third-party advertising.

Understanding the Notwithstanding Clause

The notwithstanding clause, formally known as Section 33 of the Canadian Charter of Rights and Freedoms, is a unique feature of the Canadian constitution. It allows federal, provincial, or territorial governments to override certain Charter rights for a five-year period.

Historical Context

The clause was included in the Charter as a compromise to gain provincial support for the constitutional reform package in 1982. It was designed to give elected legislatures the final say on certain matters, rather than the courts.

Controversial Nature

The use of the notwithstanding clause has always been controversial. Critics argue that it undermines the very purpose of having a Charter of Rights and Freedoms, while supporters contend that it's an important tool for preserving parliamentary supremacy.

The Ontario Government's Justification

To understand the government's perspective on this issue, we turn to comments made by Ontario Government House Leader Paul Calandra in a recent interview.

Calandra's Arguments

Calandra defended the government's decision, citing several key points:

1. Current Regulatory Void: Calandra pointed out that when the judge made his ruling, he also voided the existing act. This means that currently, there are no regulations or controls over third-party advertising in Ontario.

2. Need for Quick Action: The government felt it necessary to act quickly to fill this regulatory gap, hence the recall of the legislature.

3. Balancing Act: Calandra argued that the 12-month restriction period, in the context of fixed election dates, along with what he claims are the highest spending limits in Canada, represents an appropriate balance for Ontario.

4. Historical Context: He emphasized that Ontario had very little accountability in this area for many years, describing it as the "wild West."

Spending Limits

Calandra highlighted the spending limits set by the government:

• $600,000 in the year leading up to an election for a third party
• $24,000 that can be spent in each individual riding

He compared these limits favorably to federal limits, which he stated were $550,000 overall and $10,500 per riding.

Criticisms and Concerns

Despite the government's justifications, the decision to use the notwithstanding clause has drawn significant criticism from various quarters.

Constitutional Concerns

Many critics argue that the government's action represents a fundamental disregard for constitutional principles. The judge's ruling was based on the Charter of Rights and Freedoms, and by using the notwithstanding clause, the government is effectively saying it's willing to override these constitutional protections.

Free Speech Implications

The core of the judge's ruling was that the 12-month restriction period infringed on free speech. By reinstating this rule, the government is potentially limiting the ability of third parties to participate in political discourse for a significant period before an election.

Precedent Setting

There are concerns about the precedent this sets. If governments become too comfortable using the notwithstanding clause to override court decisions they disagree with, it could undermine the role of the judiciary in protecting constitutional rights.

Canadian Civil Liberties Association's Stance

The Canadian Civil Liberties Association has been particularly critical of the government's move. They argue that given the subject of the law impacts the provincial election, the use of the notwithstanding clause is "self-interested" and an "abusive and extraordinary power."

Broader Implications for Democracy

The Ontario government's decision raises broader questions about the balance of power in a democratic system and the role of checks and balances.

Judicial Oversight vs. Legislative Supremacy

This case highlights the tension between judicial oversight and legislative supremacy. While courts play a crucial role in interpreting and upholding the constitution, the notwithstanding clause was designed to give legislatures the final say in certain matters.

Election Financing and Democratic Participation

The underlying issue of election financing rules is itself crucial to democratic participation. Restrictions on third-party advertising aim to prevent wealthy interest groups from having undue influence on elections. However, these restrictions must be balanced against the right to free speech and political expression.

Fixed Election Dates and Campaign Periods

Calandra's argument about the relevance of fixed election dates to this issue is worth considering. Fixed election dates, which are relatively new in Canadian politics, do change the dynamics of political campaigning. They potentially extend the de facto campaign period, which could justify longer periods of regulation.

Comparative Perspective

To better understand the significance of Ontario's decision, it's useful to consider how other jurisdictions handle similar issues.

Federal Regulations

As Calandra mentioned, federal regulations in Canada do place limits on third-party advertising, though with different time frames and spending limits. The federal government has not used the notwithstanding clause to implement these regulations.

Other Provinces

Other Canadian provinces have their own regulations on third-party advertising, with varying degrees of restriction. It would be informative to compare Ontario's approach with that of other provinces.

International Comparisons

Many democracies worldwide grapple with the issue of regulating election financing and third-party advertising. Comparing Ontario's approach with international best practices could provide valuable insights.

Potential Consequences

The Ontario government's decision could have several significant consequences.

Legal Challenges

While the notwithstanding clause prevents challenges based on certain Charter rights, it's possible that legal challenges could be mounted on other grounds.

Political Fallout

The use of the notwithstanding clause is likely to be a significant political issue. Opposition parties and civil society groups have already voiced strong criticism, and this could become a major topic in the next election.

Impact on Third-Party Advertisers

The immediate practical effect will be on third-party groups, particularly unions and other organizations that have historically been active in Ontario politics. These groups will need to adjust their strategies to comply with the new rules.

Public Trust in Democratic Institutions

There's a risk that this move could erode public trust in democratic institutions. If people perceive that the government is willing to override constitutional protections for political gain, it could lead to increased cynicism about the political process.

The Debate Over Democratic Principles

At its core, this issue raises fundamental questions about democratic principles and the nature of Canada's constitutional democracy.

Majority Rule vs. Constitutional Limits

The tension between majority rule and constitutional limits is at the heart of this debate. While the Ford government argues that as a majority government they have the mandate to make these decisions, critics contend that constitutional limits exist precisely to prevent majorities from overriding fundamental rights.

The Role of Courts in a Democracy

This case also highlights ongoing debates about the proper role of courts in a democracy. Should unelected judges have the power to strike down laws passed by elected legislatures? Or should legislatures have mechanisms to override court decisions?

Balancing Free Speech and Fair Elections

The underlying issue of election advertising regulations touches on the challenge of balancing free speech rights with the desire for fair elections. How can democracies ensure that all voices are heard while preventing undue influence from wealthy interest groups?

Looking Ahead

As Ontario moves forward with these new election financing rules, several key questions and issues will need to be addressed.

Monitoring the Impact

It will be crucial to closely monitor the impact of these new rules on political discourse and participation in Ontario. Will they achieve the government's stated goals of creating a more level playing field, or will they unduly restrict political speech?

Future Use of the Notwithstanding Clause

This case may set a precedent for more frequent use of the notwithstanding clause, not just in Ontario but potentially in other provinces as well. It will be important to watch how this tool is used in the future.

Potential for Constitutional Reform

In the longer term, this controversy may reignite debates about constitutional reform in Canada. Should the notwithstanding clause be modified or removed? Are there better ways to balance legislative supremacy with constitutional rights?

The Next Election

Ultimately, Ontario voters will have the opportunity to pass judgment on the government's decision in the next election. Will this issue remain salient, or will other concerns take precedence?

Conclusion

The Ontario government's decision to use the notwithstanding clause to reinstate its election financing rules is a significant and controversial move. It touches on fundamental issues of constitutional law, democratic principles, and the balance of power in Canada's political system.

While the government argues that these rules are necessary to create a fair playing field for elections, critics contend that they represent an unjustified infringement on free speech and a dangerous precedent for overriding constitutional protections.

As this situation unfolds, it will be crucial for citizens, legal experts, and political observers to closely monitor its impacts and implications. The debate over this decision reflects broader tensions in democratic societies between majority rule and constitutional limits, between free speech and fair elections, and between legislative supremacy and judicial oversight.

Ultimately, how Ontario navigates this controversy may have significant implications not just for the province, but for the understanding and application of constitutional democracy across Canada and beyond.

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