The Ontario Superior Court has struck down some of the Ford government's recent changes to election laws.
New restrictions on third-party spending in the run-up to elections violated the Charter of Rights and Freedoms, Justice Edward Morgan found in his 19-page decision.
Legislation tabled by Attorney General Doug Downey and passed by the Progressive Conservative government had doubled the time period in which third-party advertisers like unions and advocacy groups must comply with spending limits and reporting rules from six months before election day to a year. It also made those rules more onerous. Morgan's ruling nullified it, effective immediately, noting the rules were already in effect with the election less than a year away.
"The government’s own evidence demonstrates that less impairing measures were available to it than those contained in the Impugned Sections," he wrote.
The restrictions would have greatly impacted unions, many of which brought forward the challenge — including the Ontario English Catholic Teachers’ Association, the Elementary Teachers’ Federation of Ontario, the Ontario Secondary School Teachers’ Federation, and labour group Working Families Ontario.
Morgan noted that "the government’s own expert witnesses in the present case have all testified that a six-month pre-election period was the appropriate and effective period in which spending restrictions for political advertisements should operate."
He added: "There is no justification or explanation anywhere in the attorney general’s record as to why the doubling of the pre-election regulated period was implemented. This lack of explanation has to be taken seriously."
The education unions took a victory lap after the decision.
"The Ford government’s deliberate attempt to shield itself from legitimate criticism and accountability from voters in the lead-up to the election has failed," the three unions said in a joint statement. "We stated, from the beginning, that Bill 254 violated freedom of expression and association guaranteed by the Charter. Justice Morgan’s decision validates our positions and sends a strong message to the Ford government: rules that drown out government critics and silence dissenting voices have no place in a democracy."
The Canadian Civil Liberties Association (CCLA), which was granted intervener status in the case, also celebrated its win.
"We warned the government at committee that this law would not withstand legal challenge. Today's ruling restores freedom of expression and freedom of association to Ontarians," said Cara Zwibel, the CCLA's director of fundamental freedoms. "This is not just about the right of third parties to speak out on issues that are important to them — it is about the rights of all the people of Ontario to hear those messages and participate in our democratic system."
The NDP was similarly pleased.
“Doug Ford tried to silence families of long-term care residents, school communities, parents of children with autism, working people, environmental advocates and public health experts. He tried to strip away people’s freedom of speech and freedom of expression, because this government’s strategy is to ‘protect the king,'" ethics and accountability critic Taras Natyshak said in a statement.
The Ministry of the Attorney General said the new laws "maintained ample opportunity for third parties to participate in the electoral conversation alongside actual candidates and parties whose names are on the ballot.
"Our government continues to firmly believe that elections in this province should be decided by individual Ontario voters, and not by pop-up organizations, political actions groups or corporations," spokesperson Alexandra Wilkes said in a statement.
Those challenging the decision argued the government's definition of "political advertising" was overly broad; that penalties for contravening the "vague" rules were unnecessarily harsh; and that reporting requirements were so onerous as to prevent any large political advertiser — like the unions themselves — from advertising at all, Morgan wrote.
The government argued the definitions were workable, the punishments were fair and the reporting requirements were important for transparency.
Morgan agreed with the unions, striking down all sections of the Elections Finances Act that related to those changes, on charter freedom of expression grounds.
Still, Morgan warned that Ontario could be "headed in a similar direction" to the United States, whose "laissez-faire" approach to election spending has resulted in "corrosive" damage to the democratic system, he wrote.
"... limits on third-party political advertising spending.... ensure that third parties cannot spend massively just prior to the election period, but then undermine the statutory limits by ceasing to spend during the election period following issuance of the writ," he wrote. "While the Applicants portray the provincial government as acting only out of partisan self-interest, seeking to preserve their majority government above all else, I do not see the enactment of the relevant [Election Finances Act] policies entirely in that way."
The government asked for more time before the decision came into effect so it could tweak the laws to comply with the charter, Morgan wrote. He denied the request since the 2022 election is less than a year away — inside the window for restrictions set out by the government.
"It would be unfair to the Applicants (and to other potential third-party political advertisers) for statutory provisions that have been declared unconstitutional to remain in operation during this time. That would effectively prohibit expression that I have already determined may not be prohibited," he wrote.

Superior Court strikes down changes to Ontario election laws

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