PEN Canada condemns Ontario’s use of the Notwithstanding Clause

PEN Canada press release

PEN Canada condemns the Ontario government’s use of the Notwithstanding Clause to impose restrictions on third-party political advertising for a full twelve months before a provincial election. The use of the clause overrides Charter rights that are fundamental to any democracy and will stifle political expression ahead of the June 2022 election.

The Notwithstanding Clause is a rarely used provision that allows a government to implement legislation which has been deemed unconstitutional. As such it is meant to be used only in exceptional circumstances and to receive intense critical scrutiny from the citizens whose rights it will abridge.  The Ford government’s casual invocation of this power signals contempt for such conventional restraint.

Premier Ford invoked the Notwithstanding Clause following recent amendments to the Ontario Election Finances Act.  The amendments doubled the length of existing restrictions on third-party political advertising, from six months to twelve, even though the original restriction was already the subject of a Charter challenge.

Earlier this month, Justice Edward Morgan ruled that the extended pre-election restrictions constituted an unreasonable limit on the Charter right to freedom of expression. He noted that the government gave no justification for the extension, even though it was “by a significant margin longer than any restricted pre-election period in any other jurisdiction in Canada.”  Significantly, he warned of the potential danger that such measures could be used for partisan self-dealing, posing a challenge to the integrity of our electoral system. Such measures require vigilance from the courts. Exercising this vigilance, Justice Morgan held the amended sections contrary to the Charter, and so void.

Rather than appeal the decision, or amend the Act in light of Justice Morgan’s findings, the Ford government chose instead to override the court, apparently unconcerned by its violation of a fundamental Charter freedom.

PEN does not dispute that a right to freedom of expression should take account of the need for all citizens to have an equal opportunity to participate in elections.  Third party election spending rules have their place. In an earlier decision the Supreme Court of Canada made clear that: “[S]pending limits are necessary to prevent the most affluent from monopolizing election discourse.” Nevertheless, PEN believes that Ontario’s recent use of the Notwithstanding Clause is an affront to democratic norms that undermines the public’s ability to criticize an incumbent government.