SCC Strikes Down Election Spending Limits

 

In Ontario (Attorney General) v. Working Families Coalition (Canada) Inc., 2025 SCC 5, [Working Families], the Supreme Court of Canada (“SCC”) held that the spending limits imposed by the Ontario government on third parties for political advertising infringed section 3 of the Canadian Charter of Rights and Freedoms, The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, [Charter]. In a 5-4 split, the majority held that the legislation interfered with Ontario citizen’s right to make an informed decision when voting. Moreover, the SCC found that the infringement could not be saved under section 1, and therefore was of no force or effect. 

Facts

Ontario’s Election Finances Act, RSO 1990, c E.7 [EFA] restricts how much third parties can spend on political advertising before a provincial election. Section 37.10.1(2), first enacted in 2017, states that no third party can spend more than $24,000 in “any electoral district for the purpose of third party political advertising in that district during the 12-month period” before an election, or more than $600,000 in total for third party political advertising during the 12-month period before an election (Working Families, para 5, 17). Third parties can include civil society organizations, Indigenous groups, religious groups, unions, individuals, and entities representing business interests (Working Families, para 40).

The respondents are the Working Families Coalition—a civil society organization focused on laws and policies affecting the lives of working people—and several unions—including the Ontario English Catholic Teachers’ Association, Elementary Teachers’ Federation of Ontario, and Ontario Secondary School Teachers’ Federation (Working Families, para 16). The respondents claimed that the third party spending limits in section 37.10.1(2) infringed section 3 of the Charter, which guarantees every citizen the right to vote and to qualify for membership in the legislature  (Working Families, para 17). 

Judicial History

At the Ontario Superior Court of Justice, the application judge found that section 37.10.1(2) did not infringe the Charter because other forms of media—such as blogs, advertisements in print, and social media—provided third parties with fruitful and inexpensive means to inform voters (Working Families, para 22). The judge also relied on expert evidence that expressed both six and 12 month spending restriction periods would foster egalitarian elections (Working Families, para 22). 

On appeal, the Ontario Court of Appeal (“ONCA”) allowed the appeal, as the majority held that the spending limit violated section 3 of the Charter (Working Families, para 23). Building on Harper v. Canada (Attorney General), 2004 SCC 33 [Harper], the ONCA considered two “proxies” for assessing whether a voter’s right to participation in the electoral process has been infringed. The first aspect was whether the restrictions were carefully tailored, while the second was whether they allowed for a modest informational campaign (Working Families, para 23). The majority concluded that the application judge erred in concluding the spending limit was carefully determined, and declared the spending restriction invalid, suspending it for one year (Working Families, para 23). 

Issues

1. Does section 37.10.1(2) of the Election Finances Act infringe section 3 of the Charter by limiting third party political advertising during the 12 months preceding a provincial election?
2. If so, can the infringement be justified as a reasonable limit under section 1 of the Charter?

Decision

The SCC dismissed the appeal, and held that the spending limit on third party political advertising unreasonably infringed on section 3 of the Charter, declaring it of no force or effect. Consistent with previous decisions regarding section 3, the majority opted for a broad interpretation of the right to vote protection. The law further failed under section 1 analysis determining the infringement was not reasonably justified (Working Families, para 64).  

Legal Framework

Karakatsanis J. began with considering the scope of section 3 of the Charter. The SCC stated that section 3 requires broad interpretation to advance the values of a free and democratic state, including protecting the free and open participation of citizens in the election process (Working Families, paras 27-28). Moreover, the court affirmed their interpretation of the purpose of section 3 as advancing and ensuring effective representation in the election process (Working Families, para 29). As section 3 protects a citizen’s right to vote in a manner that is in accordance with their preferences, citizens must have access to information so that they can adequately assess each political party’s platform (Working Families, para 32). 

The majority considered decisions such as Libman v. Quebec (Attorney General), 1997 CanLII 326 [Libman] and Harper, where they advocated for an egalitarian model of elections regarding election spending, which aims to balance the rights and privileges of candidates, political parties, third parties, and voters (Working Families, para 32). The Court, relying on Harper, emphasized that overly severe spending limits can interfere with the ability of voters to hear different views, thus potentially undermining being able to vote in an informed manner (Working Families, para 35). Based on the judicial analysis, the majority concluded that if a spending limit allows political actors or third parties a “disproportionate voice” in the political discourse, it will infringe section 3 of the Charter (Working Families, para 36). 

The Spending Limit Infringes Section 3 of the Charter

The majority found that the application judge erred by failing to compare third party spending limit with the rules applying to political parties to fully assess the effects of EFA section 37.10.1(2) (Working Families, para 42).The SCC explained that the limits on different political actors are interdependent because an imbalance between actors’ limits can impact the information voters receive (Working Families, para 44). Moreover, while there is a cap on third party spending at $600,000 during the pre-writ year, there is no limit on political parties for the first 6 months, and they can spend up to $1,000,000 during the second 6 months (Working Families, para 45). As a result, the SCC held that the EFA creates significant disparity between what political parties and third parties may do, ultimately impacting the political discourse (Working Families, para 46). Ultimately, this disparity in access to information prior to an election led to the majority finding an infringement to section 3 of the Charter. 

The Legislation is Not Saved Under Section 1

The SCC applied the Oakes test to assess whether the violation could be justified under section 1 of the Charter. The Attorney General of Ontario (“AGO”) submitted that the objective of the spending limit is to promote an egalitarian model of elections, something they claim is pressing and substantial (Working Families, para 61). In response, the majority held that even if it was a pressing and substantial concern, it fails at the minimal impairment stage (Working Families, para 62). The minimal impairment test requires the government to show that the measure impairs the right in question as little as reasonably possible (Working Families, para 63). The SCC reviewed other jurisdictions and found that Ontario’s EFA has the most restrictive spending limits, with other jurisdictions regulating third party advertising at a maximum of 5 months pre-writ (Working Families, para 64). As a result, the SCC held that the impugned provision is not minimally impairing and cannot be justified under section 1 of the Charter.

Dissent 

The SCC was divided on the outcome of Working Families, with a 5-4 split. Chief Justice Wagner and Justice Moroeau dissented, stating that it had not been established on a balance of probabilities that the restriction would impact citizens’ right to meaningfully participate in an election, nor deprive them from being able to introduce their opinions into the political discourse or hear other perspectives (Working Families, para 72). They also concluded that section 3 is focused on ensuring the opportunity for voters to participate in the election process, rather than making sure the political discourse is balanced (Working Families, para 111). 

Justices Côté and Rowe also dissented, but on different grounds to Wagner and Moroeau. While they agreed with Wagner and Moreau that section 37.10.1(2) does not violate section 3 of the Charter, they did not agree with the argument that there is an expressive component within section 3. Rather, Justices Côté and Rowe argued that section 3 is fundamental to Canadian democracy — it is exempt from the notwithstanding clause, for example — and because of this, it must be kept separate from the scope of s. 2(b), which aims to protect freedom of expression (Working Families, para 217). The core of section 3 is to allow meaningful citizen participation in the electoral process, meaning that the exclusive right holders in the Charter section are citizens, not third parties (Working Families, para 253). Therefore, section 3 does not preserve the right of third parties to disseminate information or express themselves (Working Families, para 238).

Analysis

The 5-4 split in the court’s ruling highlights the tension in interpreting what the right to vote encompasses. The majority found that the restrictions imposed by the Ontario government on third-party spending in the pre-election period unduly infringed upon the rights protected under section 3 of the Charter, while the dissent took a more restrained approach, emphasizing the importance of preserving legislative decisions in regulating electoral fairness. 

The decision is consistent with the SCC’s tendency to interpret the Charter in a broad and generous manner. The majority’s decision increases protection on political advocacy for third party groups. By striking down section 37.10.1(2), the decision emphasizes the importance of ensuring that third parties have a meaningful opportunity to contribute to public discourse, even if that entails limiting the government’s regulatory power over political spending. However, the SCC did not give a clear outline on how to have different spending limits between political actors that are proportional and in line with section 3. It emphasized that limits do not need to be identical, but must not undermine a voter’s ability to receive diverse information and cast an informed vote. If the Ontario government does replace section 37.10.1(2), it will be interesting to see how they toe the line between different political actors in order to stay consistent with the SCC’s ruling.

This article was edited by David Lia.