But Doug Ford’s move in cutting off the possibility of advertising that could depict him negatively will have an impact in the fight ahead. It may also have a rebound effect federally and not in the way Ford intended.
By Sheila Copps
First published in The Hill Times on June 14, 2021.
OTTAWA—Ontario Premier Doug Ford’s decision to limit third-party political advertising by invoking the Constitution’s notwithstanding clause is not surprising.
The Ontario legislature was recalled last week, less than a week after it rose for the summer, for a vote to overturn a court decision on the controversial use of third-party advertising dollars before elections.
An Ontario Superior Court judge just ruled that a new Ontario law limiting third-party advertising in the lead up to an election was an unconstitutional limit on free expression.
The ruling did not overturn a current $100,000 limit on third-party advertising during the course of an election writ period.
Ford’s majority will have no problem passing legislation to invoke the notwithstanding clause.
Both opposition parties called the move an attack on free speech. And while they have the courts behind them, chances are the vote will have zero political impact outside of the inner circle of political parties.
Most people have little understanding of the myriad of rules that govern spending and advertising within the writ period and on an ongoing basis. Nor do they care.
They have a lingering belief that all politics is slightly slimy and care little about rules for political advertising.
Most voters will stoutly claim that they are not influenced by ads, and the majority will claim they oppose negative messaging.
But the bottom line is that negative third-party advertising works.
In two successive elections, anti-Liberal advertising money from right-wing coalitions was able to effectively label Liberal leaders Stéphane Dion and Michael Ignatieff long before the election writ was dropped.
On the campaign trail, voters even quoted directly from negative ads in explaining why they oppose a particular candidate.
The Conservative campaign victory in both instances was partially prompted by the onslaught of negative campaigning long before the election was even called.
Ford’s party felt the same sting when Liberal premier Kathleen Wynne scored a surprising victory with the help of advertising support from Working Families, a union-sponsored initiative that encouraged people not to vote for the Tories.
Working Families was the same coalition that took the Ford government to court because of the recent limits on third party advertising in the year leading up to the election.
The judgment in their favour will be appealed to the Supreme Court.
And we can expect a court appeal of the upcoming notwithstanding legislation.
The drafters of the original Charter of Rights and Freedoms included the notwithstanding clause as a quid pro quo to get almost all provinces on board. Quebec has never signed the constitutional document.
However, the clause was supposed to be used in exceptional circumstances. It certainly was not seen as a tool with which to rewrite election law.
By invoking the clause for this political reason, the Ford government risks damaging the overarching message of the Charter, which protects and supports the rights of all, including minorities.
The Charter was instrumental in paving the way for marriage equality in the LBGTQ communities.
An attack on that Charter could become a political issue in communities that are still struggling to achieve full equality.
With racism and sexism still top of mind concerns for some voters, the decision to weaken the Charter could become an election issue.
But more likely, the Conservative government’s decision to cut off third-party advertising with the notwithstanding clause will help narrow the election gap that currently exists.
A recent poll commissioned by Ontario’s public broadcaster, TVO, shows that Ford has potentially leapt back into re-election contention after a disastrous spring.
In a survey by Maru asking Ontarians who they would have preferred at the helm during the pandemic, 42 per cent cited the Tories, with the New Democrats at 25 per cent and the Liberals at 24 per cent. Surprisingly, the Green Party garnered nine per cent support.
Those numbers will not remain stagnant until the election. With federal infighting in the Green Party, that will likely filter through to the provincial results.
But Ford’s move in cutting off the possibility of advertising that could depict him negatively will most likely have an impact in the fight ahead.
It may also have a rebound effect federally and not in the way Ford intended.
The biggest third-party spenders in federal politics have been supporters of the Conservatives who load up on advertising to fight the Liberals.
If Ford’s plan works, the federal Liberals might be encouraged to replicate it. In that instance, the national Tories will lose out.
For now, all eyes are on Ontario.
Sheila Copps is a former Jean Chrétien-era cabinet minister and a former deputy prime minister. Follow her on Twitter at @Sheila_Copps.
