Working Families, an anti-Conservative coalition of public and private-sector unions and individuals, failed to overturn legislation reining in third-party capacity to advertise.

By Sheila Copps
First published in The Hill Times on December 13, 2021.

OTTAWA—An Ontario provincial court judgment just muzzled Doug Ford’s greatest opposition voice.

Working Families, an anti-Conservative coalition of public and private-sector unions and individuals, failed to overturn legislation reining in third-party capacity to advertise.

Previous restrictions on third-party advertising had been thrown out by the courts on the grounds that they violated the Canadian Charter of Rights and Freedoms.

The Ford government invoked the notwithstanding clause of the Charter in order to introduce legislation that knowingly violates the Canadian Constitution.

The Canadian Civil Liberties Association joined unions and individuals in the unsuccessful appeal, claiming the law may “unreasonably chill people’s willingness to criticize the government or to engage in campaigns related to important policy issues of the day.”

In its factum to the court in November, CCLA argued that restrictions governing the right to vote, violated a Charter right that cannot be overridden by the application of the notwithstanding clause.

Ontario Superior Court Justice Ed Morgan disagreed with that interpretation, claiming third-party restrictions do not infringe on voters’ rights to meaningful participation in the electoral process.

The same judge had previously ruled that the government restrictions on third-party advertising were a violation of the Charter.

The new legislation sets a $600,000 spending limit for advertising campaigns while extending the advertising restrictions from six months to one year before an election.

This further limit on ad spending, prompted unions to argue that the ruling would render third party campaigns toothless.

Union lawyer Paul Cavaluzzo was quoted as saying, “they don’t see how an election can be fair and legitimate when the government …violated their free speech … the court has found that independent third parties have the constitutional right to run ineffective campaigns.”

All this makes great fodder for lawyers on all sides. And in the end, it could have a profound impact on all future election outcomes.

Working Families spent more than $2-million in the campaign that brought Liberal leader Kathleen Wynne to power.

Polls were predicting a Tory win, but Canada’s first elected lesbian leader swept to power when forces opposing Conservative leader Tim Hudak combined to give Wynne the edge.

Wynne moved the Liberals from minority to majority in 2014, marking the fourth successive Grit election victory.

That win was the result of a call by Working Families to vote strategically against the Conservatives, whose campaign promises included a pledge to fire 100,000 public servants.

The third-party campaign was backed up by advertising targeted to let voters know what impact firings would have on teachers and nurses.

Wynne won because most voters who opposed Tory cuts voted for the candidate in their riding who could best defeat the Conservatives.

In previous Ontario elections, centre-left voters often split their ballots between the Liberals and the New Democrats.

The Progressive Conservatives managed to govern in Ontario for 42 years straight by effectively splitting the opposition down the middle.

Until 2014, union help generally went to the New Democrats, but Working Families changed that dynamic as well.

By joining forces in favour of workers, the organization managed to bridge the divide that has always existed between Liberals and New Democrats.

That bridge has definitely worked in favour of the Liberals, as it has been the party best positioned to defeat the Conservatives in an election.

The same strategic vote at the federal level has permitted the Liberals to remain in power for three terms. Progressive voters in Canada definitely outnumber conservatives.

Ford’s court victory last week will definitely change that dynamic.

In this instance, the change will affect the New Democrats most, since in sheer numbers, they are currently best positioned to replace the Tories if progressive voters unite.

If progressives splinter, as is likely the case in the absence of an effective third-party coalition like Working Families, the biggest political winner will be Ford.

Last week’s decision will probably be appealed, with the final ruling in the hands of Canada’s Supreme Court.

Whether that esteemed group will be prepared to validate a court-recognized violation of the Canadian charter remains to be seen.

Whatever their decision, Ontario is heading to the polls in less than six months.

Any definitive court ruling will likely not be heard before that date.

In the absence of effective third-party voices, the current government has definitely strengthened its chance for re-election.

However, current issues like the ragged handling of the pandemic, may outweigh the absence of a strong third-party Working Families information campaign.

In any case, Ford breathes easier today.

Sheila Copps is a former Jean Chrétien-era cabinet minister and a former deputy prime minister. Follow her on Twitter at @Sheila_Copps.