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.

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.

By Sheila Copps

First published in The Hill Times on September 17, 2018.

OTTAWA—Ontario Premier Doug Ford’s municipal hijack is likely to be just the beginning of a tumultuous four-year ride.

It matters little that he will throw Toronto municipal elections into a tailspin because the majority of the people will not even bother to vote.

The rest of a province will shrug and mostly smirk over the chaos that is being visited upon their “love to hate” capital city.

The notwithstanding clause is another tool King Ford will use to punish disloyal subjects, like the mayor who beat him and some councillors he would like to get rid of.

Prime Minister Justin Trudeau is wise to avoid weighing in on this one.

This is a mess solely of Ford’s making. Had the prime minister stepped in, the story would quickly become that of a power game between the two. That is exactly the kind of confrontation that Ford would love to provoke.

But the long-term implications of the premier’s unilateral political heist cannot be ignored. The haste with which the premier is moving to override the courts via the use of the notwithstanding clause is a risky ploy which will create other problems. Some see it as a blatant misuse of power.

Bill Davis, a highly-respected Ontario premier for more than 14 years, told TVO’S Steve Paikin the clause was never meant to permit dominance over the rule of law.

“The sole purpose of the notwithstanding clause was only for those exceptionally rare circumstances when a province wanted to bring in a specific benefit or program provision for a part of their population—people of a certain age, for example—that might have seemed discriminatory under the Charter.”

“The notwithstanding provision has, understandably, rarely been used, because of the primacy of the Charter of Rights and Freedoms for all Canadians. …That it might now be used regularly to assert the dominance of any government or elected politician over the rule of law or the legitimate jurisdiction of our courts of law was never anticipated or agreed to.”

Clearly, a decision to halve the number of councillors in only one city in the province does not align with the initial reasons for including the clause in Canada’s new Constitution back in 1982.

Ontario has never used the clause and initially opposed its inclusion. Ultimately, it bowed to the wishes of Saskatchewan and Alberta who proposed the amendment.

Notwithstanding the original intention of the drafters, the clause apparently can now be used by any premier in any circumstance.

No one included an interpretation guide to the Charter so Ford will likely get his way in the short term. In the long term his move creates two problems which he will live to regret.

The first was his attack on the judiciary. When the courts overturned the initial seat cuts, claiming the change was unconstitutional, Ford ignored the substance of the decision to attack the judge.

He wrongly claimed Edward Belobaba was appointed by Kathleen Wynne. In fact, Belobaba was named federally in 2005 with a stellar list of legal credentials.

He began his career as a law clerk to chief justice Bora Laskin at the Supreme Court of Canada in 1973. He subsequently served as associate professor and associate dean at Osgoode Hall Law School.

As a partner at Gowlings, for almost 20 years, he specialized in litigation and international business law and co-founded the Supreme Court Law Review, where he served as an editor.

Belobaba was not the kind of judge who received his appointment because of any connection to the political system. Ford’s personal attack will raise hackles in the legal system.

If his use of the notwithstanding clause is appealed, Ford can expect to have some pushback from the judiciary.

Likewise, mayors across the province are raising questions about where they stand and whether they are safe from the ire of the premier in another round of municipal council cuts.

At the recent Association of Municipalities of Ontario meeting in Ottawa last month, the buzz revolved around who would be hit next.

Ford’s behaviour reminds us of another politician south of the border who also listens to no one.

When Ford was running for office, his predecessor was attacked for comparing him to Donald Trump.

Last week, it was beginning to look like Wynne was right. Ford had few defenders of his use of the notwithstanding clause.

Even the father of Attorney-General Caroline Mulroney spoke out against the move, at the very moment she was defending it.

Notwithstanding everyone, Ford steamrolls ahead.

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