How Ontario Can Rethink Its Election Spending Law to Ensure Fairness and Equality

Valere Gaspard, Western university and Alec mazurek, Western university

In the months leading up to the next provincial elections in Ontario in June, third-party spending has been severely restricted during the pre-election period.

Changes in electoral laws often go unnoticed, but these new regulations could have important implications for freedom of expression exercised by both individuals and organizations in Ontario over the next several months.

The Ontario government could take steps to address free speech concerns while maintaining the spirit of its changes.

Spending limits

The pre-electoral period consists of a set period of time, prior to an electoral period with a fixed election date, during which third parties have spending limits on political advertisements.

Before the changes to the law made in April 2021 by the Doug Ford administration, This period lasted six months, spending limits were set at $ 600,000 and only political advertisements (advertisements that promote or directly or indirectly oppose a party, leader or candidate) were regulated.

Under the amended law, the pre-election period was extended to 12 months and now includes issue-based ads, which are also within the $ 600,000 contribution limit. These types of advertisements are used by third parties to raise awareness of specific political issues.

Although a Ontario Superior Court of Justice ruling annulled these new sections for going too far in affecting freedom of speech, the Ontario government chose to use Sec. 33 of the Bill of Rights and Freedoms – known as the notwithstanding clause – to retain them.

Read more: Doug Ford uses the clause however for political gain

It is important to note that the provincial government tried to make these laws work within the framework that has guided Canadian regulations on third party spending.

Known as the egalitarian model, seeks to promote justice and equality by limiting third party spending during regulated electoral periods and reducing the impact of wealth on the electoral process. In practice, this prevents wealthy third parties from dominating politics by spending more than less wealthy third parties.

As for other jurisdictions, there are adjustments that can be made to existing law that would maintain the spirit of these new amendments while reducing the impact on the freedom of expression of third parties.

Possible adjustments

In the UK, problem-based ads are exempt during your 12-month regulated period while they are not close enough or publicly associated with a party, parties, or candidate.

A man in a suit and tie stands behind a podium with Canadian flags behind him.
Greg Essensa, Ontario’s electoral director, speaks to the media in 2018, a few weeks before the Ontario elections. THE CANADIAN PRESS / Chris Young

Greg Essensa, chief electoral officer of the province, has stated that Problem-based advertising should not be regulated. between elections, but said he had recommended regulating political ads between elections. Regulating political advertising, while excluding issue-based advertising, would strike a “balance between competing concerns of freedom of expression and electoral equality,” he said.

Therefore, removing Ontario’s limitations on problem-based advertising (keeping the 12-month window) could be one approach to amending the law. That would give more freedom to third parties who advocate for specific political issues, and at the same time reduce the influence of political ads before an election period.

Alternatively, the Ontario government could choose to revert to having the pre-election period set at six months instead of 12, but keep its limits on problem-based ads. This would be similar to how it works through the fixed election date at the federal level – the pre-election period begins on June 30 and ends the day before a general election is called.

Although problem-based ads are not regulated at the federal level during the pre-election period, a shorter pre-election period of six months in Ontario would reduce the risk of improperly infringing on free speech.

You must provide an explanation

If the Ontario government reverts to a six-month period but maintains its restrictions on problem-based ads, it would probably have to demonstrate to those concerned about free speech why it is necessary to maintain these restrictions. That’s especially because other jurisdictions have found it sufficient to regulate only political ads, not problem-focused ads, during their pre-election periods.

A man in a suit and tie removes his mask as he begins a briefing.  The Ontario flags are behind him.
Ontario Prime Minister Doug Ford removes his mask to answer a question from a journalist while attending a press conference. THE CANADIAN PRESS / Chris Young

Although the principles of equity and equality among third parties must be upheld during the pre-electoral period, over-regulation during this period could have the opposite effect and impede participation in the democratic process.

This is because third parties would be limited in how much they can spend to express their views on various policy issues, not their opposition or promotion of political parties or candidates, through the use of advertisements for an entire year.

Rather than continue to overturn the Ontario Superior Court of Justice ruling, the government could work within the parameters articulated by Canadian courts to ensure that future election law decisions fairly balance the Charter rights of the people. with the fulfillment of legislative objectives.

If the Ontario government decides to review this ruling after the June elections, it should look to other jurisdictions with pre-election periods to compare best practices and determine which regulations will achieve the fairest and most equitable outcome for voters.

Valere Gaspard, Researcher, Leadership and Democracy Laboratory, Western university and Alec mazurek, Scientific researcher, Political science, Western university

This article is republished from The conversation under a Creative Commons license. Read the Original article.

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