Section 37.10.1(2) of Ontario’s Election Finances Act (EFA) limits how much third parties can spend on political advertising in the 12 months before a provincial election period. Under the EFA, third parties could spend up to $24,000 on political advertising in any one electoral riding and up to $600,000 in total during that 12-month period. Third parties are individuals or groups who share information with the public and raise awareness about issues that matter to them. Political parties are also subject to spending limits, but only during the six months immediately before the election period. During those six months, political parties can spend up to $1 million on political advertising. There are no spending limits on political parties before that six-month period. 

A civil society organization, several unions, and individual citizens challenged the constitutionality of the EFA’s spending limit on third parties on the basis that it violated the right to vote protected under s. 3 of the Charter. 

A civil society organization, several unions and individual citizens challenged the constitutionality of the spending limits on third parties. 

The application was initially rejected, however on appeal, the Ontario Court of Appeal overturned the decision, finding that s. 37.10.1(2) violated the right to vote under section 3. It concluded that the spending limit was not carefully tailored and declared it to be invalid. Ontario appealed to the Supreme Court of Canada.

CLAIHR was granted leave to intervene where it argued that the egalitarian model, accepted as a central pillar for well-functioning electoral systems in international law, should inform the Court’s interpretation of whether amendments to the EFA violate s. 3 of the Charter in imposing spending limits and other administrative reporting requirements on political advertising by third parties.

The Supreme Court dismissed the appeal, concluding  that the third party spending limit  infringe the Charter-protected right to vote and that the infringement could not be saved under s. 1 of the Charter.  Writing for the majority, Justice Karakatsanis found that s. 37.10.1(2) created such an extreme imbalance in spending limits that political parties could drown out third parties’ views on political issues for an entire year of legislative activity, preventing those views from reaching the public.

CLAIHR thanks Mae Nam, Rebecca Jones, Nabila Khan, and Vibhu Sharma, who provided pro bono assistance on this matter.