Bill 307 Update

Political control and election rules challenge by Ontario’s education unions.

The ability of Ontarians to be informed about important issues affecting their everyday lives took a significant hit just before the holidays when the Ontario Superior Court dismissed a challenge to the Ford Government’s attempt to shield itself from accountability by severely restricting its citizens’ ability to publicize criticism of the Ford Government or its policies.

The challenge, brought by The Elementary Teachers’ Federation of Ontario (ETFO), Ontario English Catholic Teachers’ Association (OECTA), and Ontario Secondary School Teachers’ Federation (OSSTF/FEESO) took aim at Bill 307, which amended sections of the Election Finances Act to severely restrict third party political advertising for over a year prior to an election.

The changes impose a spending limit of just over $600,000 on every non-political party for the year leading up to the election period far longer than in any other Canadian jurisdiction—and of just over $100,000 for the election period itself. Other changes prevent interested groups from sharing or coordinating resources to circumvent these limits, impose ridiculously frequent reporting requirements, and provide for steep penalties if these restrictions are violated. The changes also broaden the definition of political advertising, muddling the distinction between issue-based communications and those that explicitly target a party or candidate.

These changes serve to severly stifle debate and discussion on issues of public importance. In fact, the new law has already been used by members of Ford’s cabinet to try to silence dissenting voices, as when a complaint was filed with Elections Ontario by Municipal Affairs and Housing Minister Steve Clark, who objected to lawn signs in his riding opposing a proposed new maximum-security jail in a tiny eastern Ontario community.

Constitutionally-minded readers are likely thinking that muzzling speech like this violates the guarantee of freedom of expression. And they would be right—not six months earlier, the same restrictions were found to be unconstitutional and were struck down by the Superior Court in a case brought by the same education unions.
However, apparently convinced that protecting himself and his government from criticism was worth trampling Ontarians’ constitutional rights; two days after the Court’s decision, Ford recalled the legislature from summer break solely to re-enact these restrictions, this time using the rare and controversial notwithstanding clause, allowing the law to pass despite the Court’s earlier decision.

The second court challenge centered on the right to vote set out at section 3 of the Charter, to which the notwithstanding clause does not apply. Unfortunately, at this time of asking, the Court allowed the unconstitutional legislation to stand. While this decision is being appealed, the new laws will remain in place for this election cycle.

There should be little doubt that these new rules were created to silence voices such as Working Families, an umbrella organization of various labour groups, whose messaging regarding the problematic policies favoured by previous Progressive Conservative leaders is viewed by those leaders as having contributed to their lack of electoral success.

The consequence of having these rules governing effective participation in political discourse for such a lengthy period is that, for the most part, the political advertisements that voters will see on television and other highly effective, but expensive medium will be those of the political parties themselves. Of course, all political parties are guided by their own self-interests, and limited by their own bank accounts, which can result in many issues getting little if any effective public exposure.

Other changes included in Bill 307 directly increase political parties’ ability to fund their own political advertising campaigns, changes that will stand to benefit the Progressive Conservatives more than any other political party. This is because, while third party spending was limited, the amount individuals can contribute to the coffers of political parties, constituency associations or candidates was almost tripled, to $3300 in each instance. When combined, individuals with the means to do so can contribute $9,900 annually, all subject to a tax credit, permitting wealthy donors greater ability to purchase influence over parties and politicians. This is in sharp contrast to the rules in neighbouring Quebec, where donations and loans are limited to $100 annually.

These are not the only recent changes to political advertising rules that work to the benefit of the incumbent government. In 2015, amendments to the Government Advertisement Act, 2004, which sets out how a government is permitted to use public dollars to communicate about its policies and actions, significantly narrowed the Auditor General’s ability to find that a government advertisement was improperly partisan. Interestingly, despite the changes, the office of the Auditor General continued to identify those advertisements that would have been considered as partisan under the old rules. Under those definitions, the Auditor General found that over the past two fiscal years, the Ford government spent over $9.5 million dollars on partisan advertisements, including ads that were part of a campaign about Ontario’s public education system. Those ads stated that the government’s changes were “improving” children’s educational journey, an opinion the Auditor General found was “unsubstantiated”, concluding that the primary objective of the ads was to “foster a positive impression” of the Ford government.

The restrictions on the extent to which non-political parties can be part of the political discourse are unfortunate and impoverish the breadth and the quality of the public conversation on important issues. While this may serve incumbent governments’ interests in, say, avoiding strident criticism over a two-year long bungling of a response to a pandemic, or a plan to spend billions of taxpayer dollars paving over wetlands to build a highway for the primary benefit of its wealthy property-developing donors while starving public education of needed investments and slashing the earning power of predominantly female job classes, or funnelling still more billions of taxpayer dollars into an economic sector in which a certain former progressive conservative leader has a pronounced financial stake, they are definitely not in the best interests of Ontario voters.

Vaino Poysa is the Associate General Secretary of the Protective Services division of OSSTF/FEESO.