The Ontario Election Finances Act (EFA) imposes spending limits on political parties and third parties, with a $600k spending limit for third-party political advertising in the 6-12 months before a general election.
Political parties successfully challenged these amendments as an infringement of freedom of expression under §2(b) of the Charter. The government re-enacted identical amendments but with the notwithstanding clause (§33) to insulate the legislation from judicial scrutiny under §2(b) (because, if you can recall from way back in 1L, the notwithstanding clause overrides §2 and 7-15 of the Charter).
The same parties brought a second challenge, alleging that the notwithstanding clause was improperly used and that the amendments violated democratic rights under §3 of the Charter (which is not subject to §33). The court disagreed, saying there are no “internal limits” on the legislature’s ability to invoke the notwithstanding clause if the formal requirements are met.
However, the court ruled that the spending limits infringed on voters’ §3 right to meaningful participation in the electoral process, which cannot be overridden by the notwithstanding clause. Therefore, the spending limits were declared unconstitutional.
Overall, seeing as political spending can have such a persuasive impact on elections, I thought this was very interesting. I am curious to see the pending appeal for this case. As you can read in the article, this decision has implications for how courts will approach the notwithstanding clause and Charter issues in future cases.