Ontario government passes election spending bill with notwithstanding clause

Click to play video: 'Ford government passes controversial legislation'
Ford government passes controversial legislation
WATCH ABOVE: The Ford government passed controversial legislation already struck down by the Ontario Superior Court. Now, opposition parties are pledging to make it an election matter. Matthew Bingley reports. – Jun 14, 2021

TORONTO — Ontario’s Progressive Conservatives employed a rarely used legislative power on Monday to pass a bill limiting third-party election advertising amid shouts of “shame” from the opposition.

The government used the notwithstanding clause to pass Bill 307, which reintroduced amendments to the Election Finances Act that a judge struck down as unconstitutional last week.

The clause allows legislatures to override portions of the charter for a five-year term.

The opposition parties argued the legislation was an attempt by Premier Doug Ford’s government to silence criticism ahead of next year’s provincial election.

Read more: Doug Ford’s use of notwithstanding clause for third-party ads law may backfire: experts

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“It’s obviously a move from a man who’s desperate to cling to power,” said NDP Leader Andrea Horwath.

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The New Democrats spent the day trying to drag out the process by introducing a variety of motions on pandemic-related issues they argued should be the focus of the sitting.

Ford said earlier on Monday that he wouldn’t be swayed.

“We’re fighting for democracy,” Ford said at Queen’s Park. “I’ll work all day, all night to protect the people.”

Last week, Ontario Superior Court Justice Edward Morgan found it was unconstitutional for the Progressive Conservative government to double the restricted pre-election spending period for third-party advertisements to 12 months before an election call.

A bill that took effect this spring had stretched the restricted spending period from six months to one year before an election is called, but kept the spending limit of $600,000 the same.

Read more: Ontario government to invoke notwithstanding clause over campaign finance judgment

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Morgan found that the government didn’t provide an explanation for doubling the limit, and his decision meant sections of the law involved in the court challenge were no longer in effect.

Unions had argued the limit infringed on their rights to free speech, but the attorney general argued the changes were necessary to protect elections from outside influence.

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The government reintroduced the bill with the override clause last week, and held a marathon debate over the weekend.

Government house Leader Paul Calandra repeated the attorney general’s arguments on Monday, saying the amendments were necessary to protect the elections.

“They (the opposition) want a system where there are no rules,” Calandra said. “We insist that elections be done fairly.”

Click to play video: 'Ontario Premier Doug Ford moves to invoke notwithstanding clause'
Ontario Premier Doug Ford moves to invoke notwithstanding clause

He has also argued that it was necessary to recall legislators from their summer break to attend to the matter, because Morgan’s judgment voided all limits on pre-election spending ahead of the June 2 vote.

Green party leader Mike Schreiner called the move a “dark day for democracy,” and said the emergency weekend sitting revealed the government’s priorities during the pandemic.

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“It showed how quickly the government is willing to act to violate people’s charter rights and silence critics to address government priorities: re-election,” he said during debate on Monday.

Click to play video: 'Ford government uses notwithstanding clause'
Ford government uses notwithstanding clause

The Elementary Teachers’ Federation of Ontario, one of the unions involved in the court challenge, said it was exploring its legal options following the passing of Bill 307.

“If Ford believes that passing legislation to restrict third-party advertising will silence his critics, he hasn’t been paying attention,” ETFO president Sam Hammond said.

The head of the Canadian Civil Liberties Association said Monday was “a day of infamy for Canada’s constitution.”

“The election gag law in question aids the incumbent government’s re-election bid in 2022 by limiting political voices for the imminent election cycle,” Michael Bryant said in statement.

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The CCLA was also considering its “next legal steps,” he said.

What is the notwithstanding clause? An explainer on the rarely used provision

By The Canadian Press


The notwithstanding clause _ or Section 33 of the Charter of Rights and Freedoms _ gives provincial legislatures or Parliament the ability, through the passage of a law, to override certain portions of the charter for a five-year term.


The clause in its current form came about as a tool to bring provinces onside with then-prime minister Pierre Trudeau’s signature piece of legislation. With charter negotiations ramping up in the early 1980s, Trudeau didn’t see the need for the clause, but provinces such as Alberta and Saskatchewan wanted an out should they disagree with a decision of the courts. In the end, Trudeau reluctantly agreed.


The clause only applies to certain sections of the charter. For instance, it can’t be used against provisions that protect the democratic process _ that would create a pathway to dictatorship. The clause also can’t be used for more than five years at a time. This ensures that the public has the chance to challenge a government’s decision to use the clause in a general election before it can be renewed.

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The notwithstanding clause usually comes up whenever there is a controversial court ruling. For instance, former prime minister Stephen Harper’s Conservatives were asked about, but refused to use, the clause on a court decision involving assisted dying. While often debated, its use is much rarer. Quebec, as the only provincial government to oppose the charter, passed legislation in 1982 that invoked the clause in every new law, but that stopped in 1985. In 1986, Saskatchewan used the clause to protect back-to-work legislation and Quebec used it again in 1988 to protect residents and businesses using French-only signs. Alberta tried to use the clause in a 2000 bill limiting marriage to a man and a woman, but that failed because marriage was ruled a federal jurisdiction.


In May, Quebec introduced a major reform to the province’s signature language law that reasserts the right of Quebecers to live and work in French. Bill 96 would toughen sign laws and strengthen language requirements for businesses, governments and schools. Premier Francois Legault has said the entire bill is covered by the notwithstanding clause.

Quebec also used the clause in its religious symbols law. Bill 21 was adopted in June 2019 and prohibits public sector workers who are deemed to be in positions of authority, including teachers, police officers and judges, from wearing religious symbols such as hijabs and turbans on the job.

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Ontario Premier Doug Ford previously threatened to use the notwithstanding clause in 2018, when his government intended to slash Toronto city council seats during a municipal election. That attempt sparked outrage but the clause ultimately wasn’t involved because of how a related court process unfolded.

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