By Taoran Li
On 7 March 2025, the Supreme Court of Canada released its decision in Ontario (Attorney General) v. Working Families Coalition (Canada) Inc., 2025 SCC 5, where the majority of the Court found limits on third-party spending for political advertising infringed the right to vote guaranteed under s. 3 of the Canadian Charter of Rights and Freedoms and were not saved under s. 1.
A civil society organization, several unions and individual citizens brought the constitutional challenge against Ontario’s Election Finances Act (“the EFA”), which was amended in 2017 to impose spending limits on third parties for the first time. The EFA was subsequently amended in 2021 to extend the time period during which those spending limits apply to third parties. The EFA imposes different limits on third parties and political parties: Section 37.10.1(2) of the EFA restricts the amount third parties can spend on political advertising to $24,000 in any one electoral district and to $600,000 in total during the 12-month period before a fixed-date election writ is issued.. By contrast, registered political parties may spend up to $1,000,000 on advertising, which applies for only six months before the election period. In the six months preceding that, political parties face no limits on political advertising.
The Asper Centre intervened in the case and was represented by Debbie Boswell of Lerners LLP. Its intervention argued that the enactment of greater restrictions through legislative amendments is a relevant and important factor in assessing whether the right is infringed and whether the infringement is justified.
Writing for the majority of judges, Karakatsanis J concluded that the third-party spending limit infringes s. 3 of the Charter, fails to be justified, and is therefore constitutionally invalid. Two separate joint dissents were issued by Wagner C.J. and Moreau J, and Côté and Rowe JJ, both concluding the spending limit on third party advertising does not infringe s. 3.
Majority judgment
According to the majority, the asymmetry between third parties and political parties is a significant, qualitative disparity which leads to disproportionality in the political discourse. Third parties are strictly limited in their ability to inform citizens, whereas political parties face no restrictions in the first six months of the pre-writ year and may spend a substantially higher amount in the six months before the writ period.
This is because the asymmetry essentially allows political parties to overwhelm the voices of third parties during an important period in the democratic cycle which then deprives voters of a broad range of views and perspectives on social and political issues. Therefore, the voter’s right to an informed vote and to meaningful participation in the electoral process is undermined, limiting the right guaranteed under s 3. of the Charter.
The limitation was not justified under s 1. of the Charter, failing at the minimal impairment stage. The majority arrived at this conclusion after considering expert evidence supporting that a six-month period of pre-writ restrictions on third party political advertising (the previous restriction) would still be effective at achieving the government’s stated objective of ensuring electoral fairness and levelling the playing field, as well as taking into account less restrictive spending limits across the country and at the federal level.
Joint dissent: Wagner C.J. and Moreau J
The starting point for Wagner C.J. and Moreau J was first to affirm that the purpose of s. 3 is to protect the right of citizens to meaningfully participate in the electoral process. This right is comprised of two components: the first is expressive, which ensures that each citizen has a reasonable opportunity to introduce their own ideas and opinions into the political discourse. The second is informational, which ensures that each citizen has a reasonable opportunity to hear others’ perspectives and access information in order to exercise their right to vote in an informed manner.
Third party spending limits engaged the right to meaningful participation in both its expressive and informational components, as third parties can bring new issues to the political discourse and act as a voice for multiple citizens during the electoral process. Regulation of third-party advertising may thus restrict citizens’ opportunity to become informed of political issues, parties, and candidates.
The relevant question then becomes whether the impugned law results in depriving citizens of a reasonable opportunity to introduce their own ideas and opinions into the political discourse or become informed of facts, ideas, and others’ perspectives, thereby infringing the right to meaningful participation.
In order to identify whether there was an infringement, Chief Justice Wagner and Justice Moreau proposed a framework which includes assessing the quantum and temporal reach of the limit, the scope of conduct captured by the limit, and the limit’s impact on different forms of expression.
Based on the evidentiary record, Wagner C.J. and Moreau J concluded the third-party spending limit is not inconsistent with the right to meaningful participation as third parties may still engage in a range of political advertising activities within the spending limit including activities expressly exempted from the spending limit in the EFA, like editorials, columns, or books. Although expensive options like television advertising are limited, there are still other media platforms for citizens to exchange ideas and opinions as well as numerous forms of low-cost political advertising.
Wagner C.J. and Moreau J did not consider the asymmetry between third parties and political parties to undermine a citizen’s opportunity to meaningfully participate in the political process as third parties are not deprived of a reasonable opportunity to speak and be heard: they are still able to mount modest informational campaigns, and most election-specific advertising is generally concentrated around the election period, when both third parties and political parties are subjected to spending limits.
Côté and Rowe JJ Dissent
Côté and Rowe JJ disagreed with the majority’s “comparative analysis,” which they considered to rest on an erroneous characterization of the purpose of s. 3 as protecting political discourse and extending expressive rights to political actors including third parties. In their view, the majority’s concerns regarding the nature of political discourse and its actors properly fall within s. 2(b) (freedom of expression), which was not at issue in this case due to the Ontario legislature’s clear invocation of the notwithstanding clause.
Côté and Rowe JJ disagreed with Chief Justice Wagner and Moreau J as to whether there is an expressive component within s. 3 and instead concluded that s. 3 is a voter-centric right that protects the ability of individual citizens to be informed in order to make an electoral choice. Thus, the question is not whether the spending limit creates a disequilibrium in the political discourse, but rather whether the limit infringes a voter’s ability to meaningfully participate in the electoral process.
In accordance with this reasoning, third parties ought to be properly conceptualized as “interest groups” who seek to contribute to, and influence, the political discourse. They should not be considered rightsholders under s. 3 as s. 3 does not protect the parties seeking to be heard. Rather, s. 3 belongs to citizens, as it is a participatory right which extends to individual citizens and their right to make an informed vote.
In order to determine whether there is an infringement of the right to meaningful participation, Côté and Rowe JJ endorsed the framework proposed by Chief Justice Wagner and Moreau J but qualified the scope of each consideration so that it is focused on the informational component in s. 3. Having regard to this framework and the purpose of s 3, Côté and Rowe JJ did not find the spending limits infringed s. 3 of the Charter.
Asper Centre’s intervention
The Asper Centre’s intervention relates to the legislative history of the EFA, which had at first restricted third-party political advertising in the 6-month period leading up to the issuance of the writ of election. While the constitutional challenge to these restrictions was underway, the government further amended the legislation to extend the restriction to 12 months before the writ of election without increasing the $600,000 spending limit.
The Asper Centre argued that where the legislature modified an existing law to impose greater restrictions on a Charter right, this is a relevant and important factor in assessing whether the right has been infringed and whether the infringement is justified. It is particularly important to consider the impact of a change when ascertaining the government’s purpose in enacting the legislation and determining whether the legislative choice made by the government is minimally impairing of the right at issue.
Debbie Boswell commented that, “The Supreme Court’s reasoning reinforces that the right to vote under s. 3 should be given a broad and generous interpretation. While the majority reasons focus heavily on the comparison between third parties and political parties, there was another very relevant comparison here – between the previous version of the legislation and the amended version. Despite not expressly referencing the change in legislation, the evidence that the previous version of the legislation achieved the government’s goal is relied upon to conclude that it was not minimally impairing. This is an important development and lends support to our argument that a change in law is relevant, particularly when determining if it is justified under s. 1.”
Taoran Li is a Research and Communications Assistant with the Asper Centre. She is an international student from New Zealand attending the Master of Laws program at the University of Toronto Faculty of Law.