⚖️ Swaying votes

To: Hearsay Readers

TODAY’S DOCKET

  • SCC will hear Ontario election spending case

  • Alberta adopts new rules for swift justice

  • Canada beefing up union protections

SCC

It was a busy day for the Supreme Court today. The Court granted leave to appeal in two blockbuster cases, issued a judgment, and made a procedural order. We’re covering one of the leave decisions today and the rest of the action tomorrow.

Ontario’s limits on third party election advertising headed to Supreme Court

In Working Families Coalition v Ontario, the Court will need to decide whether Ontario’s election spending limits violate the Charter by restricting the right to vote. Groups challenging the limits say Premier Doug Ford just wants to silence his opponents. Also at issue: can governments use the notwithstanding clause to override the Charter whenever they want? Are there any limits?

What happened: In 2017, the Ontario government said third party advertisers can’t spend more than $600,000 in the six months leading up to an election. In 2021, the province tightened those restrictions, making the same $600,000 limit cover the twelve months leading up to an election.

Interest groups like the Working Families Coalition didn’t like that change. They went to court. And they won. The Superior Court of Justice said the limits placed too much of a restriction on freedom of expression. But Ontario used the notwithstanding clause to get around the court’s ruling — it adopted new legislation saying the spending limits apply despite the Charter’s fundamental freedoms. 

Round two: The interest groups went back to court, arguing Ontario improperly used the notwithstanding clause. They also argued the spending limits violate the right to vote. That’s important because — even though the notwithstanding clause can override fundamental freedoms like expression — it can’t override democratic rights like the right to vote.

The Court of Appeal followed a previous ruling by the Supreme Court and said there’s no limit on the notwithstanding clause. Governments have free rein. But, the Court did say the spending limits violate the right to vote. That’s because the limits hamper third parties’ ability to convey information to voters. Limits like that need to be carefully tailored, which wasn’t the case here.

Big picture: The Court last dealt with election spending in a 2004 case involving Stephen Harper. The Court said the right to vote doesn’t give you the right to mount an impressive media campaign, it just ensures you can meaningfully participate. The Court of Appeal’s ruling against Ontario seems to go further than that. We’ll see if the Supreme Court follows suit.

It would be surprising to see the Court impose any sort of limit on the notwithstanding clause. But it’s sure a hot button issue given recent uses of the clause in Saskatchewan, Ontario, and Quebec. One senator at Justice Moreau’s appointment Q&A session even tried to ask how she would rule on the issue. Alas, it wasn’t a confirmation hearing in the US, so she didn’t have to answer the question.

HEARSAY ROUNDUP

📝 Alberta is attempting to make civil trials more efficient. The province adopted changes to its rules of court this week, which permit a “streamlined trial” for civil and family litigation matters. The idea is that streamlined trials generally won’t have oral evidence — paper only. The changes take effect at the start of next year. After that, we’ll just have to see if courts are actually willing to use the new mechanism. The rules say a streamlined trial is available only if it’s necessary and proportionate.

🪧 Canada plans to enact greater protections for striking workers. The government tabled “anti-scab” legislation today, which will stop federally regulated companies from using replacement workers during a strike. Under the new legislation, employers would only be able to use replacement workers to deal with situations that pose a serious threat to people, property, or the environment. The changes won’t take effect for a while — the legislation still needs to pass, then there’s an 18-month buffer so employers can prepare.

👨‍⚖️ There’s a new Chief Justice of the Federal Court of Appeal. Chief Justice Yves de Montigny takes over for Marc Noël, who retired earlier this year.

🚭 Saskatchewan is upping the legal age for tobacco and vape products from 18 to 19. The province passed amendments this week to make the change — the Lieutenant Governor just has to declare the changes in force. The amendments also restrict marketing, including a prohibition on advertising tobacco or vape products in public places.