Currently there is a debate going on over the potential use of the notwithstanding clause of the constitution that allows a provincial government to override the judgement of the courts where it is felt it is in the interest of the public that the legislation should decide key issues of significant merit and not the courts.

There are two key issues at play

1. The issue that the clause is being used to support
2. Use and limitations of the notwithstanding clause

Current Legal Issue: Ontario Election Finances Act

The specific clause in question from the Ontario Election Finances Act is as stated below

(2) No third party shall spend,

(a) more than $24,000 in in any electoral district for the purpose of third party political advertising in that district during the 12-month period immediately before the issue of a writ of election for a general election held in accordance with subsection 9 (2) of the Election Act, multiplied by the indexation factor determined under section 40.1 for the calendar year in which the election period begins and rounded to the nearest dollar; or

(b) more than $600,000 in total for the purposes of third party political advertising during the 12-month period immediately before the issue of a writ of election for a general election held in accordance with subsection 9 (2) of the Election Act, multiplied by the indexation factor determined under section 40.1 for the calendar year in which the election period begins and rounded to the nearest dollar. 2016, c. 22, s. 43; 2021, c. 5, Sched. 2, s. 15 (1, 2).

For the purposes of clarity Section 40.1 simply refers to indexing as per the consumer price index in a given year. 

The court struck down this provision on the basis that it violated a person’s right to free speech. In point of fact it does no such thing. What the provision does is limit the amount of advertising dollars that can be used to pay for such free speech. At no point is an individual’s free speech impacted. And to be perfectly fair there is a huge impartiality with regards to an individual’s voice if you need to have more than $600,000 in order to have yourself heard. 

I don’t have $600,000. I doubt if anyone reading this has $600,000 that they can simply blow in order to have any given opinion heard. If you need $600,000 or more in order to get people to listen to your opinion, then you probably shouldn’t have one. In those immortal words that simply won’t go away “640K ought to be enough for anybody“.

While I can appreciate that big donors, corporations, and special interest groups probably do have that type of money, does it mean that my opinion, or yours, shouldn’t matter if we don’t have money to blast it everywhere? Whether 6 months or 12 months is viable is a separate concern with the fact that elections are becoming more and more about the advertising cycle, and less about issues and civil discourse.

When people’s political ideas become radicalized based on a 6 second meme on facebook, this harms everyone in society. It establishes entrenched positions. It promotes racism. People become less willing to compromise based on an ethic they have been spoon fed rather than through critical thinking, sitting down, and actually talking with those having a difference of opinion. 

There is nothing wrong with establishing limits on the amount of advertising dollars that are used to promote ideals. 

The fact that the judge did not see this and instead choose to strike the entire section of the act was a disregard for the intent of the legislation. This left ANY government in a position where, with less than 12 months to go before the next election, they needed to use the most expeditious method possible to reinstate what is now wide open territory, not just for special interest groups, but those that would seek harm to our democracy.

In short, it was the right thing to do in light of that fact.

Use of the Notwithstanding Clause

Section 33 of the Canadian Constitution provide for a notwithstanding clause that has no true limits on its applicability. This was by design in order to help keep Quebec in the federation. By convention, and even in Quebec, the clause has been used sparingly. 

There is however a general principle in the use of constitutional authority that, the further away you get from the time in which a power was granted to the point at which governments use it based on context rather than convention, the less the original intent matters. In short, its a tool and governments are going to use with increasing frequency.

There is however a check and balance on this use of authoritative power in that any use of the notwithstanding clause needs to be revalidated every 5 years (i.e. after enough time that another government has been elected) and then renewed every 5 years after that. Unless, it has been withdrawn prior to the 5 year revalidation.

So this is not a power grab because ANY government can rescind the notwithstanding provision the moment it comes into power. 

In this case, the Conservatives are effectively using it as a stop gap measure until the appropriate constitutional issues can be worked out in the normal course of parliamentary proceedings. They will have no choice but to open up that dialogue because notwithstanding does not mean forever. It means not right at this moment. It also means they are going to be held to account for their use of the provision during the next election.

So its not a get out of jail free card. It is simply delaying the immediate conversation in order to buy time to develop a real solution. 

In this case its use is appropriate as striking down the original legislative provision has now left a vacuum that needs to be filled due to the time sensitivity of the upcoming election. Had the judge not struck down the entire section we wouldn’t be having this conversation about the use of the notwithstanding clause.

Where to Next

Right or wrong it seem clear the Conservative Government is going to get their way and use the clause on Monday. 

From my standpoint, its not a question of the clause being used because these times of non-conventional uses of the clause were bound to start happening more frequently and with greater applicability to general government operations as compared to constitutional issues.

What is of concern is where we go next. There is a real issue here in terms of negative attack advertisements, misinformation, and disinformation that are backed by millions of dollars. These types of advertisements do not contribute to the effective dialogue around policy and issues that Canadians need to be aware of when critically discussing each party’s policies for an upcoming election.

We all know that money talks. The initial requirement to hit these types of campaignes based on their ability to fund eyeballs was, in principle, an attempt to limit disinformation to the benefit of all political parties. However, you don’t need money to get your opinion viral if it resonates with people and their attitudes. The internet loves rags to rags stories. Riches are counterproductive because if people know they are being punked they will pull back from those messages simply because no one likes to think they are being bought.

If this is truly a constitutional crisis then we need to have a dialogue on how to appropriately limit speech so that

• those who have money can reasonably promote ideas for the common good
• those who don’t have money can reasonably compete with those that do, and 
• those whose sole purpose is to sow negative or disinformation are limited in their ability to influence voters

Limiting the amount of money that a single group can use to advertise is not an undue restriction on people’s freedom of speech. Nor does it address the entire scope of the problem. 

So rather than beating up on the Government for trying to protect our democracy, maybe people might want to take a hard look at how disinformation spreads and help develop solutions rather than tearing down alternatives.

— Kevin