Political advertising laws in Ontario need an overhaul before big-headed bureaucrats at Elections Ontario do further damage to free speech in the province.
The most recent and troubling interpretation of the legislation that purports to govern political speech, the Ontario Election Finances Act, involves a so-called violation by a small and relatively new grassroots organization called Vaughan Working Families (not to be confused with Working Families, a union backed advocacy group).
The GTA based organization ran ads in February in print newspapers in Toronto. The ads slammed teachers unions for treating students as pawns in the province wide strikes.
Policy advocacy groups are an important part of our democracy, and this type of advertising is an important part of public discourse. Unions certainly advertised in favour of the strike, so grassroots groups ought to be able to advertise against the strike.
But not according to Elections Ontario.
The fatal mistake apparently made by Vaughan Working Families, a GTA group that ran paper based ads exclusively in Toronto, is that they ran the ads in Toronto while there were two by-elections taking place nearly 400 kilometers away in Ottawa.
If this seems confusing, that’s because it is. And it isn’t even a correct interpretation of the law.
The first problem is that what Vaughan Working Families did should not even constitute a "political advertisement." The ads were about a public policy issue that has existed in Ontario for decades – the compensation and performance of public school teachers. The teachers unions are not a candidate in any election, the ads didn’t talk about any elections or any politicians. The ads had absolutely nothing to do with Ottawa or the by-elections taking place there.
To make matters more suspicious, the teachers unions ran ads throughout the election, but their advertising was not considered "political advertising" under the Act. We know this, because this Elections Ontario said so to Vaughan Working Families. Their lawyer, Stephen Thiele, asked Elections Ontario about the ETFO anti-Ford ads.
"Elections Ontario did not view the ETFO advertising that was directed against the government as political advertising because it was consistent with previous advertising they had conducted, and was within the normal parameters of promoting their activity," Thiele said.
Essentially, this interpretation of the legislation by Elections Ontario is grandfathering the speech of established union organizations like ETFO, while restricting the speech of new grassroots organizations.
The second issue is that even under the Act, Vaughan Working Families should not have been required to register. Elections Ontario claims that the Vaughan Working Families ads were a violation because the group failed to register with them. Section 37.5 of the Ontario Election Finances Act requires a third party group to register with elections Ontario when they have spent more than $500 in a by-election or general election. But the provision goes on to clarify that the spending must be within the "electoral district" (see s. 37.10.1 and s. 38(1))
We know that Vaughan Working Families did not spend any money in the electoral district where the by-election was taking place. The ads only ran in the Toronto copies of the papers. There was no advertising in Ottawa, and therefore, there should be no violation.
To accept Elections Ontario’s absurd interpretation of the law would mean that running an ad about a local issue in Sarnia would contravene the Act because there was a by-election taking place in Thunder Bay. It could also mean that a government intent on limiting any third party adverting during the year could stagger by-elections, creating a de facto permanent publication ban.
This legislation needs to be drastically modified. The types of restrictions being contemplated by the bureaucrats running Elections Ontario are resulting in violations of the Charter protected right to free expression. The interpretation allows for preferential treatment of established groups, and the subjectivity in how the law is being applied is resulting in apparent political preferences in prosecution.
Speech on important public policy issues, like our education system, should be encouraged. It is good for democracy for the public to be exposed to competing points of view, and this type of speech should not be shut down because there is an unrelated by-election taking place hundreds of kilometers away.
Without an overhaul, these laws will not withstand scrutiny by the courts. And there is no doubt that such a challenge to these laws is on the horizon.
Christine Van Geyn is the Litigation Director at the Canadian Constitution Foundation.