A coalition of unions is once again taking Premier Doug Ford to court, arguing his controversial new campaign finance law violates their constitutional rights, the Star has learned.
The move comes after Ford invoked the Charter of Rights’ “notwithstanding” clause last week to overturn a judge’s ruling that his legislation, which limited election spending by third-party groups, was unconstitutional.
This time, the Working Families coalition, which won in court earlier in June, is arguing the government has “overstepped its authority,” lawyer Paul Cavalluzzo said in an interview.
The new legal challenge relies on Section 3 of the Charter of Rights and Freedoms, which Cavalluzzo said guarantees that Canadians are able to “play a meaningful role in the electoral process.”
Unlike the constitutional rights the unions cited in their original case, politicians cannot use the notwithstanding clause to override Section 3 rights.
On June 14, the Tories used the notwithstanding clause for the first time in Ontario history to overturn Superior Court Justice Ed Morgan’s ruling that their law was unconstitutional.
In a June 8 decision, Morgan found the Election Finances Act infringed on the rights of Working Families by limiting how much it could spend in the year before an election.
The judge’s ruling struck down the section that disallowed third-party political action committees (PAC) from spending more than $600,000 on advertising and other activities in the 12 months before an election. A previous law had six-month restrictions.
“It was the Wild West. It’s unbelievable,” Ford said last Thursday when asked why he used the constitution’s nuclear option to overrule the court.
“No one I talk to wants U.S.-style politics. No one wants billionaires trying to influence elections and buy up all the ad space. No one wants big corporations that are making tons of money and trying to influence elections,” the premier said in Milton.
“What we have to have is fair, democratic elections.”
Ford’s government believes it is inoculated from a second Charter challenge because of a 2004 Supreme Court ruling that found spending limits on PACs are reasonable and justified and do not infringe on Section 3.
“The right to meaningful participation … cannot be equated with the exercise of freedom of expression. The two rights are distinct and must be reconciled,” the high court ruled in Harper v. Canada.
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That was a case in which Stephen Harper — working with the National Citizens Coalition before becoming prime minister in 2006 — argued such PACs should be able to spend what they like.
“In the absence of spending limits, it is possible for the affluent or a number of persons pooling their resources and acting in concert to dominate the political discourse, depriving their opponents of a reasonable opportunity to speak and be heard, and undermining the voter’s ability to be adequately informed of all views,” said that ruling.
But Cavalluzzo, who has decades of experience arguing constitutional cases, said the latest legal challenge, which will be filed within days, “goes beyond spending limits.”
“The Harper ruling is completely different. The new challenge is going to focus on the unfair electoral process. The rules have been changed in the middle of the game,” he said.
With the next election set for June 2, 2022, Cavalluzzo said Working Families would “seek an expedited hearing” in front of a judge.
Working Families’ Pat Dillon said the coalition, whose attack ads have bedevilled Conservative leaders since the 2003 election, is heading back to court “to protect the rights of Ontarians to share how government policies have impacted them.”
“From students and parents to health-care workers to workers in factories, warehouses, restaurants and grocery stores, their stories and concerns should be shared and not silenced,” said Dillon.
Tim Deelstra of United Food and Commercial Workers, which represents 120,000 members in Ontario, said another legal challenge is necessary to allow those on the front-lines of the pandemic to have a voice at election time.
“Workers in this province have been through the wringer. Our members were deemed essential — from grocery and pharmacy clerks to (personal support workers), they couldn’t work from home,” said Deelstra.
“We believe that this thing needs to continue to be challenged. It is undemocratic and it’s shutting down the voices of Ontarians, not having an ability to express our views,” he said.
Working Families is funded by a slew of unions, including the Elementary Teachers’ Federation of Ontario, the Ontario Secondary School Teachers’ Federation and the Ontario English Catholic Teachers’ Association.
Canadian Civil Liberties Association executive director Michael Bryant, a former Ontario attorney general, has said Ford’s law “aids the incumbent government’s re-election bid in 2022 by limiting political voices for the imminent election cycle.”
NDP Leader Andrea Horwath, Liberal Leader Steven Del Duca, and Green Leader Mike Schreiner all opposed the legislation.
Robert Benzie Queen’s Park Bureau Chief
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