Third-party political advertising is at a crossroads. Do the current rules protect voters’ rights?

The Supreme Court of Canada heard arguments last week in a case concerning third-party political advertising, highlighting what experts see as an evolving trend of election spending by groups such as unions, corporations and industry advocates.

In two days of hearings in Ottawa, the justices mulled over arguments in a case that arose out of an Ontario law that seeks to limit the influence of outside groups, known as third-party advertisers (TPAs). The case will give the top court the opportunity to rule on an issue that hasn’t received major legal attention nationally in two decades.

“Beyond Ontario, the outcome of this case will inform for other provinces how they may go about modifying or implementing third-party advertising restrictions in their jurisdictions, which can have a really profound impact on the types of voices you hear and how you hear them in elections going forward,” Timothy Cullen, a lawyer with McMillan LLP in Ottawa who specializes in regulatory issues, including election law, said in an interview with CBC Radio’s The House. He is not involved in the case before the Supreme Court.

The Ontario law, passed by Premier Doug Ford’s government in 2021, extends the period in which TPAs are required to abide by a $600,000 spending limit ahead of elections from six months to one year. A provincial election was held in 2022.

Some unions, among other groups, argued the requirement violates their free speech under the Charter of Rights and Freedoms, and the law was struck down. Ontario’s Progressive Conservative government reintroduced the law using the notwithstanding clause to prevent constitutional challenges. But the measures were again challenged, this time under Section 3 of the Charter, which includes voting rights and is not subject to the notwithstanding clause.

In March 2023, the Ontario Court of Appeal found the law to be unconstitutional, saying the current rules “overly restrict the informational component of the right to vote,” but the provincial government appealed to the Supreme Court. The court’s decision, Cullen said, will revolve around whether the justices believe the Ontario law denies Canadians an informed vote and how courts should analyze such challenges.

But the case also touches on a number of other principles in Canadian political life, including the role of money in politics. Cullen said the Supreme Court could consider the importance of the relative spending power of third-party groups versus political parties, for instance.

“It may have to balance the spending limit constraints that third parties face against pre-writ spending limit constraints that political parties face, to ensure that there’s … more equilibrium between the actors in the system,” he said.

Cullen said the Supreme Court’s decision likely wouldn’t immediately trigger major litigation elsewhere in the country, but it could inform how other jurisdictions propose future legislative changes to their own third-party advertising regimes. He also noted that the court is unlikely to point Canada toward significantly liberalizing election finance rules, as is the case in the United States.

But he said he thought there would be increasing attention paid to how TPAs fit into the broader political debate.

As political communications change, “how do third parties adapt, and do the rules we have in place accurately provide guideposts to control third-party spending — and that of political parties and other actors in the system — so that there is that equilibrium and balance that we’re looking to achieve?” Cullen said.

“We don’t want the wealthy voices of a few drowning out all other voices.”

Growth in election spending from 2011-19

Lori Turnbull, a political science and management professor at Dalhousie University in Halifax, said third parties can play a “very significant” role in political debates by shaping opinion.

“Third parties are not putting up candidates, they’re not trying to win the election, they’re not trying to form a government. They’re trying to influence the debate,” she said, emphasizing that rules exist to create a kind of level playing field between third-party groups and political parties.

Political third-party advertising increased in each of the 2011, 2015 and 2019 federal elections, though it dropped in the snap election call in 2021.

Turnbull said that rule-making around third-party groups is often a question of balancing competing values in democracy.

“We want to make sure that in protecting people’s freedom of expression and the freedom of expression of groups like this, that we also make sure that the playing field is level enough so that all of the voices are heard,” she said.

Perry Tsergas, president and CEO of Ottawa-based Spark Advocacy, which works with third-party groups, told The House that he believed regulators have a tough job striking that balance.

“I think the sweet-spot balance that’s ideal for the regulator to try to find is some amount of transparency and some throttle on what can be spent, but at the same time not bringing in regulations that chill any organization’s ability to speak openly, freely, honestly,” he said.

Tsergas said interest in third-party groups was likely to continue as Canadians identify less with traditional political parties and as those groups adopt new strategies on social media.

Turnbull said that one thing she’ll be watching for in the next federal election is how TPAs contribute to the tenor of the political discussion.

“I’m just wondering if there’s going to be more of a drift down that kind of path where third parties are encouraging and contributing to the toxicity [of] political debate. And I think that would be very unfortunate.”