Double Aspect

20 years ago, Ontario introduced fixed election dates, becoming the third province to do so after British Columbia and Newfoundland and Labrador. This eventually triggered further changes to election law, as successive governments sought to entrench themselves in office in the face of their partisan opponents’ and labour unions’ adaptation to this new political landscape. In particular, spending limits were expanded from covering the election campaign period to ever longer periods of time before a campaign was going to start. The latest such legislation, Bill 307, was enacted with a “notwithstanding clause” authorized by s 33 of the Canadian Charter of Rights and Freedoms, after a court held that the expansion of the pre-campaign censorship period without any semblance of an explanation as to why that was necessary could not possibly be “demonstrably justified in a free and democratic society”, as s 1 of the Charter requires limits on freedom of expression and other rights to be.

Earlier this year, in Ontario (Attorney General) v Working Families Coalition (Canada) Inc, 2025 SCC 5, the Supreme Court took an end run around that end run around constitutional rights. It held that Bill 307 infringed the right to vote protected by s 3 of the Charter, which cannot be ousted by a “notwithstanding clause”. There were, after all, limits to how much censorship the Ontario government could impose on its opponents.

So now the government has decided that it would change tack and overturn the whole system of fixed election dates. Despite having been the law in Ontario for 20 years, as well as in almost every other province and federally for a good part of that time, fixed election dates are apparently “American-style”, according to the Attorney General of Ontario, Doug Downey. They are, therefore, to be abolished, and the pre-campaign censorship laws with them. Oh, and the amount of money people can give to political parties will go up by almost half, and the subsidy the parties receive in proportion to the votes cast for them at the last election will be made permanent, and the government “is also considering measures to ban political advertising on government property, whether it be on buildings, billboards or transit stations”. This last bit is just delicious, coming from the same lot of ruffians who demanded that private property owners, namely gas stations, do their political advertisement, namely anti-carbon tax stickers, for them.

This is a major constitutional reform, and, having written about the need for meaningful process and consensus-building in relation to Quebec’s constitutional reform process just last week in The Line, I can only hope that it will be undertaken with the degree of seriousness and deliberation that such an endeavour warrants. Ontario has bad form in this regard. So far as election law is concerned, one need look no further than Bill 307, which went from introduction to royal assent in four days, and needless to say never received select comtittee scrutiny. More broadly, I wrote here about the omnibus legislation of which the carbon tax stickers were one very small part: very small, because the bill that mandated them was one of more than 60 that were introduced as part of a single budgetary package, and accordingly received, to use a highly technical term, fuck all scrunity. If something like a similar process were to be followed to enact these latest proposals, this would be a disgrace, yet another one in a province that is admittedly used and seemingly indifferent to them, regardless of what one may think about their substance.

Now, so far as the substance goes, I think the proposals are by no means all bad. I have no particular attachment to fixed election dates and, in Canada, these have always been a sham anyway. Provinces or Parliament acting unilaterally cannot abolish the royal prerogative of dissolution, generally understood to be part of “the office of the Queen, the Governor General and the Lieutenant Governor of a province” entrenched by s 41 of the Constitution Act, 1982. One might have sought to limit a first minister’s ability to advise the viceroy as to how this prerogative is to be exercised, but no one has ever tried. So fixed-election-date legislation effectively preserved to ability of first ministers to advise dissolution at any time — which is exactly what many did, from Stephen Harper in 2008, to Pauline Marois in 2014, to Doug Ford earlier this year. Abolishing the pretence of fixed election dates does no great harm, and at least has the virtue of being honest.

I won’t lament the abolition of the pre-electoral censorship of civil society groups either. The justification for it never added up, whether it was given as “election fairness” or, to quote Mr. Downey in the debate about Bill 307, a rejection of “American-style politics”. (As you can see, the learned Attorney General liked this particular insult well before his boss discovered that Ronald Reagan is his spirit animal, so why would he give it up now?) As things stood before the Supreme Court decided Working Families, political debate was censored for more than a year out of every four in Ontario, and people like Duff Conacher (quoted huffing and puffing by Global News) who apparently think that that’s what democracy looks like have lost the plot. Good riddance.

Nor am I fussed about the increased donation limits. Mr. Conacher is horrified about this too, because in his view this is all about “creating an unethical, undemocratic pay-to-play, cash-for-access system that allows rich donors to buy even more influence”. But successful democracies no more corrupt than Canada, like New Zealand, can function without any donation limits at all, and more than a few American scholars have come to regard the encouragement of reliance on small donors as a very bad mistake, because this pushes politicians in the direction of greater populism and simply forces them to devote more time to fundraising at the expense of policy work. The obsession with “money in politics” is counter-productive, as I have long argued here, and raising the maximum permitted donation from $3400 to $5000 just isn’t going to change much.

One should be under no misapprehension, however: even insofar as they are unobjectionable or indeed welcome, these reforms are not being proposed to improve Ontario’s governance and institutions. They are nakedly self-interested, and designed to further entrench the incumbent government in office. Election reforms tend to be that way of course, and Mr. Downey barely even tries to hide the fact. As he puts it, “With these reforms, governments will be better positioned to respond to changing circumstances and external threats, including by seeking a fresh mandate from the people of Ontario when it’s needed.” Seeking a mandate to address the threat of American trade policy was the excuse the government gave itself to disregard the fixed-election-date law this year despite facing no impediments to getting its agenda through the legislature, so Mr. Downey is kind enough to let us all know that we should expect more of the same crass opportunism. As I suggested at the outset, my guess as to why his government is doing away with fixed election dates is that the Supreme Court undermined the censorship system it wanted to go with them: this way, the government need not put up with pre-election advertising by its opponents. It can either take them by surprise with an early election or, conversely, let them exhaust their resources (and people’s willingness to listen to them) by delaying an election call.

The one unambiguously bad part of the package — albeit the one that will probably elicit the least opposition — confirms this. I mean the extension of the dole for politicians, of course. As I wrote in the post linked to above, providing public funding to parties “as a function of the outcome of the last election”, as the Ontario regime does, “favours the governing party at the expense of the opposition ones, regardless, besides, of its real popularity”. At the time, the Quebec “taxpayers were funding the [Quebec Liberal Party] far more than the others … even as they expressed, month after month, a growing discontent with it” in the polls. So far as I’m concerned, public funding to parties should be abolished. But one alternative that is a bit less friendly to incumbents — and hostile to new parties — is to divvy it up taking factors beyond the outcome of the last election into account, as New Zealand does with the public funding it allocates to political parties for spending on televized ads. The Ontario government wants to continue the current system because it’s the one that gives it the maximum advantage over the opposition, which it trounced at the last election.

I suspect that something similar is afoot with the idea to ban political advertising on government property. As the stickers saga tells us, this is not a government that is worried about people seeing political advertising in places where they cannot easily avoid it. I would rather suspect that the plan here is to make it more difficult for opponents to reach large numbers of people, especially with transit-based ads. But I’d need to know more about the costs and effects of different types of advertising to be sure. One thing I have no doubt about: I wouldn’t trust the government for a moment not to be acting in its own interest.

The other thing that the Ontario government’s plan makes tolerably clear, though of course it already was, is that the people who saw Bill 307 as a shining example of legislative interpretation of the Charter were peddling just-so stories instead of engaging in serious constitutional analysis. At the time, Kerry Sun, Stéphane Sérafin, and Xavier Foccroulle Ménard wrote at the now-defunct (hence, alas, no link) Ius et Iustitium

that the notwithstanding clause should be viewed as enshrining a form of coordinate interpretation. Under this approach, ideally, the invocation of s. 33 may be contemplated in those cases where a legislature seeking to advance the common good reasonably disagrees with the judicial interpretation of a rights provision

Though they used Bill 307 as an example, as I explained here, that was never a plausible reading of what actually happened. Bill 307 was a power grab by an executive that did not want to expose itself to political criticism; given the way in which it was forced through the legislature, it in no way represented the latter’s view of anything, and least of all of what the freedom of expression means.

A mere four years after its enactment, Bill 307 is to be discarded, thrown out onto the ash heap of history. Is that how a legislature would treat its own solemn decision about the meaning of constitutional rights? The question answers itself. What has changed that makes it no longer necessary for the common good? Nothing at all. But then again, it never was: fixed election dates could have been abolished four years ago. In the same vein, it was never necessary to use the “notwithstanding clause” to protect the ability of non-Catholic students to attend Catholic schools in Saskatchewan: the same opportunity could have been offered on equal terms to all schools and students, but the Saskatchewan government preferred to discriminate — and not to spend the money.

As I noted at the outset, Ontario, like Quebec if less explicitly, is about to embark on a significant constitutional reform. And, like in Quebec if perhaps also a little less obviously, the proposed reform is designed to favour an incumbent government and help it remain in office. That the governments of Canada’s two largest provinces only think of the constitution as a means to bulldoze their opponents nad stay in power is not a happy thought, but it is yet another reason for rejecting the implausible view that Canadian legislatures engage in serious constitutional reflection when they resort to s 33 of the Charter. The first step towards better and more principled government is understanding what is going on.

UPDATE: This Global News report puts an interesting additional spin on raising the donations cap; or not, since after all it documents behaviour that occurred under the old rules.