Ontario calls back legislators as government looks to invoke notwithstanding clause

Ontario legislators interrupted their summer break to kick off a marathon sitting Thursday as the government prepared to invoke the notwithstanding clause to restore parts of a law that restrict third-party election advertising.

A judge struck down sections of the law earlier this week but the Progressive Conservative government said it would restore them through new legislation that includes the clause, which allows legislatures to override portions of the charter for five years.

Critics have called the government's move an abuse of power meant to silence opponents ahead of the election. Opposition parties said they'd do their best to stall progress of the new bill, which was introduced Thursday, setting the stage for a lengthy weekend session.

Legislators will hold an overnight debate in the early hours of Saturday and continue proceedings on Sunday afternoon, with a vote on the bill expected on Monday evening, said Government House Leader Paul Calandra.

"I think it's going to be a very spirited weekend of debate," he said. "That's our job, and I know members on all sides will do what we have to do to move our points forward."

Ontario Superior Court Justice Edward Morgan sided with a group of unions in his Tuesday judgement, finding it was unnecessary for the government to amend the Election Finances Act and double the restricted pre-election spending period for third-party advertisements.

A bill that took effect this spring had stretched the restricted spending period to 12 months before an election, but kept the spending limit of $600,000 the same.

Unions said the limit infringed on their rights to free speech, but the attorney general argued the changes were necessary to protect elections from outside influence.

Morgan wrote that the government didn't provide an explanation for doubling the limit and found the law unconstitutional. His decision meant sections of the law involved in the court challenge were no longer in effect, with the next provincial election scheduled for June 2, 2022.

Calandra said it's "imperative" to restore the law quickly. He argued the 12-month limit is important to protecting democratic elections from outside interference.

"We are using the tools available to us to ensure that our elections are done fairly," he said.

Opposition politicians plan to fight the legislation.

NDP Leader Andrea Horwath called the move a "power grab" meant to silence opponents and criticized the timing of the debate, which will take place over a weekend when Ontario will see loosened public health measures for businesses and outdoor gatherings.

"It's pretty apparent that Doug Ford is desperate and he wants to get this done as quickly as possible so people don't notice it," she said.

The NDP introduced motions on issues related to the pandemic and read out petitions on Thursday to stall the progress of the bill, though Horwath noted the opposition's options for delaying the final vote on the legislation are limited.

Green party Leader Mike Schreiner said stalling the vote would give Ontarians time to become aware of it and contact their MPPs to voice concerns.

"Every day that you can, or every hour at this point, that you can delay this, it gives the people of Ontario time to mobilize against it," he said.

Non-profit organization Democracy Watch said it was "undemocratic and dictatorial, and likely illegal" for Premier Doug Ford to use the notwithstanding clause to impose "arbitrary and unconstitutional" spending limits on interest groups before the election.

Nelson Wiseman, a political science professor at the University of Toronto, said the use of the notwithstanding clause isn't necessarily outrageous, but in this situation "it is clearly just politically driven" and suggests the government is fearful heading in to the next election.

Ford threatened to use the clause years earlier, when his government was working to slash Toronto city council seats in 2018. That attempt sparked outrage, but the clause ultimately wasn't invoked because of how a related court process unfolded.

Wiseman predicted the government's latest move would likely hurt Ford's popularity, at least for a time and said he'd be watching to see if the premier backs down.

"You're dealing with elections, voting, the heart of democracy," Wiseman said. "I think it's very poor political judgment and I think it's a misuse of (the clause)."

This report by The Canadian Press was first published June 10, 2021.