Ontario (Attorney General) v Working Families Coalition (Canada) Inc: Defining the Scope of the Right to Vote

Bruce Yao, Volume 84 Articles Editor

To what extent does a government’s power to override a particular right influence the interpretation of that right? Section 33 of the Canadian Charter of Rights and Freedoms, also known as the notwithstanding clause, empowers Parliament and the legislatures to “override” certain provisions of the Charter.[1] However, it does not apply to every right in the Charter. For example, section 2(b), the freedom of expression, falls within the ambit of section 33. However, section 3, the right to vote, which includes the right to informed voting, does not. This component of section 3 has been interpreted to protect the right of each citizen to access the information required for them to vote in an informed manner.[2]

In Ontario (Attorney General) v Working Families Coalition (Canada) Inc, a 5–4 decision concerning the right to vote, the Supreme Court of Canada struck down the spending limit on third-party political advertising in Ontario’s Election Finances Act (EFA). By limiting their analysis to section 3’s informational component, the majority left two questions unanswered: 1) whether the right to vote includes an expressive component applicable to third parties, and 2) whether the scope of section 3 should be restricted in the context of sections 2(b) and 33 of the Charter. Section 33 of the Charter is at the heart of these two questions, as it allows lawmakers to override section 2(b), the freedom of expression, but not section 3, the right to vote.

In this article, I provide a brief overview of Working Families and argue that: 1) Section 3 should contain an expressive component that applies to third parties, and 2) the scope of section 3 should not be restrained by its overlap with section 2(b). More broadly, I suggest that section 33 should not colour the interpretation of a right beyond its reach. Consequently, my approach supports the majority’s unencumbered analysis of section 3.

The Right to Vote

Section 3 of the Charter states that “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”[3] In Working Families, the Court described section 3, a right under the “Democratic Rights” heading of the Charter,[4] as “foundational to our democracy and the rule of law.”[5] This description is supported by the unwritten constitutional principle of democracy, the “broad, untrammeled language” of section 3, and the section’s exclusion from the notwithstanding clause.[6]

Beyond protecting the right to cast a ballot, section 3 is a bundle of rights that cumulatively protects the right to effective representation.[7] In Figueroa, the Supreme Court held that section 3’s purpose is to protect “the right of each citizen to play a meaningful role in the electoral process.”[8] This requires citizens to have access to information such that they may properly assess each party’s platform.[9] Similar to the discussion in Working Families, the Courts in Libman and Harper held that government action that enables some parties to exert a “disproportionate influence on the vote” infringes section 3.[10]

Finding the jurisprudence unclear on the matter, Working Families considered whether the informational component also includes an expressive component.[11] A limitation on political advertising restricts both the advertiser’s right to promote and the citizen’s right to access information. While the informational component of section 3 necessarily overlaps with the freedom of expression protected by section 2(b), this does not mean that the analysis for an infringement of section 3’s expressive component is the same as for an infringement of section 2(b).

Overview of Working Families

In 2017, Ontario amended the EFA to impose a total spending limit of $600,000 on political advertising by third parties in the twelve months before an election. In contrast, the spending limit for a registered politician is $1,000,000 in the six months before an election. Third parties engaged in election-related political advertising, including the Working Families Coalition, brought this claim against Ontario’s Attorney General in 2018. The Supreme Court of Canada ruled on the issues of whether the EFA’s third-party spending limit violates the right to vote, and if so, whether the violation is a reasonable limit justifiable under section 1.

The majority held that Ontario’s third-party spending limit infringed section 3 of the Charter. Compared to the limit for registered political parties, the Court determined that the limit on third parties created a “disproportionality that is so marked on its face that it allows political parties to drown out the voices of third parties.”[12] This disproportionality specifically engaged section 3’s informational component.[13] Unlike the dissenting opinions, the majority’s analysis did not comment on the expressive component of the right to vote or on the potential overlap between section 3 and section 2(b).

In their dissent, Wagner CJ and Moreau J adopted a reconciliatory approach to interpreting the right to vote. The decision warned against importing one right into another and ultimately interpreted the rights as distinct and independent.[14] The Chief Justice and Justice Moreau adopted an analytical framework that was in harmony with section 2(b) and considered whether the impugned law would deprive citizens of a reasonable opportunity to express their ideas and opinions, and access the necessary information to meaningfully participate in the political process.[15]

In a separate dissenting judgment, Côté and Rowe JJ held that section 3 grants individual citizens the right to be informed but does not grant any rights to third parties. Justices Côté and Rowe held that importing an expressive component would effectively transport section 3 into a section 2(b) analysis. Consequently, they rejected the existence of an expressive component within section 3 and held that the spending limit is not unconstitutional. While both dissents agree as to the result, they disagree on a point central to this article: the existence of section 3’s expressive component, which includes the right to vote in an informed manner.

Democracy Requires Section 3 to Protect Participation

Canada’s Constitution is written, but its interpretation requires reference to a series of underlying constitutional principles.[16] In the Constitution’s internal architecture, each element is connected to the others and must be interpreted in the context of the whole.[17] Unwritten constitutional principles help to draw out the relationships between these elements, “infus[ing] our Constitution and breath[ing] life into it.”[18] They are essential to the evolution of our Constitution as a “living tree.”[19] The principle of democracy is of particular importance, as it remains unwritten in part because it is so ubiquitous that its existence was simply assumed.[20] Canada’s democratic institutions operate under the assumption that “in the marketplace of ideas, the best solutions to public problems will rise to the top.”[21] In constructing the scope and purpose of the Charter, courts must therefore consider the principles underlying a “free and democratic society,” which include faith in institutions that enhance participation in society.[22] There is no doubt that section 2(b) embodies this participatory dimension of democracy, but section 3 is, at minimum, equally important to a democratic society.

Section 3 Includes an Expressive Element

Interpreting section 3 to confer only participatory rights upon individual citizens would be contrary to the constitutional principle of democracy. In their dissent, Côté and Rowe JJ adopted this interpretation, holding that section 3 protects the individual citizen’s “right to make an informed vote” and not “the parties seeking to be heard.”[23] However, the Supreme Court’s jurisprudence assumes the existence of both an individual and institutional element within section 3.[24] By recognizing that democracy requires a “continuous process of discussion” and a system that enhances participation in society, the Supreme Court of Canada has implicitly laid the groundwork for an expressive component in section 3 that is not limited to individuals.[25]

Ultimately, it is a departure from the Supreme Court’s jurisprudence and the constitutional principle of democracy to argue that third parties are not rights-holders under section 3. Section 3 must be exercised in the context of “an entire infrastructure of institutions and actors, including candidates, electoral districts, elections, political parties and legislatures,” such that individuals can meaningfully exercise their democratic rights.[26] The Supreme Court’s interpretation of the right to vote internalizes this assumption. In the Saskatchewan Reference, the Court rejected an interpretation of section 3 requiring strict voter parity in favour of the broad and purposive interpretation that remains the approach today.[27] By foregoing a formalistic interpretation in favour of one that embodies conceptual democracy, the Supreme Court constructs section 3 to protect democratic institutions and uphold the participatory nature of democracy. While the approach taken by Côté and Rowe JJ is appropriate for most cases, it fails to capture cases where an individual’s right to meaningful participation is indirectly harmed by a law targeting a democratic institution.

Third Parties are Rights-Holders under Section 3

In Figueroa, the Supreme Court held that a law denying benefits to smaller political parties infringed section 3 because while it did not impact an individual’s right to cast a ballot, it prevented them from participating fully in the democratic process.[28] Indeed, the Court has expressly recognized political parties as rights-holders under section 3.[29] All political parties are vehicles for individuals to meaningfully participate “in the political life” and electoral process of the country.[30] Political parties are rights-holders because they represent the views of their members and supporters.[31] Third parties fulfil the same role by representing their members. Therefore, a government act that inhibits a third party’s ability to facilitate meaningful participation in the electoral process should infringe section 3.

In Harper, the Court held that a spending limit on election advertising must “ensure that candidates, political parties and third parties are able to convey their information to voters.”[32] While this advances the voter’s right to be “reasonably informed,”[33] the word “ensure” suggests that the right of the candidates, political parties, and third parties to convey information must also be protected as an “equivalent obligation.”[34] Indeed, the Court concluded in Harper that an overly restrictive spending limit undermines the information component of section 3.[35]

While beyond the scope of this article, there are additional concerns that unrestrained, well-resourced third parties may drown out other voices in the political discourse.[36] An unequal dissemination of viewpoints ultimately impedes the voter’s “ability to be adequately informed of all views.”[37] Nonetheless, it remains unclear whether governments have a positive right, or an obligation, to limit spending.

The Freedom of Expression Should Not Restrain the Section 3 Analysis

Using section 33 to narrow the scope of section 3 is contrary to the current approach to Charter interpretation. In interpreting conflicting Charter rights, the Supreme Court has rejected “a hierarchical approach to rights that places some Charter rights above others” or allows one Charter right to nullify another.[38] Instead, if multiple rights clash, courts will attempt to reconcile the rights and give effect, as much as possible, to both.[39]

In Working Families, the conflict comes from the interaction between the two complementary rights and section 33 of the Charter, which permits federal and provincial governments to enact legislation “notwithstanding” certain provisions of the Charter.[40] In Working Families, Ontario employed section 33 to protect the EFA from section 2(b) challenges.[41] However, Ontario cannot enact legislation that infringes the right to vote. Both rights overlap with respect to political expression and are both “animated by the fundamental democratic values protected by the Charter.”[42] In response, Justices Côté and Rowe suggested that the structure of the Charter does not permit section 3 to serve as a sort of “backdoor” to protect section 2(b) expression ordinarily subject to legislative override.[43] Instead of reconciling rights, their judgment restricted only section 3’s scope to preclude any overlap with section 2(b).

Despite a degree of overlap with respect to the activities protected, the two rights have distinct scopes. Notably, the test for section 3’s expressive component requires a limitation on expression to infringe the right to meaningful participation in the electoral process as well.[44] A limitation on election spending could both limit expression and facilitate meaningful participation in the electoral process.[45] In other words, the expressive component of section 3 has a narrower scope than section 2(b) and protects expression for a specific purpose. Finding that a restriction on election spending disproportionately harms citizens’ right to meaningfully participate in democratic elections is far from importing the freedom of expression into the right to vote.

The additional requirement to establish a violation of section 3’s expressive component suggests that the right to vote and the freedom of expression, while complementary, should be constructed as distinct rights that do not modify each other. While the Chief Justice and Moreau J disagreed as to the result, they interpreted section 3 in a similar way to the majority, finding that section 3 protects a narrower subset of expression necessary for meaningful democratic participation.[46] This purpose, as discussed above, is fundamental to the Constitution. The right to vote’s exclusion from the notwithstanding clause further illustrates that this narrow protection of expression is of such importance that it is not amenable to override by the government of the day.[47] While the majority undertook a broad and purposive interpretation of the right to vote, the Chief Justice’s dissent provided a clearer understanding of section 3’s relationship to other elements of the Charter. It bolsters the majority’s analysis by suggesting that the principle of democracy requires both section 3 and section 2(b) to be interpreted as two distinct rights.

While beyond the scope of this article, Working Families re-opened the door to a hierarchical approach based on the principle of democracy. The majority held that the Legislature’s choice attracts greater scrutiny when rights “at the heart of our democracy are at stake.”[48] Without commenting on the relationship between section 3 and section 2(b), Working Families may support the inference that section 3 is more important than other rights not “at the heart of our democracy.”

Conclusion

By laying out the groundwork for an untrammeled interpretation of the right to vote, this article aims to reinforce the majority’s interpretation of section 3 and its finding of absolute disproportionality in Ontario’s EFA spending limit. Going even further, it may weigh against the Chief Justice and Moreau J’s thorough analysis of the evidence demonstrating the spending limit’s impact. If a government act clearly creates an “absolute disproportionality” between third parties and registered political parties that substantially inhibits a third party’s participation in the electoral process, then such a scheme would infringe section 3 of the Charter and be unconstitutional.

With the invocation of section 33 becoming increasingly common, the majority’s silence on the overlapping rights in this case leaves the door open for future attempts to either 1) restrict the scope of section 3 using the freedom of expression or association, or 2) circumvent the use of section 33 by invoking a section 3 claim.

[1] Canadian Charter of Rights and Freedoms, s 33, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[2] 2025 SCC 5 at para 115 [Working Families].

[3] Supra note 1, s 3.

[4] Ibid.

[5] Supra note 2 at para 27, citing Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68 at para 9 and Frank v Canada (Attorney General), 2019 SCC 1 at para 44 [Frank]; see also Working Families at paras 68, 110, 180, 201–202.

[6] Working Families, supra note 2 at paras 111, 180. For an overview of the history of the notwithstanding clause, see Laurence Brosseau & Marc-André Roy, The Notwithstanding Clause of the Charter (Ottawa, ON: Library of Parliament, 2018).

[7] Yasmin Dawood, “The Right to Vote and Freedom of Expression in Political Process Cases Under the Charter” (2021) 100:5 The Supreme Court L Rev 105; Reference Re Prov Electoral Boundaries (Sask), [1991] 2 SCR 158, [1991] SCJ No 46 [Saskatchewan Reference]; see also Figueroa v Canada (Attorney General), 2003 SCC 37 [Figueroa] and Frank, supra note 5.

[8] Figueroa, supra note 7 at paras 25–26.

[9] Ibid at para 54.

[10] Libman v Quebec (Attorney General), 1997 CanLII 326 at paras 41, 49 (SCC) [Libman]; Harper v Canada (Attorney General), 2004 SCC 33 [Harper].

[11] Working Families, supra note 2 at paras 56, 114, 181.

[12] Ibid at para 7.

[13] Ibid at paras 8–9.

[14] Ibid at paras 118–19.

[15] Ibid at para 146.

[16] Reference re Secession of Quebec, 1998 CanLII 793 at para 49 (SCC) [Secession Reference].

[17] Ibid at para 50.

[18] Ibid.

[19] Ibid at para 52.

[20] Ibid at para 62, citing Ref re Renumeration of Judges of the Prov Court of PEI; Ref re Independence and Impartiality of Judges of the Prov Court of PEI, 1997 CanLII 317 at para 100 (SCC).

[21] Ibid at para 68.

[22] R v Oakes, 1986 CanLII 46 at 136 (SCC) [Oakes].

[23] Working Families, supra note 2 at para 222.

[24] Dawood, supra note 7.

[25] See Secession Reference, supra note 16 at para 68.

[26] Dawood, supra note 7 at 116.

[27] Supra note 7.

[28] Figueroa, supra note 7 at para 106.

[29] Ibid at paras 39-46.

[30] Ibid at para 40.

[31] Ibid at paras 41, 46.

[32] Harper, supra note 10 at para 73.

[33] Ibid at para 71, citing Libman, supra note 10 at para 47.

[34] Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (Abingdon, Oxon: Routledge, 2016) at 55.

[35] Harper, supra note 10 at para 73.

[36] Dawood, supra note 7 at 118; Libman, supra note 10 at para 47.

[37] Dawood, supra note 7 at 119; Libman, supra note 10 at para 47.

[38] Robert J Sharpe & Kent Roach, The Charter of Rights and Freedoms (Toronto: Irwin Law, 2021) at 63; Dagenais v Canadian Broadcasting Corp, 1994 CanLII 39 at 839 (SCC).

[39] Sharpe & Roach, supra note 38 at 63.

[40] Supra note 1, s 33.

[41] “Ford government pushes through controversial election spending bill with notwithstanding clause,” CBC (14 June 2021), online: <cbc.ca>; Bill 307, Protecting Elections and Defending Democracy Act, 1st Sess, 42nd Leg, Ontario, 2021 (first reading June 10 2021).

[42] Dawood, supra note 7 at 107.

[43] Working Families, supra note 2 at para 181.

[44] Ibid at para 119.

[45] Ibid.

[46] Ibid at paras 117-19.

[47] Ibid at para 111.

[48] Ibid at para 64.