Spending On Political Advertising Matters (notwithstanding Section 33)

Can courts scrutinize a government's decision to invoke the notwithstanding clause (section 33 of the Charter)? In Working Families Coalition (Canada) v. Ontario¹, the Court of Appeal for Ontario provided guidance on how the notwithstanding clause can be invoked, as well as when legislative action may nonetheless face Charter scrutiny.

The Court held that the notwithstanding clause has only formal requirements-courts cannot review a government's reasons for relying on it. But a 2-1 majority concluded that political advertising spending laws violated democratic rights under section 3 of the Charter, which is not subject to the notwithstanding clause's constitutional override. Given the important issues raised, and the dissenting judgment, this decision may not be the last word on these issues; the Ontario government has indicated it plans to appeal.