Summary#

Bill 307, the Protecting Elections and Defending Democracy Act, 2021, was enacted and amends Ontario’s Election Finances Act. It replaces and re-enacts rules on third-party political advertising, adds reporting and advertising-sale restrictions, and says the Act applies despite specified Charter rights and the Human Rights Code. The title presents the goal as protecting elections and defending democracy.

• The Chief Electoral Officer must consider nine listed factors, along with any other relevant factors, when deciding whether an advertisement is political advertising. These include its timing, branding, references to elections or political figures, changes from the advertiser’s usual advertising, and similarity to political advertising.
• A third party may spend no more than an inflation-adjusted $24,000 in any electoral district and $600,000 in total during the 12 months before the writ for a general election.
• The bill prohibits attempts to get around those limits. It names collusion, splitting into multiple third parties, sharing information or resources with other groups, and using certain foreign-source funds among the ways this can happen. A contribution from one third party to another for political advertising counts as an expense of the contributing third party.
• Third parties must promptly report spending or commitments on paid political advertising when they occur, and report each time their total rises by at least $1,000. The Chief Electoral Officer must publish reports within two days and post each third party’s spending as a percentage of its limit.
• An advertising seller must not sell to a third party if the seller should reasonably know from those reports that the sale would make the third party exceed a limit. The Act also says it applies despite the Human Rights Code and specified sections of the Canadian Charter of Rights and Freedoms.

What it means for you#

• Third parties that buy political advertising: They face spending limits, anti-circumvention rules and prompt reporting duties. For the 2022 general election, the 12-month reporting and spending period began when the Act received Royal Assent.
• People and businesses selling advertising: They must use the published reports to avoid sales that would push a third party over its limit, where they should reasonably know that would happen.
• Chief Electoral Officer: The officer must assess advertisements using the listed factors, receive reports, publish them within two days and calculate and publish spending percentages.
• Voters and the public: The reports are to be available on the Chief Electoral Officer’s website. The bill does not create a new voter benefit or a new front-line service.
• People whose rights or interests may be affected: The Act says it operates despite Charter sections 2 and 7 to 15, and applies despite the Human Rights Code. The supplied material does not explain how that affects any particular person or dispute.

Money#

No cost estimate or funding amount is in the supplied material.

• The bill sets limits on third-party advertising spending; it does not set a tax, fee, fine or benefit.
• The Chief Electoral Officer must carry out reporting and publication duties, but the bill gives no staffing or administrative cost estimate.
• Third parties and advertising sellers may face reporting or compliance costs; the supplied material does not estimate them.

What is unclear#

• The supplied material does not include the parent Act, so it is not possible to verify the previous rules or precisely compare them with the replaced provisions. The explanatory note says certain provisions are re-enacted.
• The bill does not define key terms such as “third party,” “political advertising,” “common advocacy, cause or goal,” or “foreign source.”
• “Promptly” is not given a fixed deadline. The bill also does not set out the prescribed report form, how disputes are decided, or an appeal process.
• The bill does not explain how the Chief Electoral Officer will assess the listed factors when they point in different directions.
• No cost estimate, funding plan or details about staff needs are provided.

Case for#

• The bill appears intended to limit how much third parties can spend on political advertising before an election.
• Requiring prompt public reports could help voters and advertising sellers see how close a third party is to its limit.
• Naming ways limits cannot be circumvented could make the spending caps harder to evade.
• Requiring the Chief Electoral Officer to consider several features of an advertisement may help distinguish political advertising from other advertising.

Case against#

• The bill restricts third-party political advertising and says it applies despite specified Charter protections and the Human Rights Code. A concern is that these limits may constrain expression; the supplied material does not explain why the limits or override are needed.
• Some anti-circumvention terms are undefined. This could leave uncertainty about which groups or shared activities fall under the restrictions.
• Third parties must report promptly, and sellers must judge whether a sale would breach a limit. The bill gives few details about timelines, decisions or resolving disagreements.
• The Chief Electoral Officer’s new reporting and publication duties may require resources, but the bill gives no cost or staffing estimate.