Beware the Ontario Court of Appeal’s Invitation?

I was intrigued by the Ontario Court of Appeal’s “Supplementary Reasons” in Working Families Coalition (Canada) Inc.v. Ontario (Attorney General) (“Supplementary Reasons”), recently reported in the December 15, 2023 Ontario Reports.

On March 6, 2023, the Court of Appeal released its decision in the Working Families Coalition’s (“The Coalition”) challenge to the third party spending limits added to the Elections Finances Act (“EFA”). (I wrote a six post series on section 3 and other issues under the Canadian Charter of Rights and Freedoms, using the Superior Court of Justice decisions (here and here) and the Court of Appeal decision in Working Families for illustration. (For the series, see here, here, here, here, here and here.)

In its Working Families decision, the majority of the Court of Appeal held that the provisions at issue unjustifiably contravened section 3 of the Charter. (The Coalition originally challenged the provisions under section 2(b) of the Charter. When Morgan J. found them unconstitutional, the government reenacted the legislation with the inclusion of section 33 of the Charter. The Coalition brought a challenge under section 3, which is not subject to section 33; Morgan J. decided the provisions were constitutional and The Coalition appealed. The Court of Appeal held the provisions were unconstitutional under section 3 [a brief statement about that conclusion is found at paragraph 1 of the Supplementary Reasons].)

But the Court of Appeal did not only find the impugned provisions unconstitutional, at paragraph 142, the majority also “invited” “counsel … to make submissions on whether any further provisions of the EFA should be declared invalid as a result of the reasoning in this judgment.”

Not surprisingly, The Coalition accepted the Court’s invitation, identifying four additional provisions it maintained were unconstitutional (no doubt such an invitation was hard to resist). Perhaps equally unsurprising, given how limited the analysis promised to be, the Court of Appeal gave these claims short shrift, dispensing with them in two concise paragraphs. (I note the original Court of Appeal decision is dated March 6, 2023 and the Supplementary Reasons were released about two months later on May 10th, with 25 days of that period dedicated to time to make submissions.)

Three thoughts occur (to me, at any rate) in relation to this “invitation”. The first is that it suggests the Court of Appeal was keen to complete its examination of the EFA (at least in relation to the context at issue) (perhaps the fly on the wall would have heard something like this during the Court’s discussion: “Let’s get this done now rather than deal with more full challenges down the road” or perhaps they were concerned with expending further court resources on the extended affair). Secondly, any consideration of challenges to other provisions would rest on and be constrained by the Court’s reasoning about the provisions that The Coalition originally challenged, rather than on their own merits (as, indeed, they were). And thirdly, the appellate court’s consideration would lack the benefit of the evidence-based reflections of the trial court as they would relate to provisions the appellate court had not already considered.

I suspect no one was really surprised at this outcome and it was a neat way to tidy up any questions lurking in the background. Still, the image that flits through my mind (with the Christmas season and reminders of A Charlie Brown Christmas tv program [sweetly pondered in last Sunday’s New York Times], is Lucy luring CB to kick the football — again — and whisking it away at the last minute so that he falls flat on his back — again. (Not that I’m really suggesting the Court is in the habit of mimicking Lucy — it’s just the image that comes to mind.) Or maybe the lesson is, “if it looks too good to be true, it probably is”.

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