Case Summary and Outcome

The Court of Queen’s Bench (now King’s Bench) in Alberta, Canada, quashed a decision of the City of Lethbridge refusing to post pro-life advertisements on its buses, bus shelters, and benches. A pro-life organization brought an application for judicial review contesting the city’s decision, arguing that it breached its constitutional right to freedom of expression. The Court agreed. It considered that the city’s actions were an unreasonable limit on freedom of expression and remitted the issue to the city to decide it afresh. According to the Court, the city did not balance the organization’s constitutional rights with the objectives that the city sought to pursue when it made its decision. The city’s reasoning also contained other errors upon assessing the right to freedom of expression, including placing too much weight on the content of the expression—and refusing to recognize that it dealt with matters of opinion—, as well as giving too much weight to the views of those who were upset by the ads—and not placing enough weight on the importance of freedom of expression in a free and democratic society, tolerant of minority views. The Court also found mistakes in how the city applied Canada’s Canadian Code of Advertising Standards, in that it failed to consider the political character of the ads and wrongly found that they were factually misleading. Finally, the city’s actions gave rise to a reasonable apprehension of bias, because the city had shown that it did not decide the association’s request fairly and with an open mind.

Facts

On October 18, 2016, the Lethbridge and District Pro-Life Association—a charity whose mission is “to proclaim the inherent value of human life from conception until natural death” and the applicant in this case—proposed a series of pro-life ads to be posted on the City of Lethbridge’s Transit buses. The ads stated, “Preborn Babies Feel Pain/Say NO to Abortion.” Pattison Outdoor Advertising, the city’s contracted advertising agency, initially rejected the ad. The association asked for a detailed explanation of the rejections, which was not granted. Pattison requested minor changes to the ads, which the applicant complied with, and the ads were accepted on January 24, 2018. The city and the charity agreed to run the ads for 3 months (February 20, 2018, to May 20, 2018). On April 4, 2018, the city removed the ads due to the “adverse community reaction” after receiving over 100 complaints.

On April 5, 2018, the association proposed posting new ads. One of them “contained two pictures, one of a pregnant woman, and the second a picture of the same woman holding a baby,” with the caption “Human rights should not depend on where you are.” [para. 40]  The city did not respond to the proposed ad. The applicant asked for explanations on why the ad was rejected and the previous ad was pulled. On May 30, 2018, Advertising Standards Canada (ASC)—“the only national not-for-profit advertising self-regulatory organization in Canada”—claimed the ad violated the Canadian Code of Advertising Standards because it was inaccurate and demeaned women. Although Pattison initially approved the ad on June 2, 2018, it rejected and removed it a month later, arguing that it violated ASC’s Canadian Code of Advertising Standards (the Code).

On August 7, 2018, the association asked again if the city would post a modified advertisement. The city stated that any proposed ad would need to meet ASC’s standards—specifically the two concerns previously mentioned. The charity submitted a modified ad, attempting to meet these concerns. The new ad stated, “PreBorn Babies Feel Pain 20 weeks after conception,” and “we offer support to pregnant women and help to those who have had an abortion.” Pattison again rejected this ad considering it “did not make any difference relative to the two concerns raised previously.” [para. 48]. The association asked the city to make a decision directly, either upholding or overruling Pattison’s decision and providing reasons.

The city rejected the ad. On September 13, 2018, the City Solicitor explained the reasoning: “The Revised Ad [did] not promote a safe, efficient, inclusive and customer-focused transit system,” [para. 49] and it did not address ASC’s concerns. The charity again proposed five new similar ads after this decision. The city rejected these as well and provided explanations for its decisions. The city’s common reasons for rejecting the ads were: (1) that they contained the association’s logo, thus allowing people to find its website—which contained the rejected ads; (2) that the previous ads were pulled due to the emotional harm and distress they caused—hence posting them would violate the statutory objective of providing a safe and viable community; and (3) that they violated ASC’s Code. Additional reasons were provided in relation to the individual ads, including that they were inaccurate—since fetuses are not persons under Canadian law—or because they implied late-term abortions were the norm in Canada and that they are negative.

The association brought an application for judicial review of the city’s decision to refuse the ads, arguing it infringed on the applicant’s right to freedom of expression and that the city’s actions had given rise to a reasonable apprehension of bias.

Decision Overview

Justice Gates delivered the judgment for the Court of Queen’s Bench of Alberta. The main issue it analyzed was whether the city’s refusal to post pro-life ads on its transit system fairly balanced the applicant’s right to freedom of expression, as enshrined in the Canadian Charter of Rights and Freedoms (the Charter), with the city’s statutory objective to develop a safe and viable community. A secondary issue the Court studied was whether the city’s refusal had given rise to a reasonable apprehension of bias—by examining if an objective observer would think that the city did not decide the association’s request fairly and with an open mind.

At the outset of its analysis, the Court held that a claim about whether an administrative action breaches the Canadian Charter of Rights and Freedoms requires courts to decide if the action in question “engage[s] the protections enumerated in the Charter,” and if so, whether the administrative decision-maker has “proportionately balance[d] the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that she or he is obliged to pursue.” [para. 68]

As noted by the Court, the city conceded that its refusal to post the applicant’s ads was a limit on the applicant’s constitutional right to freedom of expression under section 2(b) of the Charter. For the Court, this meant that the only issue it had to determine was whether the limit created by the city’s decision was reasonably necessary to achieve the objectives pursued by the city when it refused to post the ads.

According to the Court, the city argued that the objective it pursued by refusing the ads was set out in section 3 of the Municipal Government Act, RSA 2000, c M-26: developing and maintaining safe and viable communities. Considering this, the Court held that in order for a limit to be reasonably necessary, the decision-maker must actually undertake a Charter balancing analysis. While the city gave reasons for its decisions, those reasons, the Court opined, only contained “a single sentence that refers to the Charter” and “no mention of the right to freedom of expression guaranteed by s 2(b).” [para. 108] Furthermore, the Court said, on this point, that other than “the mere assertion that the City engaged in a robust analysis of the various competing interests, the City [was] unable to point to any portion of the written reasons that discuss the minimal impairment of the Applicant’s Charter rights.” For the Court, this alone was a “fatal gap in the City’s fulfillment of its legal obligations” [para. 112] and sufficed to set the decision aside.

Nonetheless, the Court went on to consider the applicant’s arguments regarding the reasonableness of the balance struck.

First, the Court cast doubt on the propriety of the city’s reasoning that the applicant’s website and its content were at all relevant, given the lack of a link to it in the ads. Moreover, even if the “City properly considered the content of the Applicant’s website” [para. 121], the Court held that the contents there were not close or similar to that of websites that were held relevant in prior cases. For instance, the Court said the association’s website was nothing like the extremely graphic one expressly linked to by the ads at issue in Canadian Centre for Bio-Ethical Reform v Grand Prairie (City), 2018 ABCA 154—a case where the Alberta Court of Appeal found that certain pro-life ads were reasonably rejected by a municipality. Rather, for the Court, the association’s website was just “aimed at providing support and information to individuals considering an abortion, who have had and may regret their abortion, and to those who may be interested in learning about or joining the Pro-Life cause.” [para. 121] Thus, the Court concluded that if the website was to be considered in the balancing process, it could only carry minimal weight.

Second, the Court found that the alleged inaccuracies in the ads could be a matter of opinion. The Court accepted the applicant’s “caution on the imposition of limits to freedom of expression by insisting on factual accuracy, and the challenges associated with such a standard when it comes to matters of opinion. Even in matters pertaining to science, the ever-changing body of knowledge at our disposal means that what may be scientifically certain today, may not be so certain tomorrow. Let us not forget that it was once universally accepted that the world was flat and that the sun revolved around the earth. Absolute proof may well be an unattainable requirement for this or any other purpose.” [para. 133]

Third, the Court held that there was no rational connection between the city’s “legitimate safety objective” —providing a safe and welcoming transit system—and the restriction of the applicant’s speech. While the Court acknowledged there had been some complaints, “public upset and alarm are not sufficient to tip the balance away from the protection of freedom of expression.” [para. 146] At this stage, it concluded that there was no material in this case that could “objectively be described as highly offensive or disturbing. Freedom of expression is meant to protect minority opinions from being drowned out by the majority […] As such, the existence of complaints alone [was] not sufficient to justify the refusal to post the proposed advertisements.” [para. 170]

Fourth, the Court held that the city’s reasoning regarding the application of ASC’s Code was lacking. For it, the defendant failed to consider whether the political advertising exemption in the Code could be applied. The Court also considered that the city gave the Code too much weight—so much that the defendant failed completely to take into account the applicant’s freedom of expression in the balance that it had to conduct.

Fifth, the Court concluded that the applicant’s ads were not misleading. To it, only one was factual in nature since it referred to an existing law, and it was accurate in its conclusions. The other ads dealt with matters of opinion. In any event, the Court held that “the Charter affords protection to inaccurate information and even deliberate lies.” [para. 196] Yet again, the Court highlighted that even if the matter of the inaccuracies could be taken into account in a balancing exercise, the city had failed to conduct one.

Finally, on the reasonable apprehension of bias issue, the Court applied the test of what an “informed person viewing the matter objectively would determine.” [para. 209] This asks whether that informed person would “think that it is more likely than not that [the decision-maker] whether consciously or unconsciously, would not decide fairly.” [para. 199] For the Court, the city’s decision was “tainted by a reasonable apprehension of bias,” [para. 209] given its exclusive focus on the negative public reaction to the ads, its complete misreading of the ASC opinion, its reference to unidentified issues with the advertisements as a reason for rejecting them, and its complete failure to provide an “actual analysis” in its refusal decision.

In light of these arguments, the Court found that the city’s decision to refuse to post the applicant’s advertisements was not a reasonable limit on the association’s right to freedom of expression. Furthermore, it held that the city’s actions had given rise to a reasonable apprehension of bias. Considering this, the Court held that the decision could not stand. Therefore, the Court quashed the decision and remitted the issue back to the city to decide it again, finding that this was not the sort of extraordinary case where the Court should make the decision itself for the decision-maker.