19 May 2021 Pro-life bus ads going to court in Guelph
Freedom of expression is not just about the speaker, but about the listener as well. The Supreme Court of Canada explained that freedom of expression “ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.” This should be intuitive: the freedom to speak your beliefs on a deserted island is hardly freedom. Given our relational nature and intertwined lives, freedom always involves others. In Canada, we have the freedom not only to speak, but also to hear and be heard.
This is one of the arguments we are making before an Ontario court this June as an intervener in the Guelph and Area Right to Life v the City of Guelph case. The facts of this case are straightforward: the City took down three pro-life bus advertisements after Ad Standards issued opinions that they were inaccurate.
You may remember our interactions with Ad Standards in relation to our billboards and bus ads that said, “Canada has no abortion law.” In that instance, Ad Standards admitted the ads were true, but claimed there was a “general impression” of inaccuracy. Ad Standards has a long history of issuing befuddling and contradictory opinions regarding pro-life advertisements. This has been a thorn in the side of the pro-life movement because advertisers, including the City of Guelph, defer to these opinions even though Ad Standards has no legal authority.
The case coming up in June is between Guelph and Area Right to Life and the City of Guelph. There are also three secondary groups, including us, who are going to present legal arguments as interveners. These secondary groups have been granted the opportunity to speak to the case because the court recognizes that the result of this case could greatly impact others. This case involves interpreting our fundamental freedoms in the Charter and how they apply to advertising. Groups like We Need a Law are affected because we also use advertising to communicate the pro-life message.
As an intervener, we aren’t covering all of the arguments relevant to this case but are confining ourselves to one fundamental issue: the limitations of Ad Standards. In this case, the City of Guelph substantially relied on Ad Standards’ opinions to remove the pro-life advertisements. We argue this is constitutionally inappropriate for two main reasons.
First, Ad Standards does not consider the Charter in their opinions. Ad Standards is a private body issuing opinions generally on commercial advertisements. Their opinions are not subject to the Charter, nor do they even list freedom of expression as one of their values. They simply lack expertise in freedom of expression law. The City, however, as a government actor, has the obligation to ensure that freedom of expression is not unduly limited. They cannot abdicate that responsibility by relying on a private body.
Second, Ad Standards is unqualified to arbitrate the abortion debate. Canada is having an ongoing conversation about abortion with passionate advocates on either side. In order to give full meaning to freedom of expression, the City needs to ensure that one side of the debate is not silenced by the other. But Ad Standards does not have that obligation and there is no evidence that they are not being hijacked by activist-instigated complaints.
In short, we argue that the City’s substantial reliance on Ad Standards in this decision was unacceptable and renders this an unjustifiable infringement of freedom of expression.
We submitted our written arguments on May 17th and we look forward to presenting oral arguments on June 15th. We’re thrilled to be able to argue for the freedom to express the pro-life message and we’re especially grateful to Guelph and Area Right to Life for expressing that message in their city. Legal cases that involve protecting our freedom to speak don’t happen unless we are using our voice. We appreciate all the Canadians out there, including our supporters, who faithfully strive to do so.
We will keep you updated as the case progresses, and we encourage you to keep using your voice to faithfully witness in your community. Not just because you have the freedom to speak, but because the world around us has the freedom and the need to hear the message that every life is a gift and should be protected.