A panel of three judges unanimously found that the city of Guelph’s decision to remove pro-life bus ads unjustifiably disregarded the Charter’s guarantee of freedom of expression. I’m sure many of us are concerned about censorship in Canada, but this decision confirms that we still have so much freedom to express ourselves. In order to preserve that freedom, we need to make sure we keep using it!
The facts of the case
The legal action in question resulted from a decision by the city of Guelph to take down pro-life bus ads from the local Right to Life group. The city’s decision was based solely on the opinion of Advertising Standards Canada, a private regulatory body. This reliance on Ad Standards especially concerned us, as we have a history of coming up against their incoherent and baffling opinions about the accuracy of pro-life statements. For instance, they determined that our “Canada has no abortion laws” ad should be taken down because it was literally true but cast a “general impression” of inaccuracy.
Given our interest in preserving freedom to express the pro-life message, we intervened in this Guelph case. This means we were able to provide additional legal arguments alongside the parties – the City of Guelph and Guelph and Area Right to Life. Our arguments focused solely on Ad Standards, particularly their inability as a private body to consider Charter rights and their inability to act as arbiters of the ongoing abortion debate.
As we said right before the case was heard, “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.” The court completely agreed, saying, “the City improperly relied on Ad Standards’s rulings without giving any considerations to its right to freedom of expression.” The decision goes on to note that the responsibility of respecting freedom of expression falls squarely on the city. They have a responsibility to uphold the Charter, and they can’t opt out of that duty by pointing to Ad Standards’ opinions.
What this means for pro-life advertising
The Court found that the city’s decision was unreasonable under the Charter, but they didn’t order that the City re-run the ads. This is the appropriate remedy: we weren’t expecting the Court to give the pro-life movement license to run every ad with no scrutiny. Cities are responsible for bus ads and the Court’s role is to ensure they carry out that duty in accordance with the Charter. Importantly, however, this does mean if a city is going to reject a pro-life ad, they will need to own that decision and justify it in light of the Charter rather than hide behind Ad Standards. This should expose a city’s reasoning – and if the city’s reasoning is as incoherent and baffling as an Ad Standards’ decision, we can challenge that in court. This is essentially what is happening in Hamilton where the city rejected one of our ads because we referred to the pre-born child as a “her” which they said implies personhood.
What you can do about it
In the meantime, use the freedom we have – the freedom confirmed by this court decision. This Friday is the anniversary of the 1988 Morgentaler decision. Use it as an opportunity to keep speaking and keep pushing the message that every human life has value from the earliest stages of life. If you have a lawn sign, put it out. Consider putting up a billboard like this supporter did. Consider raising some money to put an ad on the busses in your city. Or contact us for a car decal.
We continue to speak because every year there Every year, there are approximately 100,000 pre-born children who lose their lives to abortion in Canada. We will continue fighting for the freedom of pro-life expression because if we lose the freedom to speak, they are the primary victims.