Earlier this week, the Alberta Court of Queen’s Bench ruled that the City of Lethbridge infringed on Charter rights when it removed anti-abortion ads nearly 3 years ago.
In early 2018, the Lethbridge and District Pro-Life Association took out 5 anti-abortion ads with Pattison Outdoor Advertising, which is the contractor managing advertising in transit spaces in Lethbridge. The ads were supposed to run for 3 months: from February to May.
In March, members of the public pressured the city to remove the ads. The city subsequently tweeted this out on 4 April.
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Six months later, LPL submitted 5 new advertisements, which the city also rejected. LPL took the city to court a year later over that rejection.
In the 48-page court decision filed this past Thursday, the city was cited as providing the following 3 reasons for rejecting the new proposed ads:
- Each ad contained LPL’s name and logo, which “is branded and attached to LPL’s initiative of opposing abortion”, including their website, where there were “scientific claims” that were actually “misleading and not as conclusive and settled as they are being portrayed”, and were thus in contravention of section l(a) of the The Canadian Code of Advertising Standards.
- Citing “reports from community members as to the emotional harm and psychological distress” the previous ads were causing them, the city concluded that “running any of the proposed ads would not contribute to the City’s statutory objective to provide a safe and viable community.”
- The city requires Pattison to comply with the The Canadian Code of Advertising Standards in all transit advertising.
Specific to the The Canadian Code of Advertising Standards, the city felt the ads contravened the Code because:
- A foetus is not recognized under law in the fashion LPL depicted
- They implied that late abortions are the norm in Canada
- They were negative in some fashion because of implied meaning
When LPL took the city to court on the refusal of the 5 new ads, they claimed that the city’s refusal infringed on section 2(b) of the Canadian Charter of Rights and Freedoms:
freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
They further contended that the city’s refusal was unreasonable and requested that either the city post the ads or that the ads be resent to the city to reconsider.
The city conceded that “proposed advertisements are protected by the Charter right to freedom of expression” and that their refusal infringed on that right. However, they argued that “the real issue is whether the decision in refusing the five advertisements is reasonable.”
It cited as justification for their refusal the 2018 Alberta Court of Appeal case Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), where the city of Grande Prairie also refused transit advertisements but had shown reasonableness in their infringement on the Charter rights of the applicant in that case.
M. David Gates, the judge in this case, found that the refusal was not reasonable, however, for these 2 reasons:
- The ‘hateful nature’ and ‘extreme tone’ determined to exist in the Grande Prairie case did not exist in this instance.
- The city failed to conduct the required minimal impairment analysis for these 5 advertisements, which means they “failed to properly balance the attainment of its statutory objectives with the Applicant’s Charter protected right to freedom of expression.”
As a result, Gates ruled in favour of LPL.
As part of their application, LPL requested that Gates compel the city to post the 5 proposed ads. However, Gates refused that request, saying,
this is not a situation where I am prepared to conclude that any decision refusing the Applicant’s proposed advertisements would be unreasonable.
Instead, he remitted the matter back to the city to reconsider. Plus, he strongly recommended that the city “identify an alternative decision-maker when dealing with this matter anew”, claiming that the city has a “reasonable apprehension of bias”.
To be clear, Gates’ decision does not say that the City of Lethbridge must always approve every anti-abortion advertisement that comes across its desk. Nor did it say that the ads themselves were appropriate.
What it did say was that the city failed to be reasonable in the rationale they use to infringe on the Charter rights of LPL, which means there may exist occasion when it is reasonable to reject the 5 proposed ads.
Representing LPL, was Carol Crosson, an anti-abortion constitutional lawyer based out of Airdrie. According to an article on the Billy Graham Evangelistic Association of Canada’s website, Crosson started her firm to focus “on cases involving the Canadian Charter of Rights and Freedoms, especially regarding free speech and religious liberty” and that “when faith groups or individuals feel threatened by the actions of governments or other legal bodies, Carol is often the first person these people call.”
Arguing for the City of Lethbridge was Michael Solowan, a partner with Brownlee LLP, based out of Edmonton. He specializes in municipal, education, and administrative law, working for public sector clients. Prior to that, he was the city solicitor with the City of Leduc.