Buses Cannot Refuse Political Ads, Supreme Court of Canada Rules in B.C. Case

By Patrick B. Craine

OTTAWA, July 10, 2009 ( - In an important defense of freedom of expression, the Supreme Court of Canada ruled today that busses cannot refuse ads of a political nature, rejecting the appeal of the Greater Vancouver Transportation Authority (Translink) and B.C. Transit in a case brought against them by the Canadian Federation of Students (CFS) and the B.C. Teachers' Federation (BCTF).

Legal experts have suggested that this decision will be important in the pro-life cause, as the principles of the case will be transferable for advertising of pro-life and other related issues on busses, bus stops, and other areas.

There has been controversy over pro-life advertising in Canada during the past year after LifeCanada launched a national education campaign in over 50 communities using a pro-life ad on busses.  The ad featured a pregnant woman with the line: "Nine months. The length of time abortion is allowed in Canada. Abortion: Have we gone too far?" reported in January 2008 that the ad had been pulled by city officials in Hamilton, Fredericton, and St. John's, claiming inaccuracies in the ad, and "controversy." 

Hamilton Right to Life filed a human rights complaint against the city of Hamilton.  In May 2009, LSN reported that the city of Hamilton had lifted their ban on the ad, after the wording of the ad had been changed to satisfy a decision of Advertising Standards Canada that ruled the ads "deceptive."

In the summer and fall of 2004, the CFS and the BCTF each independently attempted to purchase advertising space on the outside of transit buses in Vancouver.  The CFS is a society of student unions, representing thousands of students in B.C., and the BCTF is the teachers' union, representing 40,000 public school teachers in B.C.  The ads they attempted to have posted were political in nature, urging students and teachers, respectively, to engage relevant issues in the provincial election scheduled for May 2005.

One of the two CFS ads stated: "Tuition Fees Minimum Wage Environment"

And the BCTF ad ran: "2500 fewer teachers. 113 schools closed. Our students. Your kids. Worth speaking out for."

Translink and B.C. Transit refused to allow these ads because the ads contravened their advertising policies.  The policies restricted bus advertising space to commercial ads, and prohibited advertising of a political or controversial nature, or ads which were likely to cause offence.

The CFS and the BCTF began their action in February 2005, arguing that the transit policies violated their freedom of expression in the Charter, and that, as government entities, the Charter should apply to B.C. Transit and Translink.

The trial judge decided in March 2006 that the transit authorities did constitute government, but ruled that the advertising policies did not violate the right to freedom of expression.

The CFS and the BCTF then appealed the judge's decision to the B.C. Court of Appeals, who judged in November 2006 that their freedom had been violated, and that B.C. Transit and Translink could not refuse to carry political or controversial advertising.  B.C. Transit spokesman Ron Drolet told The Globe and Mail at the time, "We want to study the decision.  The policy that was there was there for good reason."

In 2007, Translink sought a stay of this order while they appealed to the Supreme Court of Canada, but their application was rejected.

While awaiting the Supreme Court's decision, Translink was, nonetheless, careful about their advertising space.  In February 2009 they announced that they had refused ads submitted by the B.C. Humanist Association.  The ads stated, controversially: "You can be good without God."

In their decision, the Supreme Court agrees that the transit authority's objective of providing "a safe, welcoming public transit system" is "a sufficiently important objective to warrant placing a limit on freedom of expression."  They hold, however, that the advertising policies under question are not sufficiently connected to the objective to warrant limiting freedom of expression.

"It is difficult to see how an advertisement on the side of a bus that constitutes political speech might create a safety risk or an unwelcoming environment for transit users," they say.  "The policies amount to a blanket exclusion of a highly valued form of expression in a public location that serves as an important place for public discourse. They therefore do not constitute a minimal impairment of freedom of expression.

"Advertising on buses has become a widespread and effective means for conveying messages to the general public. In exercising their control over such advertising, the transit authorities have failed to minimize the impairment of political speech."

The Supreme Court Decision

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