Freedom of Expression and Restrictions on Political Advertising

Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31 (10 July 2009) The Canadian Supreme considered advertisements on public buses and held that a policy prohibiting political advertisements amounted to a breach of the right to freedom of expression under s 2(b) of the Canadian Charter of Rights and Freedoms.

Facts

The Canadian Federation of Students and the British Columbia Teacher’s Federation had each tried to place political advertisements on the side of buses. 

The Greater Vancouver Transportation Authority and British Columbia Transport had advertising space available, but each had a policy of refusing to place political advertisements. 

The unions brought an action on the basis that the policies violated their right to freedom of expression under s 2(b) of the Canadian Charter of Rights and Freedoms.  The trial judge dismissed the action but, on appeal from the unions, the Court of Appeal reversed the trial judgment.  The Transit Authorities appealed to the Supreme Court of Canada.

Decision

Justice Deschamps delivered the reasons for judgment on behalf of the majority.  Her Honour noted that the first issue for consideration was whether the Transit Authorities were subject to the Charter, and said:

…there are two ways to determine whether the Charter applies to an entity’s activities: by enquiring into the nature of the entity or by enquiring into the nature of its activities. … If an entity is not itself a government entity, but nevertheless performs governmental activities, only those activities which can be said to be governmental in nature will be subject to the Charter.

Given that both Transit Authorities ran public buses, the court had no difficulty in finding them to be ‘governmental’ for the purposes the Charter.

With respect to the s 2(b) right to freedom of expression, her Honour considered previous cases and noted the Court’s broad and purposive approach to the interpretation of rights.  She said:

An activity by which one conveys or attempts to convey meaning will prima facie be protected by s 2(b)… Furthermore, the Court has recognised that s 2(b) protects an individual’s right to express him or herself in certain public places … Therefore, not only is expressive activity prima facie protected, but so is the right to such activity in certain public locations.

In determining if the Transit Authorities’ policies infringed s 2(b), Deschamps J considered the application of the City of Montreal case (2005 SCC 62), which said that the questions to be asked were: First, do the Unions’ advertisements have expressive content that brings them within the prima facie protection of s 2(b)?  Second, if so, does the method or location of this expression remove that protection?  Third, if the expression is protected by s 2(b), do the Transit Authorities’ policies deny that protection?

Her Honour suggested that the first and third questions were uncontroversial, but noted that the second question raised issues as to whether buses could be said to be a location that removed the protection of freedom of speech in relation to political advertising.  Her Honour said:

Like a city street, a city bus is a public place where individuals can openly interact with each other and their surroundings.  Thus, rather than undermining the purpose of s 2(b), expression on the sides of buses could enhance them by furthering democratic discourse…

Accordingly, the majority held that the policies infringed the Unions’ right to freedom of expression.  They then examined whether the limitation was reasonable under s 1 of the Charter.  Specifically, whether the policies were ‘prescribed by law’ and ‘demonstrably justified in a free and democratic society’.

Justice Deschamps noted that the ‘prescribed by law’ requirement safeguards the public from arbitrary limits on Charter rights being imposed by the state.  Her Honour noted that the Court takes a broad approach to what constitutes ‘law’, and said policies could be considered ‘law’ where they establish a general norm that has been enacted by a government entity pursuant to a rule making authority.  She described a rule-making policy as existing where the power to make rules of general application has been designated by Parliament to a government entity.  On the facts, the majority found that the Transit Authorities’ policies were ‘law’. 

Accordingly, they considered whether the limitation imposed under the policies was ‘justified in a free and democratic society’.  Justice Deschamps considered that the ban on political advertising was not rationally connected to the aim of providing a ‘safe, welcoming public transport system’.  She said:

It is not the political nature of an advertisement that creates a dangerous or hostile environment.  Rather, it is only if the advertisement is offensive in that, for example, its content is discriminatory or advocates violence or terrorism – regardless of whether it is commercial or political in nature – that the object of providing a safe and welcoming transit system will be undermined.

The majority held that a blanket exclusion of political advertising was not a minimal impairment of freedom of expression in these circumstances.  They dismissed the appeal and granted a declaration that the policies were of no force or effect to the extent of their inconsistency.

Justice Fish reached the same decision as the majority, although he got there via a different means of analysis.  His Honour differed on the nature of the s 2(b) right, and said:

Freedom of expression enjoys broad but not unbounded constitutional protection in Canada … the Charter cannot have been intended to protect all expression, so broadly defined, at all time in every ‘space’ or ‘place’ under government control. 

His Honour argued that the inquiry into whether the expressive activity is protected depends on the circumstances of the case.  His Honour argued that this approach limits the need to go through the Montreal City test, and said:

where the alleged incompatibility is manifest, the matter should be disposed of at the s 2(b) stage of the analysis [without needing to consider the reasonableness of the limitation].  Governments should not bear the burden of strictly prescribing by law and justifying limits on those kinds of expression that are so obviously incompatible with the purpose or function of the space provided…

Relevance to the Victorian Charter

The right to freedom of expression in the Canadian Charter is expressed without limitation but is, of course, subject to the s 1 ‘reasonable limits prescribed by law’ test.  The Victorian Charter of Human Rights and Responsibilities operates differently.  Section 15(3) of the Victorian Charter provides an internal limit to the right to freedom of expression and, specifically, says that the right may be subject to lawful restrictions reasonably necessary to protect reputation, public order and public morality.  However, in essence and in application, these provisions achieve a similar objective and, accordingly, the Canadian Supreme Court analysis may prove relevant.

The decision is available at http://www.canlii.org/en/ca/scc/doc/2009/2009scc31/2009scc31.html. 

Victoria Edwards is on secondment to the Human Rights Law Resource Centre from Freehills