Aborting Freedom of Expression

If a city can censor anti-abortion ads to prevent hurt feelings, is there anything that could not be censored?

The decision of the Alberta Court of Queen’s Bench in Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2016 ABQB 734 was issued before the holidays, and was reported on in the media earlier this month, but it has only recently become available on CanLII, and it’s worth a comment. Justice Anderson upheld, as reasonable under the framework for reviewing administrative decisions challenged for contravening the Canadian Charter of Rights and Freedoms developed by the Supreme Court, the decision of the city of Grande Prairie to deny an anti-abortion organization the opportunity to run ads on the city’s buses. She was wrong to do so, and her decision, if it is upheld or followed, will have grave consequences for freedom of expression in Canada.

* * *

Justice Anderson’s description of the ad in question is worth reproducing in full (perhaps with a Posnerian lament about the absence of pictures in legal texts):

The ad contains three images: the first of a fetus at approximately 7 weeks development, the second of a fetus at approximately 16 weeks development, and the third a blank red circle with no image. Under the first image is the caption “7-weeks GROWING”, under the second image the caption states “16-weeks GROWING” and inside the third blank image is the word “GONE”. To the right of the images is the statement “ABORTION KILLS CHILDREN” followed by a web address “ENDTHEKILLING.ca” and the name of the organization behind the ad. [5; emphasis in Justice Anderson’s reasons ― it is not clear whether it was also in the ad itself]

Justice Anderson notes that, at the time, “the City’s Transit Manager, Jason Henry, explained that City buses are taxpayer funded vehicles and that ‘this ad would be disturbing to people within our community'”. [8] The City’s asserted reasons for banning the proposed ad would change later on, however, “to ensur[ing] that hateful expression” ― indeed “hate propaganda” ― “was curtailed to protect the public from the harmful effects of such expression”. [45] The City also required advertising on its buses to comply with the  Canadian Code of Advertising Standards which “states among other requirements that ads shall not demean, denigrate or disparage one or more identifiable persons, or group of persons”. [46]

The way to assess the validity of administrative decisions said to contravene the Charter ― the freedom of expression guarantee of section 2(b) in this case ― was set out by the Supreme Court in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395. There, Justice Abella explained that “[i]f, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable” [58] and thus valid. However, as Paul Daly explains, the Supreme Court’s subsequent decision in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 (about which I have written here) suggests “that there is little difference between Doré reasonableness” and ordinary Charter analysis.

Justice Anderson concluded that

the statutory objective of controlling the content of advertising on City buses is to provide a safe and welcoming transit system, as part of the municipality’s responsibility … to provide services and develop and maintain a safe and viable community. [51]

This objective was agreed to be important enough (in keeping with the Supreme Court’s decision in Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 SCR 295, which considered the constitutionality of a policy prohibiting all political advertising on city buses ― and eventually found it unconstitutional). “The question”, Justice Anderson observed, “is whether the City limited the [anti-abortionists’] right to expression no more than was necessary in pursuit of the statutory objective”. [53]

Justice Anderson found that this was indeed the case. It mattered, in her view, that “a bus exterior is a location where it is almost impossible to avoid the expression” [68] ― one cannot just move and look away. Moreover, “ads on city buses are viewed in very close proximity by those who have no other means of transportation [and] by other users of the road”. [69] In short, these ads target a captive audience. As a result, they can be more narrowly regulated than other forms of expression, so as to protect “vulnerable groups”, notably “children”, who can in other cases be prevented from witnessing “upsetting images and phrases”. [72] Justice Anderson also insists that the infringement of the freedom of expression “was limited to the rejection of this particular ad. The City did not state that abortion related ads would not be permitted, nor did it preclude the [anti-abortionists] from bringing forward a different ad”. [74] She explains that she has “gone beyond the ad in this case”, looking at the website which it references, and found there “strong statements that vilify women who have chosen, for their own reasons, to have an abortion; [these statements] are not merely informative and educational”. [80] The City, Justice Anderson concluded, is entitled “to protect the general public, including children, from the harm caused by what many members of the public would view as disturbing expression in an exceedingly public space”, [81] whether or not it amounted hate speech:

[T]he ad is likely to cause psychological harm to women who have had an abortion or who are considering an abortion. It is also likely to cause fear and confusion among children who may not fully understand what the ad is trying to express. They may not be familiar with the word abortion, but they can read and understand that “something” kills children. Expression of this kind may lead to emotional responses from the various people who make use of public transit and other users of the road, creating a hostile and uncomfortable environment. [82]

Justice Anderson also briefly considered, and rejected, a number of arguments based on purely administrative law principles, but I will not discuss that portion of her reasons here.

* * *

Justice Anderson’s reasoning is disturbing if not perverse. Her claim that bus advertising is somehow impossible not to look at is odd. It is certainly not consistent with Justice Deschamps’ reasoning for the Supreme Court’s majority in Greater Vancouver, which ― although it did raise the possibility that some forms of expression might be curtailed due to concerns about their audience, did not find that bus advertising was of that nature. Her claim that a different ad could have been allowed is close to mockery ― there is no reason to think that the City would have allowed another anti-abortion ad; it certainly suggested no such thing. The ad at issue was not gruesome, violent, or explicitly derogatory of anyone; this is why Justice Anderson felt the need to “go beyond” it to support her conclusions. Quite apart from the question whether rules of judicial notice authorized her to do so, as she claims they did, the rather obvious fact is that her captive audience argument, whatever its value, does not work once one has to go “beyond” the message that the purportedly captive audience sees. Justice Anderson might not think so, but no one has go on a website just because it is mentioned in an ad. As for claims of psychological harm, Justice Anderson does not even pretend to support them with a shred of evidence. She simply makes them up.

But consider what will happen to freedom of expression in Canada if different strands of this reasoning are adopted as part of our law. It is difficult to see how Justice Anderson’s bizarre views on what makes for a captive audience do not apply to forms of advertising other than ads on bus sides ― large billboards, for example ― which could then also be censored if found to contain “upsetting images and phrases”. Censorship could be imposed on the basis of vague concepts, such as whether something is “upsetting” or “psychologically harmful” ― according, not to some scientific definition, but to the whim of a bureaucrat or a judge. Indeed, a message could be censored not only because it contains “upsetting images and phrases”, but because it leads its audience ― or a bureaucrat or judge ― to some other upsetting message. In more concrete terms, an Oxfam ad depicting an emaciated child, or an Amnesty International ad stating that “Torture disappears only when you do something about it” could be banned from public view because they contain “upsetting images” or words, or because they would cause “psychological harm” to those who do nothing to help about starving children or abused prisoners.

* * *

But, you might say, of course these ads won’t be banned. They might be upsetting, but in a good way. But that’s a subjective viewpoint. And while abortion is legal in Canada while torture is not (though failing to do anything about torture in other countries is certainly legal too), a free society tolerates appeals for the law to be changed, and for previously legal behaviours to be outlawed. The debate about abortion is not going to go away censoring one side of it. If anything, seeing the state take the side of their opponents will only make anti-abortionists more radical and uncompromising.

And beyond this specific debate, there are other disagreements in society, which sometimes cause people to speak in bitter and upsetting terms about each other. A free society is not a safe space in which authorities protect people from having their precious feelings hurt. Justice Anderson does not understand this. I can only hope that other Canadian judges still do.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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