SCC: Prohibition of Political Advertisements on Public Transit is an Unconstitutional limit on Freedom of Expression
13 July 2009 | Election Advertising
The Supreme Court of Canada (the "SCC") has ruled that Translink and BC Transit advertising provisions that prohibited political advertising on public transit are an unjustifiable limit on freedom of expression protected by section 2(b) of the Canadian Charter of Rights and Freedoms (the "Charter").
The reasons for the judgment are available here. The Vancouver Sun has a story on the judgment here.
Translink and BC Transit's advertising policies excluded political advertisements and advertisements that were likely, in the light of prevailing community standards, to cause offence or create controversy.
In order to determine whether the advertising policies were inconsistent with the Charter, the SCC first had to examine whether the Charter applies to BC Transit and Translink. After reviewing the governmental structure that created and provided oversight for BC Transit and Translink, the SCC held that these entities are considered to be government, such that the Charter applies to their activities.
The SCC then examined whether the prohibition on political advertising infringed the freedom of expression protected by section 2(b) of the Charter by applying the three-step test from the City of Montreal decision: (1) do the proposed adverisements have expressive content that is the type protected by section 2(b) of the Charter, (2) does the method or location of this expression remove the protection, and (3) does the prohibition on political advertising deny the protection?
In this case there was no dispute that the proposed advertisements had expressive content, and that if protected, the prohibition removed that protection. The only issue for the section 2(b) analysis was whether the method or location of advertising on public transit removed the protection. The SCC held that since the transit authorities previously allowed advertising on public transit, constitutional protection for advertising extended to public transit.
Having held that the prohibition of political advertising infringed the right to freedom of expression under section 2(b) of the Charter, the SCC turned to whether this infringement was justified by section 1 of the Charter.
The SCC held that the objective of the prohibition (a safe, welcoming public transit system) is a sufficiently important objective to warrant limits on the freedom of expression. However, the SCC found that the ban on political expression were not rationally connected to this objective, and that the exclusion of advertisements that "create controversy" was unnecessarily broad.
In ruling that the prohibition on political advertisements was not justified by section 1 of the Charter, the SCC reasoned that only if an advertisement is offensive will the objective of providing a safe and welcoming transit system be undermined.
While the SCC ruled that the advertising policies, to the extent that they prohibited political advertising, had no legal effect, the ruling will have no immediate practical impact as Translink and BC Transit have accepted political ads since 2006.
However, the ruling is clear that public transit authorities are not required to accept all political advertising. The ruling puts public transit authorities in the uncomfortable position of having to to decide whether the content of particular political advertising is "offensive" such that it undermines the objective of a safe and welcoming public transit system. Given the personal and vitriolic nature of some unions in the recent BC Provincial Election, it seems likely that the transit authorities (the government) will in the future be in the position of having to determine which political ads are acceptable and which political ads are offensive (most likely those which are criticial of the government). This position creates difficult conflict of interest issues for public transit authorities, and it will be very interesting to see how the advertising policies adapt to comply with this ruling while maintaining the objective of a safe and welcoming public transit system.