A case that could find its way to the Supreme Court of Canada started in a Hamilton courtroom last week. The Christian Heritage Party challenged a City of Hamilton decision to remove bus shelter ads the party purchased during the summer of 2016.
The City of Hamilton (City) says it acted reasonably and responsibility in removing the ads which the City states were hateful towards transgender people.
The lawyer representing the Christian Heritage Party (CHP) says the City was incorrect in removing the ad, and violated CHP’s Charter rights by targeting political expression with which the City disagreed. The City says this is not the case, that the ad violated City standards, and this was why it was removed.
The Divisional Court is a division of the Ontario Superior Court which sits in review of decisions, with three Superior Court Justices sitting as a panel.
The hearing panel consisted of Justices Ruth E. Mesbur, Frederick L. Myers, and Michael N. Varpio.
Mesbur (who is a supernumerary judge) sat in the centre. Varpio is a Justice based out of the Northeast Region of Northern Ontario. Varpio regularly sits on Divisional Court panels.
Background
In 2016, the CHP’s Hamilton Mountain riding association purchased three bus shelter advertisements to run for 28 days during the month of August.
The shelter ad poster depicted a person – with a stereotypical male haircut, heavy jacket, and baseball cap – walking into a door labeled “ladies showers”.
In the text accompanying the image, the ad stated “Competing Human Rights … Where is the Justice”.
Hamilton Mayor Fred Eisenberger and Councillor Aidan Johnson determined the ads to be unacceptable and demeaning to the transgender community, and the City removed them from bus shelters.
Legal Remedy Sought
The panel heard nearly four hours of oral arguments, and received thousands of pages submitted by each side.
The CHP seeks a court order to ‘tell the City they cannot censor political speech’, that the City violated the Charter of Rights and Freedoms, and an order for the City to repost the advertisement for 28 days.
CHP lawyer Albertos Polizogopoulos argued the City should be held to the standard of correctness as outlined in the Oakes Test (named after the Supreme Court of Canada decision R v Oakes).
Oakes places the burden upon government to prove the necessity of restricting a Charter right, in this case CHP’s expression.
Lawyer for the City, Michael Bordin, argued the Court should decide the case by applying the Doré test (named after the Supreme Court of Canada decision Doré v Barreau du Québec).
Doré is a reasonableness test which grants deference to the decision maker (City) and does not necessarily require that the decision maker formally deliberate and consider Charter Rights in making a decision.
A primary focus of arguments was the decision making process of the City’s Director of Communications Andrea McKinney who was the sole city official who determined and removed the CHP ad.
Under policy, as written, the City delegated authority for ad standards and approval to Outfront Media, not McKinney.
Varpio and Myers noted numerous times in their questions that Outfront conducts ad judgments for over 100 municipalities and are subject matter experts.
Hamilton Street Railway (the City transit agency) advertising contracts state the Transit Director may “demand” the removal of ads to ensure the good operation of the transit system. There was argument about the term “demand” and if it limits the Transit Director to only requesting or if that represents an ability of the Transit Director to order removal of ad. Myers stated a plain reading is the Transit Director can remove ads.
Timeline of Events
The ads began running at three Hamilton bus shelters on or about August 1, 2016. There’s no record of when exactly they were posted. After some argument, it was accepted the ads were all posted no later than August 4th, but likely on the 1st or 2nd.
It wasn’t until August 10 that City Hall and McKinney became aware of the ads.
At 9:08am on August 10, Samantha Craggs of CBC News emailed City of Hamilton Public Works Communications Officer Jasmine Graham asking for City comment on the bus shelter ads. Craggs followed up with a phone call shortly thereafter.
At 10:10am, Graham emailed McKinney requesting direction on how to respond to CBC.
At 2:44pm, McKinney emailed Council stating City staff were being dispatched to find and remove the advertisements.
At 6:00pm, McKinney emailed Council to confirm the ads have been removed, stating that Public Works staff removed the ads because Outfront Media was not able to remove them that day.
These emails were the only written records provided by the City of the decision making process.
CHP Arguments
CHP is the applicant and Polizogopoulos argued first, quickly noting the City’s advertising policy made no reference to the Director of Communications, that authority for ad approval is with Outfront Media, that Outfront approved the ad and are experts in what is allowable advertising in Canada, that the City did not contact CHP prior to taking down the ad, and that CHP was not afforded the opportunity to run an alternative ad by the August 12 motion of Council condemning CHP’s ad.
Polizogopoulos cited the deposition of McKinney, during which McKinney stated her authority to remove the ads stemmed from her delegated authority from City Manager Chris Murray to protect the image of the City.
This authority was not written in bylaw or policy, Polizogopoulos stated. He argued McKinney’s lack of legal training meant she was not qualified to make the Charter weighing required of the Oakes Test, that she failed to weigh the Charter rights of CHP, she was primarily focused on protecting the City’s image, and that the City failed to meet its legal burden in its submissions to the Court.
Polizogopoulos challenged the City’s view the ad was targeting the then-recent City Human Rights settlement on access to gendered washrooms. He argued neither the word bathroom nor transgender is in the ad, and that “frankly, the City cannot decide what the poster depicts”.
Polizogopoulos said the City gave 14 reasons for rejecting the ad, but those reasons came after the decision, and the Court should reject them both as unproven and as being after the fact.
Among the reasons he stated the City provided are: the ad violated the City’s ad policy, violated the Canadian Code of Advertising Standards, violated the City’s Equity Policy, the ad is anti-transgender, the City had an obligation to not distribute anti-human rights positions, the ad had an adverse impact upon transgender persons, and that the ad was a “dog whistle”.
“The City was motivated to censor speech it disagrees with, they were using government power to stifle dissenting views to the City’s planned policy [transgender protocol]”, Polizogopoulos argued.
He argued that the Supreme Court of Canada in Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, stated “citizens, including bus riders, are expected to put up with some controversy in a free and democratic society” and therefore the City cannot ban CHP’s ad due to “claimed discomfort of some individuals”.
Polizogopoulos stated with emphasis to the Court at the time the City removed the ads on August 10, it had not received any complaints, and had only heard about third party complaints from the CBC reporter.
The Greater Vancouver decision established that once governments allow for commercial expression (“expressive activity” is the term used in the case) by inviting advertising into public spaces, under the Charter, government cannot impose blanket restrictions on political expression.
The 8-0 Supreme Court decision involved an ad with the image of a crowd and the text “Register now. Learn the issues. Vote May 17, 2005.”
Translink (the Greater Vancouver Transportation Authority) rejected the ad under its blanket political advertising ban, it was the blanket nature of the ban that the Court overturned.
In paragraph 78 of Greater Vancouver, the Supreme Court stated “The fact that the limits are overbroad in the instant case does not mean that the government cannot limit speech in bus advertisements.”
Building upon this in paragraph 79: “Thus, limits on advertising are contextual. Although we are not required to review the proposed standards, the Canadian Code of Advertising Standards, which is referred to in the transit authorities’ advertising policies, could be used as a guide to establish reasonable limits, including limits on discriminatory content or on ads which incite or condone violence or other unlawful behaviour.”
Polizogopoulos sought to address the greatest case law challenge facing his arguments, the recent Alberta Court of Appeal decision, Canadian Centre for Bio-Ethical Reform v Grande Prairie (City) 2018 ABCA 154.
In Grande Prairie a lower court ruled the Transit Director was reasonable and justified in refusing to run an pro-life/anti-abortion advertisement from the Canadian Centre for Bio-Ethical Reform (CCBR).
The court stated Grande Prairie’s Transit Director’s mandate includes creating a “safe and welcoming transit system” and that the Director could refuse the CCBR ad as contrary to this mandate due to its graphic and misleading content. Importantly for the this Hamilton case, the Alberta Court stated the Director was correct in reviewing the content of the CCBR website in determining the appropriateness of the ad.
Polizogopoulos argued the CHP Hamilton ad was approved by OutFront, unlike in Grande Prairie where it was denied by the mandated official. He told the Court that McKinney could not reject an ad due to a lack of authority in her position. He further argued that in Grande Prairie the city provided some written reasons, whereas Hamilton did not provide reasons – or even contact CHP – prior to removing the ad.
Citing the Ontario Court of Appeal (ONCA) in Bracken v. Fort Erie (Town), 2017 ONCA 668, paragraphs 46 to 54, Polizogopoulos argued that “citizens are expected to put up with controversy”, and the ONCA rejected the Fort Erie’s claim that Bracken’s speech was violence.
Citizens “are not required to limit their upset in order to engage their constitutional right to engage in protest”, Polizogopoulos emphasized from the decision.
Polizogopoulos stated the CHP “does not dispute how the transgender community feels” but that it was “not relevant to reviewing the City’s decision as the poster does not change transgender policy or access”, stating that “feelings should not allow a City to stop the speech of a political party”.
Varpio asked “doesn’t Greater Vancouver allow for a city to curtail discriminatory speech?” citing paragraph 79.
“The threshold is high, especially when political speech from a political party”, Polizogopoulos responded.
Myers asked Polizogopoulos why he did not include R. v Zundel in his book of authorities as it is very similar. In Zundel, the Supreme Court held the government could not prosecute Zundel for “spreading false news” by publishing and distributing a Holocaust denying pamphlet entitled “Did Six Million Really Die“.
Myers stated ‘wouldn’t the feelings of those alive who survived the Holocaust, and their children, be greatly harmed by Zundel’s speech? Yet the Supreme Court of Canada held the Charter protected his speech.’
Polizogopoulos returned to his argument that the City could not agree upon what the CHP poster depicted.
Myers interrupted him, “Let’s not pretend the Christian Heritage Party put up the ad to support the policy! Everyone knows that it was a response [to the City’s planned Transgender Protocol], but that’s your case – the City cannot ban something it disagrees with”.
Polizogopoulos summarized his arguments, and the Court recessed for lunch.
City of Hamilton Arguments
The City planned to use the full afternoon to make arguments, but did not get much opportunity to present oral arguments as the Justices quickly began challenging the City’s case, placing the burden of the case upon the City as respondent.
Outside lawyer for the City, Michael Bordin (assisted by Lyndsay Butlin), began his arguments stating “This case is not about the city completely censoring the applicant’s political views and political expressions, but a decision to take down a discriminatory ad” as the City is allowed to do under the advertising contract.
Bordin outlined the City’s position that it acted reasonably and within the advertising contract when it removed the ad. Not only did it have the right to remove the ad, it had the obligation under Toby’s Law to protect members of the transgender community by removing the ad.
Bordin, building upon Grande Prairie, outlined the views of the CHP as expressed on their website.
“The Christian Heritage Party says transgender woman are not women, but they are men”, Bordin stated. Jim Enos, the CHP agent who bought the ad, is “known to the City” for providing “unsolicited comments” on social matters to both staff and council, Bordin continued.
Bordin began reading the reasons the City listed in its submissions of why it needed to remove the ad.
Myers asked a question, cutting off the argument. “Is it discrimination to politically oppose making washrooms gender neutral?”
Bordin said that some people may see it that way.
Myers responded “What does the Charter say, I don’t care what individuals think”.
The Charter does speak to free expression, but does not protect discriminatory speech, was Bordin’s response.
This was the first of almost two hours of questions from the Justices to Bordin.
Myers asked if there is a right to advertise a position against the City’s viewpoints and planned policy?
Bordin responded with a question, “Would we allow an ad that is against desegregation, we’d agree that’s discriminatory?”.
“Some would say modesty is still a value”, Myers stated.
“We are moving forward in our understanding of the discrimination and experiences of transgender persons”, Bordin responded.
Varpio asked if the City would treat the ad differently if it were only text without the image. “If the ad says we don’t like the policy, is that discrimination?”
Bordin responded “the ad we have in front of us has a context and a history”, and that it was not merely stating opposition to policy.
During a line of questioning from Mesbur about the City’s position that CHP’s website forms an important context of the bus shelter ad, Bordin stated the contract was between the applicant [CHP] and Outfront Media.
Mesbur quickly retorted “But Outfront didn’t remove the ad”.
Thus began the toughest questioning of the City’s position.
Reading from the disposition transcript, Varpio stated “McKinney says she had the authority to remove the ad because she is delegated by the City Manager to protect the City’s image. If McKinney is driving home tonight and sees an ad she doesn’t like, she has the authority to remove it?”
Bordin stated ‘Yes, if she deems it harmful to the City’s image’, Varpio responded ‘She doesn’t need to consult with anyone?’ to which Bordin stated ‘She consults with those necessary’. Varpio redirected his question ‘But ultimately she can remove it without seeking input from affected parties’ and Bordin responded “If necessary”
Myers asked Bordin “Where is the decision of the City, show me that” noting that the City made no written decision, nor did it make any record of the consideration that lead to the removal of the ad.
“They made a quasi-judicial decision among a bunch of directors without notice to the applicant. Where did she get the authority, the statutes, and the evidence to make the decision. This is a serious decision, how did she make it? Where’s the evidence”, Myers stated.
Myers was further critical of Director of Communications Andrea McKinney for not speaking to CHP prior to removing the ad. “She found they [CHP] breached the Ad Code, law, Human Rights Code, or moral standards of the community”.
“What authority did she have? The policy says the Ad Code, [inaudible], or the General Manager of Transit”, Myers stated.
Varpio joined in the line of questioning “I don’t see anywhere where the City staff describe where and why they thought it was discriminatory. Did I miss it?”
Bordin responded “you have not”, that the City’s decision is “not spelled out … to some, it’s [the ad] clearly intended to be discriminatory to some individuals” adding “When it’s self-evident, it’s hard to describe”.
Varpio and Myers both tested the self-evident argument, returning to the lack of reasons in making the decision from the City for how it is discriminatory.
Bordin stated CHP and the City were in a “contractual relationship, and the contract says ads can be pulled”.
Myers responded “[Greater] Vancouver had a contract”.
Bordin stated the case there was different, that case was about a blanket ban on ads, this is about the advertisement itself. He stated that Outfront’s contract with CHP allowed for the City to remove the ad without notice, and the Court here should look at this as a contractual matter.
“Isn’t the decision not quasi-judicial in nature?” Myers asked Bordin.
There was a 20 second pause as Bordin considered his response. “In our view there’s been a breach of the contract, we’re not moving forward”. Bordin began his response arguing CHP’s ad content breached the contract, stating that he was “struggling with the idea that it is quasi-judicial”.
Myers stated “You state the ad is discriminatory … how is that not a finding made concerning CHP’s ad, which the CHP may have a different view on”.
Bordin responded “It’s the Council’s expressed view”.
Myers stated “What evidence did they rely upon to formulate that view?”
Bordin responded City Council is “primarily a legislative body, not a administrative tribunal”.
Myers quickly retorted “except when they make findings of law based on finding of fact. There is plenty of case law that cities are quasi-judicial actors”.
A recess was granted for Bordin to conference with Assistant City Solicitor Ron Sabo who was present in the public gallery for the hearing. The recess lasted around 20 minutes.
When Court resumed, Varpio challenged Bordin on burden, questioning critically the City’s position that CHP must meet the burden of proving the City was unreasonable and infringed their Charter rights.
“Doesn’t the City need to provide due process?”, Varpio asked.
Bordin responded that Doré is a balancing test, that in Greater Vancouver the Supreme Court recognized that creating a “safe and welcoming environment is an appropriate objective”, that it may be appropriate to restrict some expression in order to protect children (Grande Prairie), that transgender individuals fit into a group of vulnerable individuals similar to those envisioned in Greater Vancouver.
“Does it have to be discriminatory? Is making people uncomfortable enough?”, Varpio posed as a question.
Bordin responded that Clause 14 of the Code of Advertising Standards provides a standard.
Mesbur quickly commented “Outfront knows the ad code, they did not find fault” to which Bordin responded there is “no evidence” before the court that Outfront reviewed the advertisement before posting.
Mesbur noted that Outfront was not consulted at any point during McKinney’s decision making on August 10, 2016, and returned to a previous point that CHP was not contacted either.
Bordin said the court needs to consider the “underlining tone and views” of the CHP, stating CHP “disparages” and “denigrates” transgender people, subjecting them to public ridicule by suggesting they are “scary”, “dangerous”, and “deviant”.
Varpio returned to the earlier line of questioning on reasonableness of process. “What evidence do we have of balance” of free expression against the City’s policies and purposes? Varpio referred to the City’s 14 reasons against the ad as “14 ways of trying to say the same thing”.
In his response, Bordin conceded “you won’t see it in the record” as the City did not take minutes of its decision making process.
Varpio questioned “even is the outcome is reasonable, how do we know the process lead to a reasonable decision?”.
Bordin argued the City didn’t have case law to refer to in this matter, and that in E.T. v. Hamilton-Wentworth District School Board, 2017 ONCA 893 the Court of Appeal held that a lack of front line review was not fatal to the balancing test, that it could be done later.
Myers interjected “this is people’s fundamental Charter rights, you can’t just lower it down the org[anizational] chart to a person unfamiliar with the balancing requirement, then state I can create excuses for it later”
Varpio noted that McKinney was relatively new in her position at the time, that this was “not an easy decision” and that even if McKinney is a reasonable thoughtful person, “and the Court has nothing on the record to indicate otherwise” that it is “not unreasonable” for the Court to find that McKinney took down the CHP ad “because she disagreed with it”. “Without record or evidence, how can the Court find in favour for the City?”
Bordin argued the Court can find the reasons and necessity for removing the ad from the submissions of the City, and the affidavits which were sworn.
Myers interjected “after the decision”. “You let other parties advertise, you are deciding content”.
Myers expressed that if the Court were to remit the CHP back to the City to conduct a reasonableness review, McKinney would reject the ad based upon Council’s direction.
Myers challenged the City’s submission that the discriminatory nature of the CHP ad was self-evident, saying there’s no clear evidence from the City to advance this, as the City’s own submitted affidavits disagree on the meaning of the ad. “You use the word [discriminatory], that can’t be enough”.
Bordin responded that the CHP ad is “dog whistle politics” designed to signal CHP’s base against transgender individuals, and that in American Freedom Defence Initiative v Edmonton (City), 2016 ABQB 555 the Alberta Court of Queen’s Bench found that an ad by the American Freedom Defence Initiative was a dog whistle and Edmonton Transit was justified in refusing to allow the ad as it targeted the Muslim community, similar to what the CHP’s purpose was.
Bordin stated the City’s decision in this case should be decided on the range of reasonableness.
Varpio asked “Is coming close reasonable” if the City “ignored one party”.
Mesbur asked if the Court should only look at the outcome and ignore the process. ‘What if McKinney made her decision by using a “Ouija Board” or a “Magic 8-Ball“?’
Mesbur asked “If McKinney shook an 8-Ball and the answer comes up within the range of reason, are you asking that the Court ignore the process?”. “Namely that she used the 8-Ball to make the decision?”.
“Isn’t reasonable process required for reasonableness?”
It was at 4pm in the courtroom, and Myers stated both parties had made their key arguments, arguments they are likely to to repeat in higher courts.
Bordin argued in closing that the Court should consider all the evidence in the City’s briefs and affidavits, and the impact of the ad in the community.
Mesbur made a final statement asking if freedom of expression was considered, Bordin did not answer, and Mesbur turned to Polizogopoulos for his reply to the City’s arguments.
“I’m reluctant to say much” Polizogopoulos opened.
He restated his arguments on lack of process and free speech; arguing that if the Court ruled in favour of the City, it was opening the door to further action against speech the City disagrees with.
Polizogopoulos argued that the City would have the authority to remove posters from traffic poles, that were, as an example, advertising a controversial academic. He cited Jordan Peterson as an academic who is accused of being discriminatory towards transgender people, who could be censored in the future.
Justice Myers stated “Have you been to a campus lately?” stating Peterson had already been shut down at McMaster.
Polizogopoulos said he wasn’t thinking of that example, and noted he was just arguing about the risk of overreach without proper process.
The Justices asked the lawyers if CHP and the City had reached an agreement on costs. (Reaching an agreement is expected in Divisional Court) Both lawyers stated they had not, and could not do so quickly.
The Justices thanked the lawyers for their submissions, including the creation of a joint book of authorities.
Mesbur lightheartedly stated “should we retire for five minutes to consider our decision?” to which all smiled, knowing that this decision will be lengthy and take time to be published.
It is expected that once a ruling is made, the unsuccessful party will appeal to the Ontario Court of Appeal.