Hamilton City Hall Credit: Joey Coleman

A third-party intervener will participate in the latest court challenge of the City of Hamilton’s decision-making regarding political ads on HSR public transit buses.

The Ontario Divisional Court granted intervenor status in a ruling issued on November 30.

Hamilton has a reputation for failing to engage in good Charter reviews in the past, making it a choice destination for pro-life / anti-abortion groups seeking favourable court rulings.

The latest ad is from The Association for Reformed Political Action (ARPA) Canada.

They sought to purchase an ad which refers to a sonogram image of a late-term fetus in the womb as a person. ARPA states the ad was part of a campaign supporting federal private members’ Bill C-233 introduced by a Conservative MP.  The Bill would’ve made it a criminal offence to perform “sex-selective abortion.”

[The ARPA website includes an image of their proposed ad “We’re for women’s rights” here.]

Ontario’s Divisional Court summarizes the City’s decision as follows:

“The City rejected the advertisement stating that the phrase ‘And Hers.’ would ‘need to be revised so as not to reflect personhood in relation to’ the last image. The Decision referenced the Canadian Code of Advertising Standards, Clause 1 (Accuracy and Clarity), which forms part of the City’s advertising policy, and the Criminal Code.”

The Divisional Court will hear ARPA’s appeal with the assistance of arguments from Abortion Rights Coalition of Canada (ARCC). The Court ruled ARCC could be an intervenor in the case.

ARCC’s proposed submissions are in para 11 of the ruling granting them status.

“ARCC has a real, substantial and identifiable interest in the issues at stake. ARCC also has an important perspective that is distinct from that of the parties. The City’s submissions on the application will be made from the perspective of a municipal government and neutral decision-maker. ARPA’s submissions will be based on the advocacy interests of its membership and their ability to exercise their freedom of expression. ARCC would be able to provide additional perspectives that would assist the court in understanding the broader potential impact of the court’s decision on those not before the court,” ruled Justice Sandra Nishikawa.

No dates have been set for the exchange of materials. This means oral arguments are at least months away.

The Divisional Court sits in Hamilton during the week of June 5, 2023, and the week of October 30, 2023.

The Court sits year-round in Toronto.

The case can be conducted by video conferencing.

ARPA was successful last year in a court challenge against the City of Guelph with different anti-abortion ads.

[Paras 52 to 61 summarize previous case law regarding these types of political bus ads.]

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Published: December 5, 2022
Last edited: December 5, 2022
Author: Joey Coleman
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