Hamilton City Hall Concedes It Must Follow Charter Law, Ending Suit by Pro-Life/Anti-Abortion Group – TPR Hamilton | Hamilton's Civic Affairs News Site

March 6, 2024
In November, the City of Hamilton conceded it failed to properly consider free expression rights under the Charter of Rights and Freedoms when it rejected a bus advertising purchase by the Association for Reformed Political Action Canada  [ARPA].
The City of Hamilton has been subject to a previous court ruling ordering it to comply with Charter law when considering political ad purchases on public transit.
Lawyers for the City made the concession back in October, only a week before a long-awaited Ontario Divisional Court hearing,
The ARPA tried to place ads on the side of Hamilton’s buses that included an ultrasound image of a late-term fetus in the womb that refers to the fetus with the pronoun “her.”
The City of Hamilton rejected the ad, stating the use of gender pronouns implies that human fetuses are people under the law.
The City’s decision cited the “Canadian Code of Advertising Standards, Clause 1 (Accuracy and Clarity) and the Criminal Code of Canada” and instructed ARPA that the ad “would need to be revised so as not to reflect personhood in relation to the image.”
[The ARPA website includes an image of their proposed ad “We’re for women’s rights” here.]
The City’s decision did not consider the APRA’s Charter right to free expression.
Arguing in front of the Divisional Court, lawyers for ARPA sought a ruling the City violated their Charter rights and an order for the City to run the advertisement.
Lawyers for the City asked the Court to remit the matter back to the City for reconsideration with a promise the City would follow Charter law before issuing a new decision.
The Court agreed to remit the ad to the City for consideration.
“In light of the Respondent City’s concession that it did not provide adequate reasons … the Court granted the application for judicial review, quashed the decision of the City, and remitted the matter back for proper consideration by the City,” wrote Justice Paul B. Schabas for a three-judge panel.
“About a week prior to the case being heard, the City conceded that the reasons it provided for rejecting the Ad made no reference to the balancing of the Applicants’ right to freedom of expression against the City’s statutory objectives, as required by the Supreme Court of Canada’s decisions.”
The Divisional Court granted APRA costs, finding that the City “could have conceded this point much earlier, as it recognized the insufficiency of its reasons some time ago.”
The City has 30 days to pay $20,000 to ARPA.
The City Manager’s Office will now reconsider the advertisement and issue reasons.
ARPA can return to the Divisional Court if the City Manager’s Office again rejects the ad.