Supreme Court strikes down rule against “political” ads

Says BC Transit was wrong to refuse controversial ads from student group, teachers’ union


British Columbia Transit violated the constitutional right to free speech when it refused to carry political ads on the outside of its buses, Canada’s highest court said Friday.

The Supreme Court of Canada ruled 8-0 to strike down the policy.

More: Coleman on CFS-BC’s win

“Like a city street, a city bus is a public place where individuals can openly interact with each other and their surroundings,” said the judgment, written for the court by Justice Marie Deschamps.

“I do not see any aspect of the location that suggests that expression within it would undermine the values underlying free expression. On the contrary, the space allows for expression by a broad range of speakers to a large public audience.

“I therefore conclude that the side of a bus is a location where expressive activity is protected by … the Charter.”

The ruling is a victory for the Canadian Federation of Students and the British Columbia Teachers’ Federation.

Both groups tried to place ads on the outside of B.C. buses leading up to the provincial election in 2005.

The ads raised several issues including tuition fees, the environment and school closures.

British Columbia Transit refused to run them, saying its policy bars political ads along with any message “likely to cause offence … or create controversy.”

The student federation had hoped to run an image of a crowd at a concert with the text: “Register now. Learn the issues. Vote May 17, 2005.”

The teachers union wanted to post a banner on the side of buses saying: “2,500 fewer teachers. 113 schools closed. Our students. Your kids. Worth speaking out for.”

At trial, the judge found that transit bodies, as publicly controlled government entities, must uphold the Charter of Rights and Freedoms. But he did not find that the advertising policy breached the right to freedom of expression.

The B.C. Court of Appeal ruled 2-1 against him, and struck down any blanket ban on political ads as unconstitutional.

Dissenting Justice Mary Southin said political bus ads don’t qualify as the type of expression protected by the Charter. Forcing transit authorities to display such messages would be like obliging newspapers to publish opinion pieces, she wrote.

She concluded that the Charter should not apply to a “medium of communication” offered by a commercial enterprise, even if it’s publicly owned as in the case of B.C. Transit and TransLink.

Friday’s ruling was also being watched by several cities across Canada including Vancouver, Victoria, Halifax and London, Ont., that initially rejected atheist bus ads proclaiming: “There’s probably no God. Now stop worrying and enjoy your life.”

Such ads have been placed on public transit systems in several countries including the U.S., Italy, Spain, the Netherlands and other parts of Europe since last year.

The atheist campaign began in Britain when a woman was annoyed that a website posted in a London bus linked her to a website declaring that non-Christians will “spend all eternity in torment in hell.” She decided to raise money for a rebuttal.

The atheist bus message movement was born – and it soon caught fire.

Toronto, Calgary, and Montreal accepted and ran the “There’s probably no God” ads, but they caused a tempest in Ottawa. The capital’s transit service OC Transpo rejected them at first.

The company wound up displaying the message on the side of its buses last spring after Ottawa city council cast a split vote to overturn the refusal amid concerns about a costly legal fight.

– The Canadian Press


Supreme Court strikes down rule against “political” ads

  1. I agree with the dissenting Judge. The corporation (be it public or private) bears responsibility for the ads disseminated. I give the example of drug advertising. There are legislative prohibitions relating to drug advertisements (contraceptives cannot legally be advertised, and there are guidelines for the types of claims that drug advertisers can make to the public). On the TTC I have noticed these illegal advertisements. I have recourse to complain. There is the other issue of revenues that the transit corporation receives from advertisements. If it becomes a constitutional right to use public transport for broadly defined ‘free speech’ uses then what will be consequences to the bottom line revenues obtained from advertising? Will this constitutional right evolve into a requirement that a portion of the advertising space MUST be made available for ‘free speech’ uses? I don’t like this ruling at all.

  2. Here’s a question: Could this have been avoided by the bus companies if they would have just simply said: ‘We have the right to refuse any business’? Did they really need to bring out the whole ‘this thing could cause a controversy’? Maybe I’m just not clear on what exactly the transit system is in BC… I mean despite the fact the it’s the “Inset Town Name Here” Tansit System, its still a privately owned business. They should have the right to refuse your business regardless of the reason.

  3. On the contrary, a business, whether public or private, must uphold the Charter. This means that if you offer public reference points (ie: advertising in this case, it is not permissable to restrict the content. [This presumes of course that the content meets the demands of the Charter, which it did in this case.] By the way, it is not the business owner’s privilege to ” . . . refuse your business regardless of the reason”. What if the reason were: “I don’t like short people”?

  4. Wow. This is not a case of “free” speech being denied. It is a case of “paid” announcements being refused. And as a private company, the corporation should have the right to refuse business. If I have a company vehicle, I will decide what is painted on the side of it. It speaks volumes that the teachers union (the group responsible for educating today’s youth) is so out of touch with reality that it doesn’t know the difference between public and private property. It is reprehensible that a panel of judges (at least 2 out of 3) believe that a bus, purchased, insured, and maintained by a private company, is suddenly, at the judges’ whim, public property.

  5. I’m sorry Robert I have to disagree with you there. It’s perfectly within any private business owner’s right to refuse business. I’ve seen it in action. Mind you it’s hasn’t been anything ridiculous like the reason you cite, but owner’s refuse business on a regular basis without people claiming that it’s against the Charter. I mean go to any convenience store in te world right now, what’s one of the signs you see on the door? “No shirt, no shoes, no service”. How does that violate the Charter?

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