For pro-abortions' petition - see Charter

Regarding this ridiculous pro-abortion petition, here is what lawyer Carol Crosson had to say to me in an e-mail on this petition:

The TTC, as a government entity, is subject to the Charter, in particular section 2(b), which guarantees the right to freedom of expression. Government transit was found to be subject to the Charter in Greater Vancouver Transportation Authority in 2009, where the Supreme Court ruled that advertising on the sides of buses is protected under the Charter and when transit policies prohibit expression, this prohibition is subject to the Charter. 

The TTC does not have the right to prohibit a pro-life message due to the controversial nature of the message. Freedom of expression included the right to communicate controversial and unpopular messages. The Supreme Court has noted that the purpose of protection for freedom of expression extends to protecting “beliefs which the majority regard as wrong or false”, frequently involving “a contest between the majoritarian view of what is true or right and an unpopular minority view”. The Court has also ruled that section 2(b) protects all non-violent expressive activity, without discrimination based on content, however unpopular, distasteful, or contrary to the mainstream. 

In Wilson v University of Calgary, 2014 ABQB 190, a case about a pro-life display on the campus of the University of Calgary, the Court determined that the pro-life message lies "at the very heart of freedom of expression". 

There are exceptions to the rule that speech should be protected. Speech that threatens violence, public incitement of hatred, genocide as well as obscenity, is prohibited under the Criminal Code. “Hate speech” is not protected in Canada. However, the legal standard for hate speech is very high, as affirmed at the Supreme Court of Canada in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11.  These ads in no way violate the Criminal Code or legally qualify as hate speech. 

Other than these few exceptions, the right to share a particular message, despite its disturbing nature, is protected by the Charter. 

So, individuals may fill out petitions because they view these pro-life ads as "scare tactics and christian [sic] propaganda", but Pregnancy Care Centre advertisements posted on City transit buses are protected under the Charter. They cannot be prohibited because some individuals disagree with them, find them distasteful or even controversial.

It is of note that the Canadian Code of Advertising is a mechanism of Advertising Standards Canada, which is a private entity, holding no legal power, and not compelled to adhere to the Charter. The TTC may use the Code as a guide in regulating its advertising. However, If the ad in question is not found in accordance with the Code, the TTC is still compelled to adhere to the Charter, which gives a broad berth to controversial messages.

Carol Crosson 

Barrister and Solicitor

Crosson Constitutional Law