Christian Heritage Party of Canada et al. v. City of Hamilton

[Indexed as: Christian Heritage Party of Canada v.Hamilton (City)]

Ontario Reports

Ontario Superior Court of Justice

Divisional Court, Mesbur, Varpio and Myers JJ.

October 4, 2018

143 O.R. (3d) 207 | 2018 ONSC 3690

Case Summary

Administrative law — Natural justice — City deciding to remove applicants' political advertisements from bus shelters on basis that advertisements discriminated against transgendered community — City not giving applicants opportunity to be heard before removing advertisements — City not balancing competing Charter interests as it failed to consider applicant's freedom of expression — Applicants denied natural justice — Decision quashed.

Charter of Rights and Freedoms — Freedom of expression — City deciding to remove applicants' political advertisements from bus shelters on basis that advertisements discriminated against transgendered community — City not giving applicants opportunity to be heard before removing advertisements — City not balancing competing Charter interests as it failed to consider applicant's freedom of expression — Applicants denied natural justice — Decision quashed. [page208]

The city decided to remove the applicants' political advertisements from municipal bus shelters on the basis that the advertisements discriminated against the transgendered community. The city had not received any complaints from members of the public when that decision was made, and the applicants were not consulted during the decision-making process. City council passed a resolution confirming the decision. The applicants brought an application for judicial review, seeking to quash the decision and the resolution.

Held, the application should be allowed.

The importance of freedom of expression demands that, where limits are placed upon political expression in public fora that are traditionally used for such expression, the affected parties must be heard, the relevant evidence must be considered and adequate reasons must be given. The city failed to perform the requisite balancing of Charter interests as it did not consider the applicants' freedom of expression at all. The applicants were denied procedural fairness.

Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 243 N.R. 22, J.E. 99-1412, REJB 1999-13279, 14 Admin. L.R. (3d) 173, 1 Imm. L.R. (3d) 1, 89 A.C.W.S. (3d) 777; Bracken v. Fort Erie (Town) (2017), 137 O.R. (3d) 161, [2017] O.J. No. 4655, 2017 ONCA 668, 67 M.P.L.R. (5th) 1, 42 C.C.L.T. (4th) 311, 393 C.R.R. (2d) 292, 282 A.C.W.S. (3d) 752; Doré v. Barreau du Québec, [2012] 1 S.C.R. 395, [2012] S.C.J. No. 12, 2012 SCC 12, 428 N.R. 146, 2012EXP-1231, J.E. 2012-672, EYB 2012-203967, 255 C.R.R. (2d) 289, 34 Admin. L.R. (5th) 1, 343 D.L.R. (4th) 193, 211 A.C.W.S. (3d) 852, apld

Law Society of British Columbia v. Trinity Western University, [2018] S.C.J. No. 32, 2018 SCC 32, 423 D.L.R. (4th) 197, 10 B.C.L.R. (6th) 217, 35 Admin. L.R. (6th) 1, [2018] 8 W.W.R. 1, 2018EXP-1727, EYB 2018-295414, 292 A.C.W.S. (3d) 418, distd

Other cases referred to

Greater Vancouver Transportation Authority v. Canadian Federation of Students -- British Columbia Component, [2009] 2 S.C.R. 295, [2009] S.C.J. No. 31, 2009 SCC 31, 192 C.R.R. (2d) 336, 309 D.L.R. (4th) 277, 272 B.C.A.C. 29, [2009] 8 W.W.R. 385, 93 B.C.L.R. (4th) 1, EYB 2009-161351, J.E. 2009-1320, 389 N.R. 98, 179 A.C.W.S. (3d) 98; Irwin Toy Ltd. v. Québec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927, [1989] S.C.J. No. 36, 58 D.L.R. (4th) 577, 94 N.R. 167, J.E. 89-772, 24 Q.A.C. 2, 25 C.P.R. (3d) 417, 39 C.R.R. 193, 15 A.C.W.S. (3d) 121

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 1

APPLICATION for judicial review.

Albertos Polizogopoulos, for applicants.

Michael Bordin, for respondent.

The judgment of the court was delivered by

VARPIO J.: —

[page209]

Overview

[1] The applicants seek a judicial review of the City of Hamilton's decision to remove their political advertisements from city bus shelters without providing them an opportunity to be heard or considering their rights under the Canadian Charter of Rights and Freedoms (the "decision"). The city removed the advertisements on the grounds that they were discriminatory to the transgendered community.

[2] The advertisements, which were placed in Hamilton-area bus shelters in August 2016, showed the back of an individual entering a room identified as "Ladies Showers" (the "advertisements"). The individual has short hair in the back. The individual is seen from behind, from the shoulders up, wearing a baseball hat. The slogan "Competing Human Rights . . ." appears above the photo. Below the photo, the following is written:

Where is the Justice?

Bringing Respect for Life and Justice to Canadian Politics

CHP Canada

The Christian Heritage Party of Canada

[3] A website and phone number for the Christian Heritage Party of Canada ("CHP") appear at the bottom of the advertisement.

[4] Shortly after the city decided to remove the advertisements, city council passed a resolution confirming the decision (the "motion").

[5] For the reasons that follow, we find that both the decision and the city's subsequent motion must be quashed. The parties agree that both the decision and the motion are subject to the Charter. As a result, the city was required to balance the competing Charter interests. The city failed to consider the applicants' right to political speech at all. For that reason, the decision cannot stand. In light of this finding, we do not need to discuss the parties' other arguments.

Facts

Background

[6] In October 2014, a transgendered woman attempted to use the woman's washroom at a Hamilton-area bus station and was told by city staff to use the unisex washroom. A complaint was filed with the Ontario Human Rights Tribunal and against the city. [page210]

[7] In April 2016, a settlement was reached whereby the city agreed, among other things, to develop policies regarding the use of washrooms facilities by transgendered individuals.

[8] Starting in April 2016, the city began to develop its "transgender protocol". The city engaged in multiple public consultations regarding the development of this policy. We are advised by counsel that the development and implementation of the transgender protocol continues to be a live political issue in Hamilton to this day.

The CHP

[9] The CHP is a registered federal political party. In its factum, the CHP describes itself as being a political party that is

. . . founded on and promotes Judeo-Christian principles and puts forward a platform that is consistent with Christian values. [The CHP] has, for decades, engaged in political and public policy discussions on various topics including [the Transgender Protocol and related issues].

[10] The CHP and its Hamilton-area riding association contracted to have the advertisements placed in the city's bus shelters.

[11] At the relevant times, the CHP was aware of the settlement described above and the transgender protocol. Prior to June 2016, the CHP handed out flyers that described its position. The flyers stated:

CHP Canada supports the need and right of females to be accommodated with facilities such as public washrooms, change rooms and showers where they can be in various states of disrobing, showering or carrying out various needs of feminine hygiene without the presence (or pending presence) of a male in that facility.

[12] The CHP has been quoted in an article discussing the use of washrooms by transgendered people as follows:

[a] question that should be raised in the Senate"Just how will public agencies separate the males from the males?"

[13] The record contains materials that suggest that the CHP has stated that transgendered individuals have "gender identity confusion" and that legislation regarding transgendered equality is driven on "the false premise that gender identity is normative".

[14] The court notes that regardless of whether one agrees or disagrees with the CHP's politics, there is no question that the CHP was attempting to engage in a political discussion and to convey a position on a topic of active political interest to both the city and its voters. [page211]

City contracts and policies regarding advertising on city property

[15] The city sells advertising to generate revenue. The city contracted with OutFront Media ("OutFront") to administer the sale of advertising space on city property, including bus shelters. The contract ("contract") contains the following provisions:

11. [OutFront] reserves the right to reject any copy, or pictorial or other material, before display, or to remove it during display, if it is considered to be in violation of any laws, advertising industry standards, or offensive to the moral standards of the community, or which it believes reflects negatively on the character, integrity or standing of any organization or individual.

12. STANDARDS AND POLITICAL ADVERTISING

13.1 [OutFront] shall abide by the Canadian Code of Advertising Standards as amended from time to time . . . Further, [OutFront] shall abide by the Advertising Policy promulgated by the City[.]

13.6 The General Manager [of the City] shall have the right to prohibit the installation or to require the immediate removal of any particular advertisement or advertising material where in the opinion of the General Manager, the advertisement or advertising material or its installation is inappropriate and [OutFront] shall remove such advertisement or advertising material within 24 hours of receive such a request to do so.

[16] The city has policies that affect advertising, communications and equity. The Policy for Commercial Advertising states:

(1) All advertising and sponsorships must comply with the Canadian Code of Advertising Standards, as amended from time-to-time;

(2) All advertising and sponsorships must comply with all applicable federal, provincial and municipal laws and by-laws (including without limitation, the Ontario Human Rights Code, Canada's Criminal Code, and the Canadian Charter of Rights and Freedoms), as the same may be amended or substituted from time to time;

(3) All advertising and sponsorships shall not, either directly or indirectly:

(a) Violate any City policy;

(4) The City will not accept advertising when in its sole discretion, it determines same not to be in the City's best interests;

(5) The City reserves the absolute right to accept advertising that does not violate this policy;

(6) Notwithstanding any prior approval, the City reserves the absolute right to order the immediate removal or, if necessary, remove any advertising on its property at any time. [page212]

[17] The city also has an Equity and Inclusion Policy which indicates:

Definitions

The principle of Equity underpins our inherent belief in the human rights of all persons.

. . . all stakeholder communities, with the groups and individuals that they include, have the right to barrier free access to resources, decision-making, expertise, experience, connections, information and opportunities through solutions that match their needs.

. . . respect is due to each and every person . . .

Commitment

The Equity and Inclusion Policy . . . articulates the Council's commitment to meeting the needs of the under-served communities within City services, programs and opportunities as follows:

-- Sexual Orientation, Gender Identity & Gender Expression . . .

[Gender Identity is described in a footnote as "(Lesbian, Gay, Bisexual, Transgender, Two-spirited, Queer and Questioning communities -- LGBTTQQ)"]

[18] Clause 14 of the Canadian Code of Advertising Standards provides:

14. Unacceptable Depictions and Portrayals

Advertisements shall not:

(a) Condone any form of personal discrimination, including discrimination based upon race, national or ethnic origin, religion, gender identity, sex or sexual orientation, age or disability;

(c) Demean, denigrate or disparage one or more identifiable persons, group of persons, firms, organizations, industrial or commercial activities, professions, entities, products or services, or attempt to bring it or them into public contempt or ridicule;

(d) Undermine human dignity; or display obvious indifference to, or encourage, gratuitously and without merit, conduct or attitudes that offend the standards of public decency prevailing among a significant segment of the population.

The decision

[19] On June 14, 2016, the applicants contracted with OutFront to have the advertisements run on bus shelters for a period of 28 consecutive days. [page213]

[20] Around the beginning of August, the advertisements were hung on city bus shelters.

[21] At about 10:00 a.m. on August 10, 2016, the CBC contacted the city to inquire about the fact that the advertisements were located on city bus shelters.

[22] By 11:00 a.m., the city's director of communications, Ms. Andrea McKinney, was made aware of the contents of the advertisements and the fact that the advertisements were placed on city bus shelters. By noon of that day, Ms. McKinney had called the CBC to advise that the city was looking into the issue.

[23] Over the course of the next two to four hours, Ms. McKinney consulted the following people:

(1) the city's communications liaison with the Hamilton Street Railway ("HSR") to obtain more information about the advertisements and steps taken;

(2) the city's legal department;

(3) the city's human resources/human rights team, including a human rights specialist;

(4) the city's general manager, public works/acting director HSR; and

(5) the city's coordinator, Access and Equity Office, Human Rights Access and Equity Office regarding the advertising and equity policies and whether the advertisements violated same.

[24] Several city employees swore affidavits. Counsel for CHP submitted that the affiants, upon being cross-examined, gave several different answers as to why they felt that the advertisements needed to be taken down. Upon review of the answers, however, it is apparent to the court that all the witnesses were attempting to describe how the advertisements were subjectively viewed as offensive and/or discriminatory. Of note, however, nowhere in the materials or in submissions could counsel for the city point to how it was that the advertisements contravened any law, Act, Code or other legal framework.

[25] By 2:44 p.m., after consulting with all the aforementioned people, Ms. McKinney decided to remove the advertisements, and by 4:00 p.m. city employees had begun removing the advertisements from city property.

[26] The city furnished no evidence as to what was discussed during this decision-making process. No witness advised as to whether the CHP's Charter right to express itself was considered. [page214] It is conceded that the CHP was not consulted during the decision-making time frame.

[27] Ms. McKinney testified in cross-examination that, as the manager of the city's public relations department, she decided to remove the advertisements because, in her view, they were bad for the city's image. It is not clear if she knew that CHP's constitutional rights were in issue. She performed no balancing of CHP's right to political expression against competing rights of any individuals or the city's desire to portray a certain image.

[28] On August 11, 2016, after the decision was already made and implemented, the city received a formal complaint about the advertisements. Until that point, the city had received no such formal complaint.

[29] On August 12, 2016, Councilor A. Johnson brought a motion for the full equality of transgender and gender non-conformist people (the "motion"), which reads:

WHEREAS ads that do not support the dignity of transgender people and their right to full equality under the law have been placed in some HSR bus shelters by the contractor in charge of HSR advertisement,

THEREFORE BE IT RESOLVED:

That staff ensure that all of the offending ads have been removed;

That staff report on best next step toward clarification and full realization of the relevant City of Hamilton policies -- the City's non-toleration of the posting of discriminatory ads on City property, and the City's policy of promoting full legal equality. The report will advise on best next steps toward avoiding similar offensive incidents in the future; and

That Council re-affirms the commitment it made last spring, in voting to raise the Transgender Pride Flag at City Hall and in resolving relevant human rights litigation, to the full equality of transgender and gender non-conformist people.

[30] Counsel for the city advised the court that the CHP was never told about the motion or any related debate. The motion passed.

[31] On August 25, 2016, a representative of the CHP e-mailed Ms. McKinney and asked for the reasons behind the removal of the advertisements. That same day, Ms. McKinney responded:

. . . As per your request I'm providing the City's position on the removal of the Christian Heritage Party advertisements, which you requested in writing for your lawyer's review.

In response to a complaint received by the City of Hamilton, the Christian Heritage Party bus shelter "Competing Human Rights . . ." advertisement was reviewed. It was determined that the advertisement is not in keeping with the principles of equity and inclusion set out in the City's "Equity and [page215] Inclusion Policy". As a result, the advertisement was removed from the City's bus shelters.

You have confirmed in the media that the advertisement was part of a public awareness campaign calling into question the City's decision to make clear the right of transgender persons to use public facilities that correspond to their lived gender identity, such as washrooms.

The City is committed to creating an environment where each person feels a sense of belonging, support and respect in our community. It is the City's belief that, allowing the CHP advertisement to remain posted in City bus shelters, does not make transgendered persons feel that they belong or that they are supported or respected.

The City's "Policy for Commercial Advertising and Sponsorship" provides that advertising shall not, either directly or indirectly, violate any City policy; that the City will not accept advertising when, in its sole discretion, it determines same not to be in the City's best interests; and that, notwithstanding any prior approval, the City reserves the absolute right to order the immediate removal or, if necessary, remove any advertising on its property at any time.

Evidence of offence to or discrimination of the transgendered community

[32] The core of the city's position is that the advertisement is offensive to and discriminatory as against transgendered people and therefore contravenes the city's policies. The city furnished affidavits from a limited number of citizens who opined with respect to their beliefs in regard to the removal of the advertisements. The affiants testified from their perspectives as transgendered individuals or as individuals affiliated with the transgendered community. Only one affiant, however, gave particulars as to why they felt that the advertisement was offensive and/or discriminatory:

I instantly recognized the visual imagery of the bus shelter ad [the advertisement] as being anti-transgender and transphobic, and recognized that it sought to equate transgender people to being a threat to others, or being sexual predators, deviants and/or sex offenders. As a transgender woman, I find the ad personally offensive and demeaning of transgender people, in particular transgender women like me.

Positions of the Parties

[33] The applicants identified seven substantive issues in their factum, including:

(a) whether the decision and the motion are subject to the Charter;

(b) the standard of review;

(c) whether the decision and the motion violate the applicants' Charter rights; [page216]

(d) whether there are competing Charter rights or human rights at play;

(e) whether any Charter violation can be saved under s. 1;

(f) if the standard of review is reasonableness, whether the decision and motion can be seen as reasonable;

(g) whether the city violated the principles of natural justice in not giving notice to the CHP and thus permit the CHP to respond to the allegations as against its advertisements.

[34] The respondents frame the issues before the court as follows:

(a) What statutory power is being exercised by the city?

(b) What is the standard of review on judicial review of the decision?

(c) Was the decision reasonable?

(d) In the alternative, is the decision saved by s. 1 of the Charter?

(e) Was there a denial of procedural fairness?

The Law

The Charter

[35] The parties agree both the decision and the motion are subject to the Charter. As will be seen in the analysis below, we agree with this position.

Procedural fairness and natural justice

[36] There are two aspects to judicial review of government action. The court will first consider whether the government's process for making its decision was fair to those affected by the decision. If the government provided a fair process, the court will then go on to consider the lawfulness of the decision. In the circumstances of this case, the reasonability of the decision is driven by the process used to make that decision. Accordingly, we commence our discussion by looking at the applicants' argument regarding natural justice.

[37] In Baker v. Canada (Minister of Citizenship and Immigration),1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39,the Supreme Court of Canada described the analytical framework needed to ensure that a given administrative decision meets the requirements of procedural fairness. Specifically, the majority of the court indicated that the reasonableness of any procedure utilized [page217] to make an administrative decision must be determined by examining the following factors:

(1) the nature of the decision being made and process followed in making the decision;

(2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

(3) the importance of the decision to the individuals affected;

(4) the legitimate expectations of the person(s) affected by the decision; and

(5) the agency or administrator's choice of procedure.

[38] In addition to these five factors, Justice L'Heureux-Dubé (for the majority) gave this general comment, at para. 22:

Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

Freedom of expression in a political context

[39] The right to free speech has been recognized as a fundamental ingredient to the proper functioning of democracy for hundreds of years. As a consequence, it has been protected by constitutions, laws and courts across numerous democratic jurisdictions. Conversely, a lack of free speech is a common attribute of dictatorships and tyrannical regimes.

[40] Recently, the Ontario Court of Appeal examined the right to free political speech and described its importance. In Bracken v. Fort Erie (Town) (2017), 137 O.R. (3d) 161, [2017] O.J. No. 4655, 2017 ONCA 668, Miller J.A. dealt with a case involving a protest outside the municipal government building in Fort Erie, Ontario and that city's response. Mr. Bracken was protesting certain actions undertaken by the Town of Fort Erie and engaged in time-honoured manners of protest including marching and voicing his opinion. The Town of Fort Erie issued a trespass notice. The Town of Fort Erie argued that some of its staff felt "unsafe" by the volume of Mr. Bracken's speech. They referred to his protest as a form of "violence". [page218]

[41] Mr. Bracken brought an application challenging the constitutional validity of the trespass notice. In declaring the trespass notice unconstitutional, Miller J.A. specifically examined the profundity of the right to freedom of expression, at para. 25, when he quoted the following passage from Irwin Toy Ltd. v. Québec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927, [1989] S.C.J. No. 36, at pp. 968-69 S.C.R.:

Freedom of expression was entrenched in our Constitution and is guaranteed . . . so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters"fundamental" because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual. Free expression was for Cardozo J. of the United States Supreme Court "the matrix, the indispensable condition of nearly every other form of freedom" (Palko v. Connecticut, 302 U.S. 319 (1937), at p. 327); for Rand J. of the Supreme Court of Canada, it was "little less vital to man's mind and spirit than breathing is to his physical existence" (Switzman v. Elbling, 1957 2 (SCC), [1957] S.C.R. 285, at p. 306). And as the European Court stated in the Handyside case, Eur. Court H. R., decision of 29 April 1976, Series A No. 24, at p. 23, freedom of expression:

. . . is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society".

[42] In Bracken, the Town of Fort Erie attempted to justify its trespass notice by indicating that Mr. Bracken was engaged in violent behaviour. At para. 30, Miller J.A. agreed that violence is not protected under the freedom of expression:

Although some might find it difficult to understand the rationale for excluding violence categorically at the s. 2(b) stage rather than dealing with it in the s. 1 analysis, to give acts of violence even defeasible protection under s. 2(b) would give them an unacceptable legitimacy: Grégoire Webber, The Negotiable Constitution: on the limitation of rights (Cambridge: Cambridge University Press, 2009), at p. 122. It would be tantamount to declaring that Canadian constitutional morality is open to the proposition that an individual's self-expression through acts of violence could, in some conceivable circumstances, take priority over the public good of protecting persons by restraining acts of violence.

[43] However, speech is not "violence" just because people may my find it offensive. At paras. 49 and 52 of his reasons, Miller J.A. described the level unto which agitation and aggression must rise in order to meet the test for "violence" as a constitutionally valid restriction on political speech:

Violence is not the mere absence of civility. The application judge extended the concept of violence to include actions and words associated with [page219] a traditional form of political protest, on the basis that some Town employees claimed they felt "unsafe". This goes much too far. A person's subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of s. 2(b).

A finding that a person's expression is an act of violence or a threat of violence is, as explained above, determinative that their expression is not protected by the Charter. Once it is determined that an act is violent or a threat of violence, deliberation is at an end and the claim of a s. 2(b) Charter violation is defeated. Courts should therefore not be quick to conclude that a person's actions are violent without clear evidence. Here, there is no evidence that Mr. Bracken's protest was violent or a threat of violence, and the finding that it was constitutes a palpable and overriding error.

[44] Miller J.A. noted that the weight to be attributed to freedom of expression is also a function of the location where that political speech occurs (paras. 32 to 34). He quoted Greater Vancouver Transportation Authority v. Canadian Federation of Students -- British Columbia Component,[2009] 2 S.C.R. 295, [2009] S.C.J. No. 31, 2009 SCC 31 as dealing with this concept. In that case, the Greater Vancouver Transportation Authority (the "GVTA") had a policy prohibiting political speech on buses. The Supreme Court described the traditional use of buses as advertising spaces, at paras. 41 and 42:

The fact that the historical function of a place included public expression or that its current function includes such expression is a good indication that expression in that place is constitutionally protected. Thus, a podium erected in a park for public use would necessarily be regarded as having a function that does not conflict with the purposes s. 2(b) is intended to serve; in fact, the very purpose of this public place would be to enhance the values underlying s. 2(b). However, the use of public property for expression will very rarely be questioned on the basis of such facts. The circumstances will usually be more complex. The airport, utility poles and streets at issue in Committee for the Commonwealth of Canada, Ramsden and City of Montréal are examples of places whose primary function is not expression.

The question is whether the historical or actual function or other aspects of the space are incompatible with expression or suggest that expression within it would undermine the values underlying free expression. One way to answer this question is to look at past or present practice. This can help identify any incidental function that may have developed in relation to certain government property. Such was the case in the locations at issue in Committee for the Commonwealth of Canada, Ramsden and City of Montréal, where the Court found the expressive activities in question to be protected by s. 2(b). While it is true that buses have not been used as spaces for this type of expressive activity for as long as city streets, utility poles and town squares, there is some history of their being so used, and they are in fact being used for it at present. As a result, not only is there some history of use of this property as a space for public expression, but there is actual use -- both of which indicate that the expressive activity in question neither impedes the primary function of the bus as a vehicle for public transportation nor, more importantly, undermines the values underlying freedom of expression. [page220]

[45] The Supreme Court then determined that the GVTA's prohibition on political advertising was too broad to be saved by s. 1 of the Charter. The majority of the court stated, at para. 76:

I accept that the policies were adopted for the purpose of providing "a safe, welcoming public transit system" and that this is a sufficiently important objective to warrant placing a limit on freedom of expression. However, like the trial judge, I am not convinced that the limits on political content imposed by articles 2, 7 and 9 are rationally connected to the objective. I have some difficulty seeing how an advertisement on the side of a bus that constitutes political speech might create a safety risk or an unwelcoming environment for transit users. It is not the political nature of an advertisement that creates a dangerous or hostile environment. Rather, it is only if the advertisement is offensive in that, for example, its content is discriminatory or it advocates violence or terrorism -- regardless of whether it is commercial or political in nature -- that the objective of providing a safe and welcoming transit system will be undermined.

(Emphasis added)

[46] The Supreme Court then noted [at para. 77] that "[c] itizens, including bus riders, are expected to put up with some controversy in a free and democratic society".

Analysis

Was the procedure fair?

[47] An analysis of Baker factors one, three and five (the nature of the decision being made, the importance of the rights being protected and the process chosen by the administrative body) makes clear that the applicants were deprived of natural justice in the circumstances in so far as the city invoked a summary procedure to address fundamental and important Charter issues. In failing to adopt a sufficiently robust procedure that permitted the applicants the ability to provide input into the decision, the applicants were denied natural justice.

Baker factor one: The nature of the decision being made and the process followed

[48] In conceding that the Charter applies to the decision, the parties have effectively agreed that the nature of the decision was a balancing as between the CHP's right to political expression versus the city's right to remove advertising material that it putatively considered to be discriminatory and/or offensive.

[49] The city attempted to describe the process it followed as being robust relative to the issues at play. It emphasized that Ms. McKenny consulted with several people over the course of several hours in order to arrive at a decision. That process, the city submits, was sufficient in light of the decision being made. [page221]

[50] Despite the city's assertions, the government's decision was made before it even received a complaint. The CHP, the party that had paid to post the advertisements, was not consulted prior to the decision being made. It was not told that there was a decision being considered about the advertisements. It was not provided with any opportunity to submit evidence or to advance arguments concerning the decision. The decision was made in response to a CBC inquiry in order to protect the city's image without any acknowledgment or reference to the constitutional right of the CHP to engage in political speech. It is difficult to classify the city's decision making as any kind of "process" as that term is understood in administrative law. There was certainly nothing robust about it.

Baker factor three: Importance of the issue to the CHP

[51] In oral submissions, counsel for the city submitted that the right to political speech was a lesser right than other rights guaranteed by the Charter. Accordingly, the process needed to infringe a political party's freedom of expression is somehow lessened.

[52] We disagree with that proposition. There is no jurisprudence to support that contention.

[53] The decision being made in this instance is not one that is trifling, ephemeral or marginal in importance. Instead, it is a decision of profound significance in so far as it balances rights of a registered political party to engage in political speech as against the rights of a group of people to be free from purported discriminatory speech.

[54] A political party's ability to advertise on bus shelters is an important phenomenon for the political process and for society as a whole. As indicated in Greater Vancouver, public transportation is an effective and important mechanism to exchange political ideas, some of which may be controversial or even distasteful. Society's need to ensure that political parties can voice their views ensures that Canadian political discourse does not become a dogmatic single voice that only transmits messages with accepted content. Such an outcome erodes the fundamental rights of individuals [at para. 41] "because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual" (Irwin Toys).

[55] The importance of freedom of expression demands that, where limits are placed upon political expression in public fora that are traditionally used for that purpose, care must be taken. We disagree with counsel for the city who submitted that the [page222] remedy imposed by the city (removal of the advertisements) is minor in so far as the applicants were free to advertise elsewhere. To the contrary, the remedy imposed is dramatic in so far as it abridges the applicants' Charter rights to make use of legally and constitutionally recognized platforms to engage in a fundamental value (Greater Vancouver Transit Authority, supra, at para. 77).

[56] Such drastic remedies can, of course, be justified. It would appear equally obvious, however, that such justifications would require some reasonable procedure to ensure that an abridgement of such a fundamental right is undertaken only in appropriate circumstances.

[57] It is clear that, where competing Charter interests are being considered, the city must balance those interests in order to reach a reasonable decision. Failure to balance said interests will, by definition, render a decision unreasonable as per Doré v. Barreau du Québec, [2012] 1 S.C.R. 395, [2012] S.C.J. No. 12, 2012 SCC 12.

Baker factor five: The procedure actually undertaken

[58] The city engaged a summary procedure to remove the advertisements. While in some situations, it is possible that the summary removal of political advertisements may be justified (i.e., hate speech, the incitement of violence, etc.), it is not clear that the advertisement constitutes speech that justifies such a procedure.

[59] Counsel for the city pointed to evidence that the advertisement was tantamount to "dog whistle" politics whereby messages implicit in its visual representations were a call to certain members of society to recognize hidden visual cues and act upon same. Implicit in "dog whistle" politics is the fact that the true meaning of a message may not be readily apparent to the recipient unless that recipient belongs to a specific subset of people. A message cannot, therefore, convey both an obvious meaning and constitute "dog whistle" politics at the same time. Because the advertisement is a purported "dog whistle" call to certain bus riders, it cannot therefore be said to constitute obvious hate speech or a blatant call to violence as was discussed in Bracken.

[60] As a court, we offer no comment on whether the advertisement communicates a "dog whistle" message. It is clear, however, that justifying the removal of political speech as a result of alleged subtle, hidden messages in visual imagery demands that robust explanations be given and demands that the CHP have an opportunity to participate in that inquiry. Absent such [page223] explanations, any individual could stifle otherwise valid political speech by citing subliminal messages without having to justify that position. Without denigrating the heartfelt expressions of several witnesses who provided evidence in this case, it cannot be ignored that they each brought their own subjective interpretations to the advertisements. No two witnesses saw the same hidden message or even agreed as to what the image was actually showing. The fact that counsel for the city did not explain how the image worked as a "dog whistle" therefore causes us considerable concern.

Conclusion

[61] The city failed to demonstrate that the process undertaken in making the decision was reasonable. The following considerations make that finding clear:

(a) there is no evidence describing how Ms. McKenny resolved the competing values inherent in the decision she was to make. Nowhere did she (or any member of city staff or counsel) explain how the city balanced the applicants' rights to engage in political speech versus transgendered citizens' right to be free from discriminatory speech. Indeed, there is nothing in the record to suggest that the balancing was ever undertaken;

(b) the city acted before an official complaint was even submitted;

(c) no one checked with the Canadian Advertisers Council to determine if the advertisements offended its code;

(d) we also note that, as per the contract, the general manager of the city -- and not Ms. McKenney -- was tasked with making the decision; and

(e) the advertisments were removed without giving the applicants the opportunity to make representations in support of their position.

[62] The aforementioned concerns (especially the failure to balance Charter interests and the failure to afford the applicants the ability to make representations) demonstrate that the city denied the applicants their fundamental rights to natural justice.

[63] The city's lack of due process ensured that no reasons balancing the competing Charter values were ever written. Given the importance of the rights at play to both sides, and given the nuanced analysis of the decision that must be undertaken upon judicial review, it was imperative for the city to undertake an [page224] adequately robust process in determining whether or not to remove the advertisements. The parties needed to be heard, the relevant evidence needed to be considered and adequate reasons needed to be given. In providing such a procedural foundation, the city would have ensured that any adjudication would have properly balanced the interests at play. This is not a case where, like Law Society of British Colombia v. Trinity Western University,[2018] S.C.J. No. 32, 2018 SCC 32, the reviewing court can examine a sufficient record to determine reasonableness. In this case, there is an inadequate record to review and we cannot therefore engage in the analysis described in Doré, supra.

The motion

[64] City council's motion to adopt the decision is outlined in the preamble to same: "whereas ads that do not support the dignity of transgendered people . . . have been placed in some HSR bus shelters . . . ."

[65] The city submits that the motion is subject to the reasonableness standard as per Doré supra. Even accepting that standard of review, as noted previously, there is no basis to find that the passing the motion is reasonable. The city was not legislating in passing this resolution. It was ratifying a decision. That is, it was functioning as a decision maker. There is thus no evidence that the city attempted to balance competing Charter values. There is thus no evidential foundation for a finding that any possible balancing was reasonable. Accordingly, the fundamentally flawed procedure undertaken by the city was sufficiently barren so as to prevent meaningful judicial review. There is no real record to consider. It cannot be said that the passing of the motion was therefore reasonable.

Does the Supreme Court of Canada's recent decision in Trinity Western change anything?

[66] Counsel for the CHP indicated that he had hoped the Supreme Court of Canada's decisions in the two Trinity Western cases would have been released before the argument in this case. In fact, the Supreme Court's decisions came out just weeks after we heard argument. As a result, we invited the parties to make additional submissions. We have now received and reviewed those submissions.

[67] In our view, neither decision has any impact on the result in this case. As noted above, unlike either of the Trinity Western [page225] decisions, the city undertook noanalysis of competing Charter values. Having failed to do so, the decision and motion cannot stand as there is no record to review.

Order

[68] The city's decision to remove the advertisements, and city council's subsequent motion adopting the decision, are hereby quashed.

Costs

[69] We invite the parties to resolve the issue of costs. If they cannot, the applicants will provide the court with their costs submissions in writing (no more than five pages in length, not counting bill of costs) within 15 days of the release of these reasons. The city will provide its costs submissions (same length) within 15 days of receipt of the applicants' submissions.

Application allowed.