The City of Hamilton has conceded it lacked legal grounds to reject an advertising purchase by the Association for Reformed Political Action Canada (ARPA) to run a pro-life/anti-abortion ad on the side of the city’s public transit buses.
The advertisement includes an ultrasound image of a late-term fetus in the womb alongside three images: a young woman and two girls. The City of Hamilton initially banned the ad, stating it was misleading because the use of the “her” pronoun implied the fetus was a person under the law.
Hamilton was the only municipality to refuse the advertisement.
The ARPA challenged the City’s decision in court. One week before scheduled arguments at Ontario’s Divisional Court, the City of Hamilton conceded it failed to consider the Charter of Rights and Freedoms when it rejected the ad.
“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.
The Court also ordered the City to pay the ARPA $20,000 in legal costs.
ARPA resubmitted its ad purchase to the City.
The City determined it lacks legal grounds to prohibit the ad.
Production Details v. 1.0.0 Published: April 23, 2024 Last updated: April 23, 2024 Author: Joey Coleman Update Record v. 1.0.0 original version
Discussion
4 commentsHow is it possible that this is covered under the Charter. This is not a political ad. It’s a philosphical and a religious belief. This is propoganda on a visible bus driving around the city.
The only politics happening here is the weaponization of women’s bodies. This can lead to hate crimes as we see in the USA, bleeding women airlifted to other states. As a woman, I feel this is a direct ad to giving an unproven, propoganda theory to the life of a fetus. How could this not be argued properly?? Ernst Zundel was removed from Bloor/Yonge on a pulpit because he said holocaust never happened. That fetus is not a person so that ad should be taken down as well. My belief is that that life does not begin until the fetus is outside a women’s body and this ad is to shame women and girls for their choices, telling them that they are killing babies (her). It’s PROPOGANDA and the Charter issue should be re-examed. You can’t advertise something that cause cause a hate crime especially with misinformation.
Hi, the City of Hamilton is bound by court decisions to give significant weight to political expression and the Charter protection for free expression.
Paras 62 to 72 of Guelph and Area Right to Life v. City of Guelph, 2022 ONSC 43 is a short summary of the decisions.
No, the City of Hamilton was required to BALANCE competing Charter rights, including freedom of expression as well as gender equality, bodily autonomy, and other rights, in addition to City objectives such as for a safe and welcoming community, and Ad Standards decisions and the Advertising Code. No Charter right should be given more substantial weight than another, and other considerations come into play too.
Unfortunately, Hamilton chose to accept the ad this time, likely in the interests of ‘reasonableness’ and to avoid another court challenge, but they could have rejected it again and quite possibly prevailed using a Section 1 argument that justifies limiting a right to protect other rights.
Another important argument in the Hamilton court case was that the ad in question was NOT political – it’s an advocacy ad that falls under the scrutiny of the Canadian Code of Advertising Standards, and refusing an ad that contravenes the Code can be an acceptable part of a rights-balancing exercise. ARPA Canada wanted the court to declare the ad was “accurate” as well as exempt from the Code as “political advertising”, but the court declined to interfere with the Code, which is outside its jurisdiction.
In this day and age of advanced technology such as ultrasound, surgeries performed in utero for abnormalities, etc., the “belief that life does not begin until the fetus is outside a women’s (sic) body” is incredibly difficult to defend. It should be obvious to anyone willing to consider the matter objectively that at the fetus is a human being – it does not become one by making a short journey from the uterus to the outside world. Since then it is a human being it deserves the same protection the rest of us receive. To refer to the protection of innocent human life as a “hate crime” seems an obvious example of “misinformation”.
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