(I note the decision is clear authority that Ontario Court of Justice decisions suggesting the Charter does not apply to municipalities are in error).
A summary follows:
The appellant transit authorities, the Greater Vancouver Transportation Authority ("TransLink") and British Columbia Transit ("BC Transit"), operate public transportation systems in British Columbia. They refused to post the respondents' political advertisements on the sides of their buses on the basis that their advertising policies permit commercial but not political advertising on public transit vehicles. The respondents commenced an action alleging that articles 2, 7 and 9 of the transit authorities' policies had violated their right to freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The trial judge dismissed the action, finding that the respondents' right to freedom of expression had not been infringed. The majority of the Court of Appeal reversed the trial judgment and declared articles 7 and 9 of the advertising policies to be of no force or effect either on the basis of s. 52(1) of the Constitution Act, 1982 or on the basis of s. 24(1) of the Charter.
Held: The appeal should be dismissed.
Both BC Transit and TransLink are "government" within the meaning of s. 32 of the Charter. On the face of the provision, the Charter applies not only to Parliament, the legislatures and the government themselves, but also to all matters within the authority of those entities. BC Transit is a statutory body designated by legislation as an "agent of the government" and it cannot operate autonomously from the provincial government, since the latter has the power, by means of regulations, to exercise substantial control over its day‑to‑day activities. Although TransLink is not an agent of the government, it is substantially controlled by a local government entity — the Greater Vancouver Regional District — and is therefore itself a government entity. Since the transit authorities are government entities, the Charter applies to all their activities, including the operation of the buses they own.
The s. 2(b) claim should not be resolved using the Baier framework. The transit authorities' policies do not prevent the respondents from using the advertising service as a means of expression. Only the content of their advertisements is restricted. Thus, their claim cannot be characterized as one against underinclusion. Nor can it be characterized as a positive right claim. The respondents are not requesting that the government support or enable their expressive activity by providing them with a particular means of expression from which they are excluded. They seek the freedom to express themselves — by means of an existing platform they are entitled to use — without undue state interference with the content of their expression.
In order to determine whether the expression should be denied s. 2(b) protection on the basis of location, the City of Montréal framework should be applied. This inquiry leads to the conclusion that the transit authorities' policies infringe the respondents' freedom of expression. The proposed advertisements have expressive content that brings them within the prima facie protection of s. 2(b), and the location of this expression — the sides of buses — does not remove that protection. 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. The space allows for expression by a broad range of speakers to a large public audience and expression there could actually further the values underlying s. 2(b). The side of a bus is therefore a location where expressive activity is protected by s. 2(b) of the Charter. Finally, the very purpose of the impugned policies is to restrict the content of expression in the advertising space on the sides of buses. The wording of articles 2 and 7 clearly limits the content of advertisements. Article 9 is even more precise in excluding political speech.
The limits resulting from the policies are "limits prescribed by law" within the meaning of s. 1 of the Charter. Where a government policy is authorized by statute and sets out a general norm or standard that is meant to be binding and is sufficiently accessible and precise, the policy is legislative in nature and constitutes a limit that is "prescribed by law". Here, a review of the enabling legislation suggests that the transit authorities' policies were adopted pursuant to statutory powers conferred on BC Transit and TransLink. Where a legislature has empowered a government entity to make rules, it seems only logical, absent evidence to the contrary, that it also intended those rules to be binding. The policies are not administrative in nature, as they are not meant for internal use as an interpretive aid for "rules" laid down in the legislative scheme. Rather, the policies are themselves rules that establish the rights of the individuals to whom they apply. Moreover, the policies can be said to be general in scope, since they establish standards which are applicable to all who want to take advantage of the advertising service rather than to a specific case. They therefore fall within the meaning of the word "law" for the purposes of s. 1 and satisfy the "prescribed by law" requirement as the transit authorities' advertising policies are both accessible and worded precisely enough to enable potential advertisers to understand what is prohibited.
The limits resulting from the policies are not justified under s. 1 of the Charter. The policies were adopted for the purpose of providing "a safe, welcoming public transit system" and this is a sufficiently important objective to warrant placing a limit on freedom of expression. However, the limits on political content imposed by articles 2, 7 and 9 are not rationally connected to the objective. It is difficult to see 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. Moreover, the means chosen to implement the objective was neither reasonable nor proportionate to the respondents' interest in disseminating their messages pursuant to their right under s. 2(b) of the Charter. The policies amount to a blanket exclusion of a highly valued form of expression in a public location that serves as an important place for public discourse. They therefore do not constitute a minimal impairment of freedom of expression. Advertising on buses has become a widespread and effective means for conveying messages to the general public. In exercising their control over such advertising, the transit authorities have failed to minimize the impairment of political speech, which is at the core of s. 2(b) protection. To the extent that articles 2, 7 and 9 prohibit political advertising on the sides of buses, they place an unjustifiable limit on the respondents' right under s. 2(b) of the Charter.
With respect to remedy, the transit authorities' policies clearly come within the meaning of "law" for the purposes of s. 52(1) of the Constitution Act, 1982. The transit authorities used their delegated rule‑making power to adopt policies which unjustifiably limited the respondents' freedom of expression. Those policies are binding rules of general application that establish the rights of members of the public who seek to advertise on the transit authorities' buses. Since ensuring the largest numbers of potential claimants and beneficiaries of a constitutional challenge is in keeping with the spirit of the supremacy of the Charter, the appropriate remedy for an invalid rule of general application is one under s. 52(1) of the Constitution Act, 1982, and not s. 24(1) of the Charter. As the transit authorities' advertising policies are "law" within the meaning of s. 52(1) of the Constitution Act, 1982, they are therefore declared of no force or effect to the extent of their inconsistency.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
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