The Breadth of Our Freedom of Expression

March 26, 2008

Yesterday, the Supreme Court heard arguments in Canadian Federation of Students v Greater Vancouver Transportation Authority, 2006 BCCA 529. The eventual decision in this case may help clarify the bounds of our Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 ["Charter"] right to freedom of expression, but it will also be faced with providing further guidance on the types of organizations which constitute ‘government’ and therefore bound to act in accordance with the Charter.

The Case

The case was originally launched by the Canadian Federation of Students ("CFS"), an organization which represents thousands of college and university students throughout Canada, and the British Columbia Teacher’s Federation ("BCTF"), a trade union acting as the exclusive bargaining agent for more than 40,000 of British Columbia’s public school teachers. Both organizations are involved in public advocacy which promotes the interests of students and educators.

When the school term began in the fall of 2004, both organizations were busy preparing for the upcoming British Columbia provincial election, which was scheduled for May 17th, 2005. As part of this preparation, the CFS developed a series of advertisements, which included:

• a central sign depicting a silhouette of a crowd at a concert with the text: Register now. Learn the issues. Vote May 17, 2005. ROCKTHEVOTEBC.com; and,
• a banner ad placed at the top of the bus which would read in one long line as follows: “Tuition Fees ROCKTHEVOTEBC.com Minimum Wage ROCKTHEVOTEBC.com Environment ROCKTHEVOTEBC.com”

At the same time, the BCFT created a banner intended to be placed on the side of a bus which said:

2500 fewer teachers
113 schools closed
Our students. Your kids. Worth speaking out for.

However, when these organizations approached the Greater Vancouver Transportation Authority (“TransitLink”) and British Columbia Transit (“Transit”) to pay to have the ads placed in and on buses, their business was rejected. The two transit bodies claimed that their policies prevented them from accepting these advertisements. Specifically, these policies contained “Standards and Limitations” which included provisions outlined that:

7. No advertisement will be accepted which is likely, in the light of prevailing community standards, to cause offence to any person or group of persons or create controversy. 9. No advertisement will be accepted which advocates or opposes any ideology or political philosophy, point of view, policy or action, or which conveys information about a political meeting, gathering or event, a political party or the candidacy of any person for a political position or public office.

Judicial History

At trial, Justice Halfyard found that both transit bodies were ‘government’ and, as a result, the Charter applied to their actions [Canadian Federation of Students - British Columbia Component et al v Greater Vancouver Transportation Authority et al, 2006 BCSC 455]. However, he did not find that the policies of the transit bodies breached the CFS and BCTF’s freedom of expression. On appeal, the majority of the British Columbia Court of Appeal found that the trial judge was correct in finding that Transit and TransitLink were ‘government’ within s. 32 of the Charter but erred in finding that the policies did not breach the s. 2(b) right to freedom of expression. The majority’s judgment, written by Justice Prowse, allowed the appeal, set aside the order of the trial judge, and granted the appellants a declaration stating that:

(a) Standard 9 of the policies is inconsistent with the protection of freedom of expression guaranteed under the Charter and of no force and effect; and

(b) Standard 7 of the policies is inconsistent with the protection of freedom of expression guaranteed under the Charter and of no force and effect to the extent that it excludes advertisements because they are political.

In her dissent, Justice Southin objected to the findings of the majority. Her concern is that the decision of the majority confers a positive right to access the media of communication. As she states:

I take the "freedom of ... expression" of a "[medium] of communication" to include freedom not to publish a message. Thus, I have no right to require a newspaper to publish my "opinion". To put it another way, the Charter does not confer a right of access to "media of communication". The media do give access, although often at a price, but, in my opinion, are under no constitutional obligation to do so.

She expressed that she does not find that political advertisements on buses are the type of communication which is protected by the Charter. As a result, she would have dismissed the appeal.

Conclusion

Freedom of expression is a right which is of great interest to scholars, students, and the public in general. It is cherished and attributed with ensuring that our society is enriched through a free flowing exchange of ideas and political opinions. Hopefully, the SCC will issue a judgment which further strengthens this right and ensures that its application remains wide by finding that schemes, such as public transit bodies, are subject to the limitations that the Charter places on their actions.

[Editor's note: the SCC has since rendered its judgement on this case in Greater Vancouver Transportation Authority v Canadian Federation of Students — British Columbia Component, [2009] 2 SCR 295.]