Supreme Court strikes down rule against "political" ads

Says BC Transit was wrong to refuse controversial ads from student group, teachers’ union

British Columbia Transit violated the constitutional right to free speech when it refused to carry political ads on the outside of its buses, Canada’s highest court said Friday.

The Supreme Court of Canada ruled 8-0 to strike down the policy.

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“Like a city street, a city bus is a public place where individuals can openly interact with each other and their surroundings,” said the judgment, written for the court by Justice Marie Deschamps.

“I do not see any aspect of the location that suggests that expression within it would undermine the values underlying free expression. On the contrary, the space allows for expression by a broad range of speakers to a large public audience.

“I therefore conclude that the side of a bus is a location where expressive activity is protected by … the Charter.”

The ruling is a victory for the Canadian Federation of Students and the British Columbia Teachers’ Federation.

Both groups tried to place ads on the outside of B.C. buses leading up to the provincial election in 2005.

The ads raised several issues including tuition fees, the environment and school closures.

British Columbia Transit refused to run them, saying its policy bars political ads along with any message “likely to cause offence … or create controversy.”

The student federation had hoped to run an image of a crowd at a concert with the text: “Register now. Learn the issues. Vote May 17, 2005.”

The teachers union wanted to post a banner on the side of buses saying: “2,500 fewer teachers. 113 schools closed. Our students. Your kids. Worth speaking out for.”

At trial, the judge found that transit bodies, as publicly controlled government entities, must uphold the Charter of Rights and Freedoms. But he did not find that the advertising policy breached the right to freedom of expression.

The B.C. Court of Appeal ruled 2-1 against him, and struck down any blanket ban on political ads as unconstitutional.

Dissenting Justice Mary Southin said political bus ads don’t qualify as the type of expression protected by the Charter. Forcing transit authorities to display such messages would be like obliging newspapers to publish opinion pieces, she wrote.

She concluded that the Charter should not apply to a “medium of communication” offered by a commercial enterprise, even if it’s publicly owned as in the case of B.C. Transit and TransLink.

Friday’s ruling was also being watched by several cities across Canada including Vancouver, Victoria, Halifax and London, Ont., that initially rejected atheist bus ads proclaiming: “There’s probably no God. Now stop worrying and enjoy your life.”

Such ads have been placed on public transit systems in several countries including the U.S., Italy, Spain, the Netherlands and other parts of Europe since last year.

The atheist campaign began in Britain when a woman was annoyed that a website posted in a London bus linked her to a website declaring that non-Christians will “spend all eternity in torment in hell.” She decided to raise money for a rebuttal.

The atheist bus message movement was born – and it soon caught fire.

Toronto, Calgary, and Montreal accepted and ran the “There’s probably no God” ads, but they caused a tempest in Ottawa. The capital’s transit service OC Transpo rejected them at first.

The company wound up displaying the message on the side of its buses last spring after Ottawa city council cast a split vote to overturn the refusal amid concerns about a costly legal fight.

– The Canadian Press