In our April newsletter, we discussed a debate regarding what constitutes acceptable advertising on transit vehicles. Charities and other interest groups may soon find more opportunities to utilize public space to get their message across. This summer the Supreme Court of Canada upheld the ruling of the British Columbia Court of Appeal in Greater Vancouver Transportation Authority v. Canadian Federation of Students. The Court ruled that public bus companies, either government operated or controlled, cannot refuse to sell advertising space to a person or group simply because their ad message is political or controversial. Doing so offends their constitutional right to free expression under the Charter of Rights and Freedoms.

This decision is based on events that occurred five years ago. In 2004, the British Columbia chapter of the Canadian Federation of Students and the British Columbia Teachers’ Federation attempted to purchase advertising space on public transit buses in the province. Their respective messages included:

Tuition fees ROCK THE VOTE BC.com Minimum wage ROCK THE VOTE BC.com

Environment ROCK THE VOTE BC.com

&

2500 fewer teachers, 114 schools closed. Your kids. Our students. Worth speaking out for.

The Greater Vancouver Transportation Authority and British Columbia Transit, both government entities, refused to post these advertisements. Their policy limited the use of ad space to largely commercial messages, prohibiting ads which espoused political views or views which could offend “prevailing community standards”.

In its decision, the Court outlined some limits to free expression with respect to the use of government space. First, persons or groups do not have a right to express themselves on all government property. Some government offices, for example, depend on privacy and security. Second, government has no general obligation to provide a platform for individuals or groups to speak. Moreover, when government does create a platform for dialogue it usually may choose is permitted to participate. The Court noted in this case that public bus companies were not being asked to provide the student group and teachers’ union a platform for expression. The ad space on buses was already available to them and other members of the public. The issue in this case was whether having made this platform available, the public bus companies could prohibit the use of ad space for political commentary. A unanimous Court said ‘no.’ Buses, the Court held, have historically been, and currently are, public spaces where open expressive activity occurs. Therefore, one would expect free expression on a bus to be constitutionally protected when that expression is consistent with the underlying values of the Charter. Commenting on the decision, Shamus Reid, Chair of CFS – B.C. said, “this decision ensures the public’s right to use public media to create dialogue on the issues that impact our lives”.

Charities and social groups should take note of some key points in this case. First, having a right to free expression with respect to government property depends on the nature of use associated with that space. The more a space is used for public expression the more likely expression in that space is constitutionally protected. Second, social or technological changes which change the use of a space may affect the protections expression in that space receives. Thus, through time and evolving use, a government property not traditionally seen as a space for free expression could become one and government property that served an expressive purpose might lose that status. Third, despite a right to free expression, some limits in advertising are justifiable. Restrictions on tobacco advertising, for example, have been recognized as necessary to protect impressionable youth. Indecency laws may restrict ad content depending on context and location. In this case, the Court ultimately disagreed with the public bus companies’ justification for their restrictive ad policy. It remained unconvinced that banning all political speech was either directly related or necessary to achieving the transit companies’ goal of ensuring a safe and welcoming atmosphere. The Court suggested one method of establishing reasonable limits to advertising might be to rely on the Canadian Code of Advertising Standards as a guide.