Greater Vancouver and Justice Fish’s Views On 2(b) Limitations

The Supreme Court’s decision in Greater Vancouver Transit Authority v. Canadian Federation of Students, 2009 SCC 31, is not an unexpected one. Most onlookers expected that the court would rule in favour of the CFS, as the censorious actions of the Greater Vancouver Transit Authority were rather obviously disconnected from the reasonable limits allowed by law upon freedom of expression. However, in finding the Transit Authority at fault, there are multiple ways to find their actions unreasonable under common law. In this post, I will focus on Justice Fish’s opinion.

Justice Fish divides the potential limitations on freedom of expression exerted by a government agency into two subcategories. He characterizes the first set of limitations as “internal” – those limitations stemming from 2(b) of the Charter itself, where a limit on the expression would actively contradict 2(b). The second set of limitations, the “external” limitations, are those derived from s.1 of the Charter, wherein via the Oakes test, reasonable limits can be set on the other elements of the Charter.

In Fish J.’s reasons, he does not bother disagreeing with the majority on the “external” limits, instead agreeing with Justice Deschamps. His reason for writing a concurrent opinion is to demonstrate a different (and more direct) way of ruling upon the case as regards the limits of expression that flow from 2(b).

Justice Fish first addresses the issue of significant burden. The GTVA argued that acceptance of the CFS advertisements would subject them to a significant burden (a limit on 2(b) because the Charter does not create rights requiring positive affirmation: it is the government’s job to protect freedom of expression, not to ensure that you have it).

Fish J. quickly dismisses the significant burden argument in Greater Vancouver by essentially declaring the “burden” that accepting the advertisements would cause the GTVA to be not worthy of notice. At para. 117:

They require no meaningful expenditure of funds — on the contrary, removing the impugned restriction would increase the appellants’ advertising revenues. They require no new operating initiatives of significance. And they involve no administrative reorganization, restructuring or expansion that can reasonably be characterized as “burdensome”.

Having dealt with burden issues, Fish J. turns his attention to the issue of manifest incompatability. Here, the GTVA argued that that because the advertisements were manifestly incompatible with the advertising space on the sides of buses (a limit on 2(b) because freedom of expression should not reasonably interfere with the place it is exercised) they were justified in their refusal to run the advertisements.

Justice Fish here argues that expressive activity does not necessarily attract 2(b) protection, which is a remarkably censorious position for a Supreme Court justice to take. Indeed, he chooses to contradict – at least in part – the prima facie standard for identifying expressive content that has been a staple of Canadian common law for decades, arguing instead that incompatability with location itself is not protected by 2(b) (at para. 131):

Governments should not bear the burden of strictly prescribing by law and justifying limits on those kinds of expression that are so obviously incompatible with the purpose or function of the space provided, as the Charter cannot possibly have been intended to invite litigation in such obvious cases.

In essence Justice Fish here suggests that incompatability with location renders otherwise expressive activity inexpressive. Although this concept is not without precedent in Canadian law it is one that nonetheless troubles this writer; determining the expressive quality of an act by its surroundings seems directly counterintuitive to the concept of expression in the first place. Unlike the significant burden limit – which flows directly from the nature of the right to the act itself – this is a limit created by circumstance rather than the act. That fact makes it seem – to this writer – to be a limit to the right that should emanate from s.1 of the Charter.