Permitting Atheist Bus Ads in Greater Vancouver and Beyond

Protecting Political and Conscientious Speech

Last month the Supreme Court released judgment in Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, 2009 SCC 31, ruling that the transit authority unjustifiably limited the claimants’ freedom of expression by prohibiting political advertisements from being displayed on the sides of buses. The case is a victory for civil libertarians, relieved to see s. 2(b) of the Charter withstand considerable incursion by the offending authority’s policies.

The facts of the case are well-known and described here by Chris Donovan for For our purposes, I will provide a brief gloss of his excellent summary. The claimants attempted to purchase advertising on horizontal panels running along the sides of public buses operated by the appellant transit authority. One proposed ad, which was characteristic of the content and tone of the other impugned ads, featured a silhouette of a concert crowd with the caption “ROCK THE VOTE”.

The transit authority permitted ads which “communicate information concerning goods, services, public service announcements and public events,” although not those which are “likely, in the light of prevailing community standards, to cause offence to any person or group of persons or create controversy.” Ads which “advocat[e] or oppos[e] any ideology or political philosophy” or which “conve[y] information about a political meeting, gathering or event, a political party or the candidacy of any person for a political position or public office” are especially not permitted.

At issue was whether the transit authority could, in doing so, lawfully circumscribe the content of the claimants’ otherwise free expression in a public location.  By ruling that it could not, the Supreme Court deserves praise for protecting Charter rights from undue government intrusion. Just as pertinently, the SCC’s decision may pre-empt religious objections to atheist bus ads, since their contentious subject matter seems analogous to that of the voter recruitment ads permitted by Greater Vancouver.

The Voter Recruitment Ad Campaign

The Charter’s s. 2(b) guarantee extends prima facie protection to any activity by which one conveys or attempts to convey meaning, regardless of content, subject to a few exceptions. Individual expressions that are violent or threaten violence are not protected, nor are expressions on all government property. Certain limits also exist in confined public spaces, those where children are likely to be present, and in the rare circumstance that the government extends an underinclusive means of expression to a particular group or individual.

Deschamps J. for the Greater Vancouver majority finds that the impugned “ROCK THE VOTE” ads trigger none of these exceptions. The ads’ method of relaying their message was not violent and did not threaten violence. Rather, the ads’ political content lies “at the core of s. 2(b) protection.”

Further, Deschamps J. recognizes that there exists a long history of advertising on the sides of buses, and when the historical function of a place has included such public expression, the Constitution usually protects expression in that location. Such advertising also does not impede the primary function of the bus as a vehicle for public transportation. The Vancouver transit authority, then, would seek to regulate political ads by reference to their content alone.

The regulations also undermine freedom of expression’s three motivating rationales, those being the search for truth in a “marketplace of ideas”, the expansion of democratic discourse, and the encouragement of individual self-actualization. Enabling free expression on the sides of public vehicles, where people interact with one another and engage with their surroundings during commutes, would only help promote these rationales. Given that, Deschamps J. confirms that the transit authority quite obviously breached the claimants’ freedom of expression by circumscribing the content of their advertisements.

Further, the means by which the transit authority sought to do so did not minimally impair s. 2(b). While seeking to provide a “safe, welcoming public transit system,” an objective that Deschamps J. conceded is sufficiently pressing and substantial, the authority reacted disproportionately by issuing a blanket prohibition of a valued form of expression — political speech. It also did so in an important space for public discourse. In my view, the Supreme Court did well to defend expressive freedom against this unjustifiable trespass.

The Atheist Bus Ad Campaign

Although Deschamps J. does not explicitly engage the debate surrounding atheist advertisements in Canada, her opinion seems prescient of the issues that may arise in future litigation. Indeed, I suspect that the appellant transit authority may have also appreciated as much, since its involvement in a protracted legal battle concerning innocuous voter recruitment ads would otherwise seem a dubious expense.

The atheist advertising campaign was founded in the UK when one commuter, disturbed that an ad on a public bus linked to a website proclaiming that all non-Christians will spend eternity in hell, began raising money for a rebuttal. Her own ad read, “[t]here’s probably no God. Now stop worrying and enjoy your life.” Her atheist movement earned supporters across Europe and North America, although several municipalities in Canada, including Vancouver, Victoria, Kelowna, Halifax, London, and Ottawa, initially refused to run the ads, and some municipalities may still persist in their refusal.

Had atheist ads been at issue in Greater Vancouver rather than voter recruitment ads, I do not expect that the Supreme Court would have decided the case differently. After all, the Charter’s freedom of expression guarantee is content-neutral, and the message that “[t]here’s probably no God” is neither violent nor threatening violence. And while this message would certainly constitute religious speech (or speech “conscientious of secularism”, rather, motivated by beliefs protected by s. 2(a)’s freedom of conscience), such speech would still be, in my view, no less “political” than other speech, lying similarly at the core of s. 2(b)’s protection. Conscientious speech also offers an alternative political perspective which diversifies the marketplace of ideas and may even bring individuals to spiritual self-realization, thereby strengthening the values underpinning freedom of expression.

Further, espousing an atheist belief or political view on a bus advertisement should not impede the transit authority’s goal of ensuring a “safe, welcoming public transit system.” As Deschamps J. states, “[i]t is not the political nature of an advertisement that creates a dangerous or hostile environment,” but an ad’s violent or discriminatory message. “There’s probably no God” is neither. At most, promoting atheism in public could inspire controversy, but in my and Deschamps J.’s view, citizens, including bus riders and passers-by, cannot reasonably expect to live without controversy in a free and democratic society.

In Sum

If certain transit authorities resume their prohibition of atheist advertising on buses, I believe they would be denying many of their constituents a widespread and effective means for conveying messages to the general public that these constituents are otherwise entitled to access. And thankfully, given the Supreme Court’s recent decision in Greater Vancouver Transit Authority v. Canadian Federation of Students – British Columbia Component, such a prohibition may also fail to withstand Charter scrutiny.

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