LPL ad displayed on a transit bench in the spring of 2018

By Lara Fominoff

Lethbridge Pro-Life group squares off in court with the City over anti- abortion ads

Oct 11, 2019 | 9:36 AM

LETHBRIDGE, AB – How freedom of speech as protected in the Charter of Rights and Freedoms can or should be balanced, with the rights of the City of Lethbridge to act in the public good is the subject of a judicial review that began on Thursday (Oct. 10) in Court of Queen’s Bench.

The issue relates to the City’s decision in April 2018 to pull five Lethbridge and District Pro-Life (LPL) ads from transit buses and benches, citing serious public concerns.

The ads, which at first read “unborn babies feel pain,” and later “pre-born babies feel pain, say no to abortion” were removed after more than 100 complaints via email and though social media were received. The ads depicted a picture of an unborn baby at a later stage of development, the group’s logo and a web address. At the time the messages were taken down, the city sent out a statement:

“We acknowledge that advertising on public spaces must meet community norms, and that sometimes there can be a range of values and views,” the statement read. “The best interests of our community are always paramount, and we will continue to exert discretion in the use of all public advertising spaces.”

LPL Lawyer Carol Crosson, told Justice M.D. Gates because those ads were taken down, the association’s right to share its message now and in the future has been jeopardized, calling it a “maximum impairment.”

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She said that the ads directed people to the LPL website which the City believed contained inaccurate, incomplete or misleading information; something she argued it had no business judging. According to Crosson, the accuracy of web content and freedom of expression were not up to the city to determine, and that just because group members held a different opinion, that did not mean that opinion could or should be stifled.

“The state should never be allowed to regulate accuracy,” said Crosson.”It’s one of the most intrusive things a state can do.”

The second argument centered around the contract the City had (and currently holds) with Pattison Advertising. Pattison is a voluntary member of the Ad Standards Council and adheres to the Canadian Code of Advertising Standards which sets the criteria for acceptable advertising standards in Canada.

While it has no legal merit, the city argued that it had a contractual obligation to the company to abide by the code as well – something Justice Gates did not appear convinced of.

Crosson also argued that if the City removed the ads based on emotional harm caused to some complainants – that too was an invalid argument, and the onus was on the city to prove that harm was caused; even that those who made complaints were not part of larger national pro-choice groups.

“We are in a society where when someone says something we don’t like, we say it emotionally harmed me, instead of it upset me,” she explained.

She called it a slippery slope while telling the Justice that if the court accepted “emotional harm” as an argument, then no one would have the right to freedom of expression.

The fourth reason Crosson believed the ads may have been removed, centered around the notion of pre-conceived bias; that because there had been complaints about such ads in the past, then there would likely be again in the future.

The City’s Lawyer Michael Sullivan however, argued that the core of the issue was about advertising on municipal transit property, and that it had put reasonable limits on what could and could not be promoted.

He argued to Justice Gates that the LPL ads may not be appropriate when there is a captive audience – that the messaging was often displayed for months at a time, and those who used transit, including women who had abortions or may be contemplating them, and children who didn’t understand the content, couldn’t simply “turn them off.”

The obligation of the city, he maintained, was to provide a safe, welcoming and inclusive transit system for all, not just for one group or another.

However, by that logic, Justice Gates surmised that “your advertising would only allow advertising that was happy. Happy advertising,” indicating messages for mental health, crisis centres or anything else that might offend someone would also not be allowed.

But Sullivan argued the pro-life ads were more than that.

“This ad is more than considering abortion…it is using images and phrases that are triggering to a section of the community that itself has rights…there is no hierarchy of Charter rights, and that’s the balance that we’re trying to find.”

Justice Gates maintained that his job was to be concerned with the principles of free speech, and when was it appropriate for society to be saying “you’re not allowed to express your opinion because I find it…..whatever word you want to use.”

He did acknowledge that drawing those lines were extremely difficult.

Arguments will continue Friday. It’s not clear when a decision will be delivered.