Lawyers say the decision provides guidance for how municipalities should approach controversial ads
The City of Hamilton appropriately balanced a Christian political party’s freedom of speech rights with its goal of providing a safe transit system when it rejected the party’s proposed ads for transit shelters, which stated there are “two biological genders” that “cannot be changed by surgery or chemicals,” the Ontario Court of Appeal has ruled.
According to lawyers representing the city, Wednesday’s decision in Christian Heritage Party of Canada v. Hamilton (City) may represent the first time a provincial appellate court has "wrestled with the proper application of the test" municipalities must apply to strike a balance between statutory objectives on the one hand, and Charter of Rights and Freedoms protections on the other.
“This decision provides a roadmap for other municipalities on how to properly go about the required analysis when confronted with future situations like this, involving potentially controversial advertising,” says Kirk Boggs, a senior partner at Lerners LLP who represented the City of Hamilton.
“This decision lays it out from A to Z – how a thoughtful municipality should appropriately go about the analysis process,” Boggs says.
Stuart Zacharias, a partner at Lerners who worked with Boggs on the case, adds that over the years, there have been many high-level discussions about the framework for the analysis, which the court refers to as the Doré/Loyola test. However, Zacharias says he isn’t aware of any other provincial appellate decisions that have provided such “on-the-ground” guidance.
The case dates back to 2023, when the Christian Heritage Party of Canada and the Christian Heritage Party Hamilton-Mountain Electoral District Association, collectively referred to by the OCA as CHP, asked Hamilton’s advertising agent to place an ad in the city’s transit shelters. The ad depicted a picture of a woman, bookended above and below by captions reading “Woman” and “An Adult Female.”
The ad included a link to CHP’s website, where the party states that there are “two biological genders: male and female” that “cannot be changed by surgery or chemicals.” The website also stated that “[c]hildren must be protected from the LGBTQ ‘gender agenda’ which ignores biological reality.”
The advertising agent rejected the CHP’s request days later, prompting the party to push back. The city took over the review of the matter.
In July 2023, the city also rejected CHP’s advertising application. The city said that while it was required to “honour and carefully consider” s. 2(b) of the Charter, which guarantees freedom of expression, and that Hamilton residents had to tolerate controversial opinions to some extent, the city was also required to balance CHP’s rights with its own statutory objective of “providing a safe and welcoming transit system.”
The city cited a 2021 study that found that transgender and gender-diverse individuals suffered adverse mental health outcomes when they were exposed to anti-trans media messaging. The city also referenced a 2022 Hamilton Police Services report that documented an increase in “hate/bias occurrences” against trans people in the Hamilton area, as well as a police services press release reporting an assault against two transgender individuals on a city bus.
CHP asked the Ontario Superior Court of Justice’s Divisional Court to review the city’s decision. However, the court ultimately sided with the city, finding that it fairly considered how to protect the party’s freedom of expression rights given its statutory objective.
The OCA agreed that the city reached the right conclusion. In its appeal, CHP argued that the Divisional Court had misapplied the two-step framework outlined in a 2015 Supreme Court of Canada decision, Doré/Loyola High School v. Quebec (Attorney General). The framework provides guidance on reviewing administrative decisions that may breach Charter rights, and requires decision-makers to strike a balance that limits Charter protections as little as possible.
According to CHP, the Divisional Court erred by balancing CHP’s Charter rights with the third-party interests of the transgender and gender non-conforming community. The party also accused the Divisional Court of ignoring CHP’s other Charter rights related to freedom of religion and equality.
However, the OCA said the city correctly followed the two-step Doré/Loyola process, which requires decision-makers first to consider its statutory objectives and then ask “how the Charter value at issue will best be protected in view of the statutory objectives.”
The city’s July 2023 letter rejecting CHP’s ad “makes clear how the city understood the balancing exercise,” the OCA said. The letter said the city acknowledged and respected CHP’s right to freedom of expression, which it said ensures “that everyone can manifest their thoughts, opinions, beliefs, and expressions, however unpopular, distasteful, or contrary to the mainstream.”
The city then added the caveat that “the right to freedom of expression is not absolute, and that, in the context of accepting advertisements, the city was entitled, and obligated, to balance CHP’s Charter right against the statutory objectives that the municipality was pursuing.” The city's objective was to provide a safe and welcoming transit system.
The OCA tossed out CHP’s argument that the city was too fixated on the well-being of transgender and LGBTQ communities, when the statutory objective of a safe and welcoming transit system concerns the city as a whole, including those who don’t belong to these communities.
The OCA countered that the city “did not arbitrarily choose to focus on transgender or LGBTQ communities at the expense of other residents of the city.”
The appellate court said that instead, the city “relied on empirical and qualitative evidence about and from these communities, who they identified as being the groups most vulnerable to harms arising from the advertisement.”
According to Boggs, the decision’s significance lies in how it shows that if a municipality “undertakes the proper analysis and weighs things carefully… it does have some right to limit freedom of expression in its public areas in order to provide a safe and welcoming transit system for all of its residents.
“In this particular case, there was clear evidence before the city, based on its investigations, that these communities were at risk psychologically and physically for harm if this ad ran,” Boggs adds. “That was something that was legitimate for the city to take into account, in weighing against what it recognized was the very serious and fundamental Charter right of freedom of expression.”
In a statement released this week, Rod Taylor, national leader of CHP Canada, said of the decision, "Free speech has been given a black eye by judges who neglected to recognize our constitutional rights. Freedom of speech, freedom of the press, freedom of conscience, freedom of association – all of these freedoms are listed in the Canadian Charter of Rights and Freedoms and are part of our great Canadian heritage – our Christian heritage.
"Yet we see today that political correctness and ‘woke’ ideology have infected not only our legislatures but also our courts."
Counsel for CHP did not respond to a request for comment.
Editor's Note: This story has been updated with Taylor's statement.
