Letter to City of Peterborough, to Protest Allowing Anti-choice Ads on Buses 

“CCBR ad contravenes the Charter’s Section 15, AND the Canadian Advertising Code”

March 8, 2016
The following letter was sent to the City of Peterborough – including the Mayor, Legal Department, and Transit Operations – via email on Feb 25. We asked them to rescind their approval of offensive anti-choice ads to appear on backs of buses, sponsored by the extremist group “Centre for Bioethical Reform.”

From: Joyce Arthur [mailto:joyce@arcc-cdac.ca]
Sent: Thursday, February 25, 2016 2:38 PM
To:dbennett@peterborough.ca<dbennett@peterborough.ca>; ‘legal@peterborough.ca<legal@peterborough.ca>; ‘kjones@peterborough.ca<kjones@peterborough.ca>; ‘dvassiliadis@peterborough.ca<dvassiliadis@peterborough.ca>; ‘transitoperations@peterborough.ca<transitoperations@peterborough.ca>
Subject: CCBR ad contravenes the Charter’s Section 15, AND the Canadian Advertising Code

Dear Mayor Daryl Bennett (and Legal Dept. and Transportation Dept.)

I’m the Executive Director of the Abortion Rights Coalition of Canada. It is with great interest that I learned recently of the challenges you’re facing in Peterborough regarding the dispute over the ads that the anti-abortion group CCBR (Canadian Centre for Bio-ethical Reform) want to place on the backs of buses.  I’m very sorry about the lawsuit against you by the CCBR. 

Our group has a great deal of knowledge and experience with the CCBR, including strategies and arguments for how to ban or limit their materials from public display. Unfortunately, I feel that your decision and the legal arguments you made around your obligation to uphold free speech rights were inadequate and entirely the wrong approach. I hope you’ll please allow me to explain.  First, I should mention that I’m not a lawyer myself, but our group has received legal advice and assistance on this issue over the years.

You claim in your explanation that “the City has no legal authority to decline advertising content as long as the advertisements comply with the Canadian Code of Advertising Standards, the Canadian Criminal Code and other applicable laws.”  In fact, the ads almost certainly contravene the Canadian Code of Advertising Standards. Similar anti-abortion ads have already been found to violate the Code, including some by the CCBR itself. (More details on that below.) 

In terms of other applicable laws, including the Charter – of course, speech cannot be prohibited on the basis that it’s divisive or controversial.  Instead however, a strong argument can be made that the CCBR ad contravenes Section 15 of the Charter, in particular discrimination on the basis of sex:

5. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Abortion is a service that only women need (and some transgender people); therefore, any government action that involves restricting or condemning the legality or availability of abortion risks contravening Section 15.  So when a government gives express permission to a third party to condemn and mischaracterize abortion in a publicly-controlled or funded venue (like on buses, on City Hall grounds, on a billboard on public property, etc.), it means the government is essentially sponsoring discrimination against women. Further, the 1988 decision by the Supreme Court of Canada (R. v. Morgentaler) found that restricting abortion contravened women’s Charter rights to bodily security, life, liberty, conscience, and privacy. Government restriction or condemnation of legal abortion tramples on these fundamental rights of women.

A crucial bedrock principle of our Charter (Section 1) is that any right, including the right to free speech, can be limited to protect other rights. Unfortunately, this was not mentioned in your published statement. But Section 1 of the Charter could have been cited to allow the limitation of free speech to protect women from discrimination under Section 15.  There’s many examples of courts balancing and limiting rights using Section 1, and even a precedent in the abortion issue:  In 2008, the BC Court of Appeal upheld the Access to Abortion Services Act by ruling (in R.v. Spratt) that a woman’s right to access abortion services in an atmosphere of privacy and dignity outweighed anti-abortion protesters’ right to freedom of speech outside clinics (which the court agreed was infringed under the Act).

Your legal team may also find this 2012 letter from Westcoast LEAF to the City of Kelowna BC pertinent to your situation. LEAF is a law firm that specializes in women’s equality cases. The letter explained that the City should not have approved a proclamation for “Protect Human Life Week” sponsored by a local anti-abortion group, because it implicated the City in opposing and denying women’s Charter rights. Based in part on this letter, the City of Kelowna chose to deny the anti-choice proclamation in subsequent years.

Coming back to the likely contraventions of the Canadian Code of Advertising Standards, the CCBR ad says: “Abortion kills children. End the killing.”  These statements are inaccurate, denigrating to women, and therefore discriminatory, so it’s highly likely the ad would be found to contravene Sections 1 and 14 of the Advertising Code, and possibly Section 11, as follows:

Section 1, Accuracy: The ad’s wording is demonstrably false because under the law, fetuses are not children with rights and abortion is not murder. In Canada, fetuses do not have legal rights and are not legal persons, because to give them rights would mean compromising the established rights of women (as per the Supreme Court, and global human rights agreements). Our Criminal Code definition of human being is: “A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not it has breathed; it has an independent circulation; or the navel string is severed.” (Section 223(1))  The Supreme Court said in the 1999 Dobson v. Dobson case: “A pregnant woman and her foetus are physically one, in the sense that she carries her foetus within herself. …  The physical unity of pregnant woman and foetus means that the imposition of a duty of care would amount to a profound compromise of her privacy and autonomy.”   

Section 14, Unacceptable depictions and portrayals:  The ad very likely contravenes this entire section except clause (b). By calling abortion the “killing” of “children” that must “end”, the ad implicitly calls women murderers and killers, thereby denigrating and disparaging them, discriminating against them, and possibly bringing public contempt and hatred upon them. Ironically, the ad erases women completely and focuses only on the fetus, but completely ignoring women and their rights in the context of pregnancy and abortion should in itself be seen as unacceptable and discriminatory. Finally, it would be difficult to argue that the ad does NOT “…display obvious indifference to, or encourage, gratuitously and without merit, conduct or attitudes that offend the standards of public decency prevailing among a significant segment of the population.”  As you alluded to yourself, there will be much public concern over the ad, and no doubt, many public complaints about the ad from offended citizens.

Section 11, Superstitions and Fears – The ad uses a shocking and scare-mongering approach in its inaccurate and inflammatory wording as described above, which can arguably “play upon fears to mislead the consumer.”

If the ad appears on buses in Peterborough, our group will ensure that complaints are filed with the Advertising Council using the above arguments, as we would like to secure a decision against this particular ad and help prevent the ad from appearing again in Peterborough or other cities. However, almost every anti-choice ad that has been complained about in the past has already been found to contravene the Advertising Code, including a 2009 one relating to CCBR signs on trucks, and a more recent one related to graphic postcards they distributed during the 2015 election campaign. On this basis alone, I believe you could have safely refused the current ad. (For a complete list and description of past Advertising Council decisions against anti-abortion ads, please go to the Council’s website and enter the word “abortion” in the Search box at the bottom.)    

Given the above, I’d like to ask the City of Peterborough to please consider rescinding (again) its permission to CCBR to place its ads on buses.  If you feel this is now impossible because of the lawsuit threat (although I believe you would likely win such a suit on Section 15 Charter grounds) could I please ask that, in any further statements or correspondence in response to the ad, that the City at least refrain from defending your approval of the ad on free speech grounds?  Perhaps you could assure complainants that you’re now evaluating other possible legal grounds on which to ban the ads.  

Thank you very much for your time and consideration. I’m happy to answer any questions you may have, and I look forward to hearing from you.

Best regards,

Joyce Arthur
Executive Director
Abortion Rights Coalition of Canada (ARCC)
POB 2663, Station Main
Vancouver, BC, V6B 3W3
Cell: 604-351-0867

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