An Alberta Court of Queen’s Bench judge has stood before Edmonton City and ruled that its decision to deny a life organization’s application to turn on the High Level Bridge did not violate freedom of expression under the Canadian Charter of Rights and Freedoms.
In a decision of October 7, Judge KS Feth rejected an application for judicial review by the Alberta March for Life Association (AMLA) and its Vice President Jerry Pasternak, stating that they were unable to prove that the city violated their charter rights, and that the city was biased.
He also agreed with the city that lighting the bridge would be seen as the municipal government supporting the attitude of life in the abortion debate.
“The polarizing effect of lighting the bridge in March 2019 [for Life] is obvious, “Feth wrote.
“The result of [city’s] the decision in the light of its underlying rationale was transparent, comprehensible and sound. “
High Level Bridge has 60,000 LED lights that shine every morning and evening. The city has been reviewing applications to turn on the bridge on certain occasions since 2014.
Applications must be “non-profit, community-focused” and received at least three weeks before the desired date. They are reviewed on a case-by-case basis and support certain events and issues, according to the city’s website.
The bridge, for example, was lit orange on September 30 for National Day of Truth and Reconciliation. It is scheduled to shine orange and blue on Oct. 13 for the Edmonton Oilers’ opener to the home.
However, the city may reject requests that “do not deserve public support or are primarily personal, private, political, polarizing, or commercial,” the website says.
In March 2019, AMLA applied to light the bridge pink, blue and white in connection with its annual march on May 9, 2019. The colors represent unborn girls and boys, and white is for “the purity of love”, the court document states.
The city initially approved the application. However, it notified the AMLA on April 5, 2019 that the request was denied upon further review because abortion is a polarizing issue, the document says.
The city also noted that it is in line with how the city administered a similar request from the AMLA in 2017, it adds.
The Justice Center for Constitutional Freedoms, on behalf of the AMLA and Pasternak, applied for judicial review, arguing that repentance violates the Charter’s right to freedom of expression.
They also accused the city of bias during the decision-making process, which did not give them procedural justice and that the decision was unreasonable.
The city denied that lighting the bridge is an expressive activity protected by the charter, arguing that the lights show at most public support. It also denied any bias and unreasonableness and maintained that its decision was reasonable.
The application was processed on 13 November 2020.
Violation of freedom of expression has not been proven
Feth was pleased that the claim was based on freedom of speech and said that the AMLA and Pasternak want to express themselves and publicly advance their views on abortion.
But they could not prove that the city’s decision violated their charter rights, he wrote.
A disruption of free speech occurs where a lack of access to a statutory platform “radically” frustrates expression, to the point that meaningful expression is essentially ruled out, Feth wrote, citing a recent ruling by the Canadian Supreme Court.
City politics “deprives [AMLA] of a particular means of expression, but an absence from the lighting project does not make them significantly incapable of expressing themselves on pro-life “questions,” Feth wrote.
There are other media, he said, referring to social media and community events – including the annual March for Life, which the city did not prevent.
Light would be seen as support
People may not associate the colors pink, blue and white with AMLA. But when combined with followers who mark these colors on signs, flags and ribbons along the marching route, Edmontonians can make that connection, the city argued.
This can lead to the lights being seen as an endorsement by the local government and have a polarizing effect on society, the document says.
Feth agreed and concluded that the AMLA was trying to use a state messaging platform for personal expression.
The city’s policies and process suggest that the city chooses which messages deserve public support and uses the bridge lights as a medium to communicate to the local community and beyond, Feth wrote.
“No one has the right to receive city recognition.”
Given that the city owns and controls the bridge, anyone who sees the light can deduce that the city is not just a messenger, but a follower, he said.
This, Feth writes, could create “a significant risk” of confusing the public about local government attitudes toward abortion and “undermining the values of democratic discourse and truth-finding.”
Bias not established
AMLA claimed that the city was ideologically and politically biased against the expression of life and thus was more likely to deny their request to light the bridge.
The skew test is what an informed person would conclude, Feth explained, referring to a 1978 case.
The plaintiffs must show “a real probability” of bias. But the AMLA offered “little evidence,” he wrote.
AMLA offered the 2017 decision from the city, which also refused to turn on the bridge. Feth did not have the benefits of this decision for him to weigh, but the result shows consistency in the city’s process, he said.
“A change in position between an initial approval and a final decision after reconsideration does not imply a bias,” Feth wrote.
AMLA argued that the city’s decision to light the bridge in support of “LGBT-themed events” shows a bias towards the expression of life. But Feth found no “logical connection” between approving one over the other.
The plaintiffs also offered “a little bit” of public complaints after the city’s denials in 2017 and 2019.
But the complaints, Feth wrote, are from strangers outside the court, who did not explain whether they were well-informed or impartial. Some complaints came with wrong assumptions and “attributes to the city only unproven bias.”
“In sum, the complaints are compelling evidence.”