Author: Ola Malik Page 1 of 2

Ola Malik, M.A. (Bruges), LL.B. (Lond), LL.M. (of Lincoln’s Inn) has been practising as a municipal prosecutor with the City of Calgary's law department since 2008, prior to which he was in private practice. He regularly conducts prosecutions involving a wide range of Charter issues. He writes frequently on cases of interest and is often asked to speak about developments in the field of municipal prosecutions and the law of public protest. He is heavily involved with the Canadian Bar Association and is a strong promoter of initiatives which seek to expand access to justice for those who cannot afford to retain legal counsel.

The Shrinking Space for Hateful Speech in the Public Square – The Alberta Court of Appeal’s Decision in Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2018 ABCA 154

By Ola Malik

On September 13, 2018

In Human Rights

By: Ola Malik, Sasha Best and Jeff Watson

PDF Version: The Shrinking Space for Hateful Speech in the Public Square – The Alberta Court of Appeal’s Decision in Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2018 ABCA 154

Case Commented On: Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2018 ABCA 154 (CanLII)

Introduction

Determining what limits apply to an advertiser’s freedom of expression as it pertains to the advertising of offensive messaging on the sides of municipal buses has been the subject of considerable judicial commentary both at the Supreme Court of Canada level and recently by the Alberta Court of Queen’s Bench and the Alberta Court of Appeal – see for example: the Supreme Court of Canada, in Greater Vancouver Transportation Authority v. Canadian Federation of Students, [2009] 2 SCR 295, 2009 SCC 31 (CanLII) (GVTA); the Alberta Court of Queen’s Bench decisions in American Freedom Defence Initiative v Edmonton (City), 2016 ABQB 555 (CanLII ) (AFDI), blogged about here and Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2016 ABQB 734 (CanLII) (CCBR QB) (which is the subject of this appeal) which we have previously commented upon here. (See also a decision of the B.C. Supreme Court in The Canadian Centre for Bio-Ethical Reform v. South Coast British Columbia Transportation Authority, 2017 BCSC 1388 (CanLII)).

In CCBR and AFDI, the courts examined the hateful nature of the advertising messages, their harmful impact, and the challenges which this type of messaging poses for municipalities. In many ways, both these decisions addressed novel questions of law that hadn’t been extensively canvassed elsewhere. The Alberta Court of Appeal’s decision in Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2018 ABCA 154 (CanLII) (CCBR CA) helpfully settles some of these questions and provides municipalities with useful guidance regarding the limits of freedom to advertise in municipal spaces.

Lost and Found? – The Captive Audience Doctrine Returns in Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City)

By Ola Malik

On January 19, 2017

In Constitutional, Municipal Law

By: Ola Malik

PDF Version: Lost and Found? – The Captive Audience Doctrine Returns in Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City)

Case Commented On: Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2016 ABQB 734 (CanLII)

Does your freedom to express yourself include forcing me to listen? This question invokes the captive audience doctrine, a concept previously discussed at some length here. The doctrine lies at the heart of a decision in which the Canadian Centre for Bio-Ethical Reform (CCBR) argued that the City of Grande Prairie’s refusal to post CCBR’s pro-life advertisement on the sides of the City’s buses infringed upon its freedom of expression. The Alberta Court of Queen’s Bench decision in Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2016 ABQB 734 (CanLII) (CCBR) follows on the heels of American Freedom Defence Initiative v Edmonton (City), 2016 ABQB 555 (CanLII ) (AFDI), blogged about here, which similarly dealt with the limits of advertising on city buses. Taken together, the CCBR and AFDI decisions are most helpful to municipalities seeking to limit the placement of controversial advocacy messaging in public places.

No Offence, But I Hate You: American Freedom Defence Initiative v Edmonton (City)

By Ola Malik

On December 5, 2016

In Constitutional, Municipal Law

By: Ola Malik, Jeff Watson and Holly Wong

PDF Version: No Offence, But I Hate You: American Freedom Defence Initiative v Edmonton (City)

Case Commented On: American Freedom Defence Initiative v Edmonton (City), 2016 ABQB 555 (Can LII )

Our Canadian courts are jealous guardians of the freedom of expression, which the Canadian Charter protects in section 2(b). The rationale for protecting freedom of expression is that society should be free to discuss and decide what is true, what is right and what is good. As with most things Canadian, we have accepted that the way in which we speak to one another should be politely regulated. Our courts have accepted that for expression to be truly valued, our public square must provide everyone with the opportunity to speak as equals, where no one is made to feel marginalized or devalued. How very Canadian, indeed! To a large extent, how we speak to one another is as important as what we say, and that, in our view, is a good thing. Defining the limits of appropriate speech isn’t just an exercise in legal abstractions, nor does it just involve lawyers. Rather, it goes to the heart of how all of us live together in a peaceful community with our neighbours and what we, together as a community, aspire to be.

Those of us who practice municipal law and who are interested in freedom of expression issues have been eagerly awaiting the case of American Freedom Defence Initiative v Edmonton (City), 2016 ABQB 555 (AFDI). Indeed, we were so intrigued by the issues this case raises that we commented on them long before trial, here, and in a companion piece titled “Controversial Advertising on City Buses – Are Municipalities Ready for What’s To Come?” (2015) 7:5 DMPL (2d) 1-6.

Is there Space for the Homeless in our City’s Parks? A Summary and Brief Commentary of Abbotsford (City) v Shantz

By Ola Malik

On November 17, 2015

In Constitutional, Municipal Law

By: Ola Malik and Megan Van Huizen

PDF Version: Is there Space for the Homeless in our City’s Parks? A Summary and Brief Commentary of Abbotsford (City) v Shantz

Case Commented On: Abbotsford (City) v Shantz, 2015 BCSC 1909

The recent B.C. decision of Abbotsford (City) v Shantz) highlights the central issue which seems to arise whenever there is a conflict over the management of public city space – who does this space “belong” to, and who gets to use it? When we answer that question, many of us would agree that this space belongs to those who live in our communities — parents with strollers, families on an outing, people walking their dogs or playing with their kids. When we think about who belongs in our community, how many of us include the homeless?

The homeless are often excluded from our conception of community. It is easy to ignore the issue of homelessness when it is hidden from view. But as soon as the homeless become visible in our parks and neighbourhoods they are seen as a nuisance requiring a solution. The well-known phrase, “you don’t have to go home, but you can’t stay here” aptly captures the dilemma the homeless face — and when you have no place to call home – where do you go?

Honour Killings and City Buses – The Limits on Advertising Controversial Messages on Public Transit and the Soon-To-Be-Decided Case of AFDI v The City of Edmonton

By Ola Malik

On February 26, 2015

In Constitutional, Municipal Law

By: Ola Malik and Sarah Burton

PDF Version: Honour Killings and City Buses – The Limits on Advertising Controversial Messages on Public Transit and the Soon-To-Be-Decided Case of AFDI v The City of Edmonton

Introduction

Consider these two ads which deal with the subject of honour killings. You are told that the maker of these advertisements, the American Freedom Defence Initiative (“AFDI”) published the ads in order to raise awareness of the subject and to provide support to young girls whose lives are in danger. These ads are similar with the exception of the revisions made to the second ad in italics.

Girls’ Honor Killed by their Families. Is Your Family Threatening you? Is Your Life in Danger? We Can Help: Go to FightforFreedom.us

Muslim Girls’ Honor Killed By Their Families. Is Your Family Threatening You? Is there a Fatwa On your Head? We Can Help: Go to FightforFreedom.us

The second ad has the initials “SIOA”, or “Stop the Islamization of America” added at the bottom.

Advertising for the second ad has been purchased from the Edmonton Transit Service (“ETS”). It will appear in the form of a large panel covering the rear of an Edmonton city bus. AFDI has purchased 5 such ads which will run for 4 weeks.

Do you believe either of these ads constitutes lawful expressive activity such that they are protected by freedom of expression as provided by section 2(b) of the Charter?

What do you make of the second sign? It doesn’t expressly advocate violence or hate, nor is it expressly hateful of the Muslim community. It is a matter of fact that thousands of Muslim girls around the world have been killed in this way.

But is it misleading to suggest that honour killings only happen in the Muslim community and might this expose the Muslim community to vilification and harmful stereotyping by those who don’t know better? Is the logo “Stop the Islamization of America” a laudable aim worthy of protection, or is it simply hateful?