Hamilton City Hall says political speech and campaigning is forbidden on public property which is used by the HSR for bus operations, including the area surrounding the MacNab Street bus terminal.
All candidates received notice from the City of Hamilton that “Unauthorized solicitation on the Company’s [HSR] premises is prohibited” in a package distributed Monday.
The ban is in direct violation of a Supreme Court of Canada decision in 2009 protecting the Charter right to free political speech from unreasonable infringement by transit agencies.
The Supreme Court allows for reasonable regulations of campaigning by transit agencies.
In Toronto, candidates can campaign in the public (non-fare) areas of the TTC provided they do so safely and reasonably.
Can’t Enforce, Not Legal or A Bylaw
To make it more unreasonable, HSR management has no means of enforcing its ban.
It’s a HSR management policy and not a by-law, the City’s municipal law enforcement will not apply it.
HSR management, if they wish to enforce their policy, will have to call police to have candidates arrested for “trespassing” on public property.
The Hamilton Police Service has strict policies for police involvement when butting against Charter Rights.
No reasonable police supervisor will arrest a candidate campaigning on a public sidewalk at the order of HSR management.
In short, the blanket ban is illegal, absurd, unenforceable, and a direct violation of the Canadian Charter of Rights and Freedoms.
Political Speech Protected Against Government Infringement
In Greater Vancouver Transportation Authority v. Canadian Federation of Students, 2009 SCC 31, the Court ruled transit agencies are government entities and must follow the Charter of Rights and Freedoms.
Vancouver’s transit agency argue it was a Charter-Free zone, and could restrict all political speech.
The political speech in question?
A series of advertisements by the Canadian Federation of Students promoting their Rock The Vote campaign to encourage youth voter turnout during a 2005 provincial election.
The ads stated:
Register now. Learn the issues. Vote May 17, 2005. ROCKTHEVOTEBC.com
Numerous courts ruled the transit agency’s ban on political advertising was a violation of the Charter, because the transit allow other forms of expression (advertising), that the bus was a “public place” and the political ads are protected by Section 2b of the Charter because they serve to advance “democratic discourse” and “truth finding” among reasons cited by judges.
Despite repeated legal defeats, and a flimsy case, Vancouver’s transit agency continued appealing all the way to the Supreme Court of Canada.
The Supreme Court upheld lower court rulings and wrote an expansive decision clarifying Charter Rights as they related to public transit and public transit spaces.
The SCC confirmed public buses are public spaces. and the Canadian Charter of Rights and Freedoms applies to public buses as it relates to political expression, and that this transit authority’s ban on political advertising was not a reasonable limit on Charter Rights.
Supreme Court Ruling and HSR Ban on Campaigning
Which brings us back to the Hamilton Street Railway.
HSR management should be familiar with the Supreme Court of Canada ruling, it had a direct impact upon transit agencies across the country and was extensively covered in transit trade publications.
There are many paragraphs in the Supreme Court ruling that clarify the Charter Rights of citizens as it relates to free speech on and near transit systems.
Two paragraphs are especially concise and applicable to the HSR’s ban targeting municipal candidates.
Para 43 (emphasis added):
Moreover, an important aspect of a bus is that it is by nature a public, not a private, space. Unlike the activities which occur in certain government buildings or offices, those which occur on a public bus do not require privacy and limited access. The bus is operated on city streets and forms an integral part of the public transportation system. The general public using the streets, including people who could become bus passengers, are therefore exposed to a message placed on the side of a bus in the same way as to a message on a utility pole or in any public space in the city. Like a city street, a city bus is a public place where individuals can openly interact with each other and their surroundings. Thus, rather than undermining the purposes of s. 2(b), expression on the sides of buses could enhance them by furthering democratic discourse, and perhaps even truth finding and self‑fulfillment.
Para 45 (emphasis added):
In sum, this is not a case in which the Court must decide whether to protect access to a space where the government entity has never before recognized a right to such access. Rather, the question is whether the side of a bus, as a public place where expressive activity is already occurring, is a location where constitutional protection for free expression would be expected.
The Supreme Court ruling is clear, public buses are public spaces, political speech in public places is one of the primary reasons why the Charter protects speech, and political speech in public places furthers democratic discourse.
The City’s HSR “Company premises” are used for expressive activity.
The City uses transit terminals for events promoting City initiatives, charitable causes, and other expressive activities.
Based upon the Supreme Court ruling, it’s clear that a municipal candidate campaigning on a public sidewalk in a transit terminal area enjoys Charter protection.
A candidate introducing themselves to voters, on the public sidewalk, in view of City Hall at the MacNab Street Transit Terminal is protected by the Charter.
Is Hamilton Prepared to Fight The Supreme Court?
City officials do not respond to requests to explain this policy prior to publication.
No justification for the ban is provided, nor does the City explain in their statement to candidates exactly what “Company premises”, the term the City uses, are.
Which begs the question, what’s next?
Is the City of Hamilton preparing to fight the Supreme Court’s 2009 decision in court, or will the City drop it’s ban on political speech on public property that happens to serve as HSR “Company premises”?