First, the Constitutional guarantee of freedom of expression is broad in scope and protects the content of expression even if it is offensive, unpopular, or disturbing. Unless content reaches the threshold of if advocating discrimination, violence, or terrorism, it cannot be deprived of this crucial s. 2(b) protection.
For convenience, I will repeat that the signs in question read: “Do you feel the implementation of bilingualism has gone too far?” It is clear that the advertisements of the ARANB fall far below the threshold to warrant the deprivation of protection under s 2(b) freedom of expression.
Further, the fact that Moncton is an officially bilingual City does not empower it to suppress political speech advocating for alternate positions. It is well-established that the constitutional guarantee of freedom of expression especially protects political speech because such speech is central to the functioning of a true democratic society.
The Supreme Court of Canada has held that the objective of providing a “safe and welcoming transit system” is not undermined by the free expression of political speech.6 Again, this objective is only effectively undermined where such political speech induces violence or threats of violence. This is not the case for the advertisements in question here. By asking whether any given member of the public thinks that the “implementation of bilingualism has gone too far,” the advertisements are encouraging the public to think critically and engage with their civic duties. It is certainly conceivable that members of the public will reach different conclusions regarding the central question of the advertisements, but this is precisely the objective of political expression. It is our view that encouraging the public to engage in political thinking actually advances the values underlying our Canadian democracy. Given this information, we believe that these advertisements do not reach the threshold of being so offensive that they are discriminatory, or advocate violence or terrorism.
Second, the back of the public bus is a location where expressive activity is protected by s 2(b) of the Charter.
The Supreme Court of Canada has already established that exteriors of a government- owned bus is a location where individuals can expect constitutional protection of the freedom of expression. Advertising on the back of the buses presents the same set of conditions that the Supreme Court relied on in its conclusion regarding the sides of the bus: (1) buses have historically been used and are presently being used for expressive activity; and (2) City buses are publicly owned property.7
It is our view that expression on the outside of public buses advances values underlying s 2(b) of the Charter including, but not limited to, furthering the democratic discourse. Through advertisements on five City of Moncton buses, the ARANB was exercising its freedom of expression and any actions preventing the same are not permitted by the Constitution.
7 Ibid at paras 42-43.