Judges mull ads pulled by city

The line between freedom of speech and discrimination is at the centre of a court battle over the city’s decision to pull Christian Heritage Party (CHP) bus shelter ads two years ago.

Both sides appeared before a three-judge panel of the Divisional Court in Hamilton on Wednesday on an appeal by the CHP.

The city pulled the ads — which appeared to object to transgender women using female public washrooms — in August 2016.

The CHP and its Mountain association are asking the court to quash the decision to pull the ads and to order the city to repost them.

The advertisements at three bus shelters on the Mountain depicted a man walking toward a door labelled “ladies’ showers” with the main text saying “Competing Human Rights ... Where’s the Justice?”

The ads were paid for by Jim Enos, an independent provincial candidate who has represented the Christian Heritage Party in past elections.

CHP lawyer Albertos Polizogopoulos argued, “This case is about whether or not a government can censor political comment it disagrees with.

“It was motivated by the desire to censure political speech that criticizes or draws attention to the public policy it was working on (regarding transgender accessibility to city washrooms and facilities).”

Polizogopoulos said the word “transgender” doesn’t appear on the ads and the city acted without justification and violated the Charter of Rights and Freedoms.

Lawyer Michael Bordin, representing the city, said Hamilton must comply with the Human Rights Code, which forbids discrimination on gender identification.

“This case is not about the city completely censoring the applicant’s political views and political expressions, but a decision to take down a discriminatory ad.”

The ad’s image and text makes its message self-evident and plays on people’s fears and suggests transgender people are scary, dangerous and deviant, he said.

Bordin said the ads also invited people to the CHP website where the party says it does not recognize that an individual can identify with a gender that does not match their biological sex and believes transgender women are men.

Bordin also pointed out the city is allowed to remove ads from its properties at any time under its advertising contracts and by placing ads on city property, the CHP agreed to the rules.

He said there is no evidence the city was censoring or attempting to shut down views contrary to its own.

“The city hasn’t cut CHP off from their right of freedom of expression.

“They just did that in this narrow sphere (of an ad). It was a reasonable decision.”