Councillors support offer to settle costs with CHP
HAMILTON COUNCILLORS have voted in support of settling legal costs with the Christian Heritage Party, which is legally challenging the city for removing ads it placed in HSR bus shelters.
The ads, which appeared to question the fairness of transgender people using gender-specific public washrooms, were purchased by an arm of the Christian Heritage Party (CHP) in August, 2016.
Branding the ads “inappropriate,” the city took them down, setting in motion a CHP court challenge alleging the city had violated its freedom of speech under the Charter of Rights and Freedoms.
On Wednesday, councillors voted 6-3 to pursue an offer to settle costs with CHP following a closed-door session in which members of the general issues committee received advice from city legal staff.
Because the advice and discussion took place in camera, the origin,
details, and dollar amount of the offer and whether or not it would terminate the judicial review is unknown.
But the fact that councillors Aidan Johnson, Matthew Green and Jason Farr voted against the motion strongly suggests they see it as a sign the city is blinking.
The three dissenters tend to support liberalizing policies and principles in general and Johnson — Hamilton’s first openly gay councillor — is especially supportive of equality issues regarding transgender and gender nonconforming people.
Johnson said he would “love to share his thoughts and feelings on this matter” but noted if he did so he’d be violating the confidentially rules governing in camera meetings.
Councillors Doug Conley, Maria Pearson, Arlene VanderBeek, Judi Partridge, Brenda Johnson and Tom Jackson voted in favour of settling costs.
Mayor Fred Eisenberger, Terry Whitehead, Donna Skelly, Chad Collins, Sam Merulla, Robert Pasuta and Lloyd Ferguson were absent.
The vote needs to be ratified at the June 27 council meeting before any action can be taken.
The ads in question — which appeared on three bus shelters on the Mountain — depict a male walking through a door labelled “ladies showers.” The accompanying text says “Competing Human Rights … Where is the Justice? Bringing respect for life and justice to Canadian politics CHP Canada.”
The ads were paid for by the CHP Hamilton Mountain riding association, whose president, Jim Enos, unsuccessfully ran as an Independent in the riding of Hamilton WestAncaster-Dundas in the recent provincial election.
A three-judge panel of the Divisional Court finally heard opening arguments in the case in a Hamilton courthouse on June 6.
The CHP argues the removal of the ads constituted political censorship and is asking the court to order the city to replace the posters and cover the court costs of its legal proceedings.
The city argues the ads, which were approved by a company which handles HSR advertisements for the city, contravened various municipal policies, were discriminatory and implied transgender people are scary and dangerous.
The ads appeared a few months after the city reached an agreement to settle a human rights complaint by a transgender woman who in 2014 was prevented from using the women’s washroom at the Hamilton bus terminal.
The terms of that settlement included creating a protocol protecting the rights of trans and gender nonconforming people, including the use of city washrooms.
The protocols were unanimously approved by council in 2017.
Under provincial legislation, trans people have the legal right to use washrooms and change rooms based on their self-identified gender.
But the legal battle touches on more than issues of freedom of speech and discrimination.
CHP alleges the city did not contact the party, consider its Charter rights, offer it an opportunity to replace the ads before removing them, and acted impulsively based on a single media inquiry.
In other words, the city’s action left much to be desired procedurally.
Whether or not the above factored in the legal advice councillors received behind closed doors is unknown.
It’s also not clear if the offer to settle legal costs is simply a side deal to mitigate potential higher costs or end the case.
Enos could not be reached. CHP’s lawyer, Albertos Polizogopoulos, declined to comment.
Finally, it’s far from certain whether the full council will endorse or overturn the committee vote next week.