Simon's Megalomaniacal Legal Resources

Charter - s.2(b) Freedom of Expression (6)

. Christian Heritage Party of Canada v. Hamilton (City)

In Christian Heritage Party of Canada v. Hamilton (City) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against an earlier dismissal of a JR application - that against "whether the respondent, City of Hamilton (the “City”), acted unfairly or unreasonably in rejecting a proposed advertisement for City-owned transit shelters from the appellants, Christian Heritage Party of Canada and Christian Heritage Party Hamilton-Mountain Electoral District Association (collectively, “CHP”)".

Here the court applies the administrative Charter Dore-Loyola balancing between the claimant's Charter rights and the state's statutory objectives:

[26] With respect to the standard of review for the City’s adherence to the Doré/Loyola framework, the City’s identification of the Charter rights and the scope of their protection is subject to a standard of correctness: York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, 492 D.L.R. (4th) 613, at para. 63. The City’s balancing of those interests with the City’s statutory objectives, however, is subject to a standard of reasonableness: Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, 487 D.L.R. (4th) 631, at para. 60; see also Toth v. Canada (Mental Health and Addictions), 2025 FCA 119, 505 D.L.R. (4th) 356, at paras. 17-19.

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[52] The Doré/Loyola framework for balancing Charter values with statutory objectives does not appear to be in dispute in this case. Rather, the parties diverge with respect to whether the City properly abided by that framework in the circumstances of this case.

[53] The framework originated in the Supreme Court decisions in Doré, Loyola, and Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, and affirmed most recently in Commission scolaire. Under this framework, the Court prescribed a two-step process in which the decision-maker should first consider the statutory objectives underlying a discretionary decision and then ask “how the Charter value at issue will best be protected in view of the statutory objectives”: Doré, at paras. 55-56.

[54] This court reviewed the Doré/Loyola framework in Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425, 166 O.R. (3d) 481, leave to appeal refused, [2023] S.C.C.A. No. 366, and emphasized the requirement for a “robust proportionality analysis”, at paras. 145-46:

In place of the Oakes test, Abella J. prescribed a two-step process in which “the decision-maker should first consider the statutory objectives”, and then ask “how the Charter value at issue will best be protected in view of the statutory objectives”. This expectation was later enhanced in Loyola and Trinity Western: tribunals must carry out “a robust proportionality analysis consistent with administrative law principles”, one that works “the same justificatory muscles” as the Oakes test, not a “watered-down version”. It is noteworthy that Abella J. added the word “robust” and emphasized it in Loyola when she reprised the Doré framework. This word was clearly meant to be taken seriously, and I do.

The majority in Trinity Western said: “The Doré/Loyola framework is concerned with ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context.” This language built on Abella J.’s formulation in Loyola, where she said that, under Doré, “the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that she or he is obliged to pursue”. [Footnotes omitted.]

[55] The Decision Letter makes clear how the City understood the balancing exercise. For example, in setting out the concerns that the City sought to address, Mr. Grant expressly acknowledged the importance of CHP’s Charter rights:

We acknowledge and deeply respect your organization's right to freedom of expression, a right that has been recognized as a fundamental ingredient to the proper functioning of democracy for hundreds of years. It has been protected by constitutions, laws and courts across numerous democratic jurisdictions and it is a right that we honour and carefully consider in our decisions.

We agree with the perspective expressed in the Ontario Court of Appeal, which described the profundity of this right and its importance in a democratic society. Freedom of expression has been highlighted as the cornerstone of democracy, ensuring that everyone can manifest their thoughts, opinions, beliefs, and expressions, however unpopular, distasteful, or contrary to the mainstream. This protection is regarded as 'fundamental' because, in a pluralistic, democratic society, we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.

Accordingly, the Supreme Court has recognized that citizens, including bus riders, are expected to put up with some controversy in a democratic society and some resiliency in the audience is required. [Footnote omitted.]

[56] In the next section of the letter, under the heading “Balancing the Freedom of Expression against the City’s Statutory Objectives,” Mr. Grant noted that the right to freedom of expression is not absolute, and that, in the context of accepting advertisements, the City was entitled, and obligated, to balance CHP’s Charter right against the statutory objectives that the municipality was pursuing. Mr. Grant described the City’s objective as providing a safe and welcoming transit system.

[57] At the end of the Decision Letter, Mr. Grant returned to this balancing exercise. After reiterating that the City “steadfastly” supports freedom of expression and the City’s concern for the “hostile environment” to which the Advertisement could give rise, Mr. Grant concluded, “It is therefore imperative that we make decisions that prioritize the safety and well-being of our transit users above all. Thus, to provide an inclusive, respectful, and safe environment for all citizens, we find it necessary to reject this advertisement.”

[58] The appellants argue that the City was unduly fixated on the transgender and LGBTQ third party communities. They contend that the statutory objective of a safe and welcoming transit system is not solely concerned with the interests of these communities, but the larger population of the City as a whole. The appellants submit that to elevate the safety and well-being of these communities as the only interests to be weighed against CHP’s Charter rights amounts to an error.

[59] I would reject this submission. The City did not arbitrarily choose to focus on transgender or LGBTQ communities at the expense of other residents of the City. Rather, the City relied on empirical and qualitative evidence about and from these communities, who they identified as being the groups most vulnerable to harms arising from the Advertisement. The City concluded based on its research and consultations that the Advertisement would likely jeopardize the City’s ability to provide a safe and welcoming transit system. It provided CHP with the sources for this conclusion in the Decision Letter. The Supreme Court has confirmed the validity of this objective as a justification to limit transit advertising: Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 76.

[60] This analytic approach is analogous to the Supreme Court’s approach to the Doré/Loyola analysis in Trinity Western: it is necessary to consider whether the unlimited exercise of the Charter rights of one group could cause concrete harms to another, contrary to the statutory objectives in issue: at para. 103. In Trinity Western, the majority held, at para. 101:

In saying this, we do not dispute that “[d]isagreement and discomfort with the views of others is unavoidable in a free and democratic society”, and that a secular state cannot interfere with religious freedom unless it conflicts with or harms overriding public interests. But more is at stake here than simply “disagreement and discomfort” with views that some will find offensive. This Court has held that religious freedom can be limited where an individual’s religious beliefs or practices have the effect of “injur[ing] his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own”. Likewise, in Multani, the Court held that state interference with religious freedom can be justified “when a person’s freedom to act in accordance with his or her beliefs may cause harm to or interfere with the rights of others”. Being required by someone else’s religious beliefs to behave contrary to one’s sexual identity is degrading and disrespectful. Being required to do so offends the public perception that freedom of religion includes freedom from religion. [Emphasis added; citations omitted.]

[61] The parties, and even more so the intervening organizations, Association for Reformed Political Action Canada (“ARPA”) and Egale Canada, advance divergent views on whether the proposed Advertisement constitutes discrimination against transgender individuals or other members of the LGBTQ community.

[62] Egale advances the view that the proposed Advertisement is discriminatory on its face and by defining “woman” as an “adult female”, the Advertisement asserts that only those who are assigned female at birth are women. Egale submits that this denies the legitimacy of transgender identities and the very existence of women who were not assigned female at birth.

[63] The appellants and ARPA contend that this is not the case. They assert that the alleged harm to these communities is a form of subjective offence, which should not be seen as capable of infringing the political speech rights of the appellants in a Doré/Loyola analysis. The appellants rely on this court’s decision in Bracken v. Fort Erie (Town), 2017 ONCA 668, 137 O.R. (3d) 161, at para. 49, where the court held that “a person’s subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of s. 2(b).” They also rely on the majority’s reasons in Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, [2021] 3 S.C.R. 176, for a similar proposition. These cases make clear that, in order to justify rejecting the Ad, something more than avoiding the subjective offence of certain residents of the City was needed. Similarly, the mere inconsistency of the proposed Advertisement with City policies such as the Gender Identity Protocol would not, on its own, justify rejecting the Advertisement. Rather, the City rejected the Advertisement based on the risk of harm to which it gave rise and the City’s statutory requirement to provide a safe and welcoming transit system.

[64] In my view, the issue of whether the proposed Advertisement would violate the Ontario Human Rights Code, or otherwise would be found unlawful, is not determinative in the Doré/Loyola context. The City did not rely on the illegality of the Advertisement as a basis for rejecting it but rather the link between the Advertisement and evidence of specific harm to transgender people. While ARPA argues that this evidence was insufficient to support the conclusions reached by the City, the City’s analysis is entitled to deference. I would not accept that the City acted unreasonably in engaging in this research or in identifying the risk of specific harms flowing from the Advertisement, particularly where, in the context of transit shelters, the message in the Ad would be virtually impossible for affected individuals to ignore.

[65] The appellants also take issue with the City’s alleged failure to grapple with other Charter values at issue in this case, including equality rights for religious groups and rights to religious freedom. The City argues it was not obliged to refer to rights beyond freedom of expression and underscore that in the Notice of Constitutional Question accompanying its application for judicial review, only s. 2(b) of the Charter is mentioned.

[66] The appellants have not drawn any clear connection between the Advertisement and the freedom to practice their religion. They also have not shown how rejecting the Advertisement would create inequality between one or more religious groups and others.

[67] In their factum, the appellants assert that, “CHP’s Christian values are central to its political messaging and inform CHP’s engagement with the truth-seeking process protected by section 2(b).” CHP has not shown that the City had evidence in the record as to the meaning of “Christian values” or that CHP’s position was reflective of the City’s Christian-identifying residents’ views. The City acknowledged that the Advertisement “supports a traditional and biologically determined definition of gender, in line with conservative values.” In my view, specific reference to CHP’s understanding of Christianity and its values was not necessary for the City’s Doré/Loyola analysis.

[68] In Lauzon, at para. 151, this court emphasized that the decision-maker must undertake three inquiries as part of the Doré/Loyola analysis: (1) the decision-maker should assess the negative effects of the decision on the exercise of the right asserted, as well as any collateral effects, for example, creating a chilling effect on the rights of others; (2) the decision-maker should assess the positive effects or benefits of that disposition in terms of the public good; and (3) the decision-maker should undertake the proportionality analysis by assessing, for example, whether the disposition involves means that are always impermissible, whether the disposition is needed to achieve the good sought, or whether the negative effects or costs imposed by the disposition are out of proportion to the public good to be achieved.

[69] While the appellants object to how the City engaged in its proportionality reasoning – for example, the appellants argue the public good at issue was protecting free speech, not ensuring the safety and inclusion of the transit system – it is clear that the City undertook the robust proportionality exercise envisioned in Lauzon.

[70] With respect to the substance of the City’s proportionality analysis, as set out above, deference is owed.

[71] The question, ultimately, is whether the City acted reasonably. As Abella J. observed in Doré, at para. 54:

Even where Charter values are involved, the administrative decision-maker will generally be in the best position to consider the impact of the relevant Charter values on the specific facts of the case. But both decision-makers and reviewing courts must remain conscious of the fundamental importance of Charter values in the analysis. [Emphasis in original.]

[72] For the reasons set out above, I conclude that the City’s decision to reject the Advertisement was reasonable and resulted from a proper application of the Doré/Loyola analysis.

. Canada (Attorney General) v. Canadian Civil Liberties Association

In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.

The court considers Charter s.2(c) ['freedom of peaceful assembly'], here in contrast with s.2(b) ['freedom of expression']:

[490] Given that the Federal Court had previously found that the Regulations violated the freedom of expression guarantee in paragraph 2(b) of the Charter because they applied to protesters who were not causing a breach of the peace, it is unclear why it found that the Regulations did not similarly violate the freedom of assembly of these peaceable protesters.

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[493] There is no question that freedom of expression and freedom of assembly are closely related. Indeed, freedom of assembly has been described as "“speech in action”": Ontario (A.G.) v. Dieleman (1994), 1994 CanLII 10546 (ON SC), 20 O.R. (3d) 229, [1994] O.J. No. 1864 (Gen. Div.) at pp. 329–330. Moreover, in many cases (including this one) the factual matrix underpinning the paragraph 2(c) Charter claim is largely indistinguishable from that underpinning the paragraph 2(b) claim.

[494] For this reason, courts have often declined to address multiple section 2 Charter claims separately, holding that the finding of an infringement of one fundamental freedom—such as freedom of expression—is sufficient to account for both the expressive and associated rights of claimants.

[495] For example, in Trinity Western University the Supreme Court was called upon to review the decision of a provincial law society denying approval to a proposed law school that would require students to sign, as a condition of admission, a covenant committing to "“voluntarily abstain”" from a number of actions, including "“sexual intimacy that violates the sacredness of marriage between a man and a woman”".

[496] The majority of the Supreme Court held that the decision not to approve the university’s proposed law school represented a proportionate balance between students’ paragraph 2(a) right to freedom of conscience and religion and the Law Society’s overarching objective of upholding and protecting the public interest in the administration of justice.

[497] Although claims were also advanced under paragraphs 2(b) and 2(c) of the Charter, the Supreme Court declined to deal with these claims. In addition to noting that the submissions of the parties had largely focussed on the religious freedom claim, the Court was satisfied that the paragraph 2(a) claim was "“sufficient to account for the expressive, associational, and equality rights of TWU’s community members in the analysis”": Trinity Western University at para. 77.

[498] The Court of Appeal for Ontario came to a similar conclusion in Figueiras, a case involving police actions during the 2010 G20 summit in Toronto. Having found that a protester’s paragraph 2(b) right to freedom of expression had been infringed, the Court went on to conclude that it was unnecessary to address the protester’s paragraph 2(c) argument as "“issues related to [the protester’s] freedom of assembly are subsumed by the s. 2(b) analysis”": at para. 78.

[499] The British Columbia Court of Appeal came to a similar conclusion in British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Assn., 2009 BCCA 39 [BC Teachers’ Federation] at para. 39, leave to appeal to SCC refused, 33113 (20 August 2009). There, the appellants alleged that the definition of the word "“strike”" in British Columbia’s labour legislation infringed the right of union members to engage in political protests, contrary to paragraphs 2(b), (c) and (d) of the Charter.

[500] The British Columbia Court of Appeal found that the effect of the strike definition trenched on the freedom of expression guaranteed by paragraph 2(b) of the Charter. It went on to find that any paragraph 2(c) freedom of association issue in that case was subsumed under the issues related to the right of free expression under paragraph 2(b): BC Teachers’ Federation at para. 39.

[501] The most detailed discussion of this issue is found in the Trinity Bible Chapel case, a case involving capacity restrictions imposed by the Government of Ontario during the COVID-19 pandemic that limited attendance at indoor and outdoor gatherings, including religious gatherings. Two churches brought motions to set aside court orders made against them on the basis that the authorizing regulations infringed all four of section 2’s fundamental freedoms. After determining that paragraph 2(a)’s guarantee of freedom of religion had been infringed, the motions judge declined to address arguments made under paragraphs 2(b), (c) or (d): Ontario v. Trinity Bible Chapel et al., 2022 ONSC 1344 at para. 115.

[502] The Court of Appeal for Ontario upheld this decision, finding that the alleged infringement of the appellants’ right to freedom of religion "“accounted for their related rights to express their religious beliefs, assemble for the purpose of engaging in religious activity, and associate with others who share their faith.”": Trinity Bible Chapel at para. 67.

[503] After reviewing the jurisprudence discussed above, the Court went on to hold that "“where an examination of the factual matrix reveals that one claimed section 2 right subsumes others, it is not necessary to consider the other section 2 claims (though, of course, there is no bar to a judge doing so)”". The Court went on to observe that "“this approach is particularly apposite in the section 2 context where the rights are related fundamental freedoms, whereas it may have less application across rights (for example, as between sections 2, 7, and 15 rights)”": Trinity Bible Chapel at para. 71.

[504] The same may be said here.

[505] We are satisfied that protesters’ paragraph 2(b) right to freedom of expression sufficiently accounted for their related right to associate with others who shared their views. Consequently, we decline to address the arguments raised by the cross-appeal, and it will be dismissed, without costs. That said, we should not be understood to be agreeing with the Federal Court’s analysis of the paragraph 2(c) issue.