Sep 11, 2020

DISCLAIMER: The author was employed at the CCLA as an articling student during some of the events of this case.

Decision released Friday September 4, 2020.

Key Takeaways

  • Partisan political messaging is not a valid form of compelled speech, and will run afoul of freedom of expression under s. 2(b) of the Charter.
  • Promoting a partisan political agenda is not a pressing and substantial government objective, and fails to be justifiable under s. 1.
  • Background

    This case was about stickers you may have seen on fuel pumps throughout Ontario. These stickers contained a notice about rising fuel charges caused by the Federal Liberal government's Greenhouse Gas Pollution Pricing Act, 2018, commonly referred to as the "Federal Carbon Tax."

    The stickers were created by a provincial government regulation, under the authority of the Federal Carbon Tax Transparency Act, 2019 ("FCTTA"). The FCTTA was enacted by the Ontario Legislature in May 2019. The sticker was in English and French and contained the text: "THE FEDERAL CARBON TAX will cost you" [capitals in original], followed by a graphic depicting the price of gas starting at 4.4 cents per litre, rising to 11.1 cents per litre in 2022. The bottom of the sticker then contains a call to action to visit a government website: "Find out more about taxes on gas at ontario.ca/carbontax".

    Displaying the sticker was mandatory, and punishable by a substantial fine to the retailer if the regulation was not complied with. The Ontario government's position was that the requirement was justified because the sticker furthered the purpose of conveying important information to the public, and the policy had a legitimate goal of promoting informed consumer choice and price transparency.

    The Canadian Civil Liberties Association ("CCLA") viewed the imposed notice requirement to be a form of compelled speech that violates freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. The CCLA submitted that the mandatory content of the Sticker is partisan political messaging, not genuine consumer information. It is therefore a rights violation not justified under section 1 of the Charter.

    Verdict: The Stickers represent compelled speech that is not justified by s. 1 of the Charter. The sections of the FCTTA requiring them were declared invalid.

    Issues

    The court covered 3 key issues in this case:

  • The CCLA's standing to bring this case before the court in the public interest.
  • Whether the mandatory sticker requirement in the FCTTA violates s. 2(b) free expression rights.
  • If there was a violation, whether it is justified by s. 1 of the Charter.
  • What is Public Interest Standing?

    Even if a party is not directly impacted by the outcome, they can still bring a challenge to government legislation or action in the public interest. The court can allow this or deny the party standing, since the preference is for courts only hear a case when a challenger with a direct personal interest emerges.

    The Supreme Court of Canada evaluated such a request in the case of Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 SCR 524. They instructed lower courts to look at three factors when evaluating a request for public interest standing. They are: (a) Is a serious justiciable issue being raised? (b) Does the applicant have a real stake or genuine interest in the issue? and (c) Under the circumstances, is this a reasonable and effective way to bring the issue to court?

    In that case, a society that promotes safe conditions for sex workers in the Downtown Eastside of Vancouver brought a challenge to various sections of the in the Criminal Code related to prostitution offences, saying they violated the Charter rights of sex workers. Although the society itself had not been charged under the Code, they were still permitted to challenge the law because it was unlikely that other sex workers would be in a position to challenge the Criminal Code in their own names.

    What is "Compelled Speech" Under s. 2(b) of the Charter?

    Freedom of expression allows one to express their views while being free of government interference. The corollary to this is, intuitively, that this freedom also includes the right not to express particular views. As the Supreme Court said in Slaight Communications Inc v Davidson, [1989] 1 SCR 1038: "there is no denying that freedom of expression necessarily entails the right to say nothing...Silence is in itself a form of expression which in some circumstances can express something more clearly than words could."

    In McAteer v Attorney General (Canada) (2014), 121 OR (3d) 1, the Court of Appeal of Ontario set out three questions the court must address when analyzing a challenging alleging government-compelled expression:

  • Whether the activity being compelled by the government is expression.
  • Whether the purpose of the law is to control expression. If the answer is yes, there is an automatic s. 2(b) violation.
  • If the purpose is not to control expression, then does the law adversely effect expression, and is this effect related to the underlying purposes of freedom of expression.
  • In McAteer, the applicants claimed that the requirement in the Citizenship Act, that they swear or affirm allegiance to the queen in order to become a Canadian citizen, was a violation of their rights to freedom of conscience and religion, freedom of expression and equality. The Ontario Court of Appeal found there was no violation, concluding the purpose of the oath is not to compel expression, but rather to inquire into the citizen's commitment to Canada's democratic constitutional monarchy. Furthermore, the oath itself is symbolic and citizens are free to disagree with the message of the oath outside of the bounds of ceremony. While it has an effect on the appellant's freedom of expression, it is not of the nature that requires constitutional disapproval.

    Analysis

    The Standing Issue

    The counsel for Ontario conceded that the issue at hand was a serious and justiciable one. Moreover, the CCLA was not the only public interest group voicing concern about the FCTTA requirements. The fact that public interest organizations representing a number of different sectors of society had expressed objection to the Sticker on similar legal grounds to those of the CCLA is significant in establishing that the challenge raises a "substantial...important...[and] far from frivolous" constitutional issue.

    The record also established that CCLA's interest in the issue was genuine, with a strong track record of engagement with the constitutional issues at hand. The CCLA has been acknowledged by the courts to be an "experienced and qualified public interest litigant" with a lengthy record of involvement in public interest litigation, including a number of landmark freedom of expression cases.

    Finally, the court stated that allowing the CCLA public interest standing was a reasonable way to bring the issues to court. While any gas retailer in the province could potentially have been a plaintiff in this action, the CCLA offered evidence that it tried but failed to find a gas retailer to act as a co-plaintiff. The politically prominent nature of the issues at stake had made retailers hesitant to bring a challenge in their own names. When contacted, they expressed a wariness of publicly embracing a political position with which some of their customers may take issue. The court noted that this issue in finding a directly affected co-plaintiff proves CCLA's very point about the legislation's partisan nature: it had prevented those who's rights were directly violated from coming forward, leaving the CCLA to fill the gap.

    In conclusion, the court found that yes, it was appropriate to grant public interest litigant status to the CCLA.

    The Freedom of Expression Issue

    The court considered the McAteer questions, described above, to determine if there was a violation of s. 2(b). The first question was not difficult: the definition of expressive activity in s. 2(b) is extremely broad. The Sticker is designed to convey a specific message to the consumer of gasoline, and would fall within this definition.

    The second question was less straightforward. The law compels expression via the Sticker message but does not necessarily control it, since the gasoline retailers are free to disavow or disassociate themselves from the political messaging if they so choose. Hence there is no automatic violation of 2(b).

    Nonetheless, the court found their answer in the third McAteer question. There was an incidental effect on expression, forcing persons to speak on an issue when they might otherwise want to stay silent, whether or not they agree or disagree with the legislatively compelled message. In McAteer the penalty for refusing to convey the message in the oath of citizenship was to lose access to Canadian citizenship. Here, the penalty was to incur a steep fine. Where McAteer was distinguished, however, was that in that case the speech at issue was one that fostered the rule of law whereas the speech at issue in this case was counterproductive to the rule of law.

    The evidence before the court clearly pointed to the fact that the FCTTA did not create a consumer message but rather a "political missive." The message is that the party in Ontario had better policy ideas than the party in Ottawa. That is a message that is clearly a partisan one, aimed at an opposing political party. This is not a message that promotes the rule of law and democracy, which would be a constitutionally appropriate form of compelled speech under McAteer. By using the law for partisan ends, the Ontario legislature enacted a measure that runs counter to the purposes underlying freedom of expression. This type of compelled expression warrants strong constitutional disapproval.

    The Justification Issue

    For a Charter violation to be justified under s. 1, the offending legislation must have a pressing and substantial purpose, and the violation must be proportional to the objective of the law (See R v Oakes, [1986] 1 SCR 103). In this case, the court found that the legislation failed at the first hurdle of this test: it did not have a valid purpose that justified the violation of s. 2(b).

    The Court found that the Sticker regulation is deceptive in that it "cloaks subjective advocacy about a federal legislative initiative in the language of objective information sharing." It labels itself the Federal Carbon Tax Transparency Act but it only makes transparent aspects of the federal policy that fit the government of Ontario's personal narrative. The legislation's very voice, according to the Court, is that of "unreliable narrator."

    Accordingly, it fails the first stage of the Oakes analysis. While informing the public about the components that make up the cost of gasoline would be a pressing and substantial government objective, promoting the Ontario governing party over the federal governing party is not. The Supreme Court has made it clear that the use of legislative/executive power for partisan purpose amounts to "an unjustified attempt to [legislate/regulate] to benefit the ruling party." Accordingly, the FCTTA cannot be justified under s. 1 of the Charter.

    Conclusion

    The court offers a final summary of the nature of partisanship in the Sticker case, and why in this instance the compelled speech was unconstitutional:

    "A government or political party can, in the words of Ontario's Minister of Energy, 'stick it to' another tier of government or political party as a matter of free speech in an election campaign or otherwise. But a government cannot legislate a requirement that private retailers post a Sticker designed to accomplish that task. The mandatory fuel pump Sticker is an unconstitutional attempt to do just that."

    The sections of the FCTTA and the regulation concerning the Stickers violate section 2(b) of the Charter and were declared of no force or effect.