“Kamala is for they/them, Trump is for you” was the tagline to a popular television ad targeting Democratic presidential candidate Kamala Harris for excessive wokeness during the US election campaign. The Trump campaign spent millions on it.
Here in Canada, a little-known political party tried to spend a couple thousand dollars on a tamer ad, but got shut down by the City of Hamilton. The party took the city to court and lost.
The court ruling is troubling.
Like many cities, Hamilton, Ont., sells advertising space on buses and bus shelters. In January 2023, the federal Christian Heritage Party asked the city if it could place an ad saying “Woman: An Adult Female” alongside a picture of a smiling woman and the party’s name.
The party received a quick “no” a few days later. But it was several months before the city provided its reasons for rejecting it.
The city said the ad “could potentially impact the City’s ability to provide a safe and welcoming transit system” and might “inspire hateful conduct.”
As a governmental actor, Hamilton is required to respect individuals’ Charter rights in its decision-making. This includes decisions regarding the use of its ad space.
So, the Christian Heritage Party took the city to court, arguing the decision to reject its ad violated its freedom of expression. In a recent ruling, the court said Hamilton’s decision was justified. Its ruling is remarkably brief.
The court noted that the city consulted its LGBTQ Advisory Committee, along with “available literature on the effect of hate speech and actions on the LGBTQ community.” The court said the city had made a “reasoned, fair and balanced” decision.
I am left wondering whether the court considered the ad to be hate speech, or close to it.
If so, this is troubling, since hate speech is effectively not Charter-protected. Hate speech, legally, is speech that is likely to generate extreme feelings of “detestation and vilification” that “belie reason” toward a target group. It’s a high bar.
But saying women are female? Some might call that common sense, not hate.
The court never directly calls the ad hateful. But it notes approvingly that the city considered evidence regarding the harms of hate speech while acknowledging it cannot reject an ad simply because it might offend people.
Maybe the ad falls somewhere between hateful and merely offensive? The city also told the party that the ad “may be viewed by some as discriminatory in nature.”
An ad that offered jobs, services or housing exclusively to white people, for example, would rightly be considered illegal for being discriminatory. But the party’s ad isn’t offering or advertising jobs, services or housing. It’s stating the party’s position.
And it’s not just a political view, the party insisted in court, but a foundational truth: women are female.
Is that not a position a political party can promote in Canada? Again, the court doesn’t say so directly. Its ruling contains very little analysis and is mostly an approving review and summary of the city’s reasons for rejecting the ad.
In 2009, Canada’s Supreme Court said transit users “are expected to put up with some controversy in a free and democratic society.”
In 2018, the Ontario Court of Appeal dressed down the Niagara Parks Police in 2018 for laying charges against a man for holding a “Trump is right, F—k China, F—k Mexico” sign in a public park. The sign was making a political point and “disparaged no one,” the court said.
And earlier this year, the Court of Appeal said the Charter protects people’s freedom “to speak what they understand to be the truth about the most profound questions of being and flourishing.” Is ‘what is a woman’ not that kind of question?
The Christian Heritage Party relied on these cases when it took Hamilton to court. Yet the court’s decision doesn’t mention them. This is surprising, given how on point they are.
The Charter is supposed to preserve the freedom to share views that are unpopular, especially with those in positions of authority. Popular or officially favoured views don’t need constitutional protection.
As it happens, the Ontario Human Rights Tribunal ruled last month that the mayor and council of the tiny town of Emo, Ont., unlawfully discriminated against LGBTQ people by not adopting a Pride Month declaration and celebration proposed by Borderland Pride, an advocacy group.
The Hamilton case, taken together with this tribunal ruling, suggest a city may not only prevent a political party from promoting a non-progressive view, but also be required to support progressive civic celebrations.
These rulings appear to enforce the tenets of a progressive civil religion. That should trouble anyone who sees free speech as the foundation of a free and democratic society.
