28 Jul 2021 A Win for Freedom of Expression in British Columbia
In December 2017, Grace Chapel booked a venue owned by the city of New Westminster to hold a youth conference. The theme, drawn from Romans 3:14, was “Let God Be True” or “LGBT.” Their posters used this theme surrounded by rainbow colouring and understandably drew the notice of a member of the public who emailed the city concerned that they were hosting an anti-LGBTQ event. The day after receiving the email, the city cancelled just one month prior to the event.
In response, Grace Chapel asked the BC courts to review this decision under the Charter of Rights and Freedoms. Any government action, regardless of whether it is a legislative bill or an executive decision, is reviewable by the courts – the judicial branch of our government. And because the Charter is the supreme law of the land, any government action that the courts find inconsistent with it is of no force or effect.
In this case, Grace Chapel alleged that their freedom of expression under section 2(b) of the Charter was infringed by the city’s cancellation of their contract. The judge agreed that the city’s decision limited their freedom of expression, a bar that is relatively easy to clear. Assuming that the expression isn’t violence (and the judge in this case does note that singing and speaking at a conference is not violence), the bulk of the legal analysis in freedom of expression cases is done at the section 1 stage. That is, given the government’s decision impacted Grace Chapel’s freedom of expression, was it justified under section 1 of the Charter? You can learn more about section 1 in a previous article we posted, but the gist of section 1 is that it allows “reasonable” limitations on all rights and freedoms.
One of the issues at the section 1 analysis is the content of the speech at issue. The Supreme Court has held that some speech is at the core of what the Charter seeks to protect including political speech, speech in pursuit of the truth, and speech that aids in self-fulfillment, whereas at the periphery, and therefore having less protection, is speech of lower value like commercial speech and hate speech.
The city in this case argued that Grace Chapel’s speech was at the periphery of what the Charter protects. They suggest it had low value even if it might fall short of hate speech. Here Justice Morellato soundly disagrees and speaks in favour of the ideals of free speech.
“In a free and democratic society, the exchange and expression of diverse and often controversial or unpopular ideas may cause discomfort. It is, in a sense, the price we pay for our freedom. Once governments begin to argue that the expression of some ideas are less valuable than others, we find ourselves on dangerous ground.”
Just because you disagree with some speech doesn’t mean that it is hate speech… it’s good to see a court recognize this fact.
What Justice Morellato is saying here is that just because you disagree with some speech doesn’t mean that it is hate speech or speech at the periphery. If speech on one side of the issue is protected, so should speech that counters it. It’s good to see a court recognize this fact.
Justice Morellato goes on to point out that the city failed in balancing LGBT interests with the church’s interests. In fact, there was no attempt to balance as the city only showed concern for one side. She points out:
“The City took immediate steps to research and consider the concerns raised by the complaint it received that anti-LGBTQ views would be disseminated at the Youth Conference. Yet, before cancelling the Youth Conference the very next day, the City took no similar steps to more fully inform itself about the anticipated content or focal points of the speakers at the Youth Conference. There was a clear imbalance in the City’s efforts to inform itself of the competing rights at stake, or to at least attempt to balance them. The failure to balance competing rights leads me to conclude that the City’s Decision is an unreasonable and unjustified infringement.”
We’re grateful for this decision: for the outcome for Grace Chapel as well as the development of our freedom of expression jurisprudence. While there are other procedural hurdles for Grace Chapel to get their conference venue back, the court was unequivocal about the violation of the Charter by the City’s actions.
We’re also grateful to live in a country where we have multiple branches of government that hold each other to account and that a city’s decision isn’t the end of a matter – especially when it is an unfair decision made to exclude the beliefs of a particular group of citizens. Such a system means we have a better opportunity to speak the truth and have justice prevail. While we often share concerns about court decisions and the nature of Canada’s culture, we still have a lot of freedom here. That’s something to praise God for and to pray that “God keep our land glorious and free.”
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