An Alberta Court of Queen's Bench judge has sided with the City of Edmonton, ruling that its decision to deny a pro-life organization's application to light the High Level Bridge did not infringe on its freedom of expression under the Canadian Charter of Rights and Freedoms.
In a decision dated Oct. 7, Justice K.S. Feth dismissed an application for judicial review from the Alberta March for Life Association (AMLA) and its vice president Jerry Pasternak, stating they were unable to prove the city infringed on their Charter rights and that the city was biased.
He also agreed with the city that lighting the bridge would be seen as the municipal government supporting the pro-life position in the abortion debate.
"The polarizing impact of lighting the bridge for the 2019 March [for Life] is manifest," Feth wrote.
"The outcome of the [city's] decision, in light of its underlying rationale, was transparent, intelligible and justifiable."
The High Level Bridge has 60,000 LED lights that shine every morning and night. The city has reviewed applications to light the bridge for certain occasions since 2014.
Applications must be "not-for-profit, community-focused" and received at least three weeks prior to the requested date. They are reviewed on a case-by-case basis, and support certain events and issues, according to the city's website.
The bridge, for example, was lit orange on Sept. 30 for the National Day for Truth and Reconciliation. It is scheduled to shine orange and blue on Oct. 13 for the Edmonton Oilers' home opener.
The city, however, can deny requests that "do not merit public support or are mainly personal, private, political, polarizing or commercial in nature," its website says.
In March 2019, AMLA applied to light the bridge pink, blue and white in conjunction with its annual march on May 9, 2019. The colours represent unborn girls and boys, and white is for the "purity of love," the court document says.
The city initially approved the application. But it informed AMLA on April 5, 2019, that the request was denied upon further review because abortion is a polarizing issue, the document says.
The city also noted that is consistent with how the city managed a similar request from AMLA in 2017, it adds.
The Justice Centre for Constitutional Freedoms, on behalf of AMLA and Pasternak, applied for a judicial review, claiming the reversal infringes the Charter right to freedom of expression.
They also accused the city of bias during the decision-making process, not affording them procedural fairness and that the decision was unreasonable.
The city denied that lighting the bridge is an expressive activity protected by the Charter, arguing the lights, at most, show public support. It also denied any bias and unfairness, and maintained its decision was reasonable.
The application was heard Nov. 13, 2020.
Infringement on freedom of expression not proven
Feth was satisfied the claim was grounded in freedom of expression, saying AMLA and Pasternak want to express themselves and publicly advance their views on abortion.
But they were unable to prove the city's decision infringed on their Charter rights, he wrote.
An interference of freedom of expression occurs where lack of access to a statutory platform "radically" frustrates expression, to the point that meaningful expression is essentially precluded, Feth wrote, citing a recent Supreme Court of Canada ruling.
The city's policy "deprives [AMLA] of a particular means of expression, but an absence from the lighting project does not render them substantially unable to express themselves on pro-life" issues," Feth wrote.
There are other mediums, he said, citing social media and community events — including the annual March for Life, which the city did not impede.
Lights would be seen as support
People may not associate the colours pink, blue and white with AMLA. But when combined with supporters brandishing those colours on signs, flags and ribbons along the marching route, Edmontonians may make that connection, the city argued.
This could lead to the lights being seen as an endorsement from the municipal government and have a polarizing impact on the community, the document says.
Feth agreed, concluding AMLA was trying to use a government messaging platform for personal expression.
The city's policy and process suggest the city chooses which messages deserve public support and use the bridge lights as a medium to communicate to the local community and beyond, Feth wrote.
"No one is entitled to receive the City's recognition."
As well, given the city owns and controls the bridge, anyone seeing the lights can deduce that the city is not just a messenger but a supporter, he said.
This, Feth writes, could create "a substantial risk" of confusing the public about the municipal government's stance on abortion, and "undermine the values of democratic discourse and truth-finding."
Bias not established
AMLA alleged the city was ideologically and politically biased against pro-life expression, and thus was more likely to deny their request to light the bridge.
The test for bias is what an informed person would conclude, Feth explained, citing a case from 1978.
The claimants have to show "a real likelihood" of bias. But AMLA offered "scant evidence," he wrote.
AMLA offered the 2017 decision from the city, which also denied lighting the bridge. Feth did not have the merits of that decision before him to weigh, but the outcome shows consistency in the city's process, he said.
"A change in position between an initial approval and a final decision after reconsideration does not imply a bias," Feth wrote.
AMLA argued the city's decision to light the bridge in support of "LGBT-themed events" shows a bias against pro-life expression. But Feth found no "logical connection" between approving one over the other.
The claimants also offered "a smattering" of public complaints following the city's denials in 2017 and 2019.
But the complaints, Feth wrote, are from strangers outside the court, who did not explain if they were well-informed, nor whether they are impartial. Some complaints made wrong assumptions and "merely attribute unproven bias to the city."
"In sum, the complaints are unpersuasive evidence."