Alberta March for Life Association v Edmonton (City), 2021 ABQB 802

Court of Queen’s Bench of Alberta Citation: Alberta March for Life Association v Edmonton (City), 2021 ABQB 802 Date: 20211007 Docket: 1903 20251 Registry: Edmonton Between: Alberta March for Life Association and Jerry Pasternak Applicants - and - City of Edmonton Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice K.S. Feth _______________________________________________________ [ 1 ] Symbolic expression can be powerful.

Images and colours can evoke ideas and stir emotions, inspire group solidarity and individual sacrifice, or provoke opposition and confrontation. A combination of colours presented through a medium like a flag, a uniform or an array of lights can express social or political endorsement of specific beliefs, objectives and organizations. [ 2 ] The location through which a symbol is expressed can also convey meaning by associating the owner or operator of that place with the symbolic expression.

[ 3 ] The City of Edmonton installed 60,000 lights on a municipal landmark - the High Level Bridge - to be illuminated in assorted patterns of colours. Since 2014, the City has invited applications from individuals and groups to have the bridge lit in colours celebrating various events, charitable causes, and prominent individuals. Lighting the bridge remains subject to City approval. [ 4 ] The Alberta March for Life Association (“AMLA”) promotes the sanctity of human life from conception to natural death. The AMLA conducts an annual pro-life march in Edmonton.

Jerry Pasternak is the Vice-President of the AMLA. [ 5 ] In March 2019, the Applicants applied to light the bridge in three colours – pink, blue and white – in conjunction with a public march to be held on May 9, 2019 (the “2019 March”). The AMLA asserts those colours are associated with its cause: pink represents unborn girls, blue represents unborn boys and white is for the purity of love. [ 6 ] The City initially approved the application.

However, on April 5, 2019, the Applicants were informed through a short email from the City that upon further review, the request was denied (the “Decision”). [ 7 ] In making the Decision, the City relied on a municipal policy containing principles guiding the consideration of requests to light the bridge (the “Policy”).

According to the Policy, an eligible request must be: “not-for-profit, community oriented and support either: - An event of national or international significance - A local festival or event that positively impacts local community spirit - A local, national or international awareness issue that builds community.” [ 8 ] The Policy also allows for requests “to acknowledge and welcome significant visiting dignitaries hosted by the City” and for tributes to local, provincial or national figures, and cultural icons. [ 9 ]

Section H of the Policy clarifies that the “City of Edmonton reserves the right to deny requests that do not merit public support, have a risk of polarizing the community, or are mainly personal, private, political, or commercial in nature.” [ 10 ] In denying the AMLA’s request, the Decision explained that “lighting the bridge for this event cannot be approved due to the polarizing nature of the subject matter.” The Decision also noted that this outcome was consistent with how the City managed a similar request by the AMLA to light the bridge for a public march in 2017. [ 11 ] The Applicants submit that the Policy offends the right to freedom of expression guaranteed by s 2(

b) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“ Charter ”) and is not justified under s 1. Further, the Applicants contend the City was biased against them during the decision-making process, did not afford them procedural fairness, and that the Decision was unreasonable. [ 12 ] The Applicants seek various remedies, including an Order in the nature of mandamus to light the bridge in the future. [ 13 ] The City denies that lighting the bridge is expressive activity protected by the Charter .

Even if the bridge lighting conveys meaning, the message being communicated is solely that of the City in selecting and publicly supporting a cause, event, organization or individual for the light display. The communication activity is therefore excluded from the scope of s 2(b). Alternatively, the Policy is a reasonable limit on freedom of expression prescribed by law within the meaning of s 1. Finally, the City denies any bias, asserts the decision-making process was procedurally fair, and maintains that the Decision was reasonable on the merits.

Light the Bridge Project [ 14 ] The bridge is a City asset and its lights are operated by the City in accordance with the Policy. [ 15 ] The Policy addresses some of the history and purpose of the bridge lighting project: Funding for the lighting project for the High Level Bridge was provided by the community, so it’s recognized as the “voice” for Edmonton, reflecting, celebrating and building community spirit.

The High Level Bridge lights are also a symbol of pride, part of Edmonton’s story that helps to represent Edmonton to national and international audiences, similar to the CN Tower or Golden Gate Bridge. [ 16 ] While not part of the Policy, the City’s website also mentions the purpose of the “Light the Bridge” project: Light the Bridge celebrates and builds community spirit in Edmonton. The bridge lights are a beautifying element to our cityscape, a symbol of pride for locals, and part of our Edmonton story.

They can also be used to help represent Edmonton and share our story with national and international audiences. [ 17 ] The application process is administered through the City’s website. No fee is charged for making an application or for lighting the bridge. Preliminary Matter – Contents of the Record [ 18 ] The City’s Certified Record of Proceedings contains some documents created by the AMLA after the Decision was made. The Applicants objected to the inclusion of those documents in the Record. The City did not oppose withdrawing them.

[19] Based on the final framing of the issues, the documents are not relevant. In light of the parties’ positions, I directed that Tabs27 to 34 of the filed Record be disregarded. Issues [20] The application raises the following constitutional issues about the Policy: (

a) Does the Policy breach s. 2(

b) of the Charter? (

b) If so, is the breach a reasonable and justifiable limit prescribed by law under s. 1 of the Charter? [21] The application also engages the following administrative law issues about the Decision:

a) What is the standard of review?

b) Does the Record disclose a reasonable apprehension of bias?

c) Did the City offend the duty of procedural fairness?

d) Was the Decision reasonable? [22] The parties have different approaches to determining many of these issues, including a threshold contest about whoseexpression is engaged by lighting the bridge. Analysis 1. Constitutional protection of expression [23] Freedom of expression is one of the most fundamental rights guaranteed by the Charter. The language of s 2(

b) protects“freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” [24] In a free, pluralistic and democratic society, a diversity of ideas is inherently valuable to both the community and theindividual.

Freedom of expression ensures that individuals can, without fear of censure, manifest their thoughts, opinions, beliefs andexpressions “no matter how unpopular, distasteful or contrary to the mainstream”: Irwin Toy Ltd v Quebec (Attorney General), (SCC), [1989] 1 SCR 927 at 968 [Irwin Toy]; Edmonton Journal (The) v Alberta (Attorney General), (SCC), [1989] 2 SCR 1326 at para 78; Committee for the Commonwealth of Canada v Canada, (SCC), [1991]1 SCR 139 at para 79 [Commonwealth]. [25] The constitutional guarantee makes possible “our liberty, our creativity and our democracy ... by protecting not only “good”and popular expression, but also unpopular or even offensive expression ... in the free flow of ideas and images”: R v Sharpe, 2001 SCC2 at para 21 [Sharpe].

The protection encompasses minority beliefs that the majority regards as wrong or false, and serves to preclude themajority’s perception of ‘truth’ or ‘public interest’ from smothering the minority’s views: R v Zundel, (SCC), [1992] 2SCR 731 at 752-753. [26] As the Alberta Court of Appeal explained in Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2018 ABCA154 at para 79 [Grande Prairie], “the public must accept a certain amount of unpleasant, disagreeable and even repugnant speech” andthe Charter “requires a certain amount of resilience in the audience of the free speech.” [27] The purpose of the guarantee is to promote: the search for and attainment of truth, participation in social and politicaldecision-making, and the opportunity for individual self-fulfilment through expression: Irwin Toy at 976. [28] In general, s 2(

b) guards against government interference in activities that have expressive content. The freedom is primarilycharacterized as the “absence of coercion or constraint”: R v Big M Drug Mart Ltd, (SCC), [1985] 1 SCR 295 at 336.Consequently, the protection is usually conceptualized as imposing a negative obligation on government not to interfere rather thanimposing a positive right to government assistance or protection in facilitating communication: Baier v Alberta, 2007 SCC 31 ,[2007] 2 SCR 673 at paras 20-22 [Baier]. A. The analytical framework for a violation of freedom of expression [29] In Irwin Toy, the Supreme Court of Canada articulated a two-step test for establishing a breach of s 2(

b) arising fromgovernment interference with expression. [30] The first step is to determine whether the claimant’s activity falls within the sphere of conduct protected by the guarantee.The claimant must show that the activity for which protection is sought conveys or attempts to convey meaning.

If it does, the activityhas expressive content and prima facie falls within the ambit of s 2(b). [31] Where the activity falls within the protected sphere, the second step is to assess whether the purpose or effect of thegovernment action at issue was to restrict freedom of expression. [32] While Irwin Toy defined the scope of freedom of expression expansively, the Supreme Court of Canada has clarified that the

protection has limits and government should not be required to justify every regulation of expression under s 1 of the Charter: Baier atpara 20. Freedom of expression “enjoys broad but not unbounded constitutional protection in Canada”: Greater VancouverTransportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31 at para 95 [GreaterVancouver]. [33] At least three exclusions from the protected sphere of free expression are recognized: a.

A method of expression that is violent or involves threats of violence: Irwin Toy at 970; Libman v Quebec (Attorney General), (SCC), [1997] 3 SCR 569 at para 31; b. Expressive activity that imposes a positive obligation on government to provide a particular means of expression, such as access toa statutory platform of communication, but subject to a narrow exception where government inaction would substantially impede theability to engage in free expression: Baier at paras 20-22; c.

Expressive activity in a government-owned location where expression in that place conflicts with the location’s governmentalfunctions and the values s 2(

b) is intended to serve: Montreal (City) v 2952-1366 Quebec Inc, 2005 SCC 62, [2005] 3 SCR 141[Montreal]. [34] The first and third exclusions impose a negative obligation on government not to interfere with expressive activity. InCanadian Broadcasting Corp v Canada (Attorney General), 2011 SCC 2 at para 38 [CBC], the Supreme Court of Canada reformulatedthe s 2(

b) inquiry where either of those exclusions is potentially engaged: a. Does the activity in question have expressive content, thereby initially bringing it within the scope of s 2(

b) protection? b. Does the method or location of expression remove that protection? c. If the activity is protected, does an infringement of the protected right result from either the purpose or the effect of the governmentaction? [35] The second exclusion arises where a “positive right” is claimed to a particular means of expression. Until very recently, thefollowing framework applied, as described in Baier: a. Does the activity in question have expressive content? b. Are the claimants asserting that government must legislate or otherwise act to support or enable an expressive activity? c.

If the claimants are making that assertion, does their claim meet the grounds for an exception to the general rule that s 2(

b) onlyguards against government interference? Establishing that exception requires consideration of three factors described in Dunmore vOntario (Attorney General), 2001 SCC 94, [2001] 3 SCR 1016 [Dunmore]: i. Is the claim grounded in a fundamental freedom of expression rather than access to aparticular statutory or governmental regime? ii. Is the purpose of the exclusion from the regime to infringe freedom of expression under s 2(b)or does the exclusion have the effect of a substantial interference with s 2(

b) freedom of expression? iii. Is the government responsible for the inability to exercise the fundamental freedom? If the three factors are satisfied, then s 2(

b) is infringed and the analysis shifts to s 1. [36] On October 1, 2021, the Supreme Court of Canada released its decision in Toronto (City) v Ontario (Attorney General), 2021SCC 34 [Toronto].

The majority of the Supreme Court, at para 25, distilled the Dunmore factors into “a single core question: is theclaim grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwisefailing to act, the government has either substantially interfered with freedom of expression, or had the purpose of interfering withfreedom of expression?” [37] The City does not concede that lighting the bridge has expressive content. Further, the City asserts the Applicants areadvancing a “positive right” claim to which the limited exception does not apply.

Finally, or in the alternative, the City submits that thepublic location of any expressive activity removes the protection of s 2(b).

a) Expressive content [38] Freedom of expression is given a generous, purposive

interpretation and can be communicated through “an infinite variety offorms of expression: for example, the written or spoken word, the arts, and even physical gestures or acts”: Irwin Toy at 968-970. [39] The City contends that the colour pattern of pink, blue and white is insufficiently distinctive to be associated with the AMLAor its pro-life agenda, and that the Record fails to make a direct connection. [40] That position ignores the surrounding context and the City’s own findings in arriving at the Decision.

The bridge was to beilluminated in the AMLA’s colours in close physical proximity to and near the time of the 2019 March. The colours would be displayedon ribbons along the route and on flags carried by the marchers. In those circumstances, a substantial segment of the public would likelyassociate the colours with the AMLA’s event. Indeed, that was the City’s finding in refusing to light the Bridge: the messaging conveyedby the colours would have a “polarizing” impact.

In arriving at that conclusion, the City implicitly recognized the meaning in thosecolours and that the meaning would be understood by enough people to polarize the community.

[41] The City suggests that the act of displaying the colours might have an imprecise or misleading meaning. However, uncertaintyabout the message does not deprive the activity of meaning. [42] A public display of colours associated with specific ideas, aspirations and values can remind the viewer about those beliefsand suggest acceptance of or support for them, especially when cast in a favourable light. Public awareness can invite further inquiry anddraw attention to a related event, such as the 2019 March.

Discourse can be advanced by drawing attention to a civic forum wheresubstantive information is communicated. [43] A lighting array, much like a flag, can express self-fulfilment. A prominent display of one’s “colours” can instill pride andconfidence, suggest popular acceptance, and rally supporters to a common cause. [44] The City’s unease about polarization suggests that municipal decision makers recognized that many people would perceivethe bridge lighting as an endorsement of the cause associated with those colours. Displaying the colours through the City’s platformconveyed a positive impression.

Reasonable members of the community might interpret the display, on a municipally owned andoperated platform, as a signal of support by the City’s government. The act of choosing a side in the abortion debate, or at least seemingto do so, was part of the polarizing activity. [45] The risk of a misleading message invites concerns about using this public location for expressive activity, but does not deprivethe activity of meaning. I conclude that lighting the bridge conveys meaning and is prima facie expressive activity, subject to anyexclusion.

b) Positive right exclusion [46] As a general rule, the freedom of expression contained in s 2(b) “prohibits gags, but does not compel the distribution ofmegaphones”: Haig v Canada (Chief Electoral Officer), (SCC), [1993] 2 SCR 995 at 1035 [Haig].

However, as with allof the freedoms in s 2 of the Charter, understanding the guarantee as simply the absence of constraint or interference “may be too narrowsince it fails to acknowledge situations where the absence of government intervention may in effect substantially impede the enjoymentof fundamental freedoms”: Reference re Public Service Employee Relations Act (Alta), (SCC), [1987] 1 SCR 313 at361. [47] A “philosophy of non-interference may not in all circumstances guarantee the optimal functioning of the marketplace ofideas.” The purposive approach to interpreting the Charter might invite situations where “in order to make a fundamental freedommeaningful, a posture of restraint would not be enough, and positive government action might be required”: Haig at 1037, 1039. [48] A positive obligation to provide government assistance is limited to exceptional circumstances: Delisle v Canada (DeputyAttorney General), (SCC), [1999] 2 SCR 989 at para 38 [Delisle].

The Supreme Court of Canada has cautioned againsta broad application of this exclusion because, taken out of context, many free expression cases would be transformed into positive rightclaims: Greater Vancouver at para 34. [49] In the normal course, the government decides which forms of expression to support and may target that assistance.

However,if the government chooses to supply a platform for personal expression, it must do so in a manner consistent with the Charter includingequality rights under s 15: Siemens v Manitoba (Attorney General), 2003 SCC 3 at para 43; Delisle at para 40; Native Women’s Assn ofCanada v Canada, (SCC), [1994] 3 SCR 627, per L'Heureux-Dubé J, concurring. [50] In Toronto, at para 22, the majority of the Supreme Court of Canada clarified that the positive right analysis described inBaier “applies if the claimant seeks to impose an obligation on the government (or legislature) to provide access to a particular statutoryor regulatory platform for expression”.

The framework is not confined to underinclusive regimes. [51] With the benefit of that backdrop, I turn to whether the Applicants are advancing a positive right claim and the application ofthe modified Baier framework. As I have already found that the Applicants seek to communicate expressive content through the bridgelighting installation, I will begin the analysis with the nature of the claim.

i) Whether a positive right to government support is sought [52] The characterization of the Applicants’ free expression claim as either positive or negative dictates whether the modifiedBaier framework applies. [53] The City asserts the Charter guarantee is not engaged because the Applicants seek access to a communication platform usedby the City solely for its messaging and from which the Applicants are excluded, unless the City adopts their message as its own.

TheApplicants, by demanding access to the Light the Bridge project, are asserting a positive right to access a particular means of expression- the City’s bridge lighting platform. [54] The Applicants counter that they are entitled to utilize the bridge lighting installation for personal expression, but that the Cityis targeting them because of the content of their message.

They characterize the claim as having a negative orientation grounded in non-interference. [55] In Greater Vancouver, which concerned political advocacy advertising on the side of Vancouver region buses, the majority ofthe Supreme Court of Canada explained the limited application of the “positive right” analysis. Justice Deschamps commented at paras29, 31-32: ...although s. 2(

b) protects everyone from undue government interference with expression, it generally does not go so far as to place thegovernment under an obligation to facilitate expression by providing individuals with a particular means of expression ... Thus, where thegovernment creates such a means, it is generally entitled to determine which speakers are allowed to participate. A speaker who is

excluded from such means does not have a s. 2(

b) right to participate unless she or he meets the criteria set out in Baier .... ... The respondents sought to post political advertisements on buses by means of the transit authorities’ advertising service. The content of their expressive activity was the political message and the means of expression was the advertising service enabling expression on the sides of their buses. The advertisements were rejected on the basis of their political content, not on the basis that the advertising service was not available to the respondents.

At first glance, since the respondents are not themselves excluded from access to the advertising service, it seems difficult to characterize their claim as one against underinclusion. The advertising service is not a platform created for a limited group of individuals or for a very narrow purpose . Rather, it is accessible to anyone who wishes to advertise and is willing to pay a fee. .... [T ]o succeed in its argument that the respondents’ claim is one of underinclusiveness, BC Transit had to at least demonstrate that the respondents themselves were excluded from the particular means of expression.

But this is not what the respondents are arguing. The policies do not prevent them from using the advertising service as a means of expression. Only the content of their advertisements is restricted. Thus, their claim cannot be characterized as one against underinclusion. In contrast, in Baier , school trusteeship was the very means of the expressive activity, and the claimants were being denied access to that means. [emphasis added] [ 56 ] The Supreme Court concluded that the advertising area on the side of a bus was a public space through which the claimants were entitled to communicate their own message.

Accordingly, the claimants were pursuing the freedom to express themselves by means of an existing platform they were “entitled to use” without undue state interference in the content of their expression: Greater Vancouver at para 35 . Consequently, no positive right was claimed and the Baier analysis was inapplicable. [ 57 ] Before me, the City submits that the outcome in Greater Vancouver is distinguishable because the Light the Bridge platform is not a space generally accessible by members of the public for their own expression.

The Applicants are trying to convert a government messaging platform into a system for personal expression. I agree. [ 58 ] The nature of the communication activity is informed by the lighting platform’s purpose, the limited means of the medium, and the public’s understanding of the platform. [ 59 ] First, the Policy and the City’s website expressly address the specific purpose of the Light the Bridge project and the municipal government’s control of the messaging. [ 60 ] The City approves of events and issues that “merit public support” or public figures worthy of civic “tributes or memorials”.

The Policy expressly recognizes the lighting project as the “voice for Edmonton”, which “helps to represent Edmonton to national and international audiences.” The Policy speaks to the platform being used for community development by promoting a festival or event that “positively impacts local community spirit” and an “awareness issue that builds community.” Tributes may also be granted for dignitaries “hosted by the City.” [ 61 ] Those statements strongly suggest that the lighting installation is a medium for the City’s communications to the local community and the world beyond, much like its website, social media platform and news releases.

The City recognizes and celebrates events, causes and people that positively influence community spirit. The City identifies candidates through the application process and determines which of them “merit” express public support by selecting them for the bridge lighting. Selection is akin to bestowing a civic honour, recognition or tribute. While nominations are submitted through the application process, the actual selection and the bridge lighting communicate the City’s acknowledgements and are not the expressive activities of the nominators.

As with the City’s website, no private citizen has a right of access to advertise or promote awareness of their cause. No one is entitled to receive the City’s recognition. [ 62 ] This conclusion explains the wording at the end of

Section H to the Policy that the City may deny requests that are mainly “personal, private, political, or commercial in nature.” Personal expression in its many forms, including political and commercial expression, is excepted because that is not the purpose of the platform. The City’s messaging is not to be confused with personal expression. [ 63 ] Consistent with that

interpretation and unlike advertising, no fee is charged for lighting the bridge. Lighting the bridge is not part of a licensing or permitting process. [ 64 ] Second, as the bridge lighting platform is a simplistic medium of communication, meaning comes not just from the colours, but also from the knowledge that the apparatus is owned and controlled by the City. That control implicitly influences the content of the message.

The audience is invited to infer meaning, including that the person transmitting the symbolic expression is not just the messenger, but also a supporter. [ 65 ] An array of lights, like a flag or a uniform, symbolizes more than just the cause to which the colour combination is connected.

The public display can reasonably be understood as a celebration of and support for the values, objectives or organization related to the colours. [ 66 ] Here, civic resources are utilized at the City’s expense, in a prominent location, after selection by the City’s administration, for the purpose of demonstrating public support and celebrating community spirit. In these circumstances, the display emanating from the City’s platform reasonably suggests government support or government recognition of broad public support.

For a complex and divisive moral issue, representations about civic support for one perspective can have substantial meaning and impact. [ 67 ] The anecdotal evidence in the Record confirms this conclusion. In 2017, the AMLA applied to have the bridge lit in its colours. The request was initially approved, in error, and publicized. Shortly afterwards, negative comments from members of the public were posted on the City’s social media account, including several characterizing the approval as the City’s support for the pro-life movement and a political statement denying the legal rights of women.

The bridge’s lighting system was not viewed as a personal platform, but rather the signal lamp of the municipal government.

[ 68 ] The Record also contains evidence of how the public responded to a similar approval in another Canadian city. In 2017, a March for Life flag was raised on a community flagpole in front of Ottawa’s city hall. The flagpole was generally available to the public on application to and approval by the municipality’s administration. Social media commentary in that region interpreted the public display as the municipal government’s endorsement of the pro-life movement and the March for Life event hosted in that city.

In light of the confusion, the flag was removed. [ 69 ] The bridge lighting platform does not offer a means by which to identify the messenger as someone other than the City or to disclaim the City’s endorsement. Unlike a neutral advertising space, the public perceives a connection between the host and the message. [ 70 ] Third, the bridge is widely recognized within Edmonton as a municipal asset and the Light the Bridge project is well-known and generally understood within the community as a platform operated by the City that honours or promotes various events, causes and individuals.

I take judicial notice of these facts, which are so notorious or generally accepted as not to be the subject of debate among reasonable people: R v Find , 2001 SCC 32 at para 48 ; R v Spence , 2005 SCC 71 at para 53 [ Spence ]. [ 71 ] In taking notice, I am mindful of the Supreme Court of Canada’s caution in Spence at para 60 that “more stringent proof may be called for of facts that are close to the center of the controversy between the parties (whether social, legislative or adjudicative) as distinguished from background facts at or near the periphery.” However, even without judicial notice, the evidentiary record satisfies me that the Light the Bridge project is not a personal advertising space accessible by the public, as might be found on the side of a bus or on a community billboard. [ 72 ] I find that the platform is used solely by the City to communicate its public support for approved events, causes and people.

The platform has been created for a “very narrow purpose”, rather than “to enable a large number of speakers to reach a large audience”: Greater Vancouver at paras 31-32 . Seeking public access to a government communication platform from which personal expression is wholly excluded, such as the bridge lighting installation, attempts to impose a positive obligation for government to provide a particular means of expression. [ 73 ] The Applicants are seeking a positive right to access the City’s communication platform.

Section 2(

b) is therefore only engaged if the modified Dunmore exception applies. ii) Whether the exception applies [ 74 ] The Applicants must demonstrate that their claim is grounded in freedom of expression, such that, by denying access to the platform or by otherwise failing to act, the municipal government has either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression. [ 75 ] I am satisfied that the claim is grounded in freedom of expression, rather than mere access to a particular governmental regime.

The Applicants seek to express themselves in advancing their cause and to publicly communicate meaning about an important moral and legal issue. Truth-seeking, social and political participation, and self-fulfilment are engaged. [ 76 ] These circumstances may be contrasted with Baier , in which schoolteachers claimed a right to expression by serving as school board trustees. The majority of the Supreme Court of Canada concluded, at para 44, that the schoolteachers’ claim was grounded in accessing a particular statutory election regime rather than a fundamental freedom.

Expressive activity was merely incidental to the larger purpose of the regime.

That is not the situation before me. [ 77 ] The Applicants have not demonstrated, however, that their omission from the bridge lighting platform has the effect of substantially interfering with or has the purpose of infringing freedom of expression under s 2(b). [ 78 ] In Toronto , at para 27, the majority of the Supreme Court of Canada explained that “a substantial interference with freedom of expression occurs where lack of access to a statutory platform has the effect of radically frustrating expression to such an extent that meaningful expression is ‘effectively precluded’.” Meaningful expression “need not be rendered absolutely impossible” but “effective preclusion represents an exceedingly high bar that would be met only in extreme and rare cases.” [ 79 ] The Policy deprives the Applicants 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 or sanctity of life issues.

As explained in Baier , at para 48 , “diminished effectiveness in the conveyance of a message does not mean that s 2(

b) is violated.” [ 80 ] The Applicants may express themselves in many ways other than lighting the City’s bridge, including public advertising, speaking on other public property, social media, conventional news media, and through community events. [ 81 ] The Applicants, for example, enjoyed meaningful expressive activity associated with the 2019 March, unimpeded by the City. The AMLA was authorized to demonstrate on municipal roadways for two hours, display posters and flags, and tie coloured ribbons on City-owned trees along the route.

The participants massed on the provincial Legislature grounds and were allowed to make speeches, play music and converse with members of the public. [ 82 ] An inability to access the bridge lighting array does not deprive the Applicants of meaningful participation in free expression, including utilizing symbolic speech. [ 83 ] As for the purpose behind the omission from the platform, the bridge lighting communicates the City’s message in support of “building community spirit” and representing Edmonton to “national and international audiences.” [ 84 ] I find that the Policy creates a process for nominating an event, cause or person for the City’s communication of support in furtherance of community development, including civic unity, and external promotion.

The aim is not to limit personal expression because all personal expression is already excluded from the platform.

[ 85 ] Accordingly, the Applicants have not demonstrated that the Policy substantially interferes in effect or has the purpose of interfering with freedom of expression. That finding disposes of the exception and the claim to a positive right. [ 86 ] I conclude that the Applicants’ claim is outside of the scope of s 2(

b) Charter protection.

c) Public location exclusion [ 87 ] While my conclusion about the Applicants’ pursuit of a positive right disposes of the constitutional challenge, I have considered whether their claim would be excluded from the scope of s 2(

b) even if characterized as a negative claim for non-interference. This alternative analysis involves the public location in which the expressive activity is being sought. [ 88 ] The application of s 2(

b) is “not attracted by the mere fact of government ownership of the place in question. There must be a further enquiry to determine if this is the type of public property which attracts s 2(

b) protection”: Montreal at para 71. A person’s freedom to communicate on government property can be circumscribed by the interests of government and the citizenry as a whole in the use of that property: Commonwealth at 156. [ 89 ] As explained in Montreal , at para 79, some public places remain outside the protected scope of s 2(b): People must know where they can and cannot express themselves and governments should not be required to justify every exclusion or regulation of expression under s. 1. ... the test must provide a preliminary screening process.

Otherwise, uncertainty will prevail and governments will be continually forced to justify restrictions which, viewed from the perspective of history and common sense, are entirely appropriate. Restricted access to many government-owned venues is part of our history and our constitutional tradition. The Canadian Charter was not intended to turn this state of affairs on its head. [ 90 ] The government’s interest in excluding personal communication from its property is balanced against the importance of access by a particular individual or group.

The legal analysis examines “the interests at issue, namely the interest of the individual wishing to express himself in a place suitable for such expression and that of the government in effective operation of the place owned by it”: Commonwealth at 153. [ 91 ] This balancing exercise preserves a wide, inclusive approach to expression, as contemplated by Irwin Toy , tempered only by a functional evaluation of the government’s use of the location and the values underlying freedom of expression. [ 92 ] The test for applying s 2(

b) to public property was described in Montreal , at para 74: The basic question with respect to expression on government-owned property is whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s 2(

b) is intended to serve, namely (1) democratic discourse, (2) truth-finding and (3) self-fulfillment. To answer this question, the following factors should be considered: (

a) The historical or actual function of the place; and (

b) Whether other aspects of the place suggest that expression within it would undermine the values underlying free expression. [ 93 ] The analysis must not be limited to the primary function of the method of expression or the location of the activity: CBC at para 37 . Expression may be an incidental feature: Baier at para 32 .

In Greater Vancouver , the majority accepted that past or present practice can help identify any “incidental function” that has become associated with government property, such as affixing flyers to utility poles, political recruitment in an airport, or using a loudspeaker on a public street: paras 41-42. [ 94 ] When analyzing whether the public function of the location is compatible with open personal expression, the Court examines whether an unfettered right to intrude and present one’s message would hamper the governmental activity.

The “ultimate question, however, will always be whether free expression in the place at issue would undermine the values the guarantee is designed to promote”: Montreal at paras 76-77. [ 95 ] The Applicants contend the City has converted the bridge into a place for personal expression by inviting people to request a combination of colours on a specific day for a specific event.

They submit the Light the Bridge project is similar to advertising on public buses or personal messaging on vanity license plates, which have been recognized as platforms for expressive activity in certain circumstances: see respectively, Greater Vancouver and Troller v Manitoba Public Insurance Corporation , 2019 MBQB 157 . Accordingly, only non-interference is sought. [ 96 ] The City counters that the bridge was not historically a place of expression.

Sometime around 2014, the City expanded the function of the bridge by creating a lighting platform to advance its own goals of fostering community spirit and collective pride, furthering civic unity and promoting Edmonton to outside audiences. The events, causes and people selected through the application process serve the City’s objectives of community development and promotion rather than facilitating personal expression.

The selection of a particular event, cause or person conveys government recognition or support. [ 97 ] In considering the historical or actual function of the place, I agree that the Light the Bridge project is not designed to inform the public about an undiscerning array of issues.

Turning the lighting platform into a personal advertising space, including to express one side’s views on controversial social and political issues, is incompatible with the purpose of communicating the City’s recognition or support. [ 98 ] Public discourse about controversial and morally complex topics, while having innate value in a democracy, frequently divides the population. That division is discordant with the targeted function of the bridge lighting project. [ 99 ] I have also reflected on two contextual aspects of the location that suggest personal expression in that place would undermine

the values underlying free expression. [100] First, as the City submits, open expression invites a substantial risk of confusing the public about the municipal government’sposition on topics celebrated through the platform. Truth-finding and democratic discourse are thereby undermined. [101] In Vietnamese Association of Toronto v Toronto (City) (2007), (ON SCDC), 85 OR (3d) 656, 282 DLR (4th) 134 (SCDivCt), the Ontario Divisional Court considered whether a community flagpole in the city hall square was a public placeengaging free expression and attracting the protection of s 2(

b) of the Charter. The Vietnamese Association sought to fly the heritageflag of South Vietnam. The municipal government was concerned that flying the flag, for which approval was required from the city,would be interpreted as the municipality’s message, endorsing a nation that no longer exists and offending the government of Vietnam. [102] The Court, at para 19, held that the flagpole was not a “location” to which the public historically had access and was excludedfrom the scope of s 2(

b) protection: The flagpole is not like an airport or a public street to which the public has unimpeded access ... The flagpole is of a different nature, andits use is regulated, because the flags flown can and without question are perceived, rightly or wrongly, as the expression of the City’sperspective and approval. [103] The bridge lighting platform invites the same confusion.

The location and the celebratory nature of the medium implygovernment endorsement, which substantially misleads the public and compromises the search for truth and democratic dialogue. [104] I recognize that freedom of expression can protect false statements, even deliberate lies: Zundel at paras 27-36.

However, whenassessing expressive content in a public space, the use of government property for misleading or false expression can invite limits.Accurate communication of a government’s positions on civic and social issues is important to discourse and representative democracy. [105] Attempting to communicate a clarification does not necessarily correct the misrepresentation because another medium must beused and the clarification might not reach the same audience.

For example, those who walk or drive by the bridge lights might not accessa clarification posted on the City’s website. [106] In Montreal, at para 80, the majority of the Supreme Court cautioned that the public location exception must be “flexibleenough to accommodate future developments” including those created by new technologies.

Electronic forms of visual communicationand social media increasingly rely on abbreviated and symbolic text to convey meaning. [107] Here, the nature of the medium (i.e. a symbolic form of expression associated with the municipal government) results in asubstantial risk of confusing the public about the municipal government’s position and therefore undermines the values of democraticdiscourse and truth-finding. [108] A related concern is that a government may prefer to remain silent on a controversial topic, especially one that is outside of itscore mandate and divides the population.

If a municipality is forced to communicate controversial beliefs, and to be falsely associatedwith or depicted as advocating for those beliefs, the government’s ability to unite, represent and serve the whole community may becompromised.

The municipal government may be drawn into a public debate that is outside of its legislative jurisdiction. [109] In Grande Prairie, which involved restrictions on pro-life advertising imposed by a municipality, Justice Slatter of the AlbertaCourt of Appeal confirmed the importance of a municipal government being allowed to refrain from public comment, at para 87: Many public authorities would prefer to distance themselves from controversial topics that are not a part of their core mandate.

Theresidents of a municipality are unlikely to be of one mind on a controversial topic like abortion, and some segment of the populationwould undoubtedly object if the municipality appeared to take sides on the issue. The right to free expression includes the right to “saynothing”: RJR-MacDonald at paras. 113, 124.

If a municipality is forced to display a controversial advertisement on public property,that, to some extent, impedes the municipality’s right to “say nothing on a topic”.... [110] Embroiling a civic government in an issue outside of its mandate can distract from other responsibilities, sow confusion andundermine public confidence.

Democratic discourse can be undermined by the confusion. [111] Second, another contextual aspect of the location is the extent to which the expressive activity can be carried out on nearbypublic property, rather than compromising the function of the location: Grabher v Nova Scotia (Registrar of Motor Vehicles), 2020NSSC 46 at paras 72-73, affirmed 2021 NSCA 63 at paras 61-62, referring to R v Breeden, 2009 BCCA 463 [Breeden]. [112] In Breeden, the British Columbia Court of Appeal considered whether s 2(

b) applied to protest signs posted at a courthouse, afire station, and a municipal hall. In concluding that these public locations were excluded from the scope of s 2(

b) protection, themajority stated at para 28: The availability of an adjacent location where a party can engage in expression does not necessarily mean that nearby government ownedlocations without historical use for expression could not also fall under s. 2(b)’s protection. However, this does provide context for theanalysis, and tends to indicate that extending protection into a new area of a public building will not be necessary in order for thepurposes of s. 2(

b) to be fulfilled at such a location. Expressive activity can thus continue in a mode that does not impede the properfunctioning of the facility. [113] The Applicants were permitted to engage in expressive activity on nearby municipal property during the 2019 March, includingsymbolic expression involving their colours. Given that context, extending s 2(

b) protection to the lighting installation on the High LevelBridge is less compelling. [114] Having considered the function of the lighting platform and the contextual aspects of the location, I conclude that the Light theBridge installation is not a public location attracting the protection of s 2(b).

[115] Accordingly, the Charter challenge would also fail on this basis, even if the claim could be constructed as a negative claim ofnon-interference. B. Reasonable and justifiable limit under

section 1 [116] In light of my conclusion that s 2(

b) is not engaged, a s 1 analysis is unnecessary. However, so that the Applicants’ position isthoroughly canvassed, I have considered s 1 on the premise that the bridge lighting includes a secondary expressive purpose:communication by the person or group applying to light the bridge. [117] Under this assumption, the expressive activity of the Applicants is intermingled with the City’s messages and falls within thescope of protected expression. The effect of the Policy would therefore limit the Applicants’ expression resulting in a prima facieinfringement of s 2(b). [118]

Section 1 balances the rights of individuals and the interests of society by permitting limits to be placed on fundamentalfreedoms: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limitsprescribed by law as can be demonstrably justified in a free and democratic society. [119] Any limits must be “prescribed by law.” If that threshold is met, then the City must demonstrate that two criteria are satisfied:

a) The objective of the measure must be pressing and substantial. This requirement is analyzed without assessing the scope of theinfringement, the means employed or the effects of the government measure.

b) The means by which the objective is furthered must be proportionate. The proportionality inquiry consists of three components: (i)rational connection to the objective, (ii) minimal impairment of the right, and (iii) proportionality between the effects of the measure(including a balancing of its salutary and deleterious effects) and the stated government objective. The inquiry is both normative andcontextual. See: Frank v Canada (Attorney General), 2019 SCC 1 at para 38 [Frank]; R v Oakes, (SCC), [1986] 1 SCR 103 at138-39. [120] The onus is on the City to uphold the limit on a balance of probabilities.

The City must demonstrate through evidence,inferential reasoning and common sense that the Policy’s restriction on expression is proportional to a compelling publicpurpose: Dagenais v Canadian Broadcasting Corp, (SCC), [1994] 3 SCR 835; Thomson Newspapers Co v Canada(Attorney General), (SCC), [1998] 1 SCR 877; Frank at para 64. [121] The Applicants contend that the City cannot meet its onus at each stage of the analysis.

a) Prescribed by law [122] The Applicants submit that the Policy is a “law”, suffers from vagueness, and fails to provide sufficient operational guidance. Inparticular, the Policy allegedly does not elaborate on what constitutes a “risk of polarizing the community.” [123] The City takes no issue with the Policy being characterized as a law.

The Policy establishes a norm or standard of generalapplication that has been adopted pursuant to the City’s rule-making authority under the Municipal Government Act, RSA 2000, c M-26and the City Administration Bylaw, City of Edmonton Bylaw 16620, and is not merely administrative in nature: Greater Vancouver atparas 63-64. [124] For a limit to be prescribed by law, the language in the Policy must be formulated with sufficient precision to enable people toregulate their conduct and to provide guidance to those who apply its terms: Greater Vancouver at para 50. The language must becapable of

interpretation with a “degree of precision using the ordinary tools”: Osborne v Canada (Treasury Board), (SCC), [1991] 2 SCR 69 at para 51. Absolute precision is not required. The question is whether an intelligible standard is provided fromwhich the judiciary may do its work: Irwin Toy at 983. [125] The Merriam Webster Online Dictionary defines “polarizing” as “causing strong disagreement between opposing factions orgroupings”: www.merriam-webster.com/dictionary/polarizing. The word informs both the magnitude and the nature of the controversy. [126] The Policy itself provides context.

Polarizing subject matter runs contrary to building community spirit and unity.

The concernis not just controversy, but also dividing and aggravating segments of the population to the point of adversely influencing communitypride and collaboration. [127] The Policy excludes subject matter that is “mainly ... political ... in nature”, which also assists in understanding the kinds ofevents or causes that can be polarizing. [128] The Applicants assert that the Policy does not contain adequate parameters for the degree of acceptable “risk” of polarization.However, the task of interpreting how the standard applies in particular instances always has a discretionary element and can neverspecify all the instances in which it applies: Irwin Toy at 983.

The courts therefore take a “liberal approach to the precisionrequirement”: Greater Vancouver at para 54. [129] In Greater Vancouver, a prohibition on advertising that was “likely, in light of prevailing community standards, to causeoffence to any person or group of persons or create controversy” was found to be sufficiently precise to be prescribed by law. TheApplicants submit that a crucial feature in that standard was a reference to a “likely” controversy. However, the Supreme Court of

Canada did not impose, as a necessary component of the standard, an objective measurement of the impermissible risk. [ 130 ] The meaning of “polarizing” subject matter is sufficiently explained by the context conveyed through the Policy and the objectives of the bridge lighting project. The measure of impermissible risk is properly an exercise of discretion, which is adequately informed by the same context and objectives. I conclude that the Policy is capable of

interpretation with a sufficient degree of precision such that the limits are prescribed by law.

b) Pressing and substantial objective [ 131 ] The Applicants contend the Policy has no discernible pressing and substantial objective. [ 132 ] I find that the primary objectives of the Policy are to enhance community development and promotion by raising local community spirit, building a unified community, and favourably presenting Edmonton to outside audiences.

Further, as raised by the City in oral argument, the Policy also seeks to protect the public from misinformation about the municipal government’s position on political issues. [ 133 ] On a municipal level, building a common identity and enhancing social unity through community pride are legitimate needs. Messages of unity can strengthen communities by improving public engagement and collaboration, which advance collective goals dependent on social investment. Increased community participation builds civic culture and social capital.

Heightened engagement can also boost public accountability by local government. [ 134 ] The bridge is intended to be an iconic symbol for the City and the community as a whole. As the “voice of Edmonton”, the bridge lighting communicates popular messages about events, causes and people. While dissent remains an important feature of a vibrant and democratic community, popular views and messages reinforce the community’s identity and promote a sense of unified purpose. [ 135 ] Projecting a positive image serves economic and social interests by inviting outsiders to view Edmonton as a stable and welcoming community.

That image can invite social and political interaction, promote commercial investment, encourage outsiders to relocate to Edmonton, and enhance the community’s sense of self-worth. [ 136 ] Ensuring that a municipal government’s position on an issue of public importance is accurately communicated to the people it serves advances democratic discourse and facilitates representative democracy. [ 137 ] All of these objectives are pressing and substantial for a thriving municipality.

c) Rational connection between the objectives and the Policy [ 138 ] Eliminating public messages that antagonize and polarize the population serves the goal of community development. Division and public discord can tarnish a municipality’s image for outside audiences. False representations about the government’s political positions can seed distrust in local officials and require public messaging to correct the misrepresentations.

The City’s ability to communicate its intended messages can be compromised if the platform is confusing. [ 139 ] Where communications by the City and a bridge lighting applicant are intermingled, as in this case, misperceptions can arise about both the message and the messenger. Associating the municipal government with one side in a controversial debate, and suggesting that one side is therefore more popular or legitimate than the other, aggravates the community division.

The prohibition in the Policy protects the City from being falsely portrayed as supportive of a particular cause, event or person and from the resulting detrimental implications of taking a side, including alienating itself from members of its own constituency. [ 140 ] Accordingly, I am satisfied that the Policy and the objectives are rationally connected.

d) Minimal impairment [ 141 ] Where the need “to curtail or regulate Charter -protected activity has been established, the state remains under an obligation to minimize the extent of the infringement. ... the Supreme Court has interpreted this requirement pragmatically, eschewing an ‘absolute minimum’ approach in favour of a more nuanced analysis that recognizes the exigencies of social policy-making”: Top v Municipal District of Foothills No. 31 , 2020 ABQB 521 at para 72 . [ 142 ] In Sharpe at paras 96-97 , Chief Justice McLachlin described the analysis: This Court has held that to establish justification it is not necessary to show that Parliament has adopted the least restrictive means of achieving its end.

It suffices if the means adopted fall within a range of reasonable solutions to the problem confronted. The law must be reasonably tailored to its objectives; it must impair the right no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account: .... This approach to minimal impairment is confirmed by the existence of the third branch of the proportionality test, requiring that the impairment of the right be proportionate to the benefit in terms of achieving Parliament’s goal.

If the only question were whether the impugned law limits the right as little as possible, there would be little need for the third stage of weighing the costs resulting from the infringement of the right against the benefits gained in terms of achieving Parliament’s goal. It was argued after Oakes, supra , that anything short of absolutely minimal impairment was fatal. This Court has rejected that notion.

The language of the third branch of the Oakes test is consistent with a more nuanced approach to the minimal impairment inquiry -- one that takes into account the difficulty of drafting laws that accomplish Parliament’s goals, achieve certainty and only minimally intrude on rights. At its heart, s. 1 is a matter of balancing: ... [authorities omitted] [ 143 ] The Applicants contend the Policy is excessive by barring all controversial expression. However, they overstate the breadth of

the prohibition. Only controversies offending enough people and to a sufficient degree such that polarization is at risk will engage the prohibition. [ 144 ] Discretion is available so that minor controversies do not automatically offend the prohibition. Controversies that do not significantly rouse discord or intensify factions within the community may be acceptable. [ 145 ] The bridge lighting is a limited medium of communication that does not lend itself to clarifications and disclaimers about the events, causes and people the City does not endorse or support.

Preclusion of expressive activity that confuses the City’s message is reasonably necessary, given the practical difficulties of correcting the misrepresentations to the public. [ 146 ] The Policy contemplates an assessment of risk, which invites consideration of the impact of any specific prohibition on community spirit, unity and image. Any decision is therefore contextual and fact specific. I conclude that the Policy is minimally impairing.

e) Proportionality - Benefits outweigh the detrimental effects [ 147 ] The final stage of the s 1 analysis balances the salutary and deleterious effects of the Policy. The Court examines whether the overall effects of the Policy are proportional to its objectives. [ 148 ] Using the bridge lighting platform for polarizing expression would undermine the primary purpose of the project. Rather than celebrating community spirit, the lights would emphasize unresolved political, social and moral questions.

Instead of consolidating the community, divisions would be highlighted. [ 149 ] The infringement on the Applicants’ expression is mitigated by other expressive activities available to them on municipal property, including symbolic expression. Flags, ribbons, and the demonstration associated with the March for Life provide examples of robust opportunities for self-expression and public awareness. [ 150 ] A significant concern is that the medium confuses the message. The government responsible for that property is reasonably perceived as supporting the beliefs represented by the symbolic lights.

The evidentiary record illustrates how members of the public incorrectly associated approval of the bridge lighting in 2017 with government endorsement of the pro-life movement and restrictions on reproductive rights. [ 151 ] The Applicants argue that any public misunderstanding about the meaning of the bridge lighting is irrelevant. I disagree. While even false ideas and opinions enjoy prima facie protection under s 2(b), reasonable limits may be imposed to regulate demonstrably untrue messages.

Restrictions on false or misleading advertising, for example, may be justified in protecting consumers: Canada (Attorney General) v JTI-Macdonald Corp , [2007] 2 SCR 610 , 2007 SCC 30 . [ 152 ] Falsely associating the municipal government with a political position, cause, event or organization that it does not support interferes with democratic discourse and public accountability. The confusion can compromise the government’s ability to represent, serve and ultimately unite the entire community.

The perception that it has chosen a side in a controversy can exacerbate the conflict and alienate members of the public from their own elected representatives and administration officials. [ 153 ] Associating a municipality with a cause it does not support and thereby compelling it to publicly comment on a particular subject also interferes with its “right to say nothing”: Grande Prairie . [ 154 ] While the marketplace of ideas must always make room for some misleading or erroneous information, the public can reasonably expect that a civic government’s own communication platform will accurately convey information about the government’s positions. [ 155 ] The Applicants contend that the lighting installation is like an advertisement on the side of a city bus, a poster affixed to a utility pole, a leaflet distributed in a local airport, or a personalized message on a vanity license plate.

However, each of those examples involves a private space or activity within a public location where the private expression is discrete from the governmental functions. The secondary purpose of the private space – free expression by a person other than the government – is clear to the observer. [ 156 ] The lighting system does not permit the personal expression to be separated from the government expression.

The co-mingling of messengers confuses the message being conveyed and therefore compromises truth-seeking and democratic discourse. [ 157 ] The municipal government would likely need to correct that confusion so that its positions are accurately represented to the citizenry.

Since the bridge lighting medium itself cannot communicate that clarification, substantial resources would probably be consumed in trying to reach the same audience. [ 158 ] I conclude that the limit on freedom of expression is proportional to the benefits the Policy secures for the City and its community. [ 159 ] The limit is justified in a free and democratic society. 2. Judicial review of the Decision [ 160 ] The Applicants raise both procedural and substantive concerns about the Decision. A.

Standard of review [ 161 ] The parties agree that the standard of review for the merits of the Decision is deferential, engaging reasonableness: Canada

(Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. [162] Procedural fairness, including any allegation about a reasonable apprehension of bias, is assessed without deference to thedecision maker: Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 [Baker]. Thestandard has been characterized as correctness, although the inquiry is whether the correct procedures were followed based on therequired level of procedural fairness: Mission Institution v Khela, 2014 SCC 24 at para 79; Makivik Corporation v Canada (AttorneyGeneral), 2021 FCA 184at para 78. B.

Reasonable apprehension of bias [163] The Applicants allege a reasonable apprehension of bias, contending that the City was ideologically and politically biasedagainst pro-life expression and therefore predisposed to deny or cancel the approval for the bridge lighting. [164] The test for a reasonable apprehension of bias was articulated in the dissenting judgment of Grandpre J in Committee for Justiceand Liberty v National Energy Board, (SCC), [1978] 1 SCR 369, at 394 [Committee for Justice]: ... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the questionand obtaining thereon the required information. ... that test is “what would an informed person, viewing the matter realistically andpractically - and having thought the matter through - conclude.

Would he think that it is more likely than not that [the decision maker],whether consciously or unconsciously, would not decide fairly. [165] A reasonable apprehension of bias therefore requires the Applicants to show a real likelihood of bias. The apprehension must besubstantial, adjusted to the facts of the case: Committee for Justice at 394-395. [166] The Applicants offer scant evidence of bias or a reasonable apprehension of bias. First, they submit that an adverse inferenceshould be drawn from the City’s prior decision in 2017 to cancel a similar approval to light the bridge for the AMLA’s march.

Themerits of the prior decision are not before me. However, that outcome demonstrates some consistency in the City’s view about thepolarizing nature of the march; consistency does not demonstrate bias. [167] Second, a change in position between an initial approval and a final decision after reconsideration does not imply a bias. TheCity undertook further review of the AMLA’s application, assessed the polarizing nature of the subject matter, and exercised consistencywith the 2017 request. That reveals further analysis of the application’s merits rather than a bias.

An initial administrative error does notrender the final decision biased. [168] Third, the Applicants assert in their Amended Notice of Application that the City “has lent its weight and favour to some lawfulcauses that it favours or supports, while denying another equally lawful cause the same opportunity.” In particular, they contend theCity’s repeated approval of bridge lighting for “LGBT-themed events” exposes a bias against pro-life expression.

No logical connectionis established between the approval of the former and the denial of the latter. [169] The Applicants previously applied to this Court for an expansion of the Record to include evidence about other requests to lightthe bridge, by other organizations and people, for other events and causes, and the City’s ensuing decisions.

They argued that the Cityfavours socially progressive issues while resisting socially conservative causes: see Alberta March for Life Association v Edmonton(City), 2020 ABQB 575 at para 36 [AMLA #1]. [170] The Applicants sought to construct an ill-defined ideological spectrum, assign unrelated issues to places on that spectrum, andthen compare the acceptance or denial of bridge lighting applications for those issues. From that exercise, the Court was asked to drawinferences about the City’s preferences and prejudices.

In AMLA #1, my colleague Bercov J concluded that evidence of differentialtreatment was only probative where the juxtaposed events involved the same issue (i.e. the abortion debate). Justice Bercov found theApplicants’ approach to be inherently unreliable and lacking in probative value. My colleague’s reasoning was sound and not appealedby the Applicants. [171] As for evidence about the City’s treatment of bridge lighting applications by pro-choice organizations, the record before meindicates that no such applications were ever received.

Consequently, this argument is without merit. [172] Fourth, the Applicants submit that a smattering of public complaints to the City after the cancellation decisions in each of 2017and 2019, asserting that the City demonstrated a double standard towards the March for Life and pro-life organizations, are evidence ofwhat reasonable and right-minded people think about the City being biased. [173] An allegation of reasonable apprehension of bias is assessed by the Court, on the record before it, on an objective basis.

Thetask is not assisted by the subjective views of unknown outsiders. [174] The complaints do not explain whether the authors were well-informed, or viewed the matter realistically and practically, orthoroughly considered the bias allegation. The complaints do not reveal whether the authors were disappointed supporters of orparticipants in the March for Life and perhaps lacked impartiality. Some of the complaints contain erroneous assumptions or merelyattribute unproven bias to the City. The authors did not have the benefit of the Record before me.

In sum, the complaints areunpersuasive evidence. [175] Viewing the matter objectively and having the advantage of reviewing the Record, I conclude that a reasonable apprehension ofbias has not been established. C. Fair opportunity to engage with the decision maker [176] The Applicants submit that the City should have notified them that a denial or cancelation of the initial approval was being

considered, identified the concerns, and provided a reasonable opportunity to respond to those concerns. [177] Procedural fairness is “eminently variable” and “its content is to be decided in the specific context of each case”: Baker at para21 referring to Knight v Indian Head School Division No 19, (SCC), [1990] 1 SCR 653 at 682. As a matter ofprocedural fairness, “reasons are not required for all administrative decisions”: Vavilov at para 77. [178] Baker, at paras 22-28, describes non-exhaustive factors influencing the content of procedural fairness for given circumstances:

a) the nature of the decision being made and the process followed in making it;

b) the nature of the statutory scheme and the terms of thestatute pursuant to which the decision maker operates;

c) the importance of the decision to the persons affected;

d) the legitimateexpectations of the person challenging the decision;

e) the decision maker’s choice of procedures for such decision. [179] The Applicants concede that the City was permitted to reconsider the initial decision to light the bridge. However, in their view,having initially granted an “approval”, the subsequent reconsideration was a cancellation decision demanding certain proceduralsafeguards, including notice and an opportunity to be heard.

They rely on CHP v Hamilton (City), 2018 ONSC 3690 [CHP] where amunicipality’s decision to remove political advertisements seen as discriminatory towards members of the transgendered community washeld to engage freedom of expression. The Court found that the City was required to undertake a robust process – including allowing theparties to be heard and balancing the competing interests – before determining whether to remove the advertisements. [180] I have considered the factors in Baker. First, the Decision was purely administrative, applying criteria under the Policy.

Whilediscretion was being exercised, no adjudicative function was being performed in resolving a dispute between competing parties. UnlikeCHP, the Decision did not engage freedom of expression protected by the Charter and the City was not suspending an activity that wasalready in operation. The Applicants’ legal interests were not affected since the message conveyed through the lighting installation wassolely that of the City.

The Applicant were seeking some limited civic recognition, much like an award, which was within the solediscretion of the City to grant. [181] Second, the Policy established no process requiring an opportunity to be heard or a balancing of competing interests. [182] Third, the importance of the Decision to the Applicants was low. The Applicants’ Charter rights were not implicated. Essentialindividual needs were not compromised, such as receipt of income, employment, housing or healthcare.

The proposed bridge lightingwas for a short duration – less than a day. [183] Fourth, no legitimate expectations about the process were compromised. The Policy gave no assurance that any particular typeof request would be granted. The Applicants knew from the 2017 request that an approval could be reconsidered and changed without anopportunity to be heard.

The initial decision in 2019 was not yet operative when the City reconsidered, so the Applicants were notprejudiced. [184] Fifth, the City’s choice of procedure was an internal administrative review, based on content gathered from the Applicantsthrough an application process and the City’s own information, rather than an independent hearing. In the event the Applicants weredissatisfied with the Decision, including the reasons, they could re-apply. The 2019 request, for example, was made notwithstanding therejection in 2017.

The Policy did not prohibit another application in the same year. [185] The Applicants contend that the City was obligated, after denying a request, to identify the reasons, invite a response, wait forthe response, and then reconsider the application. As a consequence, the City would be required to hold the date and not assign it toanother cause, event or person the City wanted to recognize until an indeterminate reconsideration period had expired.

That result wouldbe administratively inefficient, cause indefinite delay, and interfere with the City’s allocation of the limited dates available for bridgelighting. [186] The Applicants identified no other factors for consideration under the Baker analysis. [187] Having reflected on the factors, I conclude that the necessary measure of procedural fairness was on the lower end of thespectrum: the City was required to consider the request to light the bridge in good faith and to provide basic reasons for the decisionmade.

The City was not obligated to raise its concerns with the AMLA or to provide them with an opportunity to reply. [188] The Applicants have not demonstrated that the City failed to consider the request in good faith. The City provided basic reasonsfor the Decision. No denial of procedural fairness is shown. D.

Whether the Decision was reasonable [189] As explained in Vavilov at para 15, when conducting a reasonableness review, the Court must consider: ... the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole istransparent, intelligible and justified. ... the court conducting a reasonableness review must focus on the decision the administrativedecision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached inthe administrative decision maker’s place. [190] In short, the reviewing court considers whether the decision made, including both the rationale offered for it and the outcome,was reasonable: Vavilov at para 83.

The applicant bears the onus of showing the decision was unreasonable.

Before a decision can be setaside for unreasonableness, the reviewing court must be satisfied of sufficiently serious shortcomings such that the decision “cannot besaid to exhibit the requisite degree of justification, intelligibility and transparency”: Vavilov at para 100. [191] The Applicants contend that an administrative decision involving Charter protection, such as freedom of expression, alsorequires the Court to explore whether the infringement of the Charter right occasioned by the decision is proportionately balancedagainst the objectives sought to be achieved by the decision: Dore v Barreau du Quebec, 2012 SCC 12 at paras 55-57 [Dore]; LoyolaHigh School v Quebec (Attorney General), 2015 SCC 12 at paras 37-39 [Loyola].

[ 192 ] The Dore/ Loyola analysis is not engaged unless a Charter right is infringed: Law Society of British Columbia v Trinity Western University , 2018 SCC 32 at para 58 . Consequently, that analysis has no application here because Charter -protected freedom of expression is not involved. Lighting the bridge is outside the scope of s 2(

b) due to the positive right or, alternatively, the public location exclusion. [ 193 ] The Applicants also complain about the sufficiency of the reasons, including the absence of any explanation for how the bridge lighting would be polarizing. However, reasons are not measured on a standard of perfection.

The record, the institutional context, and the history of the proceeding in which they were rendered can be used to understand the reasons, including publicly available policies or guidelines: Vavilov at paras 91 and 94 . [ 194 ] In Grande Prairie at para 39 , the Alberta Court of Appeal confirmed the distinction between the “reason” for a decision and the “reasoning behind a decision.” The latter provides the justification for the former. [ 195 ] Some administrative bodies, such as adjudicative tribunals, are expected to deliver formal reasons that include both the outcome and the analytical process employed to arrive at that outcome.

However, that is not the expectation imposed for simple administrative decisions: Grande Prairie at paras 37-38 . Further, the reasons can be brief. Even a “handful of well-chosen words can suffice”: Vancouver International Airport Authority v Public Service Alliance of Canada , 2010 FCA 158 at para 17 (b); Canadian Centre for Bio-Ethical Reform v South Coast British Columbia Transportation Authority , 2018 BCCA 344 at para 55 . [ 196 ] In the Decision, the City briefly articulated its reasons for denying the request.

The bridge lighting was rejected because “lighting the bridge for this event cannot be approved due to the polarizing nature of the subject matter [emphasis added].” [ 197 ] The polarizing subject matter was easily understood to be the abortion rights debate. The event was the 2019 March, including the public demonstration and rally on the Alberta Legislature grounds. Polarization, as explained earlier, referred to the notoriously divisive nature of the social and moral debate, and the adverse impact on the community.

The reason for the Decision was transparent and intelligible. [ 198 ] Characterizing the abortion rights debate as polarizing was justifiable. The controversy surrounding abortion rights and the passionate disagreement within the community have received judicial notice in this province. In Grande Prairie at para 78 , Justice Slatter observed: Access to and the legal status of abortions raise contentious moral, social and legal issues. Some passionately and sincerely support the “Right to Life”, and others are the equally passionate and sincere supporters of the “Right to Choose”.

Whatever one’s views may be on the subject, access to abortion remains an open topic of public debate: R. v Watson and Spratt , 2008 BCCA 340 at paras. 26-7 , 83

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