1 Report to Rapport au: Transit Commission Commission du transport en commun 20 May 2015 / 20 mai 2015 Submitted on May 7, 2015 Soumis le 7 mai 2015 Submitted by Soumis par: Kent Kirkpatrick, City Manager / Directeur municipal Contact Person Personne ressource: John Manconi, General Manager / Directeur général, Transit Services / Services du transport en commun 613-842-3636 ext./poste 2111, [email protected] Ward: CITY WIDE / À L'ÉCHELLE DE LA File Number: ACS2015-CMR-OCM-0011 VILLE SUBJECT: REVIEW OF OC TRANSPO ADVERTISING STANDARDS OBJET: EXAMEN DES NORMES DE PUBLICITÉ D’OC TRANSPO REPORT RECOMMENDATION That the Transit Commission receive this report for information. RECOMMANDATION DU RAPPORT Que la Commission du transport en commun prenne connaissance de ce rapport. BACKGROUND At its meeting of October 16, 2013, the Transit Commission passed the following motion directing staff to review the OC Transpo Advertising Standards: 2 Be It Resolved That the General Manager of Transit Services together with the City Clerk and Solicitor review the Advertising Standards for OC Transpo to ensure they comply with recent case law, and to recommend any required amendments, particularly regarding the internal review process, the dispute resolution procedure, and other administrative processes contained in the Standards. Staff of Transit Services and Legal Services have reviewed relevant court decisions, the Canadian Code of Advertising Standards, and the practices of other transit agencies. Based on the review, and as outlined in this report, no amendments to the Advertising Standards are required or recommended at this time. The OC Transpo Advertising Standards form part of the contracting processes used when people or organizations wish to purchase advertising space on OC Transpo buses, shelters, and benches or at stations. All processes for advertising on OC Transpo are administered by three contractors: Pattison Outdoor Advertising for buses and stations, Clear Channel Outdoor Advertising for shelters and Creative Outdoor Advertising for benches. The OC Transpo Advertising Standards (attached as Document 1) were last amended by Council in 2009 in order to bring them up to date with the Canadian Code of Advertising Standards and a 2009 Supreme Court of Canada decision addressing advertising on public transit systems. The following changes were made at that time: 1. To specifically provide that the City is guided by the general principles of the Canadian Code of Advertising Standards in determining the acceptance of advertising; 2. In keeping with the Canadian Code of Advertising Standards, a more detailed prohibition on advertising containing personal discrimination was added in section 3; 3. The prohibition in section 4 against ads advocating a political point of view was repealed, in keeping with an earlier decision by City Council on April 13, 2005. Likewise, the prohibition against religious advertising was also removed from section 5. Instead, these two sections were combined and simplified to allow advertising of any kind, including that of a political or religious nature, provided that it conforms to accepted advertising standards, including the Canadian Code of Advertising Standards. The requirement that political advertising indicate that the ad is paid for by a party or candidate was kept, however, so as to avoid the impression that the City is supporting a given party or candidate; 3 4. A new section 7 was added, taken from the Canadian Code of Advertising Standards. It contains "safeguards" which protect against unacceptable depictions or portrayals in advertisements; 5. Section 9 was clarified to reflect that the City's contractors shall deal with potential advertisers directly and that advertising matters will be referred to staff only if there is a disagreement that cannot be resolved between advertisers and the contractors; and, 6. In addition, the implementation of the key considerations in the decision-making, noted below, assist in ensuring that considerations arising from the Canadian Charter of Rights and Freedoms are included in the approval process for potential religious advertising as well as any other advertising. Key Factors for Consideration in Approval of Ads Based on the Canadian Code of Advertising Standards as well as relevant case law related to the Canadian Charter of Rights and Freedoms, the following Key Factors were implemented in 2009, to be taken into consideration in the approval process for advertising undertaken by the City's contractors and by City staff to assist in evaluating ads that might be perceived as being offensive or otherwise unacceptable: Is the proposed advertisement consistent with Council's goals of providing a safe and welcoming transit system, and of increasing use of transit for travel in Ottawa? Is the proposed advertising offensive in the sense that it is intended to be insulting or disgusting or meant to give offence or cause insult to what the prevailing sense of what is decent or moral? Is the ad likely to be offensive to a contemporary Canadian community, rather than to a few individuals? Would a refusal of the ads be reasonable based on all relevant factors, including past advertisements, feedback from the public, and the nature of the transit-using population including its religious and cultural make-up? DISCUSSION Relevant Case Law A review of recent court decisions shows that the 2009 Supreme Court of Canada decision in the matter Greater Vancouver Transportation Authority v. Canadian Federation of Students et al, remains the leading case in the area of justifiable limits on freedom of expression in relation to advertising on government property. That case was 4 considered, reviewed, and significantly informed the 2009 amendments to the OC Transpo Advertising Standards. (The Greater Vancouver Transportation Authority was the former legal name of TransLink, the transit agency for Metro Vancouver. TransLink is now legally the South Coast British Columbia Transportation Authority.) The Supreme Court of Canada, in this case and in previous cases, has confirmed that commercial expression such as advertising benefits from the protection of freedom of expression found in Subsection 2(b) of the Canadian Charter of Rights and Freedoms (the Charter), which addresses the freedoms of thought, belief, opinion and expression. As noted in the staff report in 2009, the City’s actions are subject to scrutiny by the courts with respect to any infringements that these actions cause to Charter rights and freedoms. Pursuant to Section 1 of the Charter, a government’s actions which are found to limit or restrict a freedom guaranteed by the Charter are only acceptable (or “saved”) if such limits are reasonable, prescribed by law, and demonstrably justified in a free and democratic society. Further tests have been developed by the Supreme Court to see if a government’s infringement of a fundamental freedom is justified: the governmental action must have a sufficiently important objective so as to justify the infringement, and, the infringement must be proportional to this objective. In order to be proportional, the infringement must be rationally connected to the objective, must have as minimal impact as possible on the right or freedom, and the consequences of the infringement must not outweigh its benefits. It should be noted that expressive activities which promote violence or discrimination, are obscene, or which are abusive or involve damage to the public property, for example, are not covered by the Charter and thus would not benefit from its protection. The 2009 Greater Vancouver Transportation Authority case found that transit authorities’ complete ban on political advertising was an unjustifiable infringement on the freedom of expression as the complete ban was not rationally connected to the purpose of providing a safe public transit system, nor was it proportional or minimally impairing. In that case, the Supreme Court made it clear that expressions such as advertisements could be justifiably restricted by a public transit authority in narrow circumstances, such as where the ads are offensive or discriminatory, or where they advocate violence, such that the objective of providing a safe public transit service is undermined. The Court also specifically noted that the Canadian Code of Advertising Standards could be used as a guide to assist in establishing reasonable limits on advertisements. Since 2009, a number of court decisions have considered the Supreme Court of Canada’s decision in the Greater Vancouver Transportation Authority. A number of 5 cases addressing the occupation of public property for reasons of protesting have applied the principles of the 2009 case. No significant cases involving advertising on public transit authority proprieties have arisen, and the 2009 Supreme Court case remains the leading case in this area. Review of Other Public Transit Authorities OC Transpo’s advertising program and existing advertising policy are a reflection of its suitability and consistency with comparable agencies. In completing this review, OC Transpo staff canvassed the advertising policy or approach by the following transit authorities: BC Transit, TransLink, Edmonton, Calgary, Toronto (TTC) and Boston (MBTA). This review found similarities across all transit authorities in terms of what is deemed appropriate advertising content: Advertising must comply with all applicable laws and standards, including the Canadian Charter of Rights and Freedoms and the Canadian