The proposed amendment would make it illegal to display any fetal image on public property.
LONDON: The Democracy Fund (TDF) has written a letter to the City of London urging it to reject a proposed amendment to its Streets By-Law that would make it illegal to display any image of a fetus on public property.
The origin of the proposed amendment dates back to July 2022 when a delegate from Abortion Rights Coalition of Canada (ARCC) appeared at a meeting of the Community and Protective Services Committee (CPSC), asking them to direct city staff to investigate ways to legislatively prohibit and regulate the display of graphic images in the public realm. The delegate claimed that "anti-choicers" were distracting motorists and that their signs, which often include fetal images, interfered with the privacy, equality and bodily autonomy of others.
While the matter was deferred for several months, it was raised by Councillor Sam Trosow at CPSC and Council meetings last December. As a result, Council directed city staff to draft an amendment to the Street By-Law and to report back to CPSC in the first quarter of 2024. The purpose of the proposed amendment was to prevent persons from being subjected to the display of "distressing, unwanted and disturbing images," which were defined as any "image or photograph showing, or purporting to show, a fetus or any part of a fetus."
TDF subsequently wrote to the CPSC, expressing concern that the city was being asked to take sides in the political and moral debate about abortion and to misuse its legislative power to silence one side of that debate.
According to Alan Honner, TDF's litigation director, the proposed amendment is really about suppressing pro-life speech. That is obvious from the fact that ARCC, who initiated the amendment, are the ideological opponents of pro-life advocacy groups. Moreover, and more importantly, if the proposed legislation were about preventing harm or distraction, then the bylaw would not be narrowly restricted to the display of fetal images commonly used by pro-life advocates but would include other images that can be distracting or offensive.
In a welcome move, city staff, including the Deputy City Manager, Legal Services, reported back (pages 34-40) to the CPSC earlier this week recommending against the proposed changes. Their report notes that the Streets By-Law is "content neutral." While the bylaw regulates the location, size, number, and construction of signs, it has not been used to regulate the content of protest signs.
TDF agrees that the amendment should be rejected. The Canadian Charter of Rights and Freedoms protects communications that convey or attempt to convey meaning. While freedom of expression is not an absolute right in Canada, it cannot be limited unless there is a pressing and substantial objective and the means used to achieve that objective are proportionate.
Despite recommending against the changes, city staff delivered a draft amendment, as required by Council. The amendment would deem the display of fetal images to be obstructions, nuisances and activities that interfere with public travel.
"It is a legal fiction to deem any image of a fetus whatsoever to be an obstruction despite its size, location, or graphic content," says Honner. "This latest version of the amendment underscores the fact that its true purpose is to restrict pro-life expression."
The CPSC was obviously not content with the city staff's recommendations as they asked city staff to repeat the exercise of drafting an amendment to and report to them before the end of June 2024.
TDF will continue to follow this matter as it works its way through the CPSC and City Council.
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About The Democracy Fund:
Founded in 2021, The Democracy Fund (TDF) is a Canadian charity dedicated to constitutional rights, advancing education and relieving poverty. TDF promotes constitutional rights through litigation and public education. TDF supports an access to justice initiative for Canadians whose civil liberties have been infringed by the government lockdowns and other public policy responses to the pandemic.