A Christian advocacy organization is challenging a St. Catharines city bylaw barring flyers with “graphic images” from being delivered to city homes.
In a Feb. 20 application to the Ontario Superior Court, ARPA (Association for Reformed Political Action) asserted that city council stepped outside its authority by suppressing Charter-protected political speech.
In September, after only 10 minutes of public discussion, council adopted the bylaw. It was purportedly enacted in response to mailings containing photos of aborted fetuses from the Canadian Centre for Bio-Ethical Reform.
The bylaw defines a “graphic image” as “an image or photograph showing, or purporting to show, a fetus or any part of a fetus.” No mention is made of the images being victims of abortion or any other act of violence.
ARPA countered with an application for a legal review of the bylaw. ARPA asserts that St. Catharines acted ultra vires, beyond its powers, and that the bylaw is a violation of the Canadian Charter, sections 2 (a) and (b), freedom of religion, conscience, thought and expression.
ARPA is a Christian, pro-life organization that advocates for what it terms “pre-born human rights,” including a ban on sex-selective abortion and harsher sentences in the cases of violence committed against pregnant women.
In the run up to the July 2023 vote on Bill C-311, the Violence Against Pregnant Women Act, the organization ran a campaign entitled “There Were Two.” ARPA commonly uses ultrasound photos of unborn babies in its online and printed material.
In a release, Anna Nienhuis of ARPA Canada noted that the organization “has never used photos of abortion victims in its campaigns, yet this bylaw threatens ARPA and its volunteers with significant financial penalties, simply for sharing the pro-life message with an ultrasound photo.”
John Sikkema, lawyer and internal counsel for ARPA, told The Catholic Register that the case contains several strands of legal argumentation.
“Cities only have the legal authority to pass bylaws that’s given to them by the Municipal Act. So, one argument is that this kind of bylaw doesn’t fall under that statute,” said Sikkema.
“There is another argument that, obviously the province can only delegate authority that the province has. There are a string of cases, pre-Charter cases, but they remain valid law, that demonstrate provinces don’t have the jurisdiction to stifle political debate.
“Our advertisements are specifically about matters that have come before Parliament and may come before Parliament again. We have local citizens trying to engage on issues related to bills before the government and the town is saying, ‘no, no, you can’t do that.’ Our application argues that the city doesn’t have jurisdiction to say you can’t engage public debate as a citizen of Canada.”
In 2021, the city of Hamilton refused to accept an ARPA pro-life ad to run on city buses. The organization successfully challenged that ban and the ad was subsequently allowed to run.
“The fact that these cities are allowing these ads on buses, but that you can’t place the same thing in someone’s mailbox, is kind of absurd,” said Sikkema.
Having made its application, ARPA will shortly file evidence from its staff and “the local folks in Niagara who’d like to be involved in these campaigns, just to say how the law really affects them.”
Sikkema noted similar municipal bylaws are in place in London, Woodstock and Calgary. He says if the St. Catharines’ bylaw is found invalid the implication is that similar bylaws would be ruled null.
“I mean, it’s going to be impossible to enforce identical bylaws against our campaigns if a court says that St. Catharines’ bylaw is invalid.”
