Report to/Rapport au :

 

Transit Committee

Comité du transport en commun

 

and Council / et au Conseil

 

2 October 2009 / le 2 octobre 2009

 

Submitted by/Soumis par : Kent Kirkpatrick, City Manager

 

Contact Person/Personne ressource : M. Rick O'Connor, City Clerk and Solicitor

City Clerk and Solicitor Department//Direction du greffe et du contentieux

(613) 580-2424 x21515, 

 

City Wide/à l'échelle de la Ville

Ref N°: ACS2009-CMR-LEG-0025

 

 

SUBJECT:

REVISED ADVERTISING STANDARDS for Bus & Shelter Advertising, TRANSIT SERVICES

 

 

OBJET :

NORMES MODIFIÉES DE PUBLICITÉ POUR LES AUTOBUS ET LES ABRIBUS, SERVICES DE TRANSPORT EN COMMUN

 

 

REPORT RECOMMENDATIONS

 

That Transit Committee recommend that Council approve:

 

1.         The revised Advertising Standards for OC Transpo's Contract Specifications contained in Document 1; and,

 

2.         The key factors for consideration by the external contractor and by City staff, as set out in this Report, as part of the approval process for proposed advertising on Transit property including buses as well as bus shelters and integrated street furniture.

 

 

RECOMMANDATIONS DU RAPPORT

 

Que le Comité du transport en commun recommande au Conseil d’approuver :

 

1.                  Les normes de publicité modifiées pour les modalités des contrats d’OC Transpo contenues dans le Document 1;

 

2.                  Les facteurs clés à examiner par l’agent contractuel et le personnel municipal, comme il est indiqué dans le présent rapport, dans le cadre du processus d’approbation des publicités proposées sur les biens d’OC Transpo, y compris les autobus, les abribus et le mobilier urbain intégré.

 

 

BACKGROUND

 

On March 11, 2009, Council approved Motion 62/11 which stated as follows:

 

"That staff bring back a revised policy on Advertising Standards for OC Transpo Contract" that ensures that the policy conforms to the Canadian Charter of Rights and Freedoms." 

 

The above-noted direction resulted from a Council decision of the same date to approve bus advertising of a religious nature from Freethought Association of Canada.  Staff from the Legal Services Branch have reviewed the Advertising Standards for OC Transpo's Contract Specifications (the "Advertising Standards") in light of the Canadian Code of Advertising Standards as well as relevant case law, including a recent Supreme Court of Canada case concerning political advertising on buses and freedom of expression guaranteed by Subsection 2(b) of the Canadian Charter of Rights and Freedoms (the Charter).

 

Based on this review and on the legal analysis set out in the City Solicitor's Memo to Members of Council dated March 10, 2009 (found at Document 2), the Legal Services Branch and Transit Services recommend that some amendments be made to the wording of the advertising standards.  However, more significantly, it is also recommended that several Key Factors be routinely considered by the City's contractors, Pattison Outdoor Advertising for on-bus and in-bus advertising and Clear Channel Outdoor Advertising for shelter advertising, and by Transit Staff (as the case may be), when proposed advertising is being considered for placement on Transit property and shelters.  These factors will assist in ensuring that the evaluation of the proposed advertising is done in a contextual manner and takes into account the relevant Charter considerations.

 

 

DISCUSSION

 

Transit Services' Advertising Standards:

 

The Transit Services’ Advertising Standards form part of the contracting processes used when third parties wish to purchase advertising space on OC Transpo property, as well as on shelters.  This process is administered by Pattison Outdoor Advertising (the "External Contractor") on behalf of the City for buses and by Clear Channel Outdoor Advertising for shelters.  Section 5 of the Advertising Standards presently states:

 

“Religious advertising which promotes a specific ideology, ethic, point of view, policy or action, which in the opinion of the City might be deemed prejudicial to other religious groups or offensive to users of the transit system is not permitted.”

 

Section 5 also provides that religious advertising which promotes a specific meeting, gathering or event is permitted.  Section 4 of the advertising standards pertains to political advertising, and was previously amended by City Council on April 13, 2005 following a decision to allow OPSEU ads on buses due to legal considerations.  At that time, Council decided to remove the prohibition on political ads and allow ads of a political nature that conform with generally accepted advertising standards.

 

The advertising standard further provides that although the City will be guided by the Canadian Code of Advertising Standards (Section 1), the City is the final decision-maker with respect to whether a proposed advertisement will be accepted (Sections 7, 8.3, 9). 

 

Legal Considerations - Charter:

 

Subsection 2(b) of the Charter guarantees a right to freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.  As previously noted in the March 10, 2009 memo, the protection offered by Subsection 2(b) of the Charter extends to all types of expressive activities, including political and religious expression.  The actions of governments, including municipalities, are subject to the Charter.  Therefore, any governmental action that restricts expression will be an obvious infringement on freedom of expression.

 

Two-Part Test:

 

Once a governmental action has resulted in an infringement, the next step is to determine whether the infringement is justified pursuant to Section 1 of the Charter, which provides that the rights and freedoms are guaranteed subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

The Supreme Court of Canada has established that an infringement on the freedom of expression is justified under Section 1 of Charter if it is:

1.                  for an important, pressing and substantial purpose or goal, and

2.                  proportional and rationally connected to that purpose or goal, only minimally impairs freedom of expression, and the consequences of the infringement do not outweigh the benefits of the freedom itself. 

 

Several Court decisions have further recognized that the freedom of expression guaranteed by Subsection 2(b) of the Charter also protects an individual’s right of expression in certain public places.  While some public or governmental property such as government offices will require privacy or limited access due to their function, courts have found that certain public properties are places where one would expect constitutional protection of free expression on the basis that expression in that place does not conflict with the purposes of Subsection 2(b) of the Charter, including enabling democratic discourse.  For example, these decisions have recognized that airports, utility poles and municipal streets are the types of public places where individuals have the right to express themselves freely, within legal limits.  Any restriction on this freedom must therefore be justified in accordance with the two-step test noted above.

 


Recent Supreme Court of Canada Decision - Transit Authorities:

 

On July 10, 2009, the Supreme Court of Canada issued its decision in Greater Vancouver Transportation Authority v. Canadian Federation of Students, a case which examined the advertising policies of two transit authorities, TransLink and BC Transit, and their refusal to allow political advertising on the sides of their buses.  This case was initially noted in the March 10th Memo, when the matter had not yet been considered by the Supreme Court.  In its ruling, the Supreme Court confirmed that the sides of buses are public locations that are similar to those noted above - that is, places in which constitutional protection for free expression is expected.  Furthermore, the Supreme Court confirmed that the advertising policies of the transit authorities were such that they were "prescribed by law" for the purposes of Section 1 of the Charter, and therefore, were subject to Charter-related analysis under that Section. 

 

In this case, the transit authorities refused to rent ad space to the Canadian Federation of Students and the British Columbia Teachers' Federation on the basis that the proposed ads contravened the existing advertising policies.  These policies included both a prohibition on political advertising as well as a prohibition on any ads that could be deemed to cause offence or to create controversy - these policies, therefore, infringed on the freedom of expression of the respondent groups.  In Ottawa, the advertising standards do not create a blanket prohibition on political advertising but do prohibit any religious advertising that in the opinion of the City might be deemed to be offensive to users of the transit system.

 

In the Greater Vancouver Transportation Authority case, the Supreme Court concluded that the transit authorities' policies were not reasonable limits on freedom of expression and were not justifiable under Section 1 of Charter.  The Court found that while the stated goals of the transit authorities of providing a "safe, welcoming transit system" were sufficiently important to warrant placing a limit on freedom of expression, the prohibitions in their advertising policies were not rationally connected to those goals.  The Court did not accept the argument that the placement of political ads on the buses could create a safety risk or unwelcoming environment for transit system users. 

 

The Court further found that the prohibitions in the transit authorities' policies were not reasonable, and were not proportionate to the parties' interest in having their political messages disseminated.  In this regard, the Court commented on the fact that the exclusion of controversial messages was "overly broad" and that transit riders are expected to "put up with some controversy in a free and democratic society".  Since the policies excluded political advertising outright, regardless of whether they contributed to an unsafe or unwelcoming environment for transit users, the restrictions in the policies were not a minimal impairment on freedom of expression. 

 

Contextual Analysis Required:

 

Of particular interest in the review of Ottawa's advertising standards is the Supreme Court's confirmation that limits on advertising are contextual - the determination of whether a limit on freedom of expression can be justified will depend on the facts of the particular case.  The Court stated that just because the Vancouver transit authorities' policies were overly broad does not mean that government cannot limit speech in bus advertisements.  The Court stated that, in this regard, location matters, as does audience and the likelihood that children will be present.  The Court also stated that Canadian Code of Advertising Standards could be used as a guide to establish reasonable limits, including limits on discriminatory content or ads that incite or condone violence or other unlawful behaviour.

 

Revision of Advertising Standards:

 

It is suggested that some revisions are required to the advertising standards in order to bring them up to date and to more completely encompass the Charter considerations that have been raised in case law, and in particular in the Greater Vancouver Transportation Authority case.  More significantly, however, it is recommended that the Key Factors noted below be taken into consideration by the contractors and by City staff when evaluating proposed ads.  These Key Factors reflect some of the issues raised by Courts in respect to Charter cases involving freedom of expression.

 

Recommendation No. 1 - Changes to Wording of Advertising Standards:

 

The suggested revisions are set out in Document 1, and are briefly described as follows:

1.                  In keeping with the Canadian Code of Advertising Standards, a more detailed prohibition on advertising containing personal discrimination is added in section 3, including that based on religion.

2.                  The prohibition in section 4 against ads advocating a political point of view is repealed, in keeping with City Council's decision of April 13, 2005.  Likewise, the prohibition against religious advertising also be removed from Section 5.  Instead, it is proposed that these two sections be combined and simplified by the inclusion of a statement allowing advertising of any kind, including that of a political or religious nature, provided that the advertising in question generally conforms with 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 will be kept, however, so as to avoid the impression that the City is supporting a given party or candidate. 

3.                  A new section 7 is added and is taken from Canadian Code of Advertising Standards.  It contains "safeguards" which protect against unacceptable depictions or portrayals in advertisements.

4.                  Section 9 will be clarified to reflect that the City's contractors shall deal with potential advertisers directly and that advertising matters will be referred to staff in the City's Transit Services only if there is a disagreement that cannot be resolved between the contractors and the City.  All ad contracts will continue to be subject to approval by the City in the case of disputes, thereby ensuring that the City has final say on ad contracts in matters that are under dispute

5.                  In addition, the implementation of the key considerations in the decision-making, noted below, will assist in ensuring that Charter considerations are included in the approval process for potential religious advertising as well as any other advertising.

 

Recommendation No. 2 - Key Factors for Consideration in Approval of Ads:

 

Based on the Canadian Code of Advertising Standards as well as relevant Charter-related case law, it is recommended that the following Key Factors be taken into consideration in the approval process for advertising undertaken by the City's contractors and by City staff in order 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?

 

Applicability of Revised Advertising Standards:

 

It is recommended that the revised advertising standards be applicable not only to buses and transit property, but also to shelters (located in right-of-way) and to the new Integrated Street Furniture advertising program.

 

 

CONSULTATION

1.                  Transit Services has reviewed the recommended changes and has advised that it is in agreement with and supports the proposed amendments to the advertising standards.  Staff recognizes that there is a subjective component to the evaluation of advertisements and suggests that advertisers and their clients are accountable for presenting ads that do not conform with legislated standards or are considered in poor taste based on known markets in the Ottawa region.

2.                  Consultation with the City's Equity and Diversity Advisory Committee (EDAC) was undertaken at its meeting of September 21st.  The EDAC was generally supportive of the suggested changes to the existing standards and of the inclusion of Key Factors for consideration by the City's contractors and staff.  Specific recommendations were provided by EDAC as follows:

·         The prohibition against personal discrimination found in Section 3 of the Advertising Standards be expanded to include discrimination on all of the prohibited grounds referred to in both the Canadian Human Rights Act and the Ontario Human Rights Code.  Staff from Legal and Transit Services agree, and specific references to both Acts has been inserted to Section 3;

·         The EDAC suggested that it could assist City staff by acting as a "sounding board" in the evaluation process for proposed advertising, particularly in circumstances where it is necessary to consider the standard and tolerance level of a broad section of contemporary Canadian communities.  Staff from Transit Services and Legal Services consider this to be a very useful option, and are open to consulting with EDAC as required and where appropriate for particular cases.  Transit Staff noted, however, that in cases where a potential advertiser's marketing campaign is confidential, prior consultation may not be appropriate and may meet with the objection of the advertiser; and

·         The EDAC members inquired whether the City would consider reducing the fees for advertising delivering public information that is of assistance to specific communities.  The Committee also suggested that the City of Ottawa use advertising to reach a broader range of communities and applicants for its hiring initiatives.  Transit staff advise that advertising fees are paid directly to the contractor, who has sole responsibility for negotiating prices with advertising clients.  The current contracts provide the City with access to a limited amount of unused advertising space, free of charge, other than material costs.  City departments regularly use this space to advertise City programs.  If a City department runs an advertising campaign designed to reach a particular community, the department currently has the option of using the free spaces provided by the current contracts.

3.                  Comments on the proposed changes were solicited from the City's two contractors.  Pattison Outdoor Advertising advised that it had no concerns with or additions to the proposed changes.  Clear Channel expressed some concern over the prohibition of  ads that are in questionable taste.  In the opinion of City staff, this prohibition should still be part of the Standards and is acceptable when considered within the Standards as a whole.   Clear Channel also expressed concern about the prohibition of ads that disparage a City service or that discourage the use of public transit.  Again, City staff are of the opinion that this section is acceptable given the City's overall goals of promoting its services and in particular in promoting public transit.  Again, this section is meant to be interpreted within the larger context of the Standards as a whole and of the Canadian Code of Advertising Standards, and in light of the new suggested Key Factors, which, in the opinion of City staff, will provide a sufficient and reasonable balance for the interpretation of these sections.

 

 

LEGAL/RISK MANAGEMENT IMPLICATIONS:

 

There are no legal/risk management implications related to the adoption of the recommendations in this Report.

 

 

FINANCIAL IMPLICATIONS

 

There are no financial implications related to the adoption of the recommendations in this Report.

 

 

SUPPORTING DOCUMENTATION

 

Document 1 - Proposed Revised Advertising Standards for OC Transpo's Contract Specifications

Document 2 – City Clerk and Solicitor memo (March 10, 2009)  This document is confidential as it contains information relative to the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose.  The memo was previously distributed to all members of Council on 11 March 2009 and is held on file.

 

DISPOSITION

 

Upon approval of the Recommendations of this Report, Transit Services will implement the revised advertising standards contained in Document 1 as well as the key factors for consideration noted in this report in the approval process for advertising proposals, and will inform its consultants of Council's direction.  The revised standards and the Key Factors will also be applied to the new Integrated Street Furniture advertising programme.