Court gives anti-abortion group another shot at placing ads on Metro Vancouver transit

B.C.'s highest court has ordered TransLink to reconsider its decision to deny advertising space to an anti-abortion group that wanted to post graphic ads including images of fetuses on Metro Vancouver buses.

The transit authority turned down the Canadian Centre for Bio-Ethical Reform's proposed ads proclaiming "Abortion kills children" in 2015, a decision that was upheld in B.C. Supreme Court last year.

But on Tuesday, a panel of three justices at the B.C. Court of Appeal overturned that decision, saying the TransLink official who rejected the ad did not provide a good enough explanation for why he did so.

"In denying the CCBR's advertisement request, [the official] did not acknowledge the CCBR's right to freedom of expression, let alone explain how the denial represents a proportionate balance with TransLink's objectives," Justice David Frankel wrote in the unanimous appeal court judgment.

Frankel said the request to purchase advertising space should be remitted to TransLink for reconsideration.

Ads in 'questionable taste'

The proposed ads from the Calgary-based group purported to show images of fetuses at seven and 16 weeks' gestation, along with the website address, "endthekilling.ca."

Lamar Transit Advertising, which manages ads for TransLink, has said it originally turned down the request for space because of a policy barring materials that are "of questionable taste or in any way offensive."

TransLink also consulted Advertising Standards Canada, which said it had concerns about the accuracy of the ads, particularly the suggestion that abortion kills actual children and the false implication that most abortions are performed after 16 weeks, according to court documents.

During court hearings on the matter, the transit authority argued that the ads might cause psychological harm to women and children.

But when TransLink's then-director of customer engagement and marketing, John Beaudoin, emailed CCBR with the final refusal, he "provided no insight whatsoever into why he found the CCBR's advertisement unacceptable," Frankel wrote.

The appeal court also rejected a cross-appeal from TransLink, asking the judges to consider an affidavit rejected by the B.C. Supreme Court from Dr. Wendy V. Norman, a family physician and professor at UBC's Faculty of Medicine.

Norman reviewed the proposed ads and said the images of fetuses were not accurate, according to the appeal court justice.

She wrote that the photo labelled as seven weeks' gestation "appears to be a fanciful amalgam" and the 16-week image falsely included eyelashes, eyebrow hair, eyelids that open and "pudginess" — features more typical for a fetus at 26-40 weeks.

Frankel wrote that it was out of the appeal court's jurisdiction to consider TransLink's appeal.