Despite the efforts of many individuals, pro-life organizations and ministries, City Council voted to put in place a by-law to regulate the delivery of Pro-Life in the City of London.

A copy of this by-law, which was passed on May 3rd is included here within. It is below the number of very well presented appeals from London residents as well as from the Canadian Centre for Bio-Ethical Reform

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Re. by –law A-54 proposal

Dear Mayor Ed Holder and City councillors:

Regarding the proposals to amend by-law A-54 regarding Flyer Deliveries to Residential Properties, I believe you do not have a legal leg to stand on in regards to putting restrictions on graphic images, of things that are not considered by Canadian law to be human beings! If City Hall’s mayor and counselors vote the new by-law into being, are you willing to spend our tax dollars on a potential legal defence based on a moot point?! The good news is that from the heart, citizens, mayor and counselors are acknowledging the horror of abortion – what it does to the human being, the “fetus” [an individual in its mother’s womb from 8th week to gestation; embryo – from fertilization to 8th week of gestation, page 823, Anatomy and Physiology, Gary A. Thibodeau, Kevin T. Patton, 2nd Edition. 1993]

What mayor and councilors sadly focus on is the alleged harm done to some of those who see these images, but they don’t address the harm that is terminally, lethally and violently done to the fetuses (and embryos) in their mothers’ wombs. Nothing also has been acknowledged about the real harm done to the mothers who had their children aborted! City Hall has unsuspectingly entered into a new frontier: its responsibility to stop the harm done in our city by our hospitals, pharmacies and physicians, to the pre-born children in their mothers’ wombs, and, City Hall, with provincial and federal partnerships, providing full support through city initiatives and programs to support the women who are in crisis pregnancies, to carry their pre-born children to birth and beyond, and to help also the post-abortive mothers through their grieving and with practical support.

City Hall, along with the citizens of our nation, political and legal entities will need to appeal to the Supreme Court of Canada to protect the pre-born children from lethal harm, by having section 223 of the Criminal Code dropped and replaced by a new law that will outlaw abortion, recognizing the unborn and pre-born children as human beings, deserving of the right to life!

Sincerely,
John Bulsza N5Z 2R5

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April 27, 2022
From: Ellie Vogel
Sent: Saturday, April 30, 2022 6:17 PM
To: Council Agenda Subject: [EXTERNAL] Vote NO on Pro-Life Flyer By-Law
Hello council members of London,
My name is Ellie Bartsch, and I lived in London for 6 years until recently moving to Woodstock. I am writing to urge the council not to single out pro-life flyers for special restrictions and to vote no on the draft by-law that is being proposed. I have always been so thankful that Canada is a country that protects freedom of expression, and that the government doesn't have the power to restrict messages it doesn't like. This by-law being proposed in London singles out the pro-life message as one that needs special restrictions. No other flyers have this requirement, and this is discrimination against those with the pro-life creed and goes against the values of our country. Regardless of the personal views of those on the city council, they have an obligation to uphold the charter. No one has the authority to restrict the speech of those they disagree with. The proposed by-law would treat flyers from pro-life groups differently from any opposing group, or any group at all for that matter. Please vote "no" on this by-law, as it is unconstitutional and discriminatory.
Thank you, Ellie

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Dear Councillors,
I write to you as a concerned London resident regarding the drafted by-law that would regulate and restrict pro-life speech. The draft by-law would single out pro-life flyers for special restrictions that no other flyers have to meet. This is content-based discrimination, which is unconstitutional — it treats pro-life flyers about abortion differently from pro-choice flyers on abortion, or any other flyers on any other issues.

The Charter protects freedom of expression broadly, and our city's municipal government does not have the power to restrict messages, even if those messages are controversial to some. That some residents or some councillors oppose the pro-life message does not give the government the legal authority to restrict it. The City of London has an obligation to comply with the Charter, even if some city councillors are personally opposed to one message and would like to suppress it.

I hope you will take my concerns into consideration and respect the right of every Londoner to peacefully engage in freedom of expression. Please vote 'no' on the draft by-law.

Thank you for your attention in this matter.

Kind regards, Maria McCann N6K 0B8

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May 1, 2022

Mayor Ed Holder 300 Dufferin Avenue

Dear Mayor Holder:

Re: Proposed By-law Prohibiting Distribution of Graphic Images

I am legal counsel for the Canadian Centre for Bioethical Reform (“CCBR”). I have previously written to you expressing concern over the constitutionality of proposed by-laws which would have prohibited the distribution of flyers containing graphic images to properties within the City of London.

I am writing you today about the “Graphic Image Delivery By-law,” which is the City of London’s latest attempt to regulate political expression relating to abortion. The proposed by-law would prohibit the unsolicited delivery of any image or photograph which shows or purports to show a fetus, or any part of a fetus, unless the image is fully concealed in a sealed envelope or package. The package or envelope would have to include, among other things, a warning that it contains a graphic image that may be offensive or disturbing to some people.

The proposed by-law is problematic because it is an attempt to regulate expression based on its content. The governing jurisprudence from the Supreme Court of Canada’s is that content can never deprive expression of protection under the Charter. Even on the rare occasions when the court has upheld laws which limit expression, the laws always focus on the effects of the impugned expression as opposed to the content. For example, in the criminal context, the court has upheld a law prohibiting the willful promotion of hatred. But that law did not make any advanced determination as to what sort of content promotes hatred. The law was made with respect to communications generally. Indeed, an effects-based approach to regulating expression requires an examination of both content and contextual factors, and these cannot be known in advance.

In a recent Supreme Court of Canada case, Ward v. Quebec, the majority of the court adopted an effects-based approach to limiting expression in the civil context. The court endorsed the view that human rights prohibitions of hate speech are concerned with protecting social standing as opposed to protecting emotional serenity. The court reiterated a principle from a previous case, The proposed by-law attempts to do what the court has forbidden. It seeks to regulate expression based on content, specifically political content that some might find emotionally disturbing or offensive. The mandatory warning of the proposed by-law leaves little doubt that limiting offensive expression is the by-law’s true objective. For this reason, the by-law will be found to infringe the Charter and the Municipality will not have recourse to the usual justification that they are merely attempting to regulate the effects of expression. In these circumstances, the infringement is unlikely to be upheld as a necessary and reasonable limit to freedom of expression.

Another difficulty with the by-law is that it imposes an unattributed warning on the envelope, which is a form of forced expression. In RJR MacDonald v. Canada (1995), the Supreme Court of Canada stuck down portions of the Tobacco Products Control Act which required unattributed warnings to be displayed on packages selling tobacco products. Even regarding a matter as important as the regulation of the tobacco industry, the court found that the law was an infringement of freedom of expression and that it was not reasonable and necessary as the government was unable to explain why the warning was unattributed. The Municipality is likely to encounter similar problems if it passes the proposed by-law.

As in past occasions, the CCBR encourages City Councilors to take a principled approach to the proposed by-law and uphold the Charter, regardless of what their own personal views may be about the underlying political debate.

Yours truly,

Alan Honner
Barrister & Solicitor

Copy:
• Councillor Michael van Holst mvanholst@london.ca
• Councillor Shawn Lewis slewis@london.ca
• Councillor Mohamed Salih msalih@london.ca
• Councillor Jesse Helmer jhelmer@london.ca
• Councillor Maureen Cassidy mcassidy@london.ca
• Councillor Mariam Hamou mhamou@london.ca
• Councillor Josh Morgan joshmorgan@london.ca
• Councillor Steve Lehman slehman@london.ca
• Councillor Anna Hopkins ahopkins@london.ca
• Councillor Paul Van Meerbergen pvanmeerbergen@london.ca
• Councillor Stephen Turner sturner@london.ca
• Councillor Elizabeth Peloza epeloza@london.ca
• Councillor John Fyfe-Millar jfmillar@london.ca
• Councillor Steven Hillier shillier@london.ca

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From: Jakki Jeffs
Sent: Monday, May 2, 2022 1:01 AM
To: Bunn, Jerri-Joanne
Cc: Council Agenda
Subject: [EXTERNAL] Graphic Flyer deliveries to residential Properties - Report to Community and protective Services Committee April 20 2022

Dear Mayor and City Councillors

It is our judgement that the suggested “Graphic Imagery Delivery by-law” is yet again an effort which remains unconstitutional since one cannot be compelled by any state actor to make statements one does not agree with since this would be an infringement of the Charter Right to freedom of expression. We sincerely doubt it could be saved by section 1, on an appropriate OAKES analysis. “ The Oakes test was created by the Supreme Court of Canada in the 1986 case of R v Oakes.[1] The test interprets section 1 of the Charter of Rights and Freedoms, which states that rights are guaranteed, “subject only to such reasonable limits . . . as can be demonstrably justified in a free and democratic society.”[2] This means that the government must establish that the benefits of a law outweigh its negative impact—that is, its violation of a Charter right.

R v Oakes

In R v Oakes, the police caught the accused, Oakes, with hashish oil and cash. They charged him with possession for the purpose of trafficking under the Narcotic Control Act (NCA).[3] He claimed that the drugs were his own and that he did not intend to sell them. At that time, under section 8 of the NCA, anyone found with illegal drugs was presumed guilty of trafficking. Usually, the Crown must prove guilt beyond a reasonable doubt, but under the NCA it was up to the accused to prove that he was not guilty. This is called a “reverse onus”.

Oakes challenged the law, arguing that it violated the presumption of innocence guaranteed by section 11(d) of the Charter. The Supreme Court found that this right had been violated. They then had to consider whether the government could justify this violation using section 1.

The Test

The Court in R v Oakes created a two-step balancing test to determine whether a government can justify a law which limits a Charter right.

1. The government must establish that the law under review has a goal that is both “pressing and substantial.” The law must be both important and necessary. Governments are usually successful in this first step.

2. The court then conducts a proportionality analysis using three sub-tests.

a. The government must first establish that the provision of the law which limits a Charter right is rationally connected to the law’s purpose. If it is arbitrary or serves no logical purpose, then it will not meet this standard.

b. Secondly, a provision must minimally impair the violated Charter right. A provision that limits a Charter right will be constitutional only if it impairs the Charter right as little as possible or is “within a range of reasonably supportable alternatives.”[4]

c. Finally, the court examines the law’s proportionate effects. Even if the government can satisfy the above steps, the effect of the provision on Charter rights may be too high a price to pay for the advantage the provision would provide in advancing the law’s purpose.

In Oakes itself, the court considered that combatting the public health and safety risk created by narcotics was a pressing and substantial goal. However, the Court ruled that a “reverse onus,” where an accused is presumed guilty of drug trafficking unless he proves otherwise, was not rationally connected to this goal.[5] The Court found that it would be irrational to presume an intention to traffic narcotics when an accused only possessed a small amount of drugs. Having failed this first step, the court did not consider step 2 (b) or (c), and the law was “struck down,” that is, declared unconstitutional.

Legacy

The Oakes test is employed every time the government tries to defend a restriction on the Charter rights of Canadians. Some legislation has passed the test. For example in R v Keegstra,[6] the Supreme Court held that a law against hate speech was a reasonable and justifiable limit on section 2(b) of the Charter, freedom of expression. The test provides a mechanism for the courts to balance, on the one hand, the government’s ability to achieve its goals and, on the other, the protection of individual rights. This balancing test is now considered a cornerstone of Canadian constitutional law.

[1] R v Oakes, [1986] 1 SCR 103, 1986 CanLii 46 (1986) [Oakes].
[2] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to

the Canada Act 1982 (UK), 1982, c 11, s 1. [3] Narcotic Control Act, RSC 1970, c N-1. [4] Oakes, supra note 1 at 46.
[5] Oakes, supra note 1 at 142.

[6] R v Keegstra, [1990] 3 SCR 697, 1990 CanLii 24 (SCC).”

https://www.constitutionalstudies.ca/2019/07/oakes-test/

We believe that It is also arguably void for vagueness, as there is no objective basis for determining whether any particular content is "graphic" and it is our consideration that the Council's decision to simply restrict it to images of "fetuses" to deal with this legal problem is capricious and arbitrary.

Why single out such photos from all the other kinds that might be graphic? It is our conclusion that this appears to be an underhanded effort to censor a pro-life message and estimate that City Council will leave itself open for litigation should it pass this by-law.

Sincerely
Mrs Jakki Jeffs
Executive Director Alliance for Life Ontario
26, Norfolk Street, Guelph, Ontario N1H 4H8

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Dear London City Council,

I write to you again, as Eastern Outreach Director of the Canadian Centre for Bio-Ethical Reform, in response to the latest draft by-law to restrict pro-life freedom of expression in the City of London. Unfortunately, the draft by- law proposes that the City of London do what no government has the power to do — target one particular message for differential treatment based on the content of that message. I urge the City of London not to pass a by-law that would violate the section 2(b) Charter right to freedom of expression.

The Supreme Court of Canada in Irwin Toy Ltd. v. Quebec (Attorney General) held that section 2(b) of the Charter protects all non-violent expressive activity — that is, any activity or communication that conveys or attempts to convey meaning — without discrimination based on content, however unpopular, distasteful, or contrary to the mainstream.

Freedom of expression is a broad right, including the right to communicate controversial messages. In R. v. Zundel, Justice McLachlin (as she then was) stated that the purpose of protection for freedom of expression extends to protecting “beliefs which the majority regard as wrong or false,” frequently involving “a contest between the majoritarian view of what is true or right and an unpopular minority view.” She also said that “the view of the majority has no need of constitutional protection; it is tolerated in any event.” Protection for freedom of expression is especially robust when it applies to controversial or disturbing speech.

The Supreme Court has recognized leafletting as a “long standing and traditional form of freedom of expression” which has been used for hundreds of years to facilitate rational discourse and provide information to the public. Leafletting is an activity that conveys meaning and is therefore entitled to Charter protection, as the court has recognized in U.F.C.W., Local 1518, v. Kmart Canada Ltd., (1999) 2 SCR 1083 (at paragraphs 28 and 30).

In particular, the courts have also said that expression around the abortion issue represents a “legitimate participation in an important political and social debate in Canada.” (R. v. Whatcott, 2005) Similarly, in R v Watson, the BC Court of Appeal said that “beliefs about the meaning and value of human life are fundamental to political thought and religious belief. Those beliefs find expression in the debate on abortion.” The court quoted Professor Dworkin, who said that “the importance of communicating those ideas and beliefs lies at the ‘very heart of freedom of expression.’ ”

Clearly, pro-life leaflets which convey meaning and express ideas and beliefs about the abortion issue enjoy strong Charter protection in Canada.

Yet, the draft by-law singles out one particular message for differential treatment. The regulations would place additional barriers and requirements on flyers containing one particular message — any image of a fetus, no matter what the fetus looks like. This is clearly designed to place restrictions and barriers on pro-life speech about the abortion issue, as the record will show over the past 18 months of deliberations in committee and council. The by-law would not affect pro-choice speech about the abortion issue. It would not affect flyers with graphic images on any other topics but the abortion issue. Flyers with graphic images of victims of the war in Ukraine, of police brutality, or of animal agriculture, or even of women who had died from botched illegal abortions would be permitted, yet flyers communicating a pro-life message about abortion would be singled out and treated differently under the law, subject to additional requirements.

This is blatant content-based discrimination, attempting to suppress and limit one particular message on one particular issue. That some city councillors do not agree with the message does not give the City of London the legal authority to violate the Charter. The City of London has an obligation to avoid content discrimination, and if it chooses to enact a by-law, it has an obligation to set aside the personal views of legislators and comply with the Charter.

This responsibility is clearly not being met with the proposed by-law, and I would urge the City of London to uphold its duty under the Charter and not pass such an unconstitutional restriction on pro-life freedom of expression.

Sincerely,
Blaise Alleyne
Eastern Outreach Director, CCBR

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Bill No. 188 2022

A by-law to regulate the delivery of graphic images in the City of London.

WHEREAS subsection 5(3) of the Municipal Act, 2001, S.O. 2001, c.25, as amended (“Municipal Act, 2001”) provides that a municipal power shall be exercised by by-law;

AND WHEREAS subsection 10(2) of the Municipal Act, 2001 provides that a municipality may pass by-laws respecting the “Health, safety and well-being of persons’ as well as by-laws for the “Protection of persons and property, including consumer protection”;

AND WHEREAS the Council is satisfied that the unregulated Delivery of Graphic Images to residences does cause harm;

NOW THEREFORE the Municipal Council of The Corporation of the City of London enacts as follows:

Short Title
The short title of this by-law is the Graphic Image Delivery By-law.

Purpose

2.1 The purpose of this by-law is to regulate the unsolicited Delivery of Graphic Images to Residences, so that recipients have an opportunity to choose whether they wish to view such images.

Definitions

3.1 For the purpose of this By-law:
“Deliver” means to leave the Graphic Image anywhere on the property or mailbox associated with a Residence, whether or not the Graphic Image is handed to a person, and the noun “Delivery” has a corresponding meaning;

“Graphic Image” means an image or photograph showing, or purporting to show, a fetus or any part of a fetus;

“Residence” means any property or address that is not clearly identified from the abutting roadway as the location of a business;

Regulation of Deliveries

4.1 No person shall Deliver or participate in the Delivery of a Graphic Image to any Residence, unless: 1. (a) the Graphic Image is fully concealed within a sealed envelope or package, and
2. (b) the sealed envelope or package containing the Graphic Image is marked with the following notice and information:

(i) the name and address of the person who is responsible for Delivery of the Graphic Image, and

(ii) a warning that the envelope or package “contains a Graphic Image that may be offensive or disturbing to some people”.

4.2 This By-law does not apply to:

1. (a) mail that is Delivered to a Residence by Canada Post,
2. (b) material that is Delivered to the Residence at the request or with the consent of the addressee.
235

Enforcement

1. 5.1 Any person who contravenes a provision of this By-law is guilty of an offence.
2. 5.2 A director or officer of a corporation who knowingly concurs in the contravention of any provision of this By-law is guilty of an offence.

5.3 Each person who contravenes a provision of this By-law shall, upon issuance of a penalty notice in accordance with the Administrative Monetary Penalty System By-law A-54, be liable to pay the Corporation of the City of London an Administrative Monetary Penalty.

4. 5.4 A person convicted under this by-law is liable to a maximum fine of $5,000.00.
5. 5.5 This By-law shall come into force and effect on the day it is passed.

PASSED in Open Council on May 3, 2022.