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Kristopher Kinsinger: Pro-life Groups Are As Free To Fly Their Flags As Other Organizations. Ottawa Was Wrong To Censor One

Jun 05, 2017

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Last week, Ottawa Mayor Jim Watson wrote to Ontario’s attorney general requesting that the Liberal government get to work passing legislation prohibiting protests outside of abortion clinics, to reflect a 1994 court injunction that had yet to be made into provincial law. The injunction—which was granted before Ottawa’s only abortion clinic opened—created a 500-metre protest-free “bubble zone” around clinics, to prevent demonstrators from disturbing women who visit them. The attorney general has since promised to introduce legislation to this effect later this fall.

It’s hard not to wonder whether this push to limit pro-life demonstrations is part of an effort by the mayor to atone for his recent perceived failings as a pro-choice advocate. Earlier this month, Watson came under fire for allowing (or, more precisely, not disallowing) the flying of the National March for Life flag at Ottawa’s City Hall. Only after being harangued on Twitter did Watson order that the flag be taken down and the city’s flag policy be reviewed. 

For the uninitiated, the March for Life is an annual, pro-life rally organized by the Campaign Life Coalition, one of Canada’s more vocal, pro-life lobby groups. The march (which celebrated its 20th anniversary this year) began with a rally on Parliament Hill, before taking to the streets to peacefully protest Canada’s lack of abortion laws.

Ottawa’s current flag policy provides that not-for-profit organizations can request to have their flags flown at municipal sites to “help increase public awareness of their programs and activities” as long as the organization’s philosophy is not “contrary to City of Ottawa policies or bylaws” and does not “espouse hatred, violence or racism.”

The city’s lawyer has since said that he ordered the flag to be taken down because the request to fly it was made on behalf of an individual, and not an organization. But comments by Watson and other city politicians strongly suggest that the push for the flag to be taken down was rooted not in some obscure technicality, but rather their opposition to March for Life’s message.

On Twitter, for instance, the mayor noted that he was “pleased to report that the anti abortion flag has been taken down.” And an open letter from seven city councillors expressed “outrage that a flag representing a personal conviction to restrict a woman’s right to safe and legal abortion” would ever be flown on city grounds.

In Mouvement laique québécois v Saguenay (City), a 2015 case concerning the recitation of the Lord’s Prayer at municipal council meetings, the Supreme Court of Canada held that the constitutional principle of state neutrality “requires that the state neither favour nor hinder any particular belief” and “that the state abstain from taking any position and thus avoid adhering to a particular belief.”

Pro-choice advocates will argue that the principle of state neutrality should preclude Ottawa from flying the March for Life flag. Yet, if that’s the case, the city shouldn’t be in the business of allowing any not-for-profit organization to fly special interest flags, which it most certainly does. If Ottawa is going to allow organizations such as, say, Capital Pride to fly their flag during Pride celebrations (which are aimed at celebrating the LGBTQ community), they must also allow other organizations (be they pro-life, pro-choice, religious or non-religious) to fly their flags as well.

In the end, neither the March for Life nor its philosophy can properly be said to contravene Ottawa’s existing policies or by-laws. Under the constitution, municipalities such as Ottawa do not have the power to pass laws regulating abortion. Nor can the march be said to espouse “hatred, violence or racism.” For many of the citizens participating in the march, their opposition to abortion stems from a sincere belief that abortion violates the rights of the unborn. Obviously, this is a view with which a large number of Canadians profoundly – even vehemently – disagree.

But that’s not the point. Under Section 2 of the Canadian Charter of Rights and Freedoms, everyone has the freedom to hold beliefs that run contrary to those of the majority, and to express those views in peaceful assembly with other like-minded individuals. If we are to live in a truly pluralistic and tolerant society, the content of these beliefs (short of actual incitement of violence or hatred) shouldn’t be the target of the type of political and legal censorship that was on display in Ottawa.

The principle of state neutrality shouldn’t prohibit minority special interest groups from participating fully in public life. Watson and his colleagues would do well to remember this important constitutional principle as they reassess their city’s flag policy.

Kristopher Kinsinger is a J.D. candidate at Osgoode Hall Law School. The views expressed here are his own.