An instance of compelled political speech

In a bluntly-written decision, Justice Edward Morgan found that the stickers, which gas station owners have been required to affix to their pumps and warned "the federal carbon tax will cost you," constituted partisan political messaging. The rights of gas retailers, the court concluded, were infringed by being involuntary messengers for that partisan campaign. Removing the stickers could net retailers a $150 fine.

The court found that, with the stickers, "the government is not so much explaining a policy, but rather is making a partisan argument."

The case was brought forward by the Canadian Civil Liberties Association, with an intervention by PEN Canada, an advocacy group for freedom of expression, represented by Singleton Reynolds. Both organizations argued that the stickers amounted to government-ordered compelled speech.

The court mostly agreed, focusing on comments made by Energy Minister Greg Rickford in the legislature. Rickford vowed that "we're going to stick it to the Liberals and remind the people of Ontario how much this job-killing, regressive carbon tax costs."

The decision is an interesting look into compelled speech, at a time when concerns abound regarding threats to free speech.

The court revisited the 2014 ruling in McAteer v. Attorney General, wherein applicants for Canadian citizenship unsuccessfully argued that the oath of citizenship was unconstitutional compelled speech. The Ontario Court of Appeal, in that case, set out a three-point test to establish whether it was the case: Is it, in fact, expression? Is the law aimed at controlling expression? And, finally, does the law in question negatively affect one's expression rights?

The court, on Friday, found that the stickers were indeed a form of expression. They do not, however, control gas merchants' speech. The sticker's existence does not forbid the retailers from coming out in favour of the carbon pricing system in another way, for example.

But the third question is the most important: Did the stickers force the retailers to express themselves in an inappropriate way?

The Ontario government argued before the court that the stickers were no different than "no smoking" signage or illuminated exit signs. As long as the government does not purport to speak for the business or private citizen, it argued, the messaging should be allowed. What's more, the stickers were informational and educational.

Those arguments didn't fly.

Unlike the McAteer decision, which upheld the citizenship oath, Justice Morgan, in this case, found that the speech was not, as the government argued, really about informing the public on the cost of gas. It was, he wrote, about "promoting the Ontario governing party of the federal governing party." Any effort to conscript private business into a partisan campaign, he wrote, would be "disproportionate to any beneficial objective it served."

The court found the stickers were "incomplete in such a significant way that it does not convey the true state of facts." It was not just inaccurate or half-true, the court wrote, "the government is not so much explaining a policy, but rather is making a partisan argument."

"It is obvious that the sticker could not be designed to say what the government of Ontario says it really means," the court found. "It would be an insurmountable hurdle for Ontario to require a sticker that uses explicitly partisan rather than ostensibly neutral language, and to then establish that the benefit of its bona fide public policy choice outweighed the detriment of its self-interest, partisan use of government power."

Justice Morgan took a dim view of Rickford saying the quiet part loud.

"A government or political party can, in the words of Ontario's Minister of Energy, 'stick it to' another tier of government or political party as a matter of free speech in an election campaign or otherwise. A government cannot legislate a requirement that private retailers post a sticker designed to accomplish that task," he wrote.

As such, the court concluded that the law violated the retailers' section 2(b) Charter rights, and struck down the sections of the act requiring the stickers.

"Gasoline retailers are at liberty to keep the stickers on their fuel pumps or to remove them, as they see fit."