Dalhousie Law Journal


Supreme Court of Canada, Vacouver Transportation, policy, rights, Dunmore/Baier, government, funding, advertising, censorship


The Supreme Court's recent decision inVancouver Transportation is problematic for two reasons. First, the majority adopts an analytical framework for determining whether a claim triggers the positive rights Dunmore/Baier analysis, which means that policies restricting expressive rights based on groups rather than content could be less likely to fall within the scope of section 2(b). A better approach would be to characterize section 2(b) cases based on the nature of the claim rather than the nature of the restriction and to apply the positive rights Dunmorel Baier criteria only where the claim is for an audience with the government or access to government funding. Second, the Court's section 1analysis provides sparse and problematic guidance for addressing the now opened can of worms that is sure to arise from the government sale of private advertising in a legal context that draws the censorship line above controversial content but below offensive content.