EDMONTON—A court case in Lethbridge, the second of its kind in Alberta, is reviving the battle between anti-abortion groups and municipalities about whether advertisements against abortion have a place in public spaces.

It’s the latest skirmish in the ongoing national fight between anti-abortion groups and the public over transit ads that cities have rejected as hurtful and inflammatory. But anti-abortion groups maintain the ads are part of their right to free speech.

Lethbridge mom Kallie Desruisseaux could not avoid the ad on the back of the city bus she trailed for 15 minutes as she drove her son to daycare in March 2018.

“Preborn babies feel pain,” read the ad from the Lethbridge and District Pro-Life Association. “Say NO to abortion.” The words were accompanied by a photo of what appeared to be a near-term fetus.

“I was so upset,” said Desruisseaux, who has had two miscarriages and an ectopic pregnancy that required a medical abortion.

She felt the advertisements — which appeared on city-owned buses, shelters and bus-stop benches in Lethbridge last spring — were hurtful and insensitive to her pain and loss.

She expressed her frustration March 27 on Twitter. “Really appreciate you reminding me of my three spontaneous abortions, AND implying that those three lost hopes felt pain,” she said in a tweet to city officials. “I am shaking now. I am so angry and upset.”

On April 4, the city pulled the ads due to “adverse community reaction,” which included more than 100 emails and social-media complaints from residents.

In May, acting on public complaints about the same ad, the private watchdog Ad Standards Canada decided it contravened its Canadian code of advertising standards. It said the ad was inaccurate, in part because the picture showed “a mature-looking fetus,” long past the point in a pregnancy “when abortions are, typically, not performed or permitted.”

It also decided the ad “demeaned and disparaged women” by “implying that women who decide to terminate their pregnancy intentionally inflict pain on their unborn fetus.”

More than a year later, Desruisseaux’s tweets are referenced in a court challenge from Lethbridge and District Pro-Life Association, which wants the Court of Queen’s Bench of Alberta to review the city’s decision to pull the advertisements, as well as reject five alternate advertisements it proposed in Nov. 2018. One of the substitute ads read: “Equality should begin in the womb!” and “Say no to abortion, so every child makes their mark.”

In its application for judicial review, Lethbridge Pro-Life says by rejecting the ads, the city “placed an unjustifiable limit” on the group’s “right to freedom of expression” under the Canadian Charter of Rights and Freedoms.

The lawyer representing Lethbridge Pro-Life, Carol Crosson, said the city did not provide an adequate reason for rejecting the substitute advertisements, and did so on the basis that the group’s previous ads were not well received by the public.

“From a legal standpoint, I think that’s one of the most onerous reasons against (free) speech,” Crosson said.

The city of Lethbridge has not responded to the court challenge, according to a spokesperson, and a hearing has been scheduled for Oct. 10. The city refused to comment because the case is before the courts.

The Court of Queen’s Bench ruled on a similar case two years ago in Grande Prairie, after the city refused ads from the Canadian Centre for Bio-Ethical Reform (CCBR), a national anti-abortion group.

The CCBR wanted to run advertisements on public transit that read “Abortion kills children” and included its web address endthekilling.ca, but the municipality said the ads would be “disturbing to people.”

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CCBR challenged the decision in court citing “illegal government censorship of free speech,” and asked for a reversal or justification for the decision, but the court ruled in the city’s favour in December 2016.

“The court said, ‘Yes, this does restrict freedom of expression, but there’s a reasonable basis for doing so because of the offensive and graphic nature of the ad and how it denigrates women who have a legal medical procedure,’” explained Robert McVey, the lawyer who represented the city of Grande Prairie.

He said the ruling set a precedent for future cases, and the legal community will be watching to see whether it will be cited in the Lethbridge case.

The ad’s location was a factor in the decision, McVey said. “If it’s on the side of the bus, then you have a captive audience there ... the public’s forced to read the ad.”

But Crosson, who also represented CCBR in the Grande Prairie case, said the ruling was not in line with those made in similar cases across Canada. She referenced a 2017 Peterborough case, where the Ontario Divisional Court issued an order to make the city run CCBR’s anti-abortion ad on public transportation. In another 2017 case initiated by the CCBR, an Alberta court ruled the town of Hinton, Alta., violated the group’s right to freedom of expression and was unreasonable in refusing the same ad without even looking at it.

“The ruling of Grand Prairie stands in stark contrast to rulings on pro-life advertising in Canada and, indeed, any free speech, any expression,” Crosson said. “There’s rulings that have come out from the Ontario Court of Appeal that are diametrically opposite to the ruling in Grand Prairie.”

This, Crosson believes, builds a stronger case for Lethbridge Pro-Life in their court battle against the city.

But McVey believes the likelihood of the court ruling in favour of Lethbridge Pro-Life is slim. “It seems that in some ways they pursue these applications without a great hope of success,” he said of anti-abortion groups. “But they do get a fair bit of publicity for it.”

In 2018, Ad Standards Canada received 540 complaints about “non-commercial” ads from advocacy groups, governments and non-profits, “the vast majority” of which were anti-abortion ads, according to Janet Feasby, its vice-president of standards. But she said standards council decisions are not bound by law, and depend on the co-operation of the advertiser to pull the ads.

Feasby added its decisions focus on ethics of advertising as a whole. “Whether it’s pro-life or other … the rules are the same,” she said. “The information or the impression has to be true and not derogatory.”

Nadine Yousif is a reporter/photographer for Star Edmonton. Follow her on twitter: @nadineyousif_

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