AMLA et al v. City of Edmonton

The Justice Centre filed a court application on behalf of the Alberta March for Life Association (AMLA) and Jerry Pasternak against the City of Edmonton over its decision to cancel a scheduled lighting of the High Level Bridge in colours chosen by AMLA.

Operated by the City of Edmonton, the High Level Bridge is outfitted with 60,000 programmable lights, lit every day in the morning and evening. Through the “Light the Bridge” program, the City permits and invites members of the public and community groups to request the Bridge be lit in specific colours to reflect their event or cause.

On March 6, 2019, Jerry Pasternak, Vice Chair of AMLA submitted an application to the City for the High Level Bridge to be lit up on May 9, 2019 in the colours of pink, blue, and white to recognize the March for Life. For over 10 years, thousands of supporters have participated in the annual peaceful outdoor march, organized by AMLA to recognize the dignity of the elderly and disabled people, as well as the sanctity of human life from conception to natural death.

AMLA’s application was approved by the City on March 7, 2019. However, on April 5, the City reneged and cancelled the scheduled lighting of the Bridge. In an email, City staff stated: “Upon further review of your application, it came to our attention that lighting the bridge for this event cannot be approved due to the polarizing nature of the subject matter.”

In response, Jerry Pasternak emailed City staff, stating: “I am deeply disappointed in your decision. Can you please provide evidence of this polarization?”

The City of Edmonton did not respond.

A nearly identical incident occurred May 7, 2017, when, on the day the Bridge was approved to be lit in the pink, blue and white colours associated with the March for Life, the City cancelled the lighting. No rationale or justification was provided by the City for the cancellation.

The Bridge is regularly lit in association with various religious and political causes, awareness days, religious celebrations, political holidays and commemorations that promote the ideologies, political causes and religious beliefs of their proponents. For example, within the last three years, the Bridge has repeatedly been lit to promote sexual and gender diversity, Pride, various Islamic holidays and commemorations, Jewish religious holidays, Buddhist religious holidays, days recognizing political events in foreign countries such as Chilean Independence Day and the anniversary of the founding of Azerbaijan, and awareness days such as National Day of Remembrance for Victims of Terrorism, and Wrongful Conviction Day. Ironically recognizing beliefs and causes that are similar to the Alberta March for Life Association, the Bridge has recently been lit in association with International Pregnancy and Infant Loss Awareness Day, and various disability awareness campaigns.

As outlined in the Justice Centre’s court application, the City is constitutionally prohibited from discriminating against the content of expression in spaces it has opened up to the public for expressive purposes. In twice deciding to cancel a scheduled lighting of the Bridge, exclusively because of the pro-life expression involved, the City has twice failed to explain how such expression is “polarizing”, or whether it is more “polarizing” than other causes, or how the City determines which organizations or issues are sufficiently “polarizing” to warrant being denied the right to use a public space that is available to a long list of other causes.

The Justice Centre is seeking a declaration from the court that freedom of expression was violated and to have the decision to cancel the scheduled lighting of the Bridge in colours chosen by AMLA to be overturned. The Justice Centre is also seeking to have struck the current policy the City uses to approve or deny requests to light the Bridge and orders from the court directing the City to either light up the Bridge in the colours chosen by AMLA for the 2020 March for Life or to light the Bridge in neutral colours only.

The Justice Centre will be in court on Thursday, September 17, on behalf of the AMLA to compel the City of Edmonton to turn over a list of causes and events that the High Level Bridge has been lit up for. The virtual hearing is required for the Applicants to be permitted to provide the court with evidence and to obtain further evidence from the City.

Judicial review is the only way a government decision can be legally challenged in Alberta. Typically, only the government is allowed to provide evidence. The party bringing the action requires special permission to enter evidence. In this case, the Justice Centre will request the court order the City to provide a list of past Bridge lightings, to demonstrate the Applicants’ claim the City acted in a biased manner when it cancelled the scheduled lighting for the March for Life. Although requested by the Applicants, the City has refused to produce such a list.

The Justice Centre is also asking the court to permit affidavit evidence as part of the judicial review. The Bridge is regularly lit in association with various political causes, some of which result in “polarization” among Edmonton residents. The Justice Centre has filed an affidavit containing evidence the City has lit the Bridge in association with Anthropogenic Climate Change events and campaigns, despite extensive evidence of the intensely “polarizing” nature of Climate Change.

A second affidavit has been filed containing evidence of the many times the City permitted the Bridge to be lit for “political” events and commemorations, in breach of the City’s own policy regarding the lighting of the Bridge.

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