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CHARLOTTETOWN, P.E.I. – The Canadian Constitution Foundation will be in the Supreme Court of Prince Edward Island on Thursday arguing a motion to convince the Court to hear its application for judicial review of a decision to sanction a councillor for his political expression.

John Robertson is a councillor in Murray Harbour, P.E.I. In 2021, Robertson purchased an old wooden signboard from the village and placed it on his residential property. Robertson used the sign to spell out messages ranging from birthday wishes to political opinions.

On September 29, 2023, Robertson wrote out a controversial message: “Truth: Mass Grave Hoax. Reconciliation: Redeem Sir John A’s Integrity.” This message was aimed at starting a conversation about what Councillor Robertson saw as a media-perpetrated “hoax” claiming the discovery of a “mass grave” on the grounds of the Kamloops Indian Residential School in B.C.

This political message led to complaints from members of the public, and calls for Mr. Robertson to resign. When Councillor Robertson refused to resign, his fellow councillors launched a taxpayer-funded Code of Conduct investigation into his expression, and then imposed a $500 fine, a six-month suspension from council, and a compelled apology. When Councillor Robertson refused to comply, the provincial minister in charge threatened to remove him.

CCF Counsel Josh Dehaas said that the investigation, sanctions and threat of removal are serious violations of Mr. Robertson’s Charter-protected right to freedom of expression.

“The Supreme Court of Canada has said time and again that the purpose of freedom of expression is to ensure that everyone can manifest their thoughts, opinions, beliefs – however unpopular, distasteful or contrary to the mainstream,” Dehaas said.

“You don’t need freedom of expression to protect expression everyone agrees with,” he added. “The reason we have free speech is because today’s minority viewpoint sometimes turns out to be correct tomorrow, and people can’t have those difficult conversations if those in power can prevent them from speaking.”

Dehaas said that municipal Codes of Conduct are meant to prevent misbehaviour like sexual harassment, embezzlement of funds, and abuse toward residents at council meetings, and they shouldn’t be weaponized to punish fellow councillors for expressing their political viewpoints.

With the assistance of the CCF and its donors, counsel Brandon Forbes of Campbell & Lea was engaged on February 14, 2023, and an application for judicial review was filed two days later.

The application for judicial review was scheduled to be heard in full on February 6, but the CCF received notice in late January that the Court will instead only hear arguments on whether the Court should exercise its discretion to hear the judicial review, since the application as made more than 30 days after the sanctions were handed down. There is a 30-day deadline to seek judicial review in P.E.I., but a judge can waive that when there are grounds for relief and no substantial prejudice would result to the other side.

Forbes said that he is hopeful that the judge will agree to hear the application in full.

“The questions raised in this application are of great public interest – not just to Mr. Robertson but arguably to all Canadians,” Forbes said. “That ought to weigh in favour of hearing the application.”

The Canadian Constitution Foundation (CCF) is a registered charity, independent and non-partisan. We defend the constitutional rights and freedoms of Canadians in the courts of law and public opinion.