Chapter III
Last updated : 25/01/01
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Chapter III
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A. GENERAL PRINCIPLES III-2 A.G. Canada v. Committee for the Commonwealth of Canada III-3 City of Peterborough v. Ramsden III-18 B.C.G.E.U. v. A-G British Columbia III-28 A note on First Amendment forum doctrine III-32 International Society for Krishna Consciousness, Inc. v. Lee III-34 B. ABORTION PICKETING III-41 R. v. Lewis III-41 Frisby v. Schultz III-61 Madsen v. Women's Health Centre III-63
C. PRIVATE PROPERTY AND PUBLIC ACCESS III-65 Harrison v. Carswell III-65 Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc. III-69 A. GENERAL PRINCIPLES
The question of access arises when speakers claim a right to use government
property for expressive purposes; see, e.g., Weisfeld v. Canada (Attorney
General), supra, Chapter II. In the United States, expressive activity in
the "traditional public forum" receives First Amendment protection
subject to reasonable time, place and manner restrictions. In Canada the courts
had to decide whether the Charter protects any right of access to
government property under s.2(b).
Questions of "access" can also arise when the state exercises a
non-proprietary right of control and exclusion. Recall the claims by the press
to attend, report, and transmit the events at the site of the Oka barricade in
response to restrictions imposed by the Canadian military in the summer of 1990.
[MacLeod v. Canada (Armed Forces) (1991), 38 F.T.R. 129 (F.C.T.D.)]
Similarly, the American press resented restrictions on access to military
installations during the Persian Gulf war. Meanwhile, groups and individuals
also claim rights of access to the press as, for instance, during
federal election campaigns. Access to judicial proceedings is likewise an
important aspect of openness in the administration of justice. Many of these
issues are considered in subsequent chapters of the materials.
A-G Canada v. Committee for the Commonwealth is the Supreme Court of Canada's first decision on access to government property. There the Court had to decide whether Irwin Toy's low threshold of breach applied or whether access should be governed by special criteria. In the absence of a special s.2(b) test, all restrictions on access to government property, including judges' chambers, would have to be justified under s.1. Six of the seven members of the panel regarded that as inappropriate. Ultimately, the Court proposed three different approaches to the question of access, none of which has as yet been endorsed by a majority of the Court, despite the opportunity to choose between the three that was presented by by Ramsden v. City of Peterborough. This Chapter begins with the three Supreme Court of Canada decisions dealing with s.2(b) activities on government property. Before turning to two important issues - namely, the status of restrictions on picketing at or near abortion facilities and the public-private distinction - an introduction to the public forum doctrine in the First Amendment is provided. A.G. Canada v. Committee for the Commonwealth of Canada (1991), 77 D.L.R. (4th) 385 (S.C.C.) L'Heureux-Dubé J.
... On March 22, 1984, respondents Lepine and Deland, respectively the
Secretary and Vice-President of the Committee for the Commonwealth of Canada,
went to Montreal International Airport at Dorval to promote knowledge of their
group and their political goals, and to recruit members. Equipped with portable
placards, advertising leaflets and magazines, they walked through the first
floor of the terminal. They approached travellers and other passers-by, and
while they were informing them about the goals of the group and soliciting
membership, an R.C.M.P. officer stopped them and asked that they cease their
activities. They objected, at which point the officer took them to the assistant
manager of the airport, who advised them that political propaganda activities
... were unauthorized... . After this meeting, the respondents took an action in
the Federal Court of Canada against the appellant. ...
The relevant portion of the Government Airport Concession Operations Regulations reads as follows: 7. Subject to section 8, except as authorized in writing by the Minister, no person shall (a) conduct any business or undertaking, commercial or otherwise, at an airport; (b) advertise or solicit at an airport on his own behalf or on behalf of any person; or (c) fix, install or place anything at an airport for the purpose of any business or undertaking. ... To establish whether s. 2(b) is infringed, the analysis set out in Irwin Toy applies. ... The first step is to decide whether the activity being limited is "expressive activity". That question presents no difficulty in the present case ... Secondly, it must be asked whether the expressive activity takes an unprotected form, such as violence or threats of violence. No objection can be taken to the form of the expressive activity in this case... The next stage of the Irwin Toy inquiry is to ask whether the purpose of the challenged governmental action is to limit expression. The ... purpose of the governmental action here, whether it arises from the Regulation, the blanket exclusionary policy of the airport regarding such expression, or the actions of the R.C.M.P. officer and the manager, may be said to curtail expression. ... However, even if the purpose itself is not primarily to restrict freedom of expression, which may well be the case here, the Irwin Toy majority also recognized that the Charter breach will still obtain if the "effect" restricts freedom of expression. ... There is no doubt that if the purpose of the Regulation here in question is not to restrict political expression, then the effect most certainly is. ... However, this case also raises an additional element. ... The events in question here occurred on government property. ... The government has argued that its proprietary rights are no different from private property rights generally, and thus it should be allowed to control all activity and exclude others as it sees fit. The respondents have argued that because certain types of government property have a public function and character -- streets, squares, and parks are notable examples -- the properties should therefore be completely open to public manifestations of free expression. [I]n my view, certain governmental restrictions cannot be automatically
excised from the s. 2(b) guarantee strictly on the basis that they do not apply
to locations traditionally associated with public expression. While such
limitations may prove reasonable, it is a burden that the government must
discharge under s. 1. Were a group of demonstrators to choose our own Chambers
as a forum for their protestations, the government may legitimately prohibit
such activity. However, the attempt to do so would abridge the freedom of
expression, albeit in a manner that would likely be demonstrably justified under
s. 1. Different justifications have been advanced by the appellant for the analysis under s. 1. Primarily the appellant relies on the fact that the events took place on government property; this, it is argued, gives the government rights incidental to property ownership which allow the limitation of freedom of expression. Further, the appellant suggests that the limits on the expression were reasonable in time, place and manner. The appellant takes a hard line in ... submitting that as owner of property, the government has the right to exclude whomever it wants, and to impose conditions on invitees to its property without limitation by the Charter. ... Taken to their extreme, the consequences of such a determination would undermine the crucial function of government and the responsibility it bears to its constituents. If the government had complete discretion to treat its property as would a private citizen, it could differentiate on the basis of content, or choose between particular viewpoints, and grant access to sidewalks, streets, parks, the courthouse lawn, and even Parliament Hill only to those whose message accorded with the government's preferences. Such a standard would be antithetical to the spirit of the Charter. ... ... If members of the public had no right whatsoever to distribute leaflets or engage in other expressive activity on government-owned property (except with permission), then there would be little if any opportunity to exercise their rights of freedom of expression. Only those with enough wealth to own land, or mass media facilities, would be able to engage in free expression. On the other hand, the Charter's framers did not intend internal government offices, air traffic control towers, prison cells and Judges' Chambers to be made available for leafleting or demonstrations. Such a wholesale transformation of all government property is not necessary to fulfil the Charter's purposes, or to avoid a stifling of free expression. ... The logical compromise then is to recognize that some, but not all, government-owned property is constitutionally open to the public for engaging in expressive activity. ... Certain criteria, while not themselves dispositive, can assist in determining what locations are appropriately open for public expression, and bear the earmarks of "public arenas". ... As stated, the A.G.O. has proposed [the following determinants]: 1. The traditional openness of such property for expressive activity. ... 2. Whether the public is ordinarily admitted to the property as of right. ... 3. The compatibility of the property's purpose with such expressive activities. ... 4. The impact of the availability of such property for expressive activity on the achievement of s. 2(b)'s purposes. ... 5. The symbolic significance of the property for the message being communicated. ... 6. The availability of other public arenas in the vicinity for expressive activities. ... I find these criteria very valuable. While they are not meant to be dispositive in any given case, they do provide useful guidelines. ... ... In order to assess whether airport terminals are properly considered public arenas, we must explore their function in contemporary society. Airport terminals are freely accessible to all members of the public. However, the terminals themselves can be divided broadly into security zones -- such as Customs, check-in counters, metal detector surveillance areas, and baggage inspection; and non-security zones -- such as lounges, waiting areas, restaurants, gift and cigar shops, news-stands, and the connecting halls and foyers. Certain expressive activity is clearly more compatible within the latter areas than within the former. Airports also draw a tremendous number of travellers over the course of a day. ... Few locations can parallel this reliable concentration of people. Bus, train and airport terminals are indeed modern boulevards, extensions of Main Street. The list of sites traditionally associated with public expression is not static. As means of locomotion progress, people shall begin to gather in areas heretofore unknown. ... ... While airport terminals do not have a monopoly on high concentrations of passers-by, few locations offer similar opportunities to encounter such a wide cross-section of the community. For the aforementioned reasons, and upon consideration of the above factors, the non-security zones within airport terminals, in my view, are properly regarded as public arenas. Therefore, the government cannot simply assert property rights, or claim that expression is unrelated to an airport's function, in order to justify the restriction. ... In spite of my conclusion that Regulation 7 is both vague and overbroad and as such does not pass the s. 1 analysis, I would like to discuss the time, place, and manner restrictions on expressive activity which the appellant has urged us to consider as reasonable limits ... This "time, place, and manner" [doctrine] ... resembles the criteria for evaluating the justification of Charter limitations under the s. 1 test. This correlation serves two purposes; it gives greater weight to the assessment of the reasonableness of time, place, and manner regulations under s. 1 rather than under s. 2(b), and it provides a welcome podium from which we can amplify our own standard. ... While at first this may appear to derogate from the Oakes analysis, in reality it merely restates the qualified Oakes test as described ... in R. v. Edwards Books and Art Ltd.,... Applying even the most relaxed standard of analysis, the question remains as to whether these time, place, and manner regulations were reasonable in the context and circumstances of this particular case. ... The objective would have to relate to the nature of the airport itself, and the need to ensure that it operates safely and efficiently. To that end, the government can impose restrictions regarding who may congregate in specific areas, especially those security type zones identified above. Airports and planes are recurrent targets of terrorist activity. Precautions are necessary ... Ingress and egress to and from the various sectors of the airport should not be unnecessarily obstructed. Access to certain quarters can be limited to specific persons. These objectives are not only reasonable, but in many instances necessary. Hence, these purposes can clearly anchor content-neutral time, place, and manner regulations to achieve those goals. However, the restrictions imposed by the impugned provision bear no rational connection to the aforementioned objectives. They are broad to the point of being unintelligible. Such a blanket exclusion on any type of activity is clearly violative of the requirements set out above. ... ... The Minister's discretion seems absolute. The Regulation itself extends
to every area of the airport and to virtually all types of activities. To the
extent that one may think that the provision is not overbroad, i.e., if one
endeavoured to delineate precisely what "business or undertaking,
commercial or otherwise" was designed to comprehend, or what types of
advertising and solicitation were implicated, the very attempt would expose the
provision's unintelligible nature. Such ambiguity is wholly irreconcilable with
a regulation suppressing freedom of expression.
Lamer C.J. (Sopinka and Cory JJ., concurring on the question of access) ... Essentially, my position differs ... in two regards: first, with respect, I do not share [L'Heureux-Dubé J.'s] position that the concept of "public forum" should be considered exclusively in the context of s. 1 ... Second ... I have come to the conclusion that s. 7 of the Government Airport Concession Operations Regulations [] is not applicable to the activities of the respondents in the case at bar. ... !. The concept of "public forum" and its incorporation in rules and burdens imposed by the Charter As developed by the American courts in a series of decisions, the concept of "public forum" refers first and foremost to a social reality, namely, that certain places owned by the government constitute a favourable platform for the dissemination of ideas. ... The "public forum" concept thus appears as a "label" used by the American courts to describe certain places which are by their very nature suited to free expression. In thus characterizing certain places as "public forums", the American courts have in fact made an exception to the absolute nature of the government's right of ownership in order to conclude that the First Amendment to the American Constitution gives a person wishing to exercise his or her freedom of expression the right to use a parcel of the public domain so identified for purposes of expression [ ]. In Perry Education Association, the United States Supreme Court divided government properties into three distinct categories: (1) "traditional public forums", (2) "public forums by designation" and (3) forums which are not public. According to this nomenclature, the category within which a government property falls will determine the scope of the limitations which may be imposed on expression taking place on the property. ... Two observations should be made regarding the classification exercise undertaken by our neighbours to the south. First, I note that the "public forum" doctrine has been severely criticized by various American professors who, in general, reproach this doctrine for not offering specific functional criteria that can be used to characterize a particular place. [ ] Second, in considering the application of this American doctrine in Canadian law, I feel it is essential to note the fundamental differences between the American Constitution and the Charter. The American Bill of Rights contains no clause similar to s. 1... . To this extent, the characterization of a place as a "public forum" in the United States does not end the matter, since it will then be necessary, under our Constitution, to determine whether the governmental interests are sufficiently compelling to justify an infringement of freedom of expression that would otherwise be unconstitutional. Additionally, the characterization of a place as a "public forum" cannot mean that every form of expression is therefore permissible in such a place. For example, there are certain forms of expression which could not be permitted even in a public park. To this extent, undoubtedly, the public forum doctrine can be criticized for over-emphasizing the nature of the place at the expense of the real interests involved. These fundamental considerations lead me to conclude that, in the Canadian legal context, it would be preferable to disregard the nominalistic approach developed by the American courts and instead to balance the interests underlying the public forum doctrine. The American experience shows that the "public forum" concept actually results from an attempt to strike a balance between the interests of the individual and the interests of the government. As there is no provision similar to s. 1 of our Charter, the American "public forum" doctrine is the result of the reconciliation of the individual's interest in expressing himself in a place which is itself highly propitious to such expression and of the government's interest in being able to manage effectively the premises that it owns. ... I am of the view that when a person claims that his freedom of expression was infringed while he was trying to express himself in a place owned by the government, the legal analysis must involve examining the interests at issue, namely the interest of the individual wishing to express himself in a place suitable for such expression and that of the government in effective operation of the place owned by it. ... a. Interest of the individual wishing to express himself The interest an individual wishing to express himself has in using a parcel of the public domain can quite easily be explained. Unquestionably, the dissemination of an idea is most effective when there are a large number of listeners; the economic and social structure of our society is such that the largest number of individuals, or potential listeners, is often to be found in places that are state property. One thinks immediately of parks or public roads which, by their very nature, are suitable locations for a person wishing to communicate an idea. Accordingly, it must be understood that the individual has an interest in communicating his ideas in a place which, because of the presence of listeners, will favour the effective dissemination of what he has to say. Certain places owned by the state are well-suited for such purposes; it has to be borne in mind, however, that all government property is used for specific purposes which must be respected by any person seeking to communicate. This is the essence of the government interest. b. Government interest In considering the government interest, I would note at the outset that this should not be confused, strictly speaking, with the ownership held by the government. ... [An approach that gives the government the same rights as any owner] contains inherent dangers. First, it ignores the special nature of government property. The very nature of the relationship existing between citizens and the elected government provides that the latter will own places for the citizens' benefit and use, unlike a private owner who benefits personally from the places he owns. The "quasi-fiduciary" nature of the government's right of ownership was indeed clearly [recognized in Hague]. ... Second, an absolutist approach to the right of ownership fails to take into account that the freedom of expression cannot be exercised in a vacuum and that it necessarily implies the use of physical space in order to meet its underlying objectives. ... I therefore conclude that, as a consequence of its special nature, the government's right of ownership cannot of itself authorize an infringement of the freedom guaranteed by s. 2(b)... . c. Balancing these poles of interest under s. 2(b) of the Charter [Section] 2(b) of the Charter cannot be interpreted so as to consider only the interests of the person wishing to communicate. As the Attorney General of Ontario properly points out, s. 2(b)... does not protect "expression" itself, but freedom of expression. In my opinion, the "freedom" which an individual may have to communicate in a place owned by the government must necessarily be circumscribed by the interests of the latter and of the citizens as a whole: the individual will only be free to communicate in a place owned by the state if the form of expression he uses is compatible with the principal function or intended purpose of that place. The interest which any person may have in communicating in a place ... cannot have the effect of depriving the citizens as a whole of the effective operation of government services and undertakings. Even before any attempt was made to use them for purposes of expression, such places were intended by the state to perform specific social functions. A person who is in a public place for the purpose of expressing himself must respect the functions of the place and cannot in any way invoke his or her freedom of expression so as to interfere with those functions. For example, no one would suggest that an individual could, under the aegis of freedom of expression, shout a political message of some kind in the Library of Parliament or any other library. This form of expression in such a context would be incompatible with the fundamental purpose of the place, which essentially requires silence. When an individual undertakes to communicate in a public place, he or she must consider the function which that place must fulfil and adjust his or her means of communicating so that the expression is not an impediment to that function. To refer again to the example of a library, it is likely that wearing a T-shirt bearing a political message would be a form of expression consistent with the intended purpose of such a place. The fact that one's freedom of expression is intrinsically limited by the function of a public place is an application of the general rule that one's rights are always circumscribed by the rights of others. ... Seen from another standpoint, this discussion also accords with the observations made by this Court in Irwin Toy... In my view, if the expression takes a form that contravenes or is inconsistent with the function of the place where the attempt to communicate is made, such a form of expression must be considered to fall outside the sphere of s. 2(b). For example, if a person tried to picket in the middle of a busy highway or to set up barricades on a bridge, it might well be concluded that such a form of expression in such a place is incompatible with the principal function of the place, which is to provide for the smooth flow of automobile traffic. In such a case, it could not be concluded that freedom of expression had been restricted if a government representative obliged the picketer to express himself elsewhere. Accordingly, it is only after the complainant has proved that his form of expression is compatible with the function of the place that the justifications which may be put forward under s. 1... can be analyzed. ... d. Application of the foregoing principles to the facts of this case ... In my view, the distribution of pamphlets and discussion with certain members of the public are in no way incompatible with the airport's primary function, that of accommodating the needs of the travelling public. An airport is in many ways a thoroughfare, which in its open areas or waiting areas can accommodate expression without the effectiveness or function of the place being in any way threatened. Thus, the very nature of the premises, the presence of a large and varied audience, meant that the respondents' freedom of expression could be exercised without interfering with the operation of the airport. For this reason, I am of the view that there was a limitation on the freedom of expression enjoyed by the respondents when the airport manager ordered them to cease their activities. I therefore conclude that the respondents were "free" to express themselves in this manner at the Dorval airport. The question remains of whether this limitation on the freedom of expression can subsequently be the subject of an analysis under s. 1 ... I am of the view that s. 7 of the Regulations does not apply in the case at bar. I therefore conclude ipso facto that we are not dealing here with a "law" that can be the subject of the s. 1 test. ... 2. Section 7 of the Regulations and its relevance to the case at bar In my opinion, the limitation imposed on the respondents' freedom of expression arose from the action taken by the airport manager, a government official, when he ordered the respondents to cease their activities. Although this action was based on an established policy or internal directive, I do not think it can be concluded from this that there was in fact a "law" which could be justified under s. 1... . The government's internal directives or policies differ essentially from statutes and regulations in that they are generally not published and so are not known to the public. Moreover, they are binding only on government officials and may be amended or cancelled at will. For these reasons, the established policy of the government cannot be the subject of the test under s.1... . McLachlin J. (La Forest and Gonthier JJ., concurring on the question of access) I. Section 2(b) of the Charter and State-Owned Property L'Heureux-Dubé J. takes the position that all expression on public property falls within s. 2(b)... with the result that any restrictions [on] expression must be justified by the government under s. 1... The only exception would be for violent or other proscribed forms of expression.... Even expression on "private" state-owned property, such as the Prime Minister's office or a judge's private chambers, would fall under the guarantee of free speech found in s. 2(b) of the Charter on her analysis. ... Lamer C.J., on the other hand, takes a narrower view of s. 2(b). The
guarantee of free expression applies only if the proposed expression does not
unduly impair the function of the government property in question. Under this
test, much of the balancing of the conflicting interests of the speaker and the
state would take place under s. 2(b) of the Charter. Freedom of expression does not, historically, imply freedom to express oneself wherever one pleases. ... Moreover, the Charter does not extend to private actions. It is therefore clear that s. 2(b) confers no right to use private property as a forum for expression. The matter is less clear where public property is involved. Since the Charter
applies to government action, the government must make its property available as
a forum for public expression insofar as the guarantee of freedom of expression
in s. 2(b)... so requires. ... Which of these three general approaches should be adopted? The answer, in my view, must be found by considering the shared values which have historically been associated with the concept of freedom of expression. I agree ... that the rights guaranteed by the Charter cannot be confined to the ambit of the rights that preceded them. At the same time, however, it is necessary to have recourse to the historical, philosophical and evaluative purposes underlying Charter rights in determining their scope. The protection conferred by a right, even prima facie, should not go beyond what can be justified, having regard to the history of the right and the purpose which it serves. When the right of free expression is viewed in its historical and philosophical context, the result is that neither of the extreme views set out above can prevail. I consider first the Crown's argument that the government qua proprietor has the absolute right to prohibit and regulate expression on all property which it owns. This contention is belied by a venerable tradition which supports the view that some types of state-owned property are proper forums for public expression. The right of free speech has traditionally been associated with streets and by-ways and parks -- all government property. To accept the Crown's argument would be to restrict the freedom guaranteed by the Charter to limits much narrower than those with which it has traditionally been associated. ... The jurisprudence supports the view that the state's property interest in a forum does not give it the absolute right to control expression on that forum. ... I turn then to the other extreme ... Do the purposes of the right of free expression, viewed in historical and philosophic context, justify conferring on the public the constitutional right to express itself publicly on all public property, regardless of its use and function? To put it another way, did the framers of the Charter intend s. 2(b) to offer protection to the citizen's speech in even the most private state-owned property? ... My conclusion is that they did not. There is no historical precedent, whether in England, the United States or this country, for extending freedom of expression to purely private areas merely because they happen to be on government-owned property. Freedom of expression has not traditionally been recognized to apply to such places or means of communication as internal government offices, air traffic control towers, publicly-owned broadcasting facilities, prison cells and judges' private chambers. To say that the guarantee of free speech extends to such arenas is to surpass anything the framers of the Charter could have intended. To say that freedom of expression extends to all state-owned property is to overshoot the actual purpose of the freedom, to extend the protection of the Charter to situations where the values underlying the right are absent. Clearly, s. 2(b) cannot be held to apply to all expression on all government-owned property. Pragmatic considerations also support the conclusion that not all expression
on state-owned property should be held to fall within s. 2(b)... . The state
should not be obliged to defend in the courts its restriction of expression
which does not raise the values and interests traditionally associated with the
free speech guarantee. Indeed, a failure to invest s. 2(b) with meaningful
content reflective of those principles threatens to trivialize the Charter
guarantee of free expression. For these reasons a threshold test is required to
screen out cases clearly falling outside the free speech guarantee before
reaching the s. 1 analysis. The threshold should not be so high that persons
with legitimate claims are prevented from establishing them; nevertheless a prima
facie case is required. ... Reflection leads me to question whether the "compatibility with function" test serves as a useful and appropriate tool for screening out claims which should not be considered to fall within the ambit of free expression. The compatibility of the property's purpose with free expression is doubtless a factor in determining whether a government restriction on that expression is constitutional under s.1... . But I question whether it is the only factor and whether it is properly introduced at the stage of s. 2(b) of the Charter. It could be argued, for example, that the Parliamentary library could function quite well despite the presence of demonstrators holding placards. Moreover, the concept of function presents difficulties. Does it mean normal function? Minimal or essential function? Optimum function? At what point does expression become incompatible with function? Presumably, only if the impairment of function were severe would s. 2(b) be held inapplicable, with limitations relating to optimal (as opposed to minimal) function falling to be justified under s. 1. Yet drawing this line may prove difficult in practice. In short, the concept of function proves on examination to be a relative one. In some cases, the right of free expression might be considered important enough to interfere to some extent with the function of government property. In others, the impairment of function will be so great in comparison with the interest in free expression as to justify exclusion or limitation of the expression. The concept of function is thus seen to involve a balancing of interests which arguably serves better as part of the s. 1 test than as a threshold for screening out claims which raise no prima facie free expression interest. A functional test for s. 2(b) suffers from the further difficulty that it might present problems of proof which would forestall legitimate claims. It is open to the danger that the state by defining function narrowly might unduly restrict the class of cases which are prima facie entitled to constitutional protection. Moreover, the onus would be on the accused to show that the government function would be unimpaired by his or her expression ... Considerations such as these lead me to question whether compatibility with the function of the forum should be the critical factor at the stage of s. 2(b). ... My review of these alternatives leads me to conclude that the test for the constitutional right to use government property for public expression should conform to the following criteria. It should be based on the values and interests at stake and not be confined to the characteristics of particular types of government property. .The analysis under s. 2(b) should focus on determining when, as a general proposition, the right to expression on government property arises. The task at this stage should be primarily definitional rather than one of balancing ... Once it has been determined that the expression ... falls within the scope of s. 2(b) thus defined, the further question arises of whether the government's limitation on the property's use for the expression in question is justified under s. 1. At this stage the concern should be primarily one of weighing and balancing the conflicting interests. ... [T]he methodology set out in Irwin Toy, distinguished between two classes of restrictions on freedom of expression: restrictions aimed at preventing certain meanings being conveyed, and restrictions which are not directed at content but have the effect of restricting expression. ... ... [L]imitations on forum may fall into either of the two fundamental
categories of restrictions on expression distinguished in Irwin Toy. A
restriction on the forum for expression may be content-based. For example, a ban
on anti- war messages on Parliament Hill might be viewed as essentially
content-based. ... On the other hand, many restrictions on forums for public
expression are content-neutral. The government's purpose is not, in the words of
Irwin Toy, "to restrict the content of expression by singling out
particular meanings that are not to be conveyed."[] Its purpose is rather
to avoid the "harmful consequence of the particular conduct in
question" []; for example, to prevent interference with the proper and
orderly functioning of government-owned property.
While the periphery of the right to use public property for the purpose of expression may remain uncertain, at least for a time, the central elements of the test are relatively clear and capable of ready application. The pursuit of truth, as that notion has developed in the context of freedom of expression, relates to the function of free and open discussion in arriving at the truth. The encouragement of "social and political decision-making" [] which is the essence of the value of "community participation", recognizes the value of public discussion and debate on social and political matters. Finally, the encouragement of a tolerant and welcoming environment which promotes diversity in forms of self-fulfilment and human flourishing recognizes the role of expression in maximizing human potential and happiness through intellectual and artistic communication. It would be difficult to contend that these purposes are served by "public" expression in the sanctum of the Prime Minister's office, an airport control tower, a prison cell or a judge's private chambers, to return to examples where it seems self-evident that the guarantee of free expression has no place. These are not places of public debate aimed at promoting either the truth or a better understanding of social and political issues. Nor is expression in these places related to the open and welcoming environment essential to maximization of individual fulfilment and human flourishing. It is equally clear that the purposes of the guarantee of free expression are served by permitting expression in other forums and that s. 2(b) should apply to them. To borrow the language of the American "public forum" doctrine, the use of places which have by tradition or designation been dedicated to public expression, for purposes of discussing political or social or artistic issues would clearly seem to be linked to the values underlying the guarantee of free speech. ... The first question is whether the purpose of the government officials in refusing the respondents the right to distribute their material and solicit in the airport was to prohibit the expression of particular content, or whether it was directed at consequences of the expression unrelated to its particular content. The evidence is scant as to the purpose of the airport officials. However, their stated policy was to prohibit all political propaganda. Given that there appears to have been no intention to favour one philosophy or idea over another, I would characterize the restriction as content-neutral, aimed at the consequences of such expression rather than the particular messages communicated. The next question is whether the restriction in question had the effect of limiting expression. I agree with L'Heureux-Dubé J. that it did. I disagree with her, however, that this establishes that s. 2(b)... has been breached. ... The limiting effect having been shown, we must ask whether the expression in question promotes any of the purposes of the guarantee of free expression. ... ...[T]he respondents in this case were seeking to present political views in a location frequented by many members of the community passing en route from one place to another, a location which can be considered to be a modern equivalent of the streets and by-ways of the past. This establishes a relationship between the respondent's use of the airport for expression and one of the purposes of the free expression guarantee. I conclude that the government's action constituted a limitation of the respondents' rights under s. 2(b)... ... I propose to discuss first the question of how the balancing required by s. 1 can best be achieved in a case such as this. ... I turn first to the objective of the restriction. The government's objective in imposing the limit amounts to little more than the assertion -- more as an article of faith than a rationally supported proposition -- that an airport is not an appropriate place for this type of communication. The Crown points to nothing in the function or the purpose of an airport which is incompatible with the respondents' conduct. It follows that the Crown has failed to establish an objective of sufficient importance to override a Charter right. Even if the objective were sufficient, the means chosen to implement it would preclude justification of the restriction under s. 1... . They cannot be described as either reasonable or proportionate to the respondents' interest in conveying their message pursuant to their right under s. 2(b)... . The practice of airport authorities of preventing all "political propaganda activities" constitutes a blanket exclusion of political solicitation in the airport unrelated to concerns for its function and devoid of safeguards to protect against over-reaching application. A broader, less sensitive prohibition is difficult to conceive. The airport policy makes no concession whatever to the convincing reasons which the respondents advance in support of their right to disseminate their message in Dorval Airport. Few places offer as convenient a means for reaching a wide cross-section of the public, especially for groups and individuals lacking the resources to communicate through the established media. In short, the proportionality required to establish that the limit is "reasonable" and "demonstrably justified" is entirely lacking. I conclude that the limitation in question is overbroad and hence is not saved by s. 1. ... Notes and Questions 1. What reasons does Lamer C.J.C. offer in support of his conclusion that it is appropriate to limit access to government property under s. 2(b), rather than under s.1? More particularly, why should the community's interest in preserving the functional integrity of government property be considered relevant in determining the existence of a breach? Is the attempt to render Irwin Toy's exception for inappropriate forms a proxy for "forum" convincing? If the compatibility of the expressive activity and the usual function of the property is resolved under s. 2(b), what analytical function is left for s. 1? 2. Is "compatibility" a definitional concept that can be applied under s. 2(b)? Or is it a concept that is inherently contextual in nature? Is it appropriate for the courts to engage in case-by-case, ad hoc, contextual adjudication under s. 2(b) rather than under s.1? 3. Madam Justice McLachlin found the alternatives suggested by Lamer C.J.C. and L'Heureux-Dubé equally unattractive: whereas the Chief Justice's shifted too much of the s.1 analysis into s. 2(b), L'Heureux-Dubé's "overshot" the purposes of s. 2(b). She claimed that she had found a point "between the two". Her interpretation sought to recognize generous access under s. 2(b) while also screening out "trivial" claims. What reasons does she give for imposing restrictions on access under s. 2(b)? Given the structural logic of the Charter, which suggests that limitations should be imposed under s.1, and the s.2(b) precedent relied on by L'Heureux-Dubé, does she adequately rationalize her "definitional" approach? Note in this respect that L'Heureux-Dubé claims that it would be inappropriate to establish issue-specific criteria of breach in the case of access. Does McLachlin contemplate special criteria or is her approach consistent with the s. 2(b) jurisprudence? 4. Does a "justificatory" approach, as L'Heureux-Dubé J. proposes, constitute any improvement? What would happen if all claims of access were governed by the Oakes test? Alternatively, should they be governed by an issue-specific standard of justification under s. 1? In other words, is the context of the claim most relevant initially under s. 2(b) or ultimately under s. 1? 5. All members of the Court hesitate to characterize the prohibition in this case as purposeful. But can there be any doubt on that issue: a regulation absolutely prohibiting expressive activity can hardly be considered inadvertent. Has the Court confused purpose and motive? Is the government's motive relevant under s. 2(b)? Why or why not? 6. The judgments of both Lamer C.J.C and L'Heureux-Dubé J.rely on the absolute discretion of the Minister as a reason for striking down the Regulation. Lamer C.J.C. goes so far as to conclude that the policy of the government in applying the Regulation was not law for the purpose of s. 1 analysis. What would the result have been had the Minister limited access solely to veterans selling poppies? What if the Minister had limited access instead to any registered charity? See Young v. New York City Transit Authority, 903 2d. 146 (1990) supra, where such a limitation in the New York City subway was upheld. The Toronto Transit Commission limits soliciting in Toronto's transit system to registered "buskers", musicians who must audition and be selected in order to obtain a coveted spot. Would the TTC scheme satisfy the Section 1 test ? 7. In R. v. Reid (1983), 8 C.C.C. (2d) 153 (B.C. Ct. C.) ; aff 'd (1984), 10 C.C.C. (2d) 573 (B.C.C.A.) , the defendant was a Jehovah's Witness dissenter who was charged with causing a disturbance by shouting while protesting, through a bullhorn, in front of a Witness church prior to a Sunday service. In holding that sections 171 and 172 of the Criminal Code did not violate s. 2(b) of the Charter, the Court found that the sections were directed towards the maintenance of public peace and not freedom of expression. The sections were narrow enough to confine police discretion within reasonable bounds, and, considering the time, place and manner of the defendant's demonstration, his conduct was unreasonable and incompatible with the normal use of that public place. How would Lamer C.J.C. have decided this case? 8. Can a municipality impose a permit requirement which charges a fee based
upon the reasonable costs that the municipality might be expected to bear i.e.
for clean-up and policing? In Forsyth v. The Nationalist Movement,
112 S.Ct. 2395 (1992) a unanimous U.S. Supreme Court struck down as
unconstitutional such an ordinance in a context where the municipality soght to
recover its policing expenses to protect public order if a planned protest
against the Martin Luther King, Jr., federal holiday were to proceed. City of Peterborough v. Ramsden I. Background As a means of advertising upcoming performances of his band, the respondent, on two occasions, affixed posters on hydro poles in contravention of By-law No. 3270 of the City of Peterborough. On both occasions, the respondent was charged under the Provincial Offences Act, R.S.O. 1980, c. 400. ... The respondent did not deny committing the offences but took the position that the by-law was unconstitutional. ... The respondent was convicted by a Justice of the Peace who found that the by-law did not violate the Charter. The respondent appealed to the Provincial Court on an agreed statement of facts. The parties agreed that postering on utility poles can constitute a safety hazard to workers climbing them and a traffic hazard if placed facing traffic. The parties also agreed that abandoned posters or those left for an unreasonable length of time may constitute visual and aesthetic blight and contribute to litter. The respondent's appeal to the Provincial Court was dismissed. His further appeal to the Court of Appeal was allowed by a majority [who set aside] respondent`s convictions and entered [acquittals]. II. Relevant Legislative Provisions By-law No. 1982-147 reads as follows: 1. No bill, poster, sign or other advertisement of any nature whatsoever shall be placed on or caused to be placed on any public property within the limits of the City of Peterborough or any pole, post, stanchion or other object which is used for the purpose of carrying the transmission lines of any telephone, telegraph or electric power company situate on any public property within the limits of the City of Peterborough. Section 2 of the by-law reads as follows: 2. Every person who contravenes this by-law is guilty of an offence and liable upon summary conviction to a penalty not to exceed Two Thousand Dollars ... V. Analysis A. Section 2(b) of the Charter Under Irwin Toy, supra, there are two basic steps in the s. 2(b) analysis. First, one must determine whether the activity at issue falls within the scope of s. 2(b). This first step is itself a two-part inquiry. Does postering constitute expression? If so, is postering on public property protected by s. 2(b)? Under the second step of the 2(b) analysis, one must determine whether the purpose or effect of the by-law is to restrict freedom of expression. 1. Does Postering Constitute Expression? Under Irwin Toy... the first question to be asked in a case involving s. 2(b) is whether the activity conveys or attempts to convey a meaning. This is an easy inquiry in the present case. ... Postering has historically been an effective and relatively inexpensive means of communication. Posters have communicated political, cultural and social information for centuries. In Ford v. Quebec, (Attorney General), [1988] 2 S.C.R. 712, this Court held that a law requiring public signs and posters to be printed only in French violated s. 2(b). Implicitly, this decision held that public signs and posters are a form of expression protected by s. 2(b). Regardless of whether the posters concerned constitute advertising, political speech or art, it is clear that they convey a meaning. Therefore, the first part of the s. 2(b) test is satisfied. 2. Is Postering on Public Property Protected by S. 2(b)? The second question in the s. 2(b) inquiry is whether postering on public property falls within the scope of s. 2(b). In Committee for the Commonwealth of Canada there were three separate approaches articulated. ... While these approaches have been subject to some criticism,... in my view it is [not] desirable to revisit Committee for the Commonwealth of Canada in the present case. ... [I]t is not necessary to determine which of the three approaches should be adopted. Regardless of the approach chosen, it is clear... that postering on some public property is protected by s. 2(b). A brief discussion of each approach in the context of this case makes this conclusion self-evident. Under the approach proposed by L'Heureux-Dubé J., all restrictions on expressive activity on public property violate s. 2(b). ... [A]n application of the factors enumerated by L'Heureux-Dubé J. clearly leads to the conclusion that this by-law could not be justified under s. 1. Using the Chief Justice's approach, we must balance the interest of the respondent in publicizing the performances of his band, against the state interest in ensuring effective and safe operation of services. In this case, the public property used by the respondent to convey his message was utility poles. The question to be asked is therefore whether attaching posters to public utility poles is incompatible with the poles' use of carrying utility transmission lines. In my opinion, it is not. ... Without considering other types of public property, it is clear that postering on some public property, including utility poles, is compatible with the primary function of that property. Finally, under McLachlin J.'s approach, the question to be asked is whether postering on public property, and in particular on utility poles, furthers any of the values or purposes underlying s. 2(b). ... As I noted above, posters have communicated political, cultural and social information for centuries. Postering on public property including utility poles increases the availability of these messages, and thereby fosters social and political decision-making. ... ... In my view, it is clear that postering on public property, including utility poles, fosters political and social decision-making and thereby furthers at least one of the values underlying s. 2(b). ... ... I do not find [a] distinction between using public space for leaflet distribution and using public property for the display of posters persuasive. Surely the appellants in Committee for the Commonwealth of Canada were "using" the public property in question to convey their message, just as the respondent in this case was "using" the utility poles to covey his. Once could "use "a utility pole to express oneself in many different ways: by sticking a poster to it by attaching a speaker to it to amplify a speech or even by climbing on it to gain a speaking platform. The question should not be whether or how the speaker uses the forum, but rather whether that use of the forum either furthers the values underlying the constitutional protection of freedom of expression (the McLachlin J. approach) or is compatible with the primary function of the property (the Lamer C.J. approach). Therefore, I would conclude that, under any of the approaches proposed in Committee for the Commonwealth of Canada, the first step in the Irwin Toy analysis is satisfied. Postering on some public property, including public property at issue in the present case, is protected under s. 2(b). ... 3. The Purpose of the By-law It seems evident that the by-law is aimed at the consequences of the particular conduct in question, and is not tied to content. On its face the by-law is content-neutral and prohibits all messages from being conveyed in a certain manner and at certain places. The by-law is directed at avoiding the consequences associated with postering, namely litter, aesthetic blight traffic hazards and hazards to persons engaged in repair and maintenance. In Irwin Toy Ltd.,... Dickson C.J. noted that a rule against littering is not a restriction "tied to content". Rather "[i]t aims to control the physical consequences of certain conduct regardless of whether that conduct attempts to convey meaning." The court below held that the purpose of the by-law is "meritorious" and not to restrict expression. I would agree. 4. The Effect of the By-law ... It is clear that the effect of the by-law is to limit expression. The absolute prohibition of postering on public property prevents the communication of political, cultural and artistic messages. The appellant did not dispute that the effect of the by-law is to restrict expression, but rather argued that postering on public property does not further any of the values underlying s. 2(b). As I have already concluded, the expression in question promotes political and social discourse, one of the underlying purposes of s. 2(b). Therefore, the respondent has established a violation of s. 2(b), and the analysis now proceeds to s. 1. B. Section 1 The objective of the by-law is pressing and substantial. The by-law seeks to avoid littering, aesthetic light, traffic hazards, and hazards to persons engaged in the repair and maintenance of utility poles. Similarly, the total ban is rationally connected to these objectives. By prohibiting posters entirely, litter, aesthetic blight and associated hazards are avoided. The question therefore becomes whether the by-law restricts expression as little as is reasonably possible. The limitation at issue in the present case is a complete ban on postering on public property. In Ford,... the Court discussed the "distinction between the negation of a right or freedom and a limit on it." While the negation of a right or freedom does not necessarily require that such an infringement not be upheld under s. 1, "the distinction between a limit and permits no exercise of a guaranteed right or freedom in a limited area of its potential exercise and one that permits a qualified exercise of it may be relevant to the application of the test of proportionality under s. 1". ... It will therefore be more difficult to justify a complete ban on a form of expression than time, place or manner restrictions. The U.S. Supreme Court considered a similar prohibition in Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984). Stevens J. for the majority of the court... accepted that the city's interest in avoiding visual clutter was sufficient to justify the complete prohibition on postering that the ban curtailed speech no more than was necessary to accomplish its purpose. The majority rejected the argument that the public property concerned was a "public forum" protected by the First Amendment, or should be treated as a "public forum". However, I find more helpful the dissent of Brennan J. ... which discussed, at p.830, less restrictive alternatives than a complete ban on postering: ... [the City] might actively create a particular type of environment; it might be especially vigilant in keeping the area clean; it might regulate the size and location of permanent signs; or it might reserve particular locations, such as kiosks, for the posting of temporary signs. Similarly, Los Angeles might be able to attack its visual clutter problem in more areas of the City by reducing the stringency of the ban perhaps by regulating the density of temporary signs, and coupling that approach with additional measures designed to reduce other forms of visual clutter. With regard to the objectives identified by the appellant in the present case, worker safety is only affected with respect to posters attached to wooden utility poles. The by-law extends to trees, all types of poles, and all other public property. Traffic safety is only affected where posters are displayed facing roadways. The application of the by-law is not so restricted. In Re Forget [(1990), 74 D.L.R. 4th 547 Alta. Q.B.] McFadyen J. suggested some alternatives to a total ban: ... such values might equally be preserved by regulating the use of the poles for such purposes by specifying or regulating the location, size of posters, the length of time that a poster might remain in any location, the type of substance used to affix posters, and requiring that the posters be removed after a certain specified time. If necessary, a reasonable fee could be imposed to defray costs of administering such a system. These kinds of alternatives could control the concerns of litter and aesthetic blight in a manner which is far less restrictive than the by-law. In my view, the total ban on postering on public property does not impair the right as little as is reasonably possible, given the many alternatives available to the appellant. Moreover, the benefits of the by-law are limited while the abrogation of the freedom is total, thus proportionality between the effects and the objective has not been achieved. While the legislative goals are important, they do not warrant the complete denial of access to historically and politically significant form of expression. I would agree... on this point that "[a]s between a total restriction of this important right and some litter surely some litter must be tolerated". Therefore, the by-law cannot be justified under s. 1. ... Notes and Questions 1. In what ways, if any, does Ramsden advance our understanding of the principles that apply to expressive activity on government property? 2. Did the Supreme Court of Canada have an obligation, in Ramsden, to choose between one of the three approaches proposed in Commonweath? Why or why not? 3. Note the result in City of Toronto v. Quickfall (1994), 16 O.R. (3d) 665 (C.A.), following Ramsden, and invalidating Toronto by-laws that effectively imposed a total ban on postering. 4. Should the state's interest in controlling "urban blight" always be considered subsidiary to an individual's right to public property for expressive purposes? See Schneider v. State, 308 U.S. 147 (1939) where antilittering ordinances prohibiting the distribution literature were held unconstitutional. If the First Amendment claim prevailed against an ordinance directed at littering, does that suggest that other ordinances prohibiting the posting of bills would also be unconstitutional? See City Council v. Taxpayers for Vincent, 104 S. Ct. 2118 (1984), upholding an absolute ban on the posting of signs on public property, and Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981), (dealing with billboards on private property). 5. Note the following in Canadian Newspaper Co. v. Victoria (City) (1989), 63 D.L.R. (4th) 1, (B.C.C.A.) where a prohibition on newspaper vending boxes was challenged under s.2(b): ... Counsel said in some circumstances sidewalks and other public property are the only practical means available for the dissemination of ideas. Newspaper vending boxes placed at strategic locations on sidewalks owned by the City account for a substantial portion of the sales of the appellant's newspaper. Other means of distribution such as the use of hawkers did not adequately take the place of newspaper vending boxes. The City responded to those submissions by saying the appellant has no constitutional right to place newspaper vending boxes on the City's streets or sidewalks. At common law no person has the right to interfere with the right of people to use the City's streets and sidewalks unimpeded by newspaper vending boxes. The City has lawfully regulated the sale and distribution of newspapers on City sidewalks by issuing hawkers' licences... . ... [A] valid comparison can be made between the ability of the City to refuse the use of public property for the distribution of newspapers through vending boxes with the ability of the private citizen to refuse permission to the appellant to place vending boxes on his property. The private citizen of course is not inhibited by the provisions of the Charter of Rights and Freedoms. [However] ... to compel the City to permit vending boxes to be placed on City property denies it the opportunity to control the property of all its citizens and works a limited form of expropriation. ... 6. See also Re Canadian Newspaper Co. Ltd. and Director of Public Road & Traffic Services of the City of Quebec et al (1986), 36 D.L.R. (4th) 641 (per Bernier J.) (holding that a by-law prohibiting newspaper vending machines on public property was not saved by the provisions of s.1 of the Charter.) See also, Canadian Newspaper Company Limited v. Ville de Montreal, [1988] R.J.Q. 482 (C.S. Que.) (per Forget J.) (reaching the opposite conclusion). 7. See also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750. There, a municipal bylaw gave the Mayor the authority to grant or deny applications to place newsracks on City streets. In the event that the Mayor granted an application he was authorized to set any terms and conditions he deemed necessary and reasonable. The majority held that the bylaw violated the First Amendment on the basis of the unbridled discretion of an official to permit or deny what was clearly expressive activity. The minority would have upheld the bylaw on the basis that, at least in the context where there were ample alternative means of distribution, an outright ban on newsracks would be constitutional, thus a partial ban must also be constitutional. Notes on Other Forums 1. Sound trucks The noise truck cases illustrate the problems the U.S. Supreme Court has had dealing with restrictions on the use of the street and choice of remedy. In Saia v. New York, 334 U.S. 558 (1948), the Court invalidated an ordinance prohibiting the use of amplification devices without the police chief's permission. Justice Douglas said the following: Loud-speakers are today indispensable instruments of effective public speech. The sound truck has become an accepted method of political campaigning... Must a candidate for governor or the Congress depend on the whim or caprice of the Chief of Police in order to use his sound truck for campaigning? ... The present ordinance would be a dangerous weapon if it were allowed to get a hold on our public life ... Annoyance at ideas can be cloaked in annoyance at sound. The power of censorship inherent in this type of ordinance reveals its vice. But then in Kovacs v. Cooper, 336 U.S. 77 (1949), the Court upheld an ordinance banning "any device known as a sound truck... [which] emits therefrom loud and raucous noises ... ". Effectively, the Court "read it down", concluding that it applied only to "loud and raucous noises". In dissent, Justice Black stated that there was "not even a shadow of evidence to prove that the noise was either 'loud or raucous', unless the... ordinance [applies] to any noise coming from an amplifier". In his view, the ordinance effectively barred the use of all loud speakers on sound trucks. In Cheema v. Ross (1991), 82 D.L.R. (4th) 213 (B.C.C.A.), the Court considered a municipal bylaw prohibiting sound amplification on public property that could be heard on residential property for a period exceeding 15 minutes. The police had prevented protesters from using loudspeakers in a residential area, but had otherwise allowed the protest to continue. The Court held that there was no breach of s.2(b). 2. Parliament Hill See Weisfeld v. Canada, supra, Chapter II. Do you agree with Linden J. that a breach occurred under each of the three approaches outlined in Commonwealth? Do you think Lamer C.J. would agree? Why or why not? In concluding that removal of the Peace Camp was reasonable, Linden J. referred to Parliament Hill as the seat of Canada's democratic institutions, and the desirability of protecting that symbol. Which aspect of parliamentary democracy is more important - the institutions, or the process of debate? To what extent should the speaker be able to select the mode of expression? How relevant should be the fact that the peace camp protesters had alternative modes of expressing themselves (i.e. leaflets, placards etc.), if they were of the view that their most effective mode of expression was a peace camp shelter? 3. Wilderness areas In International Fund for Animal Welfare,Inc. v. Canada, [1989] 1 F.C. 225 (F.C.A.) the appellant challenged a regulation that prohibited coming within 1/2 nautical mile of the seal hunt unless a permit was obtained from the Minister. McGuigan J.A. found a breach of s. 2(b) but concluded that the breach was justified under s. 1. How would this case be determined using the Commonwealth analysis? Thirty-nine U.S. states have enacted "hunter-harassment" laws which make it illegal to disturb a hunter or scare his game away on public land. Animal rights activists claim that such laws violate their first amendment rights. Hunters argue that laws prohibiting harassment are necessary because "breach of the peace" legislation is not broad enough to cover conduct such as shouting at deer,leaf-rustling and leaving human scent in hunting areas. Is this kind of conduct by animal rights activists interference or should it be regarded as expressive activity which is protected by the Constitution? Is the prohibition aimed at the content of the message (is the content of these messages relevant to its listeners, who are prey?) or merely its effects or physical consequences? Why or why not? See Dorman v. Satti, 862 F.2d 432 (1988) invalidating Connecticut's hunter harassment law as vague and overbroad. 4. Schools/internal communication systems How should schools be analyzed? Do students have first amendment rights and if they do, what kind of restrictions are permissible? What about teachers? Can the school exclude material unrelated to school work from teacher mail boxes, or deny teacher groups access to the interschool mail system and teacher mail boxes? See Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983). In Perry, the Court denied access, reasoning as follows: ... The use of the internal school mail by groups not affiliated with the schools is no doubt a relevant consideration. If by policy or by practice the Perry School District has opened its mail system for indiscriminate use by the general public, then PLEA could justifiably argue a public forum has been created. This, however, is not the case. There is no indication that the school mailboxes and interschool delivery system are open for use by the general public. Permission to use the system to communicate with teachers must be secured form the individual building principal. There is no [evidence that] this permission has been granted as a matter of course to all who seek to distribute material. We can only conclude that the schools do allow some outside organizations such as the YMCA, Cub scouts, and other civic and church organizations to use the facilities. This type of selective access does not transform government property into a public forum. [Greer; Lehman.] Moreover, even if we assume that by granting access to [some groups] , the school district has created a "limited" public forum, the constitutional right of access would in any event extend only to other entities of similar character. While the school mail facilities thus might be a forum generally open for use by the Girl Scouts, the local boys' club and other organizations that engage in activities of interest and educational relevance to students, they would not as a consequence be open to an organization such as PLEA, which is concerned with the terms and conditions of teacher employment. Should the Court have denied a rival teacher group access because the public at large had not been granted access to these mailboxes, especially general public access, when the group seeking access was unquestionably addressing issues important to the constituents of a particular community? In Cornelius v. NAACP Legal Defense and Action Fund, 473 U.S. 788 (1985) the U.S. Supreme Court held that the Federal Government did not violate the First Amendment when it excluded legal defense and political advocacy organizations from participation in the Combined Federal Campaign (an annual fundraising drive conducted in the federal workplace). Is the Ontario Government entitled to deny participation in its annual Consolidated Health Campaign to a recognized medical charity like the Cancer Society? 5. Jails The U.S. Supreme Court upheld the trespass convictions of student protestors who demonstrated against the arrest of other protestors on jail grounds. Declaring that [t]he State, no less than a private owner of property, has power to preserve the property under its control", Justice Black considered it irrelevant that the demonstration had been peaceful. Four dissenting judges concluded that a jail housing those who are considered unjustly held, is "an obvious centre for protest". Because the protest was peaceful, the convictions should have been reversed; Adderley v. Florida, 385 U.S. 39 (1966). 6. Military bases In Greer v. Spock, 424 U.S. 828 (1976), the Court held that regulations barring political activities on a military base were constitutional because the business of Fort Dix was "to train soldiers, not to provide a public forum". Justice Brennan's dissenting opinion advocated an ad hoc test of incompatibility. 7. Home letter boxes U.S. Postal Service v. Greenburgh Assns, 453 U.S. 114 (1981) shows how potentially unlimited the concept of forum can be. There, civic associations challenged a federal law prohibiting the placement of unstamped "mailable matter" in home letter boxes. These associations invoked a forum claim in an attempt to use mail boxes without paying for the stamps. Justice Rehnquist held that because a mail box did not constitute a traditional forum, the regulation was valid because it was content neutral and reasonable. Whether or not it satisfied the time, place and manner doctrine was irrelevant. In dissent, Justice Marshall held that the regulation was inconsistent with "the underlying commitment to communication". He concluded that the state had not sufficiently established it would lose substantial revenues or demonstrated that the regulation was essential to prevent mail fraud. B.C.G.E.U. v. A-G British Columbia [The Supreme Court of Canada upheld an injunction against members of a union of government employees who were picketing all courthouses in the province. Although the union purported to issue "picket passes" for those seeking access to the courts to pass through the picket lines, there was no evidence that officers of the court or members of the public were obstructed.] Dickson C.J. ... Of what value are the rights and freedoms guaranteed by the Charter if a person is denied or delayed access to a court of competent jurisdiction in order to vindicate them? How can the courts independently maintain the rule of law and effectively discharge the duties imposed by the Charter if court access is hindered, impeded or denied? The Charter protections would become merely illusory, the entire Charter undermined. .. [B]oth courts below have found that the picketing would inevitably have had the effect of impeding and restricting access to the courts.... A picket line ipso facto impedes public access to justice. It interferes with such access and is intended to do so. A picket line has great powers of influence as a form of coercion. ... Picketing of a commercial enterprise in the context of an ordinary labour dispute is one thing. The picketing of a court-house is entirely another. A picket line both in intention and in effect, is a barrier. By picketing the court-houses of British Columbia, the appellant Union, in effect, set up a barricade which impeded access to the courts by litigants, lawyers, witnesses, and the public at large. It is not difficult to imagine the inevitable effects upon the administration of justice.... At the very least, the picketing was bound to cause delays in the administration of justice and, as has been often and truly said, justice delayed is justice denied.... Picketing a court-house to urge the public not to enter except by permission of the picketers could only lead to a massive interference with the legal and constitutional rights of the citizens of British Columbia. ... Freedom of expression... is obviously a highly valued right.... A balance must be sought to be attained between the individual values and the public or societal values. In the instant case, the task of striking a balance is not difficult because without the public right to have absolute, free and unrestricted access to the courts the individual and private right to freedom of expression would be lost.... Assuring unimpeded access to the courts is plainly an objective "of sufficient importance to warrant over-riding the constitutionally protected right of freedom" [] and relates to a concern which is "pressing and substantial in a free and democratic society"[] The means taken by McEachern C.J.S.C. to accomplish that objective satisfy the three-step proportionality test established by this Court in Oakes. First, there is a rational connection between the injunction and the objective of ensuring unimpeded access to the courts. Second, the injunction accomplished this objective by impairing as little as possible the s. 2(b) rights of the members of the Union.... The injunction left the Union and its members free to express themselves in other places and in other ways so long as they did not interfere with the right of access to the courts. Finally, there was a proportionality between the effects of the injunction on
the protected right and the objective of maintaining access to the court....
Notes and questions 1. Note that this decision predates Commonwealth, and that the Court did not, therefore, consider the question of access. Do you agree otherwise with the Chief Justice's analysis of the issue? Compare the decision in B.C.G.E.U. with the American decisions which follow. Unlike the Supreme Court of Canada, which upheld an injunction absolutely prohibiting picketing activities outside B.C. courthouses, the U.S. Supreme Court looked carefully at the circumstances in each case to protect the First Amendment as much as possible. 2. Cox v. State of Louisiana, 85 S.Ct. 476 (1965), was one of many First Amendment cases that arose from the civil rights movement. The appellant was convicted under legislation prohibiting the obstruction of justice, for demonstrating against student arrests outside the courthouse. Goldberg J. discussed the doctrine of vagueness, and held that, "as applied" to the facts of the case, the legislation could not be enforced: ... There can be no question that a State has a legitimate interest in protecting its judicial system from the pressures which picketing near a courthouse might create. Since we are committed to a government of laws and not of men, it is of the utmost importance that the administration of justice be absolutely fair and orderly.... We hold that this statute on its face is a valid law dealing with conduct subject to regulation so as to vindicate important interests of society.... We now deal with the Louisiana statute as applied to the conduct in this case. The group of 2,000, led by the appellant, paraded and demonstrated before the courthouse.... It is undisputed that a major purpose of the demonstration was to protest what the demonstrators considered an "illegal" arrest of 23 students the previous day. ... Appellant was convicted for demonstrating not "in" but "near" the courthouse. It is undisputed that the demonstrations took place... exactly 101 feet from the courthouse steps and, judging from the pictures in the record, approximately 125 feet from the courthouse itself. The question is raised whether the failure of the statute to define the word "near" is unconstitutionally vague. ... It is apparent that demonstrators ... would justifiably tend to rely on [an] administrative interpretation of how "near" the courthouse a particular demonstration might take place. ... This administrative discretion to construe the term "near" concerns a limited control of the streets and other areas in the immediate vicinity of the courthouse and is the type of narrow discretion which this Court has recognized as the proper role of responsible officials.... [However] after the public officials acted as they did [in telling the demonstrators that they would be allowed to protest across the street from the courthouse], to sustain appellant's later conviction for demonstrating where they told him he could "would be to sanction an indefensible sort of entrapment by the State - ...."[] The Due Process Clause does not permit convictions to be obtained under such circumstances. ... 3. In United States v. Grace, 103 S.Ct. 1702 (1983), the U.S. Supreme Court once again supported the First Amendment claim in a case challenging legislation which prohibited leafletting and other expressive activity on the sidewalk in front of the U.S. Supreme Court building. White J. reasoned as follows: It is argued that the Supreme Court building and grounds fit neatly within the description of nonpublic forum property. Although the property is publicly owned, it has not been traditionally held open for the use of the public for expressive activities.... The prohibitions imposed by [the statute] technically cover the entire grounds of the Supreme Court as defined... Included within this small geographical area, therefore, are not only the building, the plaza and surrounding promenade, lawn area, and steps, but also the sidewalks. The sidewalks comprising the outer boundaries of the Court grounds are indistinguishable from any other sidewalks in Washington, D.C.... Sidewalks, of course, are among those areas of public property that traditionally have been held open to the public.... Public forum property occupies a special position in terms of First Amendment protection and will not lose its historically recognized character for the reason that it abuts government property that has been dedicated to a use other than as a forum for public expression. Nor may the government transform the character of the property by the expedient of including it within the statutory definition of what might be considered a non-public forum parcel of property. The public sidewalks forming the perimeter of the Supreme Court grounds... are public forums.... The Government submits that [the legislation] qualifies as a reasonable time, place, and manner restriction.... We are convinced, however, that the section, which totally bans the specified communicative activity on the public sidewalks around the Court grounds, cannot be justified as a reasonable place restriction.... We do not denigrate the necessity to protect persons and property or to maintain proper order and decorum within the Supreme Court grounds, but we do question whether a total ban on carrying a flag, banner, or device on the public sidewalks substantially serves these purposes. There is no suggestion, for example, that appellees' activities in any way obstructed the sidewalks or access to the building, threatened injury to any person or property, or in any way interfered with the orderly administration of the building or other parts of the grounds. ... The United States offers another justification... that the federal courts represent an independent branch of the Government and that their decisionmaking processes are different from those of the other branches.... Courts are not subject to lobbying, judges do not entertain visitors in their chambers for the purpose of urging that cases be resolved one way or another, and they do not and should not respond to parades, picketing, or pressure groups. Neither, the Government urges, should it appear to the public that the Supreme Court is subject to outside influence or that picketing or marching, singly or in groups, is an acceptable or proper way of appealing to or influencing the Supreme Court.... ... [But] those sidewalks are used by the public like other public sidewalks. There is nothing to indicate to the public that these sidewalks are part of the Supreme Court grounds or are in any way different from other public sidewalks in the city. We seriously doubt that the public would draw a different inference from a lone picketer carrying a sign on the sidewalks around the building than it would from a similar picket on the sidewalks across the street.... A Note on First Amendment Forum Doctrine The concept of a "public forum" is one of the foundations of modern American First Amendment doctrine, which originated in a series of cases decided in the late thirties and early forties. In Lovell v. City of Griffin 303 U.S. 444 (1938) Chief Justice Hughes held that a municipal ordinance which prohibited "the distribution of literature of any kind at any time, at any place, and in any manner without a permit" violated the First Amendment. In Hague v. CIO, 307 U.S. 496 (1939), Justice Roberts invalidated certain ordinances prohibiting assemblies in public areas, and introduced the concept of a "public forum". Essentially, Justice Roberts suggested that the first amendment guarantees citizens some right of access to public property for purposes of engaging in expressive activity. These were his specific words: Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. Such a right of access raises a number of difficult questions. First of all, its scope will depend on whether the courts conclude that a citizen using the street "as a forum and not as a passageway is making an anomalous use of it, and whether he is, in a sense, always out of place and out of order when he chooses the street for his meeting place." H. Kalven, "The Concept of the Public Forum: Cox v. Louisiana, 1965 S.Ct. Law Rev. 1, at 12. Moreover, once a right of access was recognized, it became necessary for the American courts to determine what restrictions on expression would be permissible under the First Amendment. The time, place and manner doctrine permits the state to impose restrictions on First Amendment activities in the public forum, provided those restrictions are reasonable. In this context, reasonableness suggests two limitations on the state's regulatory authority. First, to be reasonable, restrictions must be content neutral and must be administered in an even-handed manner. Second, time, place and manner restrictions are reasonable if the expressive activity is incompatible with or intrusive of the functional use of the public property. More recently this doctrinal standard has been modified by distinctions between traditional public forums, limited public forums, and all other public property. In Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983), the U.S. Supreme Court summarized the law of public forum as follows: A. In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive parks which "have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO. In these quintessential public forums, the government may not prohibit all communicative activity. For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Carey v. Brown. The state may also enforce regulations of the time, place, and manner of expression which are content neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. [E.g., Greenburgh; Consolidated Edison.] A second category consists of public property which the state has opened for use by the public as a place for expressive activity. The Constitution forbids a state to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. [E.G., Widmar; Southeastern Promotions.] Although a state is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place an manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest. Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the "First Amendment does not guarantee access to property simply because it is owned or controlled by the government." [Greenburgh.] In addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view. [Ibid.) As we have stated on several occasions, "the State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." [Id.; Greer; Adderley.] International Society for Krishna Consciousness, Inc. v. Lee Rehnquist C.J. (White, Scalia and Thomas JJ., concurring) In this case we consider whether an airport terminal operated by a public authority is a public forum and whether a regulation prohibiting solicitation in the interior of an airport terminal violates the First Amendment. The relevant facts in this case are not in dispute. Petitioner International Society for Krishna Consciousness, Inc. (ISKCON) is a not-for-profit religious corporation whose members perform a ritual known as sankirtan. The ritual consists of " 'going into public places, disseminating religious literature and soliciting funds to support the religion. [] The primary purpose of this ritual is raising funds for the movement... The Port Authority has adopted a regulation forbidding within the terminals the repetitive solicitation of money or distribution of literature.... ... The regulation governs only the terminals; the Port Authority permits solicitation and distribution on the sidewalks outside the terminal buildings. The regulation effectively prohibits petitioner from performing sankirtan in the terminals. As a result, petitioner brought suit seeking declaratory and injunctive relief [] alleging that the regulation worked to deprive them of rights guaranteed under the First Amendment. The District Court analyzed the claim under the "traditional public forum" doctrine. It concluded that the terminals were akin to public streets [] the quintessential traditional public fora... . The Court of Appeals affirmed in part and reversed in part [concluding] that the terminals are not public fora [but requiring the] restrictions... to satisfy a standard of reasonableness [with the result that] the ban on solicitation was reasonable, but the ban on distribution was not. ... It is uncontested that the solicitation at issue in this case is a form of speech protected under the First Amendment. [] But it is also well settled that the government need not permit all forms of speech on property that it owns and controls. [] Where the government is acting as a proprietor, managing its internal operations,... its action will not be subjected to [] heightened review... . [Under a "forum" approach], regulation of speech on government property that has traditionally been available for public expression is subject to the highest scrutiny. Such regulations survive only if they are narrowly drawn to achieve a compelling state interest. The second category of public property is the designated public forum, whether of a limited or unlimited character--property that the state has opened for expressive activity by part or all of the public. [] Regulation of such property is subject to the same limitations as that governing a traditional public forum. [] Finally, there is all remaining public property. Limitations on expressive activity conducted on this last category of property must survive only a much more limited review. The challenged regulation need only be reasonable, as long as the regulation is not an effort to suppress the speaker's activity due to disagreement with the speaker's view. [] The parties do not disagree that this is the proper framework. Rather, they disagree whether the airport terminals are public fora or nonpublic fora. They also disagree whether the regulation survives the "reasonableness" review governing nonpublic fora, should that prove the appropriate category. Like the Court of Appeals, we conclude that the terminals are nonpublic fora and that the regulation reasonably limits solicitation.... Our recent cases provide additional guidance on the characteristics of a public forum. In Cornelius we noted that a traditional public forum is property that has as "a principal purpose ... the free exchange of ideas." [] Moreover, consistent with the notion that the government--like other property owners--"has power to preserve the property under its control for the use to which it is lawfully dedicated," [] the government does not create a public forum by inaction. Nor is a public forum created "whenever members of the public are permitted freely to visit a place owned or operated by the Government." Ibid. The decision to create a public forum must instead be made "by intentionally opening a nontraditional forum for public discourse." [] Finally, we have recognized that the location of property also has a bearing because separation from acknowledged public areas may serve to indicate that the separated property is a special enclave, subject to greater restriction. [] These precedents foreclose the conclusion that airport terminals are public fora. ... [G]iven the lateness with which the modern air terminal has made its appearance, it hardly qualifies for the description of having "immemorially ... time out of mind" been held in the public trust and used for purposes of expressive activity. [] Moreover, even within the rather short history of air transport, it is only "[i]n recent years [that] it has become a common practice for various religious and non-profit organizations to use commercial airports as a forum for the distribution of literature, the solicitation of funds, the proselytizing of new members, and other similar activities." [] Thus, the tradition of airport activity does not demonstrate that airports have historically been made available for speech activity.... As commercial enterprises, airports must provide services attractive to the
marketplace. In light of this, it cannot fairly be said that an airport terminal
has as a principal purpose "promoting the free exchange of ideas."
.... Although many airports have expanded their function beyond merely
contributing to efficient air travel, few have included among their purposes the
designation of a forum for solicitation and distribution activities. [] Thus, we
think that neither by tradition nor purpose can the terminals be described as
satisfying the standards we have previously set out for identifying a public
forum. The restrictions here challenged, therefore, need only satisfy a
requirement of reasonableness. ..
We have no doubt that under this standard the prohibition on solicitation passes muster. We have on many prior occasions noted the disruptive effect that solicitation may have on business. ... Passengers who wish to avoid the solicitor may have to alter their path, slowing both themselves and those around them. The result is that the normal flow of traffic is impeded.... In addition, face-to-face solicitation presents risks of duress that are an appropriate target of regulation. The skilful, and unprincipled, solicitor can target the most vulnerable, including those accompanying children or those suffering physical impairment and who cannot easily avoid the solicitation.... The Port Authority has concluded that its interest in monitoring the
activities can best be accomplished by limiting solicitation and distribution to
the sidewalk areas outside the terminals. Kennedy J. (Blackmun, Stevens, and Souter JJ. concurring as to Part I of the judgment) While I concur in the judgment affirming in this case, my analysis differs... . In my view the airport corridors and shopping areas outside of the passenger security zones, areas operated by the Port Authority, are public forums, and speech in those places is entitled to protection against all government regulation inconsistent with public forum principles. The Port Authority's blanket prohibition on the distribution or sale of literature cannot meet those stringent standards, and I agree it is invalid under the First and Fourteenth Amendments. The Port Authority's rule disallowing in-person solicitation of money for immediate payment, however, is in my view a narrow and valid regulation of the time, place, and manner of protected speech in this forum, or else is a valid regulation of the nonspeech element of expressive conduct. I would sustain the Port Authority's ban on solicitation and receipt of funds. ... Our public forum doctrine ought not to be a jurisprudence of categories rather than ideas or convert what was once an analysis protective of expression into one which grants the government authority to restrict speech by fiat.... ... The Court today holds that traditional public forums are limited to public property which have as " 'a principal purpose ... the free exchange of ideas' "; [] and that this purpose must be evidenced by a long-standing historical practice of permitting speech. [] The Court also holds that designated forums consist of property which the government intends to open for public discourse. [] All other types of property are, in the Court's view, nonpublic forums (in other words, not public forums), and government-imposed restrictions of speech in these places will be upheld so long as reasonable and viewpoint-neutral. Under this categorical view the application of public-forum analysis to airport terminals seems easy. Airports are of course public spaces of recent vintage, and so there can be no time-honoured tradition associated with airports of permitting free speech. [] And because governments have often attempted to restrict speech within airports, it follows a fortiori under the Court's analysis that they cannot be so-called "designated" forums. [] So, the Court concludes, airports must be nonpublic forums, subject to minimal First Amendment protection. This analysis is flawed at its very beginning. It leaves the government with almost unlimited authority to restrict speech on its property by doing nothing more than articulating a non-speech-related purpose for the area, and it leaves almost no scope for the development of new public forums absent the rare approval of the government. The Court's error lies in its conclusion that the public-forum status of public property depends on the government's defined purpose for the property, or on an explicit decision by the government to dedicate the property to expressive activity. In my view, the inquiry must be an objective one, based on the actual, physical characteristics and uses of the property.... The First Amendment is a limitation on government, not a grant of power. Its
design is to prevent the government from controlling speech. Yet under the
Court's view the authority of the government to control speech on its property
is paramount, for in almost all cases the critical step in the Court's analysis
is a classification of the property that turns on the government's own
definition or decision...
The Court's approach is contrary to the underlying purposes of the public forum doctrine... Public places are of necessity the locus for discussion of public issues, as well as protest against arbitrary government action. At the heart of our jurisprudence lies the principle that in a free nation citizens must have the right to gather and speak with other persons in public places. The recognition that certain government-owned property is a public forum provides open notice to citizens that their freedoms may be exercised there without fear of a censorial government, adding tangible reinforcement to the idea that we are a free people. A fundamental tenet of our Constitution is that the government is subject to constraints which private persons are not. The public forum doctrine vindicates that principle by recognizing limits on the government's control over speech activities on property suitable for free expression. The doctrine focuses on the physical characteristics of the property because government ownership is the source of its purported authority to regulate speech. The right of speech protected by the doctrine, however, comes not from a Supreme Court dictum but from the constitutional recognition that the government cannot impose silence on a free people. The Court's analysis rests on an inaccurate view of history. The notion that traditional public forums are property which have public discourse as their principal purpose is a most doubtful fiction. The types of property that we have recognized as the quintessential public forums are streets, parks, and sidewalks. ... It would seem apparent that the principal purpose of streets and sidewalks, like airports, is to facilitate transportation, not public discourse, and we have recognized as much. [] Similarly, the purpose for the creation of public parks may be as much for beauty and open space as for discourse. Thus under the Court's analysis, even the quintessential public forums would appear to lack the necessary elements of what the Court defines as a public forum. The effect of the Court's narrow view of the first category of public forums is compounded by its description of the second purported category, the so- called "designated" forum. The requirements for such a designation are so stringent that I cannot be certain whether the category has any content left at all. In any event, it seems evident that under the Court's analysis today few if any types of property other than those already recognized as public forums will be accorded that status. The Court's answer to these objections appears to be a recourse to history as justifying its recognition of streets, parks, and sidewalks, but apparently no other types of government property, as traditional public forums. [] The Court ignores the fact that the purpose of the public forum doctrine is to give effect to the broad command of the First Amendment to protect speech from governmental interference. The jurisprudence is rooted in historic practice, but it is not tied to a narrow textual command limiting the recognition of new forums. In my view the policies underlying the doctrine cannot be given effect unless we recognize that open, public spaces and thoroughfares which are suitable for discourse may be public forums, whatever their historical pedigree and without concern for a precise classification of the property. ... Without this recognition our forum doctrine retains no relevance in times of fast-changing technology and increasing insularity. In a country where most citizens travel by automobile, and parks all too often become locales for crime rather than social intercourse, our failure to recognize the possibility that new types of government property may be appropriate forums for speech will lead to a serious curtailment of our expressive activity. One of the places left in our mobile society that is suitable for discourse is a metropolitan airport. It is of particular importance to recognize that such spaces are public forums because in these days an airport is one of the few government-owned spaces where many persons have extensive contact with other members of the public. ... In my view, our public forum doctrine must recognize this reality, and allow the creation of public forums which do not fit within the narrow tradition of streets, sidewalks, and parks. ... ... The most important considerations in this analysis are whether the property shares physical similarities with more traditional public forums, whether the government has permitted or acquiesced in broad public access to the property, and whether expressive activity would tend to interfere in a significant way with the uses to which the government has as a factual matter dedicated the property. In conducting the last inquiry, courts must consider the consistency of those uses with expressive activities in general, rather than the specific sort of speech at issue in the case before it; otherwise the analysis would be one not of classification but rather of case-by-case balancing, and would provide little guidance to the State regarding its discretion to regulate speech. Courts must also consider the availability of reasonable time, place, and manner restrictions in undertaking this compatibility analysis. The possibility of some theoretical inconsistency between expressive activities and the property's uses should not bar a finding of a public forum, if those inconsistencies can be avoided through simple and permitted regulations. The second category of the Court's jurisprudence, the so-called designated forum, provides little, if any, additional protection for speech. Where government property does not satisfy the criteria of a public forum, the government retains the power to dedicate the property for speech, whether for all expressive activity or for limited purposes only. [] I do not quarrel with the fact that speech must often be restricted on property of this kind to retain the purpose for which it has been designated. And I recognize that when property has been designated for a particular expressive use, the government may choose to eliminate that designation. But this increases the need to protect speech in other places, where discourse may occur free of such restrictions. In some sense the government always retains authority to close a public forum, by selling the property, changing its physical character, or changing its principal use. Otherwise the State would be prohibited from closing a park, or eliminating a street or sidewalk, which no one has understood the public forum doctrine to require. The difference is that when property is a protected public forum the State may not by fiat assert broad control over speech or expressive activities; it must alter the objective physical character or uses of the property, and bear the attendant costs, to change the property's forum status. Under this analysis, it is evident that the public spaces of the Port Authority's airports are public forums. ... [T]he public spaces in the airports are broad, public thoroughfares full of people and lined with stores and other commercial activities.... [T]he airport areas involved here are open to the public without restriction. [] Plaintiffs do not seek access to the secured areas of the airports, nor do I suggest that these areas would be public forums. And while most people who come to the Port Authority's airports do so for a reason related to air travel, either because they are passengers or because they are picking up or dropping off passengers, this does not distinguish an airport from streets or sidewalks, which most people use for travel. [] Further, the group visiting the airports encompasses a vast portion of the public: In 1986 the Authority's three airports served over 78 million passengers. It is the very breadth and extent of the public's use of airports that makes it imperative to protect speech rights there. Of course, airport operators retain authority to restrict public access when necessary, for instance to respond to special security concerns.... Third, and perhaps most important, it is apparent from the record, and from the recent history of airports, that when adequate time, place, and manner regulations are in place, expressive activity is quite compatible with the uses of major airports. The Port Authority's primary argument to the contrary is that the problem of congestion in its airports' corridors makes expressive activity inconsistent with the airports' primary purpose, which is to facilitate air travel. The First Amendment is often inconvenient. But that is besides the point. Inconvenience does not absolve the government of its obligation to tolerate speech. The Authority makes no showing that any real impediments to the smooth functioning of the airports cannot be cured with reasonable time, place, and manner regulations. ... As the District Court recognized, the logical consequence of Port Authority's congestion argument is that the crowded streets and sidewalks of major cities cannot be public forums. [] These problems have been dealt with in the past, and in other settings, through proper time, place, and manner restrictions; and the Port Authority does not make any showing that similar regulations would not be effective in its airports. The Port Authority makes a half-hearted argument that the special security concerns associated with airports suggest they are not public forums; but this position is belied by the unlimited public access the Authority allows to its airports. This access demonstrates that the Port Authority does not consider the general public to pose a serious security threat, and there is no evidence in the record that persons engaged in expressive activities are any different. ... ... The Port Authority's concerns with the problem of congestion can be addressed through narrow restrictions on the time and place of expressive activity.... I would strike down the regulation as an unconstitutional restriction of speech. It is my view, however, that the Port Authority's ban on the "solicitation and receipt of funds" within its airport terminals should be upheld under the standards applicable to speech regulations in public forums. The regulation may be upheld as either a reasonable time, place, and manner restriction, or as a regulation directed at the nonspeech element of expressive conduct. The two standards have considerable overlap in a case like this one.... [O'Connor J. delivered a separate opinion in which she agreed that airports
were not traditional public forums, but held that while the ban on solicitation
was reasonable, the ban on the distribution of literature was not. Souter J.
also delivered a separate opinion, concurred in by Blackmun and Stevens JJ.,
which held that the airport was a traditional forum and that the impugned
regulation, including the ban solicitation, violated the First Amendment]
Notes and Questions 1. Does a distinction between solicitation and the distribution of flyers and pamphlets make sense? Should commercial or charitable solicitation in public places be easier to prohibit; if so, why? 2. What is the difference in approach between the Rehnquist and Kennedy opinions? Is Chief Justice Rehnquist's categorical analysis unattractive; if so, how does it compare with McLachlin J.'s "definitional" approach in Commonwealth? Are there any drawbacks to Kennedy's solution? Whose opinion in Commonwealth does it resemble - the Chief Justice's, L'Heureux-Dubé J.'s, or neither? 3. What, if anything, can Canada learn from the American jurisprudence on these issues? B. ABORTION PICKETING Saunders J. In 1995, the British Columbia Legislature enacted the Access to Abortion Services Act, S.B.C. 1995, c.35. The Act, in general terms, creates access zones, colloquially called "bubble zones", around the homes and offices of doctors who provide abortion services and permits the establishment by Regulation of access zones around facilities at which abortions are performed and the residences of persons who facilitate the provision of abortion services. Such an access zone was created, by Regulation, around the Everywoman's Health Centre... . Under the Act all protest activity within an access zone is prohibited. It could be called a legislated injunction. In September 1995 charges were laid against Maurice Lewis... In January 1996 the charges were dismissed... on the basis that the two subsections of the Act... which prohibit protest and sidewalk interference activities, were contrary to s. 2 of the [Charter]. ... I. THE STORY Abortion is a subject matter which deeply divides public opinion. ... In 1988 the Supreme Court of Canada set the provision of abortion services on a new footing with the lighthouse decision, R. v. Morgentaler... Since that decision abortion has not been illegal in Canada. ... [Morgentaler] had two immediate effects in British Columbia: two free-standing abortion clinics were established in Vancouver: the Everywoman's Health Centre and the Elizabeth Bagshaw Clinic; and protest against abortion became louder and more highly visible. The protest was unprecedented both in its substance and style and was focused predominantly on and around these new abortion clinics. While the Elizabeth Bagshaw Clinic attracted considerable protest, sufficient to cause injunction proceedings and enforcement action to be taken, the loudest and most intense protest activity centered on the Everywoman's Health Centre. The Everywoman's Health Centre opened in November 1988. It immediately was assailed by abortion protesters. Starting in November 1988, a protest group identified as "Operation Rescue" organized a series of large scale blockades outside the clinic, often so large that access to the clinic was interrupted. From the early months of protest the doors to the clinic were occasionally wired and door handles were locked together with kryptonite, preventing access. People locked themselves together with kryptonite outside the clinic, and to a cement block in front of the door. Graffiti was placed on walls of the clinic. Protesters carried signs with harsh messages and strong language. On January 21, 1989 the blockades at Everywoman's Health Centre culminated in a massive demonstration in which the great number of protesters effectively prevented the clinic from operating. On that day Everywoman's Health Centre obtained an interim injunction prohibiting persons from blocking access to the clinic. ... The injunction obtained by the Elizabeth Bagshaw Clinic is in similar terms. Notwithstanding the injunction obtained by the Everywoman's Health Centre, large scale protest continued until July 1989. In all there were 26 blockades outside the clinic. Until 1990 there was protest activity on 30% to 40% of the days. There were numerous instances of locks being glued and wired shut, use of hardware and use of locks and chains, all of which made entry to the clinic difficult. Administrators of the clinic asked the police to enforce the injunction, but learned the police considered only [a portion] of the injunction to be enforceable without further clarification. During this period a considerable amount of the activity was directed to the facility itself, apparently trying to close it or make it inaccessible to service providers and service seekers. Graffiti placed on walls of the clinic included "UNWANTED CHILDREN MURDERED HERE", "AUSCHWITZ (AGAIN)", and "[NAME OF CLINIC EMPLOYEE] IS A WHORE". The protest activity diminished from approximately 1990 to mid-1992, although it did not vanish completely. ... When protesters attended outside the clinic they carried hand-made signs with messages such as "SAY NO TO ABORTION", "THE ISSUE IS NOT WOMEN'S RIGHTS, IT'S LIFE OR DEATH", "ONLY ONE OF THE PEOPLE THAT ENTER THIS ABORTION WILL COME OUT ALIVE" and "FREEDOM OF CHOICE" with an enlarged picture of a fetal head. The protesters often walked on the sidewalk in front of the clinic, very near to the building entrance, so that a person entering the clinic would need to pass very closely to protesters. In June 1992 picketing of the clinic again became more regular, and continued until passage of the Act. Protests from approximately June 1992 to August 1995 regularly occurred three times a week... Protesters on occasion picketed the clinic around the clock. Picketing on Saturday was common. From the perspective of the clinic's staff, protest activity after about June 1992 appeared to focus on the people entering the clinic, whereas initial protest in 1988 had focused on the facility itself. After about June 1992, the following forms of protest were observed regularly, but not continuously: picketing, pamphleting, sidewalk counselling and prayer vigils. In addition some protesters made a record of license plate numbers of vehicles arriving in front of the clinic, some protesters carried cameras which clinic workers feared captured the image of some of the persons entering the clinic and on occasion protesters stood close to car doors making exit from the car for people wishing to enter the clinic difficult. Signage - ... The print on the signs was emphatic, often in red. Wording on signs included: ABORTION HURTS WOMEN ABORTION KILLS CHILDREN ABORTION KILLS BABIES STOP CHILD KILLING NOW DON'T GIVE YOUR CHILD TO THIS KILLING CENTER DON'T GIVE THIS KILLING CENTER YOUR BABY Less condemnatory was the sign seen frequently outside the clinic and worn by Mr. Lewis when he was arrested: OUR LADY OF GUADALUPE PATRON OF THE UNBORN (image of the Lady of Guadalupe) PLEASE HELP US STOP ABORTION Signs were usually worn by persons engaged in sidewalk counselling, and often worn by persons participating in prayer vigils or simply general protest against the abortion services provided in the clinic. Sidewalk Counselling - This activity has generally been performed alone or with at most three other persons. ... Protesters have generally worn signs, with or without an enlarged picture of a foetus, expressing disapproval of abortion or offering help. A person engaged in sidewalk counselling typically has stood or walked slowly on the public sidewalk handing out pamphlets to persons likely to enter the Everywoman's Health Centre. The sidewalk counsellors have attempted to converse with persons likely to enter the clinic. It has been clear early in the conversation, if not immediately evident from the sign worn, that the protester opposes abortion and was seeking to convince the subject(s) that abortion was a wrong or bad choice. While evidence was tendered by protesters that they never persisted... clinic workers [said] that they witnessed on countless occasions protesters persisting with the communication after the overture had been rejected and following the person to the entrance of the clinic. Sidewalk counselling has usually involved handing out pamphlets. The intensity of the attempted communication has varied... but the communication has often included the charge that the person who is entering the clinic and thus thought to be seeking an abortion, was a murderer or baby-killer. ... The approach varies: it might be low-key, quiet, gentle, trying to demonstrate a concern for the patient, pointing out to her the alternatives to abortion, such as adoption and the offer of financial assistance. In most cases the patient does not wish to speak to the sidewalk counsellor and she is allowed to pass without any attempt to dissuade her. In other instances, the sidewalk counsellor is more persistent, pursues the patient, admonishes the patient, threatens fire and brimstone. The protesters characterize their conduct as being quiet and gentle. The concern being for the mental and physical health of the patient. The staff of the clinic characterize the conduct of the sidewalk counsellors as being aggressive, interfering and intimidating to the patient. Prayer Vigils - Prayer vigils have occurred regularly... Participants in prayer vigils have gathered, carrying signs of protest, lining both sides of the sidewalk near the entrance of the clinic and praying or walking in a circle, close to the building and entrance. The vigil has been directed to abhorrence of abortion and the "rescue" of women from its practice. When participants have lined the sidewalk, one group has had its back to the clinic wall and the other has stood near the curb. The sidewalk is of no more than average width and space and passage has been much reduced by the presence of people engaged in a prayer vigil. It is doubtful that a person could walk down the sidewalk when a prayer vigil is underway without touching a person engaged in the prayer vigil. One video... recording a vigil on December 28, 1994, revealed a corridor of protesters which would present a barrier to any person needing to pass through, an intimidating gauntlet to persons requiring passage on the sidewalk. ... The Pamphlets - The pamphlets which have been provided to persons entering the clinic are varied. They range from small business cards regarding abortion recovery, to larger information cards concerning pro-life resources throughout the city, to pamphlets which purport to describe abortion. The latter range from relatively factual, to exaggerated and shocking. Many of them contain pictures of foetuses aborted at later stages than occurs in British Columbia, and in particular than occurs at the two free-standing clinics which perform abortions only in the first trimester of a pregnancy. Some contain enlarged pictures of aborted foetuses, giving a misleading impression of the amount of tissue removed from a woman in an abortion procedure. Some pamphlets declare that psychological after-effects of abortion are common and refer to post-abortion syndrome. Post-abortion syndrome is the name of a hypothesized psychological malady that is not universally accepted by the medical profession... Activity Towards Clinic Workers - In addition... those working in the clinic have been the subject of protest activity. It has not been uncommon for persons working in the clinic to have abusive comment directed to them. The present clinical administrator testified that comments of an intimidating nature, hostile and angry, were directed towards her. On one occasion a protester shoved the head of a Barbie-style doll in her face and yelled, "Is this what the babies look like after you finish ripping them apart?" Another clinic worker has been told that she will go to hell or rot in hell, that she is a baby-killer and a murderer, and that she is a sinner. In addition to the protest activity by persons attending outside the clinic, the clinic has received threatening messages by telephone. The pro-life advocates point out that the messages might have been made by persons on the pro-choice side of the debate wishing to discredit the pro-life position. This is possible, but nevertheless the result, in combination with the expressed anger of some of the protesters and recent violent incidents in Canada and the United States, is increased fears for personal safety. Although much of the protest activity has been described as peaceful... [t]here is... no harmony here between protesters and those entering the clinic. At its most benign the protest activity could be described as non-violent. ... In response to the protest activity, the clinic has a high security level. ... Apart from protest activity outside the Everywoman's Health Centre on the public sidewalk and street, those entering the clinic face signs condemning abortion which are placed on private property known as the Gianna House, located immediately across the lane from the clinic. Gianna House serves as a gathering place for protesters intending to protest outside the clinic, and is a site to which persons desiring counselling may be referred. ... The Access to Abortion Services Act The Access to Abortion Services Act was passed by the British Columbia Legislature in 1995. In its preamble it invokes the objective of access to health care and the qualities of dignity and privacy in these terms: WHEREAS all people in British Columbia are entitled to access to health care, including abortion services; AND WHEREAS all people who use the British Columbia health care system, and who provide services for it, should be treated with courtesy and with respect for their dignity and privacy; Section 5... permits the Lieutenant Governor in Council to establish an access zone for a facility at which abortion services are provided, not exceeding 50 metres from the boundaries of the parcel on which the facility is located. An access zone may not include private property outside of the parcel on which the facility is located. Access zones under this section may be of different dimensions: they are tailor-made for the facility and circumstances. Section 6 creates access zones that extend 160 metres from the boundaries of the parcel on which the residence of a doctor who provides abortion services is located. Section 6 also permits the Lieutenant Governor in Council to establish an access zone around the home of a non-doctor abortion service provider. Section 7 creates an access zone that extends 10 metres (expandable to 20 metres by the Lieutenant Governor in Council) from the boundaries of the parcel on which the office of a doctor who provides abortion services is located. Section 2(1) spells out the activity prohibited in an access zone. It provides: 2.(1) While in an access zone, a person must not do any of the following: (a) engage in sidewalk interference; Sidewalk interference, the prohibited activity in s. 2(1)(a), is defined in s. 1: "sidewalk interference" means (a) advising or persuading, or attempting to advise or persuade, a person to refrain from making use of abortion services, or (b) informing or attempting to inform a person concerning issues related to abortion services by any means, including, without limitation, graphic, verbal or written means. Protest, the prohibited activity in s. 2(1)(b), is defined in s. 1: "protest" includes any act of disapproval or attempted act of disapproval, with respect to issues related to abortion services, by any means, including, without limitation, graphic, verbal or written means; Sections 3 and 4 prohibit other activity in an access zone: 3. A person must not photograph, film, videotape, sketch or in any other way graphically record a doctor who provides abortion services, service provider, or patient while the doctor, service provider, or patient is in an access zone, for the purpose of dissuading that person from providing, facilitating the provision of, or using abortion services. 4.(1) A person must not do any of the following for the purpose of dissuading another person from providing or facilitating the provision of abortion services: (a) repeatedly approach, accompany or follow the other person, or a person known to the other person; (b) beset; (c) engage in threatening conduct directed at the other person or a person known to the other person. (2) A person must not repeatedly communicate by telephone, facsimile or electronic means with another person without their consent for the purpose of dissuading a service provider or doctor who provides abortion services from beginning or continuing to provide, or to facilitate the provision of, abortion services. ... The Legislative History ... The present government has supported the concept of available abortion services in British Columbia and, as reflected in the Act, pursued pro-choice policies. Dr. Hudson recounted the... creation... of a Task Force to review the issues which had arisen around access to contraceptive, reproductive health care and abortion services. The Task Force, formed of persons open-minded to the provision of
contraception and abortion services, held regional hearings across the province.
They... presented a report to the Minister in August 1994. ... The Task Force
reviewed barriers, identified by presenters, to obtaining free access to
abortion services, and reviewed the experience of access to abortion services in
other jurisdictions. [It] was apparent that for some women in British Columbia,
timely access to abortion was illusory because of service limitations associated
with the geography of the province and the expense of travel. Early in the morning of November 4, 1994, Dr. Romalis was shot in his home in Vancouver []. His wound was massive, his life nearly ended. Dr. Romalis had provided abortion services at a clinic and it was widely considered that he was shot by a person opposed to abortion. This prevalent view that Dr. Romalis was probably shot by a person opposed to abortion was recognized by the trial judge. The shooting of Dr. Romalis brought home to British Columbia's abortion providers the fears of violence raised by earlier well-publicized shootings in the United States of a doctor and two abortion clinic receptionists, and the bombing of a clinic in Toronto. Shortly after the shooting of Dr. Romalis, the Cabinet requested legislative and legal options to enhance the security of the health care providers who provide abortion services. A tri-ministry legislative group representing the Ministries of Health, Women's Equality, and the Attorney General was formed to consider appropriate legislative and legal options. About this time, the Attorney General requested the Criminal Harassment Unit, a police investigative unit, to review issues surrounding harassment of abortion providers and patients. The report of the Criminal Harassment Unit... apparently contains information of threats made to abortion service providers... Although it forms part of the legislative history and was referred to in the legislative debates, it was not admitted into evidence at trial on the basis that hearsay evidence of threats should not be received by the court. ... The purpose of the Act was stated by the Minister of Health in the legislative debates...: The bill defines the parameters of access zones and defines behaviours that may not be carried out within those zones. I believe that by creating distance in volatile situations, a great deal of tension will be defused. Our intention is to protect access to this legal medical service and ensure that health care providers work and live in a respectful atmosphere. At second reading explanation for the Act was fuller. The Minister expressed his intention in these words...: This legislation will ensure that abortion services in British Columbia are provided in an atmosphere of security, respect and privacy. That is an atmosphere that for too long has been lacking as women go to seek legal medical services and as doctors provide them. Instead, the climate has in many cases been one of long-term conflict, which has interfered with access to this legal medical service. Anti-abortion protests are occurring outside providers' homes. Doctors are being threatened, their children are being told their parents are murderers, and women seeking abortion services are separated from their escorts, verbally harassed and chased to their cars. This act is intended to defuse the tension by putting some distance between the protesters and the people seeking and providing abortion services. The legislation will create access zones around facilities providing abortion services. Access zones will be established around all doctors' offices and homes, and may be set up around the homes of other service providers. Access to health services is one of the foundations of the Canadian medicare system... . In the case of access to abortion services, we must ensure that access to choice is a practical reality, not just a legal right. ... Physicians who provide abortion services are practising their profession legally. ... They should not have to do so in an atmosphere of intimidation or threat. The issue that this government is addressing is one of access to medical service and of the right of doctors and their patients to live and work in an atmosphere free from harassment. One of the tests of a free society is how it balances the wish of some to protest or oppose or express dissent with the right of others to follow their own course, to make their own choices and ultimately to live their lives free of harassment. ... The right of freedom of speech and expression carries with it some responsibility for what is said and how it is expressed. ... The Charge against Mr. Lewis ... On September 22, 1995 Mr. Lewis intentionally proceeded to walk within the access area wearing a sandwich board bearing an image centred on the board. Above the image were the words: OUR LADY OF GUADALUPE PATRON OF THE UNBORN Below the image were the words: PLEASE HELP US STOP ABORTION The words "STOP ABORTION" were in large print. ... The facts of Mr. Lewis' incursion into the zone were admitted. All that was in issue at the trial was the constitutionality of subsections 2(1)(a) and 2(1)(b) of the Act. ... II. The law and its application to the case ... The Crown concedes, and it is clear, that the Act infringes [freedom of expression]. The C.A.R.E. Coalition submitted that the impugned provisions also infringe the freedom of expression of people entering the clinic by limiting their ability to receive communications within an access zone. The value of communication to the receiver is, in my view, adequately recognized within the discussion of the s. 1 justification for infringing the protesters' freedom of expression. A separate analysis is not required. ... Counsel for Mr. Lewis and the C.A.R.E. Coalition contend that the Act violates freedom of assembly... [F]reedom of assembly is a form of freedom of expression, addressing itself to larger forms of expression and the concept of strength in numbers. In my view the answer under s. 1... to the freedom of expression issue is also an answer to any issue of freedom of assembly... . Although it was [also] argued that the Act limits association amongst protesters and between protesters and those entering the clinic, its essential character is to enjoin protesters, individually and in groups, from expressing disapproval on abortion issues within the access zone. Any arguable limitation on freedom of association is secondary to the limitation of freedom of expression. ... b) Section 1 of the Charter ... During submissions counsel for the respondent and the C.A.R.E. Coalition contended that the Crown must prove that harm had occurred to the women entering the Everywoman's Health Clinic or to the service providers as a result of protest activity in the access zone which is now prohibited, and that the Crown had not done so. In my view this is an unnecessarily negative approach to the s. 1 enquiry. ... The question of the scope of the Crown's burden of proof is particularly germane to the outcome of this case. Because of the Crown's privacy concerns on behalf of those women using the services of Everywoman's Health Centre, the Crown did not call women who had used the clinic's services to testify... with the exception of one former employee of the clinic who attended for an abortion. That woman is said by the respondent to be unrepresentative of the experience or response of the clinic's clients. One woman who frequently attended an office in the same building occupied by the Elizabeth Bagshaw Clinic testified that the protest activity outside the building caused her stress... . She described the negative experience of being approached by a sidewalk counsellor mistaking her for a client of the clinic, and being pressed with pamphlets and urged to converse. The only other evidence of the effect of the protest activity upon persons entering an abortion clinic was in the form of the observations of clinic workers or volunteers of the Everywoman's Health Centre... . The trial court curtailed most evidence of statements made by clients to these workers by ruling it inadmissible hearsay. Likewise because of the Crown's security concerns on behalf of those providing services, it did not call abortion service providers to testify... . The first hand evidence of security concerns of service providers or threats was limited to tapes of threats made by telephone; one instance caught by video film of Mr. Watson, now convicted of assault, engaging in inappropriate activity outside the clinic; and expressions of concern about personal security made by the employees of the clinic who testified. This latter evidence was said by the respondent to be self-serving. Evidence was adduced by the Crown that the pool of service providers was shrinking and aging. This shrinkage is attributed, at least in part, to the climate of fear which has grown over the last few years. Evidence sought to be tendered by the Crown through a doctor employed by the Ministry of Health, as to statements made by persons who had received threats or were fearful for their personal security, was held to be inadmissible hearsay. Also held to be inadmissible hearsay was the written report of the Criminal Harassment Unit to the Attorney General on security issues concerning provision of abortion services... . Since direct evidence on the effect of the protest on women seeking to use the clinic and the effect of the protest upon abortion service providers was next to impossible to obtain without serious intrusion into privacy and personal security interests of possible witnesses, and since much hearsay evidence was ruled inadmissible, the Crown has faced a difficult task in meeting its burden of proof. The admonition of the Supreme Court of Canada in R.J.R. MacDonald. ... In order to withstand Charter scrutiny... the objective of the impugned measures must be of sufficient importance or, to put it another way, it must be sufficiently pressing and substantial so as to justify the violation. ... The objective of the Access to Abortion Services Act... is to facilitate access to abortion services. ... It is clear that the government promulgating the Act openly holds a pro-choice policy stance. It is equally clear that the Act is not content neutral in its infringement of freedom of expression. However, those facts do not fatally taint the legislation... . Equitability and facilitation of access to health services is a valid legislative objective... As abortion has been accepted by the court in [Morgentaler] as a medical service, it follows that the government has an obligation to provide generally equal access to this controversial service. In pursuance of its obligation to provide generally equal health care, the government established the Task Force to enquire into contraceptive, reproductive health care and abortion service in the province. The enquiry of the Task Force disclosed a diminishing number of service providers and limitation on access to this medical service. I accept the rationale for creating the Task Force, and consider that its report was properly considered by the government when it planned its response to the identified short-comings of the medical system. In addition to the report of the Task Force... the government had ample evidence of the continuing protests outside the two free-standing clinics in the province as well as anecdotal evidence of the distressing effect upon women of encounters with protesters. Although the respondent contests the conclusion that the protest activity causes deleterious effects on women attending the clinic and persons working in the clinic, the evidence is sufficient to identify a concern for those persons' well-being, in addition to concerns for their privacy and dignity. The recent shooting of Dr. Romalis, the well-publicized shootings in the United States of persons associated with the provision of abortion services, and the threats made to those working in abortion services in the province, including some made to personnel employed by the Everywoman's Health Centre, combined to create a climate of fear... This, too, was a proper consideration. The government's measured response to this fear focused on its duty to ensure that such a climate does not interfere with access to the medical services which the government is required to provide. The legislature reasonably identified three barriers to access to abortion services: concern that the pool of service providers will further shrink..., concern that the protest activity impedes access to the clinic by creating a climate of harassment and fear; and concern that the protest activity causes distress and resulting harm to the service users. Further... the legislature reasonably identified substantial issues concerning the invasion of privacy of the women seeking to avail themselves of the health care provided at the clinic. Evidence of protesters photographing persons... and recording license plate numbers of vehicles parking in the passenger zone..., illustrates the legitimate and serious privacy concerns women may have upon entering the clinic. Privacy concerns on behalf of those entering the clinic are shown by the evidence to be firmly rooted in the common behaviour of protesters. One witness called on behalf of Mr. Lewis agreed, for example, that sidewalk counselling would "hopefully be upsetting" to a woman entering the clinic for abortion services. Another agreed that sometimes she has made women seeking entrance to the clinic angry. Witnesses who work or volunteer at the clinic testified that they have seen women hurry past the protesters, turn away from them, refuse discussion, or become tremulous, tearful and angry. The protesters have spoken to those entering the clinic knowing that they are likely entering the clinic for a medical procedure involving personal trauma and high anxiety, and likely wishing anonymity. That such women may be deterred by the presence of protesters is apparent from evidence given by clinic workers of persons with appointments that have cancelled appointments on days when protesters are present and re-set them to days when they were not, and evidence that women have called seeking an escort to support them entering the clinic. I have no doubt that the objective of equal access to abortion services, enhanced privacy and dignity for women making use of the services and improved climate and security for service providers is a sufficiently important objective to pass the first "Oakes" test. ... The second question on a s. 1 Charter analysis is whether there is a nexus between the legislative objective and the legislative scheme; that is, whether there is a rational connection between the objective of facilitating access to abortion services in an atmosphere of security, respect and privacy and the establishment of this "no-protest" area. Two subsections are impugned: the prohibition against sidewalk interference and the prohibition against protest, within the access zone. On the evidence provided by clinic workers, many women entering the clinic are distressed by the protest activity. ... The leaflets filed in evidence, pictures of signs and placards, and reported oral communication by protesters, all establish an intense negative message that is bound to distress many women seeking to avail themselves of the clinic's services. The use of shock, the creation of distress and the triggering of conscience are not inherently of negative worth and are not necessarily to be discouraged. They are, in fact, often the very tools of conversation. However, the uninvited use of such tools on an audience that effectively has no choice, no realistic option to ignore the message, and no means of avoiding the message except to shun the medical service sought, is to be discouraged. These unsolicited and unwanted encounters immediately outside the clinic between women using the clinic and the pro-life protesters, when in most cases the woman is entering the clinic for an anxious medical service, is contrary to the dignity of the woman. Further, it is likely to cause, at the lesser end, embarrassment and anger and, at the greater end, psychological pressure, physical symptoms of anxiety and stress, and generally a departure from the ideal state for medical service of calm and relaxation. It is not enough that the Act in its entirety is rationally connected to the objective of the Act, the impugned sections in particular must bear this close nexus. I have described activity referred to by protesters as sidewalk counselling. This activity corresponds with the statutory definition of "sidewalk interference" prohibited by s. 2(1)(a) of the Act. On the evidence, this activity is unsolicited. It provokes rejection by women approaching the clinic, as evidenced by their hurrying through the protest zone, aversion of head and eyes from the proffered information or outright refusal of information. It often creates physical symptoms of anxiety or distress. It clearly invades the privacy of women and those escorting them. Evidence establishes that women remain in the clinic longer when protesters are outside, and some try to "out wait" the protesters before leaving. Section 2(1)(a) of the Act has a sufficiently close nexus to the Act's objective to meet this second "Oakes" test. Section 2(1)(b) of the Act prohibits all protest activity including, for example, simply silently carrying a sign disapproving of abortion. ... The history of the abortion clinics and the protest surrounding them differs in character from the experience around department stores or urban corners where the silent proselytizer stands. The Act here addresses facilities with a history of protest and a track record of discomfited clients and workers. The rationale advanced to justify the impugned provisions is based on history of the protest, the evidence of harm to women from any protest, the concept of privacy and dignity, and the negative environment created for abortion service providers by the on-going protest. The history at this clinic includes the recording of license plates, an odious event for a law-abiding citizen to endure. Women have been pressed to accept unsolicited pamphlets. Harsh and condemnatory messages communicated by sign, pamphlet and orally, have been delivered with resulting stress to an audience which can only avoid the message by declining the medical service provided by the clinic. In these circumstances, s. 2(1)(b) is rationally connected to the Act's objective and meets the second "Oakes" test. The respondent contends that the legislative debate shows that the Act was intended to improve the safety of abortion service providers and that the two provisions in question would not eliminate the risk of serious harm such as was suffered by Dr. Romalis. It is true that... [p]rohibiting sidewalk interference and protest within the access zone is not an effective solution to the risk of grave physical harm. This does not mean, however, that the provisions are not rationally connected to the objective of the Act. ... Those working in any lawful medical facility are entitled to a workplace free of harassment and a continual security alert. Service providers at the clinic testified they felt much safer for themselves and their patients after the access zone was created. ... This greater sense of calm, although not the key objective, was one effect sought to be accomplished by the legislation. In my view the Crown has established a rational connection between the objective of the Act and the legislative scheme revealed in the impugned sections. ... As part of establishing that the sections of the Act which are impugned are reasonable and demonstrably justified in a free and democratic society, the Crown must establish on a balance of probabilities that the provisions impair the freedoms as little as possible. ... The alternatives considered included greater enforcement of the existing injunction, seeking a comprehensive injunction... or enactment of "bubble zone" legislation. As between these alternatives, the first relies upon private action on a piecemeal basis to address what was perceived by the government as... a broad-based issue of access to health care. The issue could legitimately be seen as an issue of public interest the populace's entitlement to reasonably equitable provision of health services. Further, the injunctions in place at the two clinics... . The real question on the issue of minimal impairment is whether a complete prohibition on expressions of disapproval of abortion within an access zone less than 50 metres, impairs the freedoms infringed as little as possible. In considering this question one must bear in mind the objective of the Act; that is, the question is whether the impairment caused by the impugned provisions is the least possible to achieve the objective. ... No issue was taken by the respondent as to the size of the "bubble zone", his position being that no restriction on his expression of pro-life views and arguments was warranted in the circumstances and that he challenged only ss. 2(1)(a) and 2(1)(b) of the Act, not the section establishing the maximum size of an access zone around an abortion facility or the Regulation establishing the zone around the Everywoman's Health Centre. For the C.A.R.E. Coalition it was acknowledged that some small zone, for example 10 feet, may be sustainable. In the context of the Act, I do not think that one can discuss ss. 2(1)(a) and 2(1)(b) without also discussing the size of the zone they apply to. This court should consider both the size of the zone and the prohibited conduct in weighing the legislation to determine if it creates minimal impairment. Freedom of expression may be impaired geographically, by time and by manner. ... The size of the area, considering the location of the clinic, is reasonable to provide a quiet space with privacy and dignity for the users of the clinic, as contemplated by the legislation. A reduction in the length of the zone to something in the range of 20 metres... would not significantly enhance the expression of the protesters, the objective of which is to address the women as near as possible to the clinic doors. While the legislature could have created a smaller protest-free zone within a larger limited-protest zone, that choice would undoubtedly be more difficult to enforce and may well create confusion. In some aspects, such a two-tiered scheme, by creating a greater area of restricted expression, represents a greater intrusion into the freedoms protected by s. 2... than does the Act. The Act is an attempt to create a buffer between two groups, those seeking to provide and use a medical service on one hand, and those opposed in principal to provision of the service on the other. ... I conclude that, geographically, the Act is within the reasonable range of alternatives. Is the breadth of prohibition in the impugned provisions of the Act also within that range of reasonable alternatives? To put it another way, is the manner of impairment of s. 2 freedoms within the range of reasonable alternatives? In my view it is. While non-violent, even passive, expression of disapproval is captured by this Act, the evidence establishes that such activity, in the context of the well-known history of vigorous protest and the vulnerable nature of many of those who enter the clinic, is contrary to the well-being, privacy and dignity of those using the clinics' services. Creation of a zone immediately before entry to these medical facilities, in which persons using the services will be free from the barrage of negative messages, is a reasonable legislative response to the issues posed by the history of protest at the free-standing clinics. Recognizing the limited options to procure this service which are available to women, I conclude that the legislature has acted in a fashion which meets the minimal impairment test. v) Proportionality The final test is one of proportionality... . Freedom of expression has high value in a democracy. Its importance is reflected in writings from courts of all levels and all western democracies. ... The high value of expression is not a creation of the Charter, it was recognized long before the Charter was conceived. ... I hold that as significant as freedom of expression is and as sincere and impassioned as the views of Mr. Lewis or other protesters are, this case does not present an example of that freedom at its highest value. The expressive activity limited by the impugned subsections is not central to the core values [of s. 2(b)]. On the other side of the scale is the objective of the Act. [Morgentaler] recognized that the abortion procedure is a medical service and acknowledged that impediments to access to abortion infringed a woman's rights under section 7... Parliament has not enacted limitations on that right. Today women in Canada are entitled by law to have access to abortion services. Medical services are a personal matter, private and confidential between the patient and health care provider. While a certain degree of confidentiality is lost by creation of a stand-alone clinic, such a clinic is responsive to the limitation of this service in hospitals. Privacy for those using the facility should be impaired as little as reasonably possible. Outside this clinic license plate numbers have been gathered and persons entering the clinic have been photographed. While the latter practice is prohibited by sections not challenged in these proceedings, the former is not. Both practices, carried on in the past, entail an invasion of privacy interests. Not the least of the privacy interests adversely affected by the protest activity is a loss of repose from unwanted intrusion. The adverse effects of the negative and harsh messages delivered just before a person enters the clinic intrudes upon a woman's person by affecting her health, in even a temporary fashion. Such turmoil outside a medical facility, created to affect a group of health care users, is incompatible with the character and function of a medical facility and the public areas surrounding it. The objective of reducing the tension and negative environment created by this protest, for those persons employed by the clinic, also has significant value. Health care has fundamental value in our society. A woman's right to access health care without unnecessary loss of privacy and dignity is no more than the right of every Canadian to access health care. In my view the objective of the legislation outweighs the infringement... A-G Ontario v. Dieleman [This excerpt is from the headnote. Note that Ontario proceeded by injunction rather than legislation.] The Attorney General of Ontario sought to enjoin all anti-abortion activity occurring within 500 feet of certain locations in four categories: hospitals, freestanding abortion clinics, the offices of physicians and the homes of physicians. She applied for an interlocutory injunction. The Attorney General submitted that as Guardian of the public interest and chief law officer of the Crown, she had the authority to seek an injunction to enjoin a public wrong and that an injunction may be granted to prevent persistent unlawful conduct or to suppress the commission of a public nuisance. The defendants' conduct was said to constitute a public nuisance in three ways: (1) any nuisance is "public" which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects; (2) there exists a sufficiently large collection of private nuisances to constitute a public nuisance; and (3) the evidence demonstrated that the conduct of the defendants was having a serious negative impact on the health and security of abortion patients and on the safety and privacy of the abortion service providers and their families. The concern was expressed that the defendants' conduct would result in an unwillingness on the part of physicians to perform abortions. Taken as a whole, the conduct of the defendants was said to have a sufficient deleterious effect on a significant proportion of the population and on the provision of medical services to constitute a public nuisance. It was also submitted that the defendants' conduct constituted the offences of intimidation, stalking and counselling and conspiring with others to intimidate or stalk; that the purpose of the defendants' conduct was not to communicate information but to intimidate abortion service providers and their patients; and that the defendants had committed the criminal offences of causing a disturbance, uttering threats, assault, and mischief. The defendants were also said to have committed trespass and to have engaged in a persistent course of conduct which was defamatory of physicians individually and as a group. The intervenors adopted many of those submissions and also argued that the most serious aspect of the defendants' activities was the commission of the tort of invasion of privacy. ... Any interlocutory injunction issued in these proceedings would result in an infringement of the defendants' freedom of expression contrary to s. 2(b) of the Charter. The Attorney General's case was focused on the content of the defendants' speech and the consequences of that speech in so far as the health and well-being of patients were concerned. Where a restriction is aimed at the content of speech, the infringement of s. 2(b) is established. ... The physiological, psychological and privacy interests of women about to undergo an abortion constitute objectives of sufficient importance to warrant overriding a constitutionally protected right or freedom. Moreover, given the significant and adverse impact on women entitled to this health care service the government's interest in protecting health care providers from the nuisance created by the defendants' focused residential and office picketing is pressing and substantial. In addition, unacceptably high bystander costs are inflicted by focused residential picketing and by protest activity immediately outside the offices of physicians. ... The request for an interlocutory injunction at the listed hospitals is not justified. There is insufficient evidence to constitute a prima facie unreasonable interference with the operations of the named hospitals or the appropriate interests of patients and physicians. The picketing of hospital facilities, the nearby "chain of life" activities and the support of such activities did not constitute a prima facie private or public nuisance, particularly when the Charter's interest in peaceful protest is considered. Irreparable harm was not established, and the balance of convenience at these locations was clearly in favour of the defendants. Public hospitals are multi-service facilities with many entrances, often set back from public roads and streets where picketers are confined. There was little or no evidence of patients being adversely affected by the presence of picketers in a manner sufficient to offset the constitutional right to protest. While the names of doctors providing abortion services at the hospitals are often publicly displayed on the signs of picketers at these locations, no interlocutory injunction could issue on this account. A physician who provides or who refuses to provide abortion services cannot assert a privacy interest eclipsing another citizen's freedom of expression. Two of the freestanding abortion clinics in question are the only establishments in their respective buildings which, in turn, are located very close to the public street. The third clinic is not the only tenant in the building where it was located, but the building does not have a multiplicity of entrances, unlike a hospital, and its main entrance was quite close to the public street. Patients attending the single-use buildings are easily targeted and "captured" by picketers and sidewalk "counsellors". Abortion service patients at the third clinic are not immune from capture. The need for freestanding clinics in Ontario is pronounced because of the politics which pervade the abortion issue and the impact of political forces on hospitals throughout the province. Only a limited number of hospitals are prepared to offer abortion services. Over the 12 months preceding the initiation of this action, at least two of the clinics were subjected to almost daily picketing and sidewalk counselling involving three to six persons. Intense emotions, harsh language and the potential for physical assault continued to be associated with protest activity. The murders in the United States of abortion service providers generated a sense of fear and insecurity on the part of abortion providers everywhere. The protesters knew that abortion patients generally wish anonymity and are easily upset. They preyed upon this aversion to publicity and the emotional vulnerability of the patients with the intent of discouraging the use of the medical facilities. This invasion of the patients' privacy and health interests is a significant component of the nuisance which the plaintiff had prima facie established. Abortion patients had no choice but to encounter close contact with strangers and their shocking messages, immediately prior to undergoing a serious surgical procedure requiring them to be calm, attentive and co-operative. The plaintiff made out at least a prima facie case that the picketing and counselling were being conducted in a manner incompatible with the character and function of a medical facility and the public areas immediately surrounding it. However, an injunction preventing the presence of protesters within 500 feet of the facilities would not impair as little as possible the freedom of expression of the protesters. R. v. Morgentaler does not stand for the proposition that women seeking abortion services are entitled to be free of all unwanted public comment and criticism. An interlocutory injunction should be granted prohibiting the defendants from trespassing upon the property of the single-use clinics and, during business hours, from picketing, sidewalk counselling or from engaging in any other manner of protest within a 60-foot radius of the lands on which these facilities are located. With respect to the third clinic, an order should go prohibiting the defendants from trespassing upon the property on which the clinic is located and, during business hours, from picketing, sidewalk counselling or from engaging in any other manner of protest within a 30-foot radius of the lands on which the clinic is located. In addition, an order should go creating additional zones 100 feet in radius from the outside perimeter of the 60- and 30-foot buffer zones. Within this 100-foot zone, no person shall continue to approach a second person closer than 10 feet where the second person has made it clear that he or she does not wish to receive any communication from the first person. Any order respecting the physicians' offices has to recognize the fact that the offices are not the actual sites where abortion procedures are carried out. As well, these locations have not engendered the same level of protest activity as the clinics or the physicians' homes. The provision of abortion services remains a public issue and doctors cannot be completely insulated from the criticisms of citizens who oppose their actions. Nevertheless, some restriction on protesting is justified. Protesting and picketing are activities contradictory to the nature and use of a doctor's office. The evidence established an interference with the reasonable use of these locations. The interests of patients in unimpeded access to safe medical treatment are integral to the purpose of a medical office. Reasonable privacy interests are also at stake. The picketing at these offices, therefore, constituted a prima facie case of private and public nuisance. The plaintiff had also established a prima facie case of watching and besetting, interference with economic interests by unlawful means and conspiracy to injure by unlawful means with respect to the office picketing. An order should be granted prohibiting the defendants during business hours from picketing, sidewalk counselling or engaging in any other manner of protest within a 25-foot radius of any entrance to the properties containing the doctors' offices. No order is justified, however, for offices located within hospitals. The tort doctrine of nuisance embraces an expansive set of principles aimed
at protecting a person's entitlement to reasonable use and enjoyment of a
particular property. Privacy is an integral component of reasonable residential
use. A public nuisance arose because of the widespread nature of the tactic of
picketing doctors' homes and from the critical involvement of doctors in the
provision of the health care service in issue. The picketing had been highly
intrusive and had had a demonstrable adverse effect on the family members of
doctors and on neighbours. The picketing of a particular home and a particular
family was prima facie a private and public nuisance in the circumstances. The
defendants were prohibited from picketing or encouraging picketing within a
500-foot radius of where the property lines intersected the public sidewalk or
roadway at the residences of the listed physicians.
Notes and Questions 1. How far does the public-private distinction extend? What if the physician's home was located beside the clinic? What if the clinic was located in the physician's home? 2. Do you agree that an absolute ban of this kind is narrowly tailored? How can it satisfy the first amendment's requirement of least restrictive means, or the Oakes criterion of minimal impairment? 3. What alternative channels are open? How should the courts determine whether these channels are "ample" or "adequate"? What if the speaker has chosen the most effective forum for the communication of his or her message? To what extent, if at all, should the Constitution protect the speaker's right to be effective? . Judgement is currently pending in a motion by the Ontario government for an injunction to permanently ban anti-abortion protestors from impeding access to abortion clinics and harassing patients and physicians. Which interest should prevail and, if expressive freedom can reasonably be limited, how should relief be tailored to minimize the infringement? Frisby v. Schultz Brookfield, Wisconsin, has adopted an ordinance that completely bans picketing "before or about" any residence. This case presents a facial First Amendment challenge to that ordinance. ... The appellees, ... are individuals strongly opposed to abortion and wish to express their views on the subject by picketing on a public street outside the Brookfield residence of a doctor who apparently performs abortions at two clinics in neighbouring towns. Appellees and others engaged in precisely that activity, assembling outside the doctor's home on at least six occasions. ... The size of the group varied from 11 to 40 or more. The picketing was generally orderly and peaceful; the town never had occasion to invoke any of its various ordinances prohibiting obstruction of the streets, loud and unnecessary noises, or disorderly conduct. Nonetheless, the picketing generated substantial controversy and numerous complaints. The town Board therefore enacted [the following] ordinance: It is unlawful for any person to engage in Picketing before or about the residence or dwelling of any individual in the Town of Brookfield. The ordinance stated that the primary purpose of the ban is: "the protection and preservation of the home" and "that members of the community enjoy in their homes and dwellings a feeling of well-being, tranquillity, and privacy." ...[W]e construe the ban to be a limited one; only focused picketing taking place solely in front of a particular residence is prohibited. ... ... The type of focused picketing prohibited by the Brookfield ordinance is fundamentally different from more generally directed means of communication that may not be completely banned in residential areas: e.g. [] handbilling; [] solicitation; [] marching. In such cases "the flow of information (is not) into ... household(s), but to the public." [] Here, in contrast, the picketing is narrowly directed at the household not the public. The type of picketers banned by the Brookfield ordinance generally do not seek to disseminate a message to the general public, but to intrude upon the targeted residence, and to do so in an especially offensive way. Moreover, even if some of the picketers have a broader communicative purpose, their activity nonetheless inherently and offensively intrudes on residential privacy. ... Because the picketing prohibited by the Brookfield ordinance is speech directed primarily at those who are presumably unwilling to receive it, the state has a substantial and justifiable interest in banning it. The nature and scope of this interest make the ban narrowly tailored. The ordinance also leaves open ample alternative channels of communication and is content-neutral. Thus, largely because of its narrow scope, the facial challenge to the ordinance must fail. Madsen v. Women's Health Centre After petitioners and other antiabortion protesters threatened to picket and demonstrate around a Florida abortion clinic, a state court permanently enjoined petitioners from blocking or interfering with public access to the clinic, and from physically abusing persons entering or leaving it. Later, when respondent clinic operators sought to broaden the injunction, the court found that access to the clinic was still being impeded, that petitioners' activities were having deleterious physical effects on patients and discouraging some potential patients from entering the clinic, and that doctors and clinic workers were being subjected to protests at their homes. Accordingly, the court issued an amended injunction, which applies to petitioners and persons acting "in concert" with them, and which, inter alia, excludes demonstrators from a 36-foot buffer zone around the clinic entrances and driveway and the private property to the north and west of the clinic; restricts excessive noisemaking within the earshot of, and the use of "images observable" by, patients inside the clinic; prohibits protesters within a 300- foot zone around the clinic from approaching patients and potential patients who do not consent to talk; and creates a 300-foot buffer zone around the residences of clinic staff. The governing standard is whether the injunction's challenged provisions burden no more speech than necessary to serve a significant government interest. Thus, the injunction must be couched in the narrowest terms that will accomplish its pin-pointed objective. Although the forum around the clinic is a traditional public forum, the obvious differences between a generally applicable ordinance--which represents a legislative choice to promote particular societal interests -- and an injunction -- which remedies an actual or threatened violation of a legislative or judicial decree, and carries greater risks of censorship and discriminatory application than an ordinance, but can be tailored to afford greater relief where a violation of law has already occurred--require a somewhat more stringent application of general First Amendment principles in this context than traditional time, place, and manner analysis allows. The combination of the governmental interests -- protecting a pregnant woman's freedom to seek lawful medical or counseling services, ensuring public safety and order, promoting the free flow of traffic on public streets and sidewalks, protecting citizens' property rights, and assuring residential privacy--is quite sufficient to justify an appropriately tailored injunction. Given the focus of the picketing on patients and clinic staff, the narrowness of the confines around the clinic, the fact that protesters could still be seen and heard from the clinic parking lots, and the failure of the first injunction to accomplish its purpose, the 36-foot buffer zone around the clinic entrances and driveway, on balance, burdens no more speech than necessary to accomplish the governmental interests in protecting access to the clinic and facilitating an orderly traffic flow on the street. However, the 36-foot buffer zone as applied to the private property to the north and west of the clinic burdens more speech than necessary to protect access to the clinic. Patients and staff wishing to reach the clinic do not have to cross that property. Moreover, nothing in the record indicates that petitioners' activities on the property have obstructed clinic access, blocked vehicular traffic, or otherwise unlawfully interfered with the clinic's operation. The limited noise restrictions imposed by the injunction burden no more speech than necessary to ensure the health and well-being of the clinic's patients. Noise control is particularly important around medical facilities during surgery and recovery periods. The First Amendment does not demand that patients at such a facility undertake Herculean efforts to escape the cacophony of political protests. The blanket ban on "images observable" sweeps more broadly than necessary to accomplish the goals of limiting threats to clinic patients or their families and reducing the patients' level of anxiety and hypertension inside the clinic. Prohibiting the display of signs that could be interpreted as threats or veiled threats would satisfy the first goal, while a clinic could simply pull its curtains to protect a patient bothered by a disagreeable placard. Absent evidence that the protesters' speech is independently proscribable (i.e, "fighting words" or threats), or is so infused with violence as to be indistinguishable from a threat of physical harm, the 300-foot no-approach zone around the clinic--and particularly its consent requirement--burdens more speech than is necessary to accomplish the goals of preventing intimidation and ensuring access to the clinic. The 300-foot buffer zone around staff residences sweeps more broadly than is necessary to protect the tranquility and privacy of the home. The record does not contain sufficient justification for so broad a ban on picketing; it appears that a limitation on the time, duration of picketing, and number of pickets outside a smaller zone could have accomplished the desired results. As to the use of sound amplification equipment within the zone, however, the government may demand that petitioners turn down the volume if the protests overwhelm the neighborhood. C. PRIVATE PROPERTY AND PUBLIC ACCESS In theory, access to public property that fell within the traditional forum
was protected because streets, parks and sidewalks had historically been used as
"avenues" of communication. As urban demographics evolved, claims
increasingly were made, both in Canada and the U.S., that certain kinds of
private property served the same function as the traditional forum. By invoking
that analogy, litigants claimed that access to certain kinds of private
property, shopping malls in particular, should be protected by the
Constitution's guarantee of expressive freedom. Set out below are the
judiciary's responses to those claims.
Harrison v. Carswell Facts The accused, involved in a labour dispute, sought to peacefully picket her
employer, a tenant in a shopping plaza.
Dickson, J. The respondent, Sophie Carswell, was charged under the Petty Trespasses Act, R.S.M. 1970, c. P-50, with four offenses of unlawfully trespassing upon the premises of the Polo Park Shopping Centre, located in the City of Winnipeg, after having been requested by the owner not to enter on or come upon the premises. The charges were dismissed by the Provincial Judge, but on a trial de novo in the County Court, Mrs. Carswell was convicted and fined $10 on each of the charges. The convictions were set aside by the Manitoba Court of Appeal and the present appeal followed, by leave of this Court ... The evidence discloses that distribution of pamphlets or leaflets in the mall of Polo Park Shopping Centre or on the parking lot, has never been permitted by the management of the centre and that this prohibition has extended to tenants of the centre. The Centre as a matter of policy has not permitted any person to walk in the mall carrying placards ... The submission that this Court should weigh and determine the respective values to society of the right to property and the right to picket raises important and difficult political and socioeconomic issues, the resolution of which must, by their very nature, be arbitrary and embody personal economic and social beliefs. It raises also fundamental questions as to the role of this Court under the Canadian Constitution... Society has long since acknowledged that a public interest is served by permitting union members to bring economic pressure to bear upon their respective employers through peaceful picketing, but the right has been exercisable in some locations and not in others and to the extent that picketing has been permitted on private property the right hitherto has been accorded by statute. For example, s. 87 [since rep. & sub. 1975, c.33, s. 21] of the Labour Code of British Columbia Act, 1973 (B.C.) (2nd Sess.), c. 122, provides that no action lies in respect of picketing permitted under the Act for trespass to real property to which a member of the public ordinarily has access.. Anglo-Canadian jurisprudence has transitionally recognized, as a fundamental freedom, the right of the individual to the enjoyment of property and the right not to be deprived thereof, or any interest therein, save by process of law. The Legislature of Manitoba has declared in the Petty Trespasses Act that any person who trespasses upon land, the property of another, upon or through which he has been requested by the owner not to enter, is guilty of an offence. If there is to be any change in this statute law, if A is to be given the right to enter and remain on the land of B against the will of B, it would seem to me that such a change must be made by the enacting institution, the Legislature, which is representative of the people and designed to manifest the political will, and not by this Court ... Laskin, C.J.C. (dissenting) The factual setting for these issues in the present case needs no great elaboration. The locale is a shopping centre, in which a large number of tenants carry on a wide variety of businesses. The shopping centre has the usual public amenities, such as access roads, parking lots and sidewalks, which are open for use by members of the public who may or may not be buyers at the time they come to the shopping centre. There can be no doubt that at least where a shopping centre is freely accessible to the public, as is the one involved in the present case, the private owner has invested members of the public with a right of entry during the business hours of his tenants and with a right to remain there subject to lawful behaviour... An ancient legal concept, trespass, is urged here in all its pristine force by a shopping centre owner in respect of areas of the shopping centre which have been opened by him to public use, and necessarily so because of the commercial character of the enterprise based on tenancies by operators of a variety of businesses. To say in such circumstances that the shopping centre owner may, at his whim, order any member of the public out of the shopping centre on penalty or liability for trespass if he refuses to leave, does not make sense if there is no proper reason in that member's conduct or activity to justify the order to leave... The considerations which underlie the protection of private residences cannot apply to the same degree to a shopping centre in respect of its parking areas, roads and sidewalks. Those amenities are closer in character to public roads and sidewalks than to a private dwelling. All that can be urged from a theoretical point of view to assimilate them to private dwellings is to urge that if property is privately owned, no matter the use to which it is put, trespass is as appropriate in the one case as in the other and it does not matter that possession, the invasion of which is basic to trespass, is recognizable in the one case but not in the other. There is here, on this assimilation, a legal injury albeit no actual injury. This is a use of theory which does not square with economic or social fact under the circumstances of the present case ... If it was necessary to categorize the legal situation which, in my view, arises upon the opening of a shopping centre, with public areas of the kind I have mentioned (at lease where the opening is not accompanied by an announced limitation on the classes of public entrants), I would say that the members of the public are privileged visitors whose privilege is revocable only upon misbehaviour (and I need not spell out here what this embraces) or by reason of unlawful activity. Such a view reconciles both the interests of the shopping centre owner and of the members of the public, doing violence to neither and recognizing the mutual or reciprocal commercial interests of shopping centre owner, business tenants and members of the public upon which the shopping centre is based. The respondent picketer in the present case is entitled to the privilege of entry and to remain in the public areas to carry on as she did (without obstruction of the sidewalk or incommoding of others) as being not only a member of the public but being as well, in relation to her peaceful picketing, an employee involved in a labour dispute with a tenant of the shopping centre, and hence having an interest, sanctioned by the law, in pursuing legitimate claims against her employer through the peaceful picketing in furtherance of a lawful strike ... I would agree that it does not follow that because unrestricted access is
given to members of the public to certain areas of the shopping centre during
business hours, those areas are available at all times during those hours and in
all circumstances to any kind of peaceful activity by members of the public,
regardless of the interest being prompted by that activity and regardless of the
numbers of members of the public who are involved. The Court will draw lines
here as it does in other branches of the law as may be appropriate in the light
of the legal principle and particular facts.
Notes and Questions 1. Harrison v. Carswell was obviously decided pre-Charter. Would it be decided in the same way today? See R. v. Layton (1986), 38 C.C.C. (3rd) 550 (Ont. Prov. Ct.) where a Toronto alderman was charged with trespass while attempting to distribute informational literature as part of a union organizing drive of the employees at the Eaton's Toronto Eaton Centre Store. Held: the activity was protected by Section 2(b) as the literature was offered in a peaceful, friendly manner to store employees without inconveniencing them or other users of the common areas of the mall. The means chosen by the Trespass To Property Act clearly infringed the defendant's freedom of expression and could not be justified pursuant to Section 1. 2. In her judgement in Commonwealth, supra, Mclachlin J.comments that s. 2(b) does not include the right to use someone else's property to express yourself. The new Terminal III at Toronto International Airport is to be privately owned and operated, albeit using land leased from the federal government. Does this mean that one's ability to exercise s.2(b) rights at Terminals I and II, which are publicly owned and operated, will be different than at Terminal III? What about Buttonville Airport which is also privately owned and operated? 3. Ontario's proposed labour legislation will permit union organizers to enter shopping malls (but not individual stores in those malls) to try and sign up new members. If the legislation also permits peaceful labour picketing in malls, could it be challenged by a mall owner as violating the mall owners freedom of expression (i.e. the mall owner is being compelled to have potentially offensive speech take place on his/her property)? See Pruneyard, supra. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza,
Inc. Marshall J. This case presents the question whether peaceful picketing of a business enterprise located within a shipping centre can be enjoined on the ground that it constitutes an unconsented invasion of the property rights of the owners of the land on which the centre is situated. We granted certiorari to consider petitioners' contentions that [their convictions for trespass] are violative of their rights under the First and Fourteenth Amendment.... We reverse. At the time of the events in this case, Logan Valley Mall was occupied by two businesses, Weis Markets, Inc. (Weis), the other respondent herein, and Sears, Roebuck and Co. (Sears) .... Weis operates a supermarket and Sears operates both a department store and an automobile service centre. The Weis property consists of the enclosed supermarket building, an open but covered porch along the front of the building, and an approximately five-foot-wide parcel pickup zone that runs 30 to 40 feet along the porch. The porch functions as a sidewalk in front of the building and the pickup zone is used as a temporary parking place for the loading of purchases into customers' cars by Weis employees. Between the Weis building and the highway berms are extensive macadam parking lots with parking spaces and driveways lined off thereon. These areas, to which Logan retains title, provide common parking facilities for all the businesses in the shopping centre.... On December 8, 1965, Weis opened for business, employing a wholly nonunion staff of employees. A few days after it opened for business, Weis posted a sign on the exterior of its building prohibiting trespassing or soliciting by anyone other than its employees on its porch or parking lot. On December 17, 1965, members of Amalgamated Food Employees Union, Local 590, began picketing Weis. They carried signs stating that the Weis market was nonunion and that its employees were not "receiving union wages or other union benefits." The pickets did not include any employees of Weis, but rather were all employees of competitors of Weis. The picketing continued until December 27, during which time the number of pickets varied between four and 13 and averaged around six. The picketing was carried out almost entirely in the parcel pickup area and that portion of the parking lot immediately adjacent thereto. Although some congestion of the parcel pickup area occurred, such congestion was sporadic and infrequent. The picketing was peaceful at all times and unaccompanied by either threats or violence. On December 27, Weis and Logan instituted an action in equity in the Court of Common Pleas of Blair County, and that court immediately issued an ex parte [injunction] ... The effect of this order was to require that all picketing be carried on along the berms beside the public roads outside the shopping centre ... The court explicitly rejected petitioners' claim under the First Amendment ... We start from the premise that peaceful picketing carried on in a location open generally to the public is, absent other factors involving the purpose or manner of the picketing, protected by the First Amendment. Thornhill v. Alabama, 310 U.S. 88 (1940) [ ]. To be sure, this Court has noted that picketing involves elements of both speech and conduct, i.e., patrolling, and has indicated that because of this intermingling of protected an unprotected elements, picketing can be subjected to controls that would not be constitutionally permissible in the case of pure speech. Nevertheless, no case decided by this Court can be found to support the proposition that the nonspeech aspects of peaceful picketing are so great as to render the provisions of the First Amendment inapplicable to it altogether ... [This] case squarely presents, therefore, the question whether Pennsylvania's generally valid rules against trespass to private property can be applied in these circumstances to bar petitioners from the Weis and Logan premises. It is clear that if the shopping centre premises were not privately owned but instead constituted the business area of a municipality ..., petitioners could not be barred ... This Court has also held, in Marsh v. Alabama, that under some circumstances property that is privately owned may, at least for First Amendment purposes, be treated as though it were publicly held ... The similarities between the business block in Marsh and the shopping centre in the present case are striking. The perimeter of Logan Valley Mall is a little less than 1.1 miles. Inside the mall were situated ... two substantial commercial enterprises with numerous others soon to follow. Immediately adjacent to the mall are two roads, one of which is a heavily travelled state highway and from both of which lead entrances directly into the mall. Adjoining the buildings in the middle of the mall are sidewalks for the use of pedestrians going to and from their cars and from building to building. In the parking areas, roadways for the use of vehicular traffic entering and leaving the mall are clearly marked out. The general public has unrestricted access to the mall property. The shopping centre here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh. It is true that, unlike the corporation in Marsh, the respondents here do not own the surrounding residential property and do not provide municipal services therefor. Presumably, petitioners are free to canvass the neighbourhood with their message about the nonunion status of Weis Market, just as they have been permitted by the state courts to picket on the berms outside the mall. Thus, unlike the situation in Marsh, there is no power on respondents' part to have petitioners totally denied access to the community for which the mall serves as a business district. This fact, however, is not determinative. In Marsh itself the precise issue presented was whether the appellant therein had the right... to pass out leaflets in the business district, since there was no showing made there that the corporate owner would have sought to prevent the distribution of leaflets in the residential areas of the town. While it is probable that the power to prevent trespass broadly claimed in Marsh would have encompassed such an incursion into the residential areas, the specific facts in the case involved access to property used for commercial purposes. We see no reason why access to a business district in a company town for the purpose of exercising First Amendment rights should be constitutionally required, while access for the same purpose to property functioning as a business district should be limited simply because the property surrounding the "business district" is not under the same ownership ... Such a power on the part of respondents would be, of course, part and parcel of the rights traditionally associated with ownership of private property. And it may well be that respondents' ownership of the property here in question gives them various rights, under the laws of Pennsylvania, to limit the use of that property by members of the public in a manner that would not be; permissible were the property owned by a municipality. All we decide here is that because the shopping centre serves as the community business block "and is freely accessible and open to the people in the area and those passing through," Marsh v. Alabama, 326 U.S., at 508, the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put. We do not hold that respondents, and at their behest the State, are without power to make reasonable regulations governing the exercise of First Amendment rights on their property ... [But] [b]ecause the Pennsylvania courts have held that "picketing and trespassing" can be prohibited absolutely on respondents' premises, we have no occasion to consider the extent to which respondents are entitled to limit the location and manner of the picketing or the number of pickets within the mall in order to prevent interference with either access to the market building or vehicular use of the parcel pickup area and parking lot ... The sole justification offered for the substantial interference with the effectiveness of petitioners' exercise of their First Amendment rights to promulgate their views through handbilling and picketing is respondents' claimed absolute right under state law to prohibit any use of their property by others without their consent. However, unlike a situation involving a person's home, no meaningful claim to protection of a right of privacy can be advanced by respondents here. Nor on the facts of the case can any significant claim to protection of the normal business operation of the property be raised. Naked title is essentially all that is at issue. The economic development of the United States in the last 20 years reinforces our opinion of the correctness of the approach taken in Marsh. The large-scale movement of this country's population from the cities to the suburbs has been accompanied by the advent of the suburban shopping centre, typically a cluster of individual retail units on a single large privately owned tract. It has been estimated that by the end of 1966 there were between 10,000 and 11,000 shopping centres in the United States and Canada, accounting for approximately 37% of the total retail sales in those two countries. These figures illustrate the substantial consequences for workers seeking to challenge substandard working conditions, consumers protesting shoddy or overpriced merchandise, and minority groups seeking nondiscriminatory hiring policies that a contrary decision here would have. Business enterprises located in downtown areas would be subject to on-the-spot public criticism for their practices, but businesses situated in the suburbs could largely immunize themselves from similar criticism by creating a cordon sanitaire of parking lots around their stores. Neither precedent nor policy compels a result so at variance with the goal of free expression and communication that is the heart of the First Amendment ... White J., dissenting The reason why labor unions may normally picket a place of business is that the picketing occurs on public streets which are available to all members of the public fora variety of purposes that include communication with other members of the public. The employer businessman cannot interfere with the pickets' communication because they have as much right to the sidewalk and street as he does and because the labor laws prevent such interference under various circumstances; the Government may not interfere on his behalf, absent obstruction, violence, or other valid statutory justification, because the First Amendment forbids official abridgment of the right of free speech. In Marsh v. Alabama, 326 U.S. 501 (1946), the company town was found to have all of the attributes of a state-created municipality and the company was found effectively to be exercising official power as a delegate of the State.... The situation here is starkly different. As Mr. Justice Black so clearly shows, Logan Valley Plaza is not a town but only a collection of stores. In no sense are any parts of the shopping centre dedicated to the public for general purposes or the occupants of the Plaza exercising official powers .... The most that can be said is that here the public was invited to shop, that except for their location in the shopping centre development the stores would have fronted on public streets and sidewalks, and that the shopping centre occupied a large area. But on this premise the parking lot, sidewalks, and driveways would be available for all those activities which are usually permitted on public streets. It is said that Logan Valley Plaza is substantially equivalent to a business block and must be treated as though each store was bounded by a public street and a public sidewalk. This rationale, which would immunize nonobstructive labor union picketing, would also compel the shopping centre to permit picketing on its property for other communicative purposes, whether the subject matter concerned a particular business establishment or not. Nonobstructive handbilling for religious purposes, political campaigning, protests against government policies - the Court would apparently place all of these activities carried out on Logan Valley's property within the protection of the First Amendment, although the activities may have no connection whatsoever with the views of the Plaza's occupants or with the conduct of their businesses. Furthermore, my Brother Black is surely correct in saying that if the invitation to the public is sufficient to permit nonobstructive picketing on the sidewalks, in the pickup zone, or in the parking area, only actual interference with customers or employees should bar pickets from quietly entering the store and marching around with their message on front and back. It is not clear how the Court might draw a line between "shopping centres" and other business establishments which have sidewalks or parking on their own property. Any store invites the patronage of members of the public interested in its products. I am fearful that the Court's decision today will be a license for pickets to leave the public streets and carry out their activities on private property, as long as they are not obstructive. I do not agree that when the owner of private property invites the public to do business with him he impliedly dedicates his property for other uses as well. I do not think the First Amendment, which bars only official interferences with speech, has this reach.... [The concurring opinion of Douglas J. , and the dissenting opinions of Black J. and Harlan J., are omitted.] Notes and Questions 1. Overruled and re-instated a. Four years after Logan Valley, a 5-4 Court upheld a shopping centre ban on anti-war leafleting. Justice Powell distinguished Logan Valley on the ground that there, the union's picketing activities were related to the shopping centre's operations, whereas in Lloyd Corp., the handbilling was unrelated to shopping centre activities and alternative avenues of communication were available. Justice Marshall' s dissent emphasized that many who do not have easy access to the mass media must rely on inexpensive methods of communication, like handbilling, and must be given broad rights of access for that purpose. Lloyd Corp. v. Tanner, 407 U.S. 551 (1972). b. Four years after Lloyd Corp., the Court announced that Lloyd had effectively overruled Logan Valley. Hudgens v. NLRB, 424 U.S.507 (1976). c. Four years after Hudgens, the Court revived Logan Valley, at least in part, in Pruneyard Shopping Centre v. Robins, 447 U.S. 74 (1980). Technically, the narrow issue decided was that California's state constitution could compel access to private property without violating the owner's federal first amendment right not to be compelled to permit expressive activity on his property. As such, the Court's decision deferred to the state's prerogative give state constitutional rights a broader scope than their federal counterparts. The shopping centre banned all expressive activity unrelated to its commercial purposes; in this case, students circulating a petition protesting a U.N. resolution against Zionism were excluded. Justice Rehnquist stated as follows: Appellants finally contend that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others. They state that in Wooley v. Maynard, 430 U.S. 705, [ ] (1977), this Court concluded that a State may not constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. This rationale applies here, they argue, because the message of Wooley is that the State may not force an individual to display any message at all. Wooley, however, was a case in which the government itself prescribed the message, required it to be displayed openly on appellee's personal property that was used "as part of his daily life," and refused to permit him to take any measures to cover up the motto even though the Court found that the display of the motto served no important state interest. Here, by contrast, there are a number of distinguishing factors. Most important, the shopping centre by choice of its owner is not limited to the personal use of appellants. it is instead a business establishment that is open to the public to come and go as they please. The views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner. Second, no specific message is dictated by the State to be displayed on appellants' property. There consequently is no danger of governmental discrimination for or against a particular message. Finally, as far as appears here appellants can expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand. Such signs, for example, could disclaim any sponsorship of the message and could explain that the persons are communicating their own messages by virtue of state law ... Appellants are not similarly being compelled to affirm their belief in any governmentally prescribed position or view, and they are free to publicly dissociate themselves from the views of the speakers or handbillers .... d. Aside from being decided at regular 4-year intervals, are any of these cases consistent? Should Pruneyard be read as overruling Logan Valley, or does it truly rest on narrower grounds? Do you find Rehnquist's justifications persuasive? What are its implications for access to private property? Allsco Building Products [1999] SCJ No. 45 UFCW Local 1518 [1999] SCJ No. 44 R. v. Sharpe 169 DLR (4th) 536
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