& the public's right to access public lands; The first case presented is from the Supreme Court of Canada - Supreme Court Reports (S.C.R.) - first page only. To find this case go to; This case is important as it took place in a crowded commercial location, an airport, that was owned by the Canadian government. This case also is the foundation for all other case in terms of how to apply Canadians rights to public land for freedom of thought, belief, opinion, expression and assembly. The case before this one was the Irwin Toy Limited. I would like to thank the TASC and Sierra Legal Defence Fund for helping me find these precedence setting cases and legal interpretation. Clayton Ruby is a Sierra Legal Defence Fund Director and wrote a letter addressing the issue of the publics legal right to get petitions signed in City parks. Also enclosed is an interpretation of this case from "Constitutional Law of Canada" (1997, student edition), by Peter Hogg, Dean of Osgoode Hall Law School, a leading constitutional law scholar in Canada. This is followed by a very important case and current case that took place at Queen's Park, 2000. In this case five persons (members of "Toronto Action for Social Change (TASC <tasc@pop.web.ca>) were charged with trespass to property as they disobeyed the banning order against them issued by the Sergeant-at-Arms under the authority of the office of the Speaker of the house (Queen's Park). There are a number of very important points that need to be noted. First of all the law is so strong in defence of their rights that they could defend themselves and win. It was ruled that the legislature and the seat of government for the Province of Ontario can not ban persons from peaceful protest or demonstrations on public lands, even at the very door of Queen's Park. That even if a banning order is filed, its legal power is inferior to our Charter Rights, regarding freedom of thought, belief, opinion, expression and assembly. A charge of trespass coming right from the Ontario Provincial government was set aside. At web-site; http://laws.justice.gc.ca/en/charter/ Enacted as Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11, which came into force on April 17, 1982 PART I - Canadian charter of rights and freedoms Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law: Guarantee of Rights and Freedoms Rights and freedoms in Canada 1. The Canadian Charter of Rights and Freedoms guarantees the rights Fundamental Freedoms 2. Everyone has the following fundamental freedoms: a) freedom of conscience and religion; From the Supreme Court of Canada - Supreme Court Reports (S.C.R.) - first page only. Her Majesty The Queen in Right of Canada Appellant indexed as: File No.: 20334. 1990: May 22; 1991: January 25. Present: Lamer C.J.1 and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin JJ. ON APPEAL FROM THE FEDERAL COURT OF APPEAL Constitutional law -- Charter of Rights -- Reasonable limits -- Airport officials forbidding distributing of political pamphlets -- Respondent's freedom of expression infringed -- Federal regulations prohibiting advertising or soliciting at airports -- Whether regulations encompass political activities -- Whether action of officials constitutes a limit prescribed by law -- Canadian Charter of Rights and Freedoms, s. 1 -- Government Airport Concession Operations Regulations, SOR/79-373, s. 7(a), (b). Transportation -- Airports -- Airport officials forbidding distributing of political pamphlets -- Federal regulations prohibiting advertising or soliciting at airports -- Whether regulations infringe freedom of expression guaranteed in s. 2(b) of Canadian Charter of Rights and Freedoms -- Whether government's proprietary rights allow it to control all activity on its property as it sees fit -- Government Airport Concession Operations Regulations, SOR/79-373, s. 7(a), (b). page 140 From Constitutional Law of Canada (1997, student edition), by Peter Hogg, Dean of Osgoode Hall Law School, a leading constitutional law scholar in Canada. 4012 - Access to public property Pages 842 to 845 Does s. 2(b) confer a right to use public property as a form of expression? With respect to private property, the general rule (of both the common law and the civil law) is that the owner has the power to determine who uses the property and for what purpose. This means that the owner has the power to determine the extent if at all that the property can be used as the location of signs, placards, pickets, speeches or other forms of expression. This rule of proprietary power obviously affects the kind and amount of expression in our society. But the rule is not affected by s. 2(b) of the Charter, because the Charter does not apply to private action. It is therefore clear that s. 2(b) confers no right to use private property as a forum of expression." [158] 158 - Committee for Cth of Can v. Can. [1991] 1 S.C.R., 228 per McLachlin J. With respect to public property, since the Charter applies to governmental action. s. 2(b) is potentially applicable. [159] In Committee for the Commonwealth of Canada v. Canada (1991), [160] the question arose whether the manager of Crown-owned Dorval Airport in Montreal could prohibit the distribution of political leaflets in the Airport. The Supreme Court of Canada held unanimously that the prohibition was unconstitutional. The Court was unanimous that s. 2(b) conferred a right to use public property for expression purposes; the government did not possess the absolute power of a private owner to control access to and use of public property. However, the Court splintered into three camps in its attempt to define the scope of the right of expression. 159 - Note, however, that not all "public" institutions are covered by the Charter, Universities and hospitals for example, are sufficiently independent of government to be outside the application of the Charter see ch 34, Application of Charter, above. Their property therefore counts as private property for this purpose. 160 - [1991] 1 S.C.R. 139 While the seven-judge bench was unanimous, there were three concurring opinions Lamer C.J.'s opinion was agreed to by Sopinka and Cory J.J.; McLachlin J.'s opinion was concurred in by La Forest and Gonthier JJ.; L'Heureux-Dube' J. wrote a third opinion. The most expansive view of the right of expression on public property was taken by L'Heureux-Dube' J., who held that s. 2(b) conferred a right to use all governmental property for purposes of expression. In her view, any limitation of access or use, even in respect of places not generally accessible by the public, would have to be justified under s. 1. McLachlin J. disagreed with her colleague, but proposed an alternative that in my view is virtually indistinguishable. She said that a prohibition on expression on governmental property would violate s. 2(b) only if the person seeking access was pursuing one of the three purposes of the guarantee of freedom of expression. Those purposes, it will be recalled, are (1) seeking truth, (2) participation in decision-making, and (3) individual self-fulfilment. 161 McLachlin J. assumed that a person or group demanding an audience in "the Prime Minister's office, an airport control tower, a prison cell or a judge's private chambers" would be unable to fit within one of the three purposes. But why not? The purposes are easily wide enough to embrace any statement or demonstration in any imaginable forum. In the end, therefore, McLachlin J. is in the same camp as L'Heureux-Dube' any restriction on access for the purpose of expression anywhere on government property would need to be justified under s. 1. Nor should it be assumed that justification under s. 1 would necessarily be easy to establish. Where access to a particular building or office is not governed by carefully formulated rules, but is controlled on an ad hoc basis, the exclusion of religious proselytizers or political protesters (for example) would probably not satisfy s. 1's requirement of "prescribed by law". [162] 161 - Id., 238-239, following the Irwin Toy dictum, quoted at note 39, above. 162 - Even a carefully framed rule, if it took the form only of an "internal directive or policy", would not satisfy "prescribed by law", according to Lamer J. (with two others) in this case. McLachlin J. (also with two others) on the other hand, held that internal directives as to the management of Crown property would qualify as "prescribed by law". The seventh judge, L'Heureux-Dube', did not express an opinion on this issue. It seems obvious to me that proprietary control over government property ought not to disappear entirely even in the face of an assertion of expression rights. That was the view of Lamer C.J. in the Commonwealth of Canada case. Lamer C.J. would allow proprietary controls over access or use to the extent necessary to carry out the principal function of the governmental place. Thus a rule of silence in the parliamentary library would not violate s. 2(b), and would not need to be justified under s. 1, because silence is essential to the function of the library. Only if expression would be compatible with the function of the place, would a limitation on expression offend s. 2(b) and require justification under s. 1. Lamer C.J.'s functional test is not free of difficulty. As McLachlin J. pointed out, it does involve identifying and defining the function of any governmental place in which expression rights have been asserted; it involves determining what degree of expressive activity would be compatible with the function; and, because these inquiries take place within s. 2(b) rather than s. 1, the onus of proof rests on the person asserting freedom of expression. However, the functional test provides more certainty than the s. 1 inquiry that would be required by the opinions of L'Heureux-Dube' and McLachlin JJ. Nor is the functional test unduly restrictive of the guarantee of freedom of expression. It is far wider than the American doctrine of "public forum", under which restrictions on speech on public property require substantial justification (strict scrutiny) only if they apply to places that have traditionally been used for free speech, such as streets, sidewalks and parks. [163] Lamer C.J.'s functional test would extend the constitutional guarantee to expression on any governmental property so long as the expression was compatible with the principal function of the property. In the Commonwealth case itself, because the distribution of political leaflets was compatible with the airport's function of serving the travelling public, Lamer C.J. concluded that the plaintiffs had a constitutional right to carry out the practice. L'Heureux-Dube' and McLachlin JJ., relying on their wider views of the constitutional right of access, reached the same conclusion, so that the Court was unanimous in its result. 163 - Tribe, American Constitutional Law (2nd ed., 1988), 986. In Ramsden v. Peterborough (1993), [164] the Supreme Court of Canada struck down a municipal bylaw that prohibited the placing of posters "on any public property" within the municipality. The defendant was a musician who advertised performances of his band by placing posters on hydro poles (utility poles carrying electrical transmission lines) on public property in the municipality. He was charged with a breach of the bylaw. He defended the charge on the basis that the bylaw was unconstitutional. The opinion of the Supreme Court of Canada was written by Iacobucci J., who had not been a member of the Court at the time of the Commonwealth case. There was no doubt, of course, that "postering" was a form of expression. Was postering an public property protected by s. 2(b)? In answering this question, Iacobucci J. noted the three different approaches that were taken in the Commonwealth case, but made no attempt to resolve the conflict. Instead, he held that, under each of the three approaches, postering on at least some kinds of public property, including utility poles, would be protected by s. 2(b). That moved the issue to s. 1. His lordship recognized that the municipality's objectives in enacting the bylaw, which were to reduce littering, aesthetic blight, traffic hazards and hazards to persons engaged in the repair of utility poles, were sufficiently important to justify some limitation of freedom of expression. He held, however. that a complete ban on postering on all public property was broader than necessary to accomplish the objectives. The bylaw therefore failed the least-drastic-means requirement of s. 1 justification, and was unconstitutional. [165] 164 - [1993] 2 S.C.R. 1084. The opinion of the Court was written by Iacobucci J. 165 - A by-law prohibiting postering on utility poles and buildings and a by-law prohibiting postering on roads were both struck down as too broad in Toronto v. Quickfall (1994) 16 O.R. (3rd) 665 (C.A.) the Trespass to Property Act, R.S.O. 1990, c. T.21 Between - Her Majesty the Queen, and Matthew Behrens, Amanda Hiscocks, Robert Holmes, Donald Johnston, Ontario Court of Justice (Provincial Offenses Court), Toronto, Ontario Quon J.P. Heard: November 15, 2000. Judgment: January 30, 2001. Counsel: J. McPhail, Provincial Prosecutor. Matthew Behrens for himself [part of the case] [93] In a situation where individuals are charged under the Trespass to Property Act, and had been only involved in a non-violent and non-mischievous demonstration on public property, their expressive activity would suitably be within the protection of section 2(b). In this example, the government would have substantial difficulty in justifying limiting free expression on public property under section 1 of the Charter. In this paradigm, their right to be on the public property for expressive activity would override any trespass charge. [103] In accordance with the Commonwealth decision, it would be untenable for the government to use the law of trespass to quell the voices of dissent and the freedom of expression on state-owned property. The government should not wantonly use the law of trespass to evict legitimate peaceful protesters or stop their voices. This form of expression, expressing dissatisfaction with a government policy and publicizing a particular political view while on state-owned property is a value cherished in a democratic society and is protected by section 2(b). [104] In conclusion, I find the individual rights of the defendants on public property pursuant to section 2(b) and 2(c) under the Charter outweigh the Speaker's right to exclude, especially when the expressive activity is non-violent and nondestructive. Notwithstanding the Speaker's prohibition, the charges under the Trespass to Property Act stemming from January 18, 1999 must yield to the defendants' rights to assemble on public property to participate in expressive activities. Therefore, the charges are dismissed. VII. ORDER [105] The charges under the Trespass to Property Act against Matthew Behrens, Amanda Hiscocks, Robert Holmes, Donald Johnston, and Sandra Lang are dismissed. Signed - Quon R. |
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