Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139
Her Majesty The Queen in Right of Canada Appellant
v.
Comité pour la République du Canada ‑‑
Committee for the Commonwealth of Canada,
François Lépine and Christiane Deland Respondents
and
The Attorney General for Ontario,
Watch Tower Bible and Tract Society of Canada,
Kenneth Arthur Little and Thomas Richard Jones Interveners
indexed as: committee for the commonwealth of canada v. canada
File No.: 20334.
1990: May 22; 1991: January 25.
Present: Lamer C.J.* 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 ‑‑ Freedom of expression ‑‑ Airport officials forbidding distributing of political pamphlets ‑‑ Federal regulations prohibiting advertising or soliciting at airports ‑‑ Whether regulations infringe s. 2(b) of Canadian Charter of Rights and Freedoms ‑‑ If so, whether infringement justifiable under s. 1 of Charter ‑‑ Government Airport Concession Operations Regulations, SOR/79‑373, s. 7(a), (b).
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).
Respondents L and D were at an airport telling passers‑by about the respondent committee and its goals and recruiting members when they were asked by an R.C.M.P. officer to cease their activities. The airport's assistant manager confirmed to them that such political propaganda activities were not permitted, as ss. 7(a) and 7(b) of the Government Airport Concession Operations Regulations prohibited the conducting of any business or undertaking, commercial or otherwise, and any advertising or soliciting at an airport, except as authorized in writing by the Minister. The trial judge granted respondents' action for a declaration that appellant had not respected their fundamental freedoms. The Federal Court of Appeal affirmed the judgment. This appeal is to determine whether ss. 7(a) and 7(b) of the Regulations are inconsistent with the freedom of expression guaranteed in s. 2(b) of the Canadian Charter of Rights and Freedoms, and if so, whether they are a reasonable limit under s. 1 of the Charter.
Held: The appeal should be dismissed; respondents' freedom of expression was infringed.
Per Lamer C.J. and Sopinka J.: The government's right of ownership, as a consequence of its special nature, cannot of itself authorize an infringement of the freedom guaranteed by s. 2(b) of the Charter. 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 interests at issue must be examined, namely the interest of the individual wishing to express himself in a place suitable for such expression and the interest of the government, which must ensure effective operation of the place owned by it. An individual will thus only be free to communicate in such a place if the form of expression he uses is compatible with the principal function or intended purpose of the place and does not have the effect of depriving the citizens as a whole of the effective operation of government services and undertakings. If the expression takes a form that contravenes the function of the place, such a form of expression will not fall under s. 2(b). 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 of the Charter can be analysed.
In this case respondents' activities at the airport benefited from the protection of s. 2(b) of the Charter. 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 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. There was thus a limitation on the freedom of expression enjoyed by respondents when the airport manager ordered them to cease their activities. However, in the absence of a limit prescribed by law, this limitation cannot be justified under s. 1 of the Charter. The language of ss. 7(a) and 7(b) of the Regulations, analysed in the context of the section and of the Regulations as a whole, prohibits only undertakings of a commercial nature and does not cover political propaganda. Section 7 is accordingly not applicable in this case. The limitation imposed on respondents' freedom of expression arose from the action taken by the airport manager, a government official, who ordered them to cease their activities. Although this action was based on an established policy or internal directive, it cannot be concluded from this that there was a "law" which could be justified under s. 1 of the Charter. 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.
Per La Forest J.: Freedom of expression, while it does not encompass the right to use any and all government property for purposes of disseminating views on public matters, does include the right to use streets and parks which are dedicated to the use of the public, subject to reasonable limitation to ensure their continued use for the purposes to which they are dedicated. This should include areas of airports frequented by travellers and members of the public. The blanket prohibition against the use of such areas for the purpose of the expression of views violated the freedom of expression guaranteed by s. 2(b) of the Charter, and is not justifiable under s. 1. Section 7 of the Regulations does not cover political activities, but in prohibiting expression of political views at the airport, the officials were exercising the Crown's legal right to manage its property, and the prohibition was thus prescribed by law.
Per L'Heureux‑Dubé J.: Section 7 of the Regulations has the effect of restricting political expression, even if that is not its purpose, and thus breaches s. 2(b) of the Charter. Where a restriction on expressive activity is content‑neutral, the government must demonstrate that the restriction is not an unreasonable restriction on the time, place and manner of the expressive activity. This must be demonstrated under s. 1 of the Charter.
Although the expressive activity took place on government property, the government cannot have complete discretion to treat its property as would a private citizen. If members of the public had no right whatsoever to engage in expressive activity on government‑owned property, little opportunity would exist to exercise their freedom of expression. While s. 2(b) of the Charter does not provide a right of access to all government property, some property will be constitutionally open to the public. This analysis is properly dealt with under s. 1 of the Charter. A number of factors are helpful to determine whether the restrictions by the government have been applied to property which is a "public arena". These factors include: the traditional openness of such property for expressive activity; whether the public is ordinarily admitted to the property as of right; the compatibility of the property's purpose with such activity; the impact of the property's availability on the achievement of s. 2(b)'s purposes; the property's symbolic significance for the message being communicated; and the availability of other public arenas in the vicinity. The "traditional" component of the public arena analysis must appreciate the "type" of place historically associated with public discussion, and should not be restricted to the actual places themselves. Bus, train and airport terminals, which draw large numbers of travellers, are contemporary crossroads or modern thoroughfares and should thus be accessible to those seeking to communicate with the passing crowds. Similarly, while the symbolism of a courthouse lawn or Parliament Hill is self‑evident, streets and parks have also acquired special significance as places where one can address one's fellow citizens on any number of matters, and the same holds true for airport terminals. The non‑security zones within airport terminals are thus properly regarded as public arenas, and the government cannot simply assert property rights, or claim that the expression is unrelated to an airport's function, in order to justify the restriction.
Section 7 of the Regulations is too vague and does not constitute a limit "prescribed by law" and thus cannot be saved under s. 1 of the Charter. Section 7(a) prohibits "any business or undertaking, commercial or otherwise" at the airport. It has failed to offer an intelligible standard which would enable a citizen to regulate his or her conduct. The Regulation can be read as an attempt to eradicate all types of expression or, more narrowly, to exclude only certain types of expression, and thus creates confusion. This does not allow fundamental freedoms to be fully exercised. The plenary discretion given to the Minister may also create a vague standard which does not accord with the requirement in s. 1 of the Charter that a limit on a right or freedom be "prescribed by law".
Section 7 of the Regulations is also overbroad and thus does not impair freedom of expression as little as possible. The Regulation applies not only to the activity at issue but also to virtually all conceivable activity involving freedom of expression at airports.
Although some objectives would be reasonable in justifying restrictions on expression in an airport, the time, place, and manner restrictions are not reasonable in the context and circumstances of this case. They bear no rational connection to the government's possible objectives and are broad to the point of being unintelligible. Section 7 of the Regulations does not, for the same reason, pass the proportionality test. Its impairment, far from being minimal, could not be greater.
Per McLachlin J.: The test for the constitutional right to use government property for public expression should be based on the values and interests at stake and should not be confined to the characteristics of particular types of government property. This test should reflect the concepts traditionally associated with free expression and should extend constitutional protection to expression on some but not all government property. The analysis under s. 2(b) of the Charter should be primarily definitional, and the test should be sufficiently generous to ensure that valid claims are not excluded for want of proof.
The test for whether s. 2(b) applies to protect expression in a particular forum depends on the class into which the restriction at issue falls. Section 2(b) of the Charter would usually be infringed if the government's purpose was to restrict the content of expression by limiting the forums in which it can be made. A content‑neutral restriction, however, may not infringe freedom of expression at all. Section 2(b) of the Charter would apply if it were established that the expression (including its time, place and manner) promoted one of the purposes underlying the guarantee of free expression: the seeking and obtaining of truth; participation in social and political decision‑making; and the encouragement of diversity in forms of individual self‑fulfilment by cultivating a tolerant, welcoming environment for the conveyance and reception of ideas. A link must be established between the use of the forum for public expression and at least one of these purposes if the protection of s. 2(b) of the Charter is to apply.
The policy of the airport officials of prohibiting all political propaganda was content‑neutral; it was aimed at the consequences of such expression rather than the particular messages communicated. The restriction had the effect of limiting expression, and the expression in question promoted one of the purposes of the guarantee of free expression, namely participation in political or social issues in the community. The government's action thus constituted a limitation of respondents' rights under s. 2(b) of the Charter.
The limitation of respondents' rights is not justifiable under s. 1 of the Charter. The words "advertise" and "solicit" in s. 7(b) of the Regulations are broad enough to cover non‑commercial publicity and solicitation, and respondents' conduct thus falls within the regulation. Even if it did not, the act of the airport officials in preventing respondents from handing out leaflets and soliciting members constitutes a limit prescribed by law because the officials were acting pursuant to the Crown's legal rights as owner of the premises. The government's objective in imposing the limit is not of sufficient importance to warrant overriding a Charter right, since there is nothing in the function or purpose of an airport which is incompatible with respondents' conduct. Further, the means chosen to attain the objective are neither reasonable nor proportionate to respondents' interest in conveying their message pursuant to their right under s. 2(b) of the Charter. 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. The limitation is overbroad and hence not saved by s. 1.
Per Gonthier J.: While in agreement with the several elements put forward by Lamer C.J. and L'Heureux‑Dubé J. pertinent to a determination of the extent of freedom of expression on government property, the application of ss. 1 and 2(b) of the Charter should be structured as outlined by McLachlin J. The reasons of L'Heureux‑Dubé J. as to the application of s. 7 of the Regulations to the conduct of the respondents were agreed with.
Per Cory J.: Notwithstanding agreement with the reasons of Lamer C.J. in so far as they deal with the use of government‑owned property by members of the public for the purposes of expressing themselves on various issues, the impugned Regulation contravenes s. 2(b) and cannot be saved by s. 1 of the Charter, as found by L'Heureux‑Dubé J.
Cases Cited
By Lamer C.J.
Not followed: Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983); referred to: Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939); Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; O'Connor v. Nova Scotia Telephone Co. (1893), 22 S.C.R. 276; DeWare v. The Queen, [1954] S.C.R. 182; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038.
By L'Heureux‑Dubé J.
Referred to: Switzman v. Elbling, [1957] S.C.R. 285; Palko v. Connecticut, 302 U.S. 319 (1937); R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Keegstra, [1990] 3 S.C.R. 697; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Whitney v. California, 274 U.S. 357 (1927); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Abrams v. United States, 250 U.S. 616 (1919); West Virginia State Board of Education v. Barnett, 319 U.S. 624 (1943); Reference Re Alberta Statutes, [1938] S.C.R. 100; Boucher v. The King, [1951] S.C.R. 265; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Cromer v. B.C. Teachers' Federation, [1986] 5 W.W.R. 638; R. v. Kopyto (1987), 24 O.A.C. 81; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; R. v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395; Harrison v. Carswell, [1976] 2 S.C.R. 200; Marsh v. Alabama, 326 U.S. 501 (1946); PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980); R. v. Oakes, [1986] 1 S.C.R. 103; Dupond v. City of Montreal, [1978] 2 S.C.R. 770; Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939); Cox v. Louisiana, 379 U.S. 536 (1965); Chicago Area Military Project v. City of Chicago, 508 F.2d 921 (1975); Rosen v. Port of Portland, 641 F.2d 1243 (1981); U.S. Southwest Africa/Namibia Trade & Cultural Council v. United States, 708 F.2d 760 (1983); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974); R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Hebert, [1990] 2 S.C.R. 151; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; City of Montréal v. Arcade Amusements Inc., [1985] 1 S.C.R. 368; Re Hamilton Independent Variety & Confectionery Stores Inc. and City of Hamilton (1983), 143 D.L.R. (3d) 498; Sunday Times case, judgment of 26 April 1979, Series A, No. 30; Re Ontario Film and Video Appreciation Society and Ontario Board of Censors (1983), 41 O.R. (2d) 583, aff'd 45 O.R. (2d) 80 (leave to appeal granted, [1984] 1 S.C.R. xi, but appeal discontinued); R. v. Red Hot Video Ltd. (1985), 45 C.R. (3d) 36; R. v. Cohn (1984), 48 O.R. (2d) 65; R. v. Pelletier (1985), 49 C.R. (3d) 253; Luscher v. Deputy Minister, Revenue Canada, Customs and Excise, [1985] 1 F.C. 85; R. v. Zundel (1987), 58 O.R. (2d) 129; R. v. LeBeau (1988), 62 C.R. (3d) 157; Grayned v. City of Rockford, 408 U.S. 104 (1972); United States v. Grace, 461 U.S. 171 (1983); R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc., 107 S.Ct. 2568 (1987); Roth v. United States, 354 U.S. 476 (1957); Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
By McLachlin J.
Considered: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; not followed: Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983); Consolidated Edison Co. of New York Inc. v. Public Service Commission of New York, 447 U.S. 530 (1980); referred to: Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939); Marsh v. Alabama, 326 U.S. 501 (1946); Saumur v. City of Quebec, [1953] 2 S.C.R. 299; R. v. Therens, [1985] 1 S.C.R. 613; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Edmonton Journal v. Alberta, [1989] 2 S.C.R. 1326; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 32.
Civil Code of Lower Canada, arts. 399, 400.
Constitution Act, 1982, s. 52.
Government Airport Concession Operations Regulations, SOR/79‑373, s. 6, 7(a), (b), 8-20.
U.S. Constitution, First Amendment.
Authors Cited
Abella, Rosalie Silberman. "The Social and Legal Paradigms of Equality" (1989), 1 W.R.L.S.I. 5.
Concise Oxford Dictionary, 7th ed. Edited by J. B. Sykes. Oxford: Oxford University Press, 1982, "solicit".
Cory, the Hon. Justice Peter deCarteret. Freedom of Expression Under the Charter: the Difficulties of Adjudicating, paper delivered at the University of Alberta Centre for Constitutional Studies, on April 21, 1990.
Côté, Pierre-André. The Interpretation of Legislation in Canada. Translated by Katherine Lippel, John Philpot and Bill Schabas. Cowansville: Yvon Blais Inc., 1984.
Côté, Pierre-André. "La préséance de la Charte canadienne des droits et libertés" (1984), 18 R.J.T. 105.
Cox, Archibald. Freedom of Expression. Cambridge, Mass.: Harvard University Press, 1981.
Dienes, C. Thomas. "The Trashing of the Public Forum: Problems in First Amendment Analysis" (1986), 55 Geo. Wash. L. Rev. 109.
Emerson, Thomas I. "Toward a General Theory of the First Amendment" (1963), 72 Yale L.J. 877.
Farber, Daniel A. and John E. Nowak. "The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication" (1984), 70 Va. L. Rev. 1219.
Jakab, Peter. "Public Forum Analysis After Perry Education Association v. Perry Local Educators' Association -- A Conceptual Approach to Claims of First Amendment Access to Publicly Owned Property" (1986), 54 Fordham L. Rev. 545.
Jeffries, John Calvin, Jr. "Legality, Vagueness, and the Construction of Penal Statutes" (1985), 71 Va. L. Rev. 189.
Kalven, Harry, Jr. "The Concept of the Public Forum: Cox v. Louisiana", [1965] Sup. Ct. Rev. 1.
Lee, William E. "Lonely Pamphleteers, Little People, and the Supreme Court: The Doctrine of Time, Place, and Manner Regulations of Expression" (1986), 54 Geo. Wash. L. Rev. 757.
MacKay, A. Wayne. "Freedom of Expression: Is it All Just Talk?" (1989), 68 Can. Bar Rev. 713.
Mill, John Stuart. On Liberty and Considerations on Representative Government. Oxford: Basil Blackwell, 1946.
Moon, Richard. "Access to Public and Private Property Under Freedom of Expression" (1988), 20 Ottawa L. Rev. 339.
Moon, Richard. "Freedom of Expression and Property Rights" (1988), 52 Sask. L. Rev. 243.
Petit Robert. Paris: Le Robert, 1977, "publicité", "solliciter".
Pinard, Danielle. "Le principe d'interprétation issu de la présomption de constitutionnalité et la Charte canadienne des droits et libertés" (1990), 35 McGill L.J. 305.
Post, Robert C. "Between Governance and Management: The History and Theory of the Public Forum" (1987), 34 U.C.L.A. L. Rev. 1713.
Rogerson, Carol. "The Judicial Search for Appropriate Remedies Under the Charter: The Examples of Overbreadth and Vagueness". In Charter Litigation. Edited by Robert J. Sharpe. Toronto: Butterworths, 1987.
Schauer, Frederick F. Free Speech: A Philosophical Enquiry. Cambridge: Cambridge University Press, 1982.
Sharpe, Robert J. "Commercial Expression and the Charter" (1987), 37 U.T.L.J. 229.
Stroud's Judicial Dictionary of Words and Phrases, 5th ed. By John S. James. London: Sweet & Maxwell, 1986, "solicit".
Stuart, Don. "The Canadian Void for Vagueness Doctrine Arrives With No Teeth" (1990), 77 C.R. (3d) 101.
Stuart, Don. Canadian Criminal Law: A Treatise, 2nd ed. Toronto: Carswells, 1987.
Tribe, Laurence H. American Constitutional Law, 2nd ed. Mineola, New York: Foundation Press, 1988.
Trotter, Gary T. "LeBeau: Toward A Canadian Vagueness Doctrine" (1988), 62 C.R. (3d) 183.
APPEAL from a judgment of the Federal Court of Appeal, [1987] 2 F.C. 68, 36 D.L.R. (4th) 501, 76 N.R. 338, affirming the judgment of the Federal Court, Trial Division, [1985] 2 F.C. 3, 25 D.L.R. (4th) 460, 1 F.T.R. 71, 23 C.R.R. 1, granting respondents' action for a declaration that the appellant had not respected their fundamental freedoms. Appeal dismissed.
Gaspard Côté., Q.C. and Claude Joyal, for the appellant.
Gérard Guay, for the respondents.
D. Lepofsky, for the intervener the Attorney General for Ontario.
W. Glen How, Q.C., for the interveners Watch Tower Bible and Tract Society of Canada, Kenneth Arthur Little and Thomas Richard Jones.
//Lamer C.J.//
English version of the reasons of Lamer C.J. and Sopinka J. delivered by
Lamer C.J. -- I have had the advantage of reading the reasons of Justice L'Heureux‑Dubé. I would ultimately dispose of this appeal in the same way, but would arrive at this conclusion by a different route.
Essentially, my position differs from that of my colleague in two regards: first, with respect, I do not share her position that the concept of "public forum" should be considered exclusively in the context of s. 1 of the Canadian Charter of Rights and Freedoms. Second, like Dubé J. at trial and the majority on appeal, I have come to the conclusion that s. 7 of the Government Airport Concession Operations Regulations, SOR/79‑373 (hereinafter "the Regulation") is not applicable to the activities of the respondents in the case at bar. I will now look at these two points.
1.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. In an article titled "The Concept of the Public Forum: Cox v. Louisiana", [1965] Sup. Ct. Rev. 1, at pp. 11‑12, Prof. Harry Kalven, Jr. summarized the definition of the term "public forum" as follows:
. . . in an open democratic society the streets, the parks, and other public places are an important facility for public discussion and political process. They are in brief a public forum that the citizen can commandeer; the generosity and empathy with which such facilities are made available is an index of freedom.
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 (see Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939), at pp. 515‑16, Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983), at p. 45).
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:
The first, traditional public forum, comprises streets and parks. Restrictions on access to these properties come under strict judicial scrutiny. If the restrictions are not narrowly tailored to serve a compelling state interest, they are unconstitutional. The second, public forum by designation, encompasses those public properties that the state has dedicated primarily as sites for communicative activity. These include auditoriums, meeting facilities and theaters. Second category properties enjoy the same strict scrutiny protection as properties in the first category.
The third category is defined as "property which is not by tradition or designation a forum for public communication."
(P. Jakab, "Public Forum Analysis After Perry Education Association v. Perry Local Educators' Association ‑‑ A Conceptual Approach to Claims of First Amendment Access to Publicly Owned Property" (1986), 54 Fordham L. Rev. 545, at p. 549).
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 (see Jakab, op cit.; and Dienes, "The Trashing of the Public Forum: Problems in First Amendment Analysis" (1986), 55 Geo. Wash. L. Rev. 109).
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 of our Charter, which provides for the consideration of justifications which may be given by the government to limit a citizen's constitutional rights. 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. For example, parks and public roads which have earned the "public forum" classification are in fact places whose functions will generally not be interfered with by the exercise of freedom of expression. In an article titled "Access to Public and Private Property Under Freedom of Expression" (1988), 20 Ottawa L. Rev. 339, at p. 341, Prof. Richard Moon says the following in this regard:
While the courts purport to attach the categorical labels, public forum and non‑public forum, as a formal threshold matter, it appears that, beneath it all, the determination that a particular state‑owned property is a public forum involves a judgment that public access for communication is reasonably consistent with the state use of the property. Access is required if it can be reasonably accommodated by the state. The focus of judicial analysis shifts from the categories of public and non‑public forum to a balancing of the state's interest in excluding communication from its property against the importance of communicative access to a particular individual or group. [Emphasis added.]
I agree completely with this assessment of the principles underlying the "public forum" doctrine. For this reason, 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. I will examine these interests in turn.
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 analysis of the public status of a place cannot be based on the premise suggested by the appellant that the owner has unlimited rights over his property. Pratte J., dissenting on appeal, articulated this position in the following way ([1987] 2 F.C. 68, at p. 74):
The government has the same rights as any owner with respect to its property. Its ownership right, therefore, is exclusive like that of any individual.
In my opinion, this analytical approach 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 set out by the U.S. Supreme Court in Hague v. Committee for Industrial Organization, supra, at pp. 515‑16:
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. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.
I note that in the case at bar Hugessen J.A. eloquently summarized this position, at p. 77:
As regards the government's right of ownership of the airport terminal, in my opinion it can never be made the sole justification for an infringement of the fundamental freedom of a subject. The government is not in the same position as a private owner in this respect, as it owns its property not for its own benefit but for that of the citizen. Clearly the government has a right, even an obligation, to devote certain property for certain purposes and to manage "its" property for the public good. The exercise of this right and the performance of this obligation may, depending on the circumstances, legitimize the imposition of certain limitations on fundamental freedoms. Of course the government may limit public access to certain places; of course it may also act to maintain law and order; but it cannot make its ownership right a justification for action the only purpose and effect of which is to impede the exercise of a fundamental freedom.
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. No one could agree that the exercise of the freedom of expression can be limited solely to places owned by the person wishing to communicate: such an approach would certainly deny the very foundation of the freedom of expression. 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) of the Charter.
This having been said, it must be understood, since the government administers its properties for the benefit of the citizens as a whole, that it is the citizens above all who have an interest in seeing that the properties are administered and operated in a manner consistent with their intended purpose. In this regard reference may be made to the passages already cited from Hague v. Committee for Industrial Organization, supra, and the reasons of Hugessen J.A., on appeal in the case at bar. In practical terms, it is easy to see that the citizens as a whole benefit from the services offered by Canada Post or by employment centres managed by the state. The state is accordingly responsible for ensuring that such places serve the specific purposes and functions for which they were intended. The fundamental government interest, and by the same token that of the citizens as a whole, is thus to ensure that the services or undertakings offered by various levels of government are operated effectively and in accordance with their intended purpose.
c.Balancing These Poles of Interest Under s. 2(b) of the Charter
Having reviewed the interests at issue, I come to the conclusion that s. 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 for Ontario properly points out, s. 2(b) of the Charter 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 suited for the purpose 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. In the context of expressing oneself in places owned by the state, it can be said that, under s. 2(b), the freedom of expression is circumscribed at least by the very function of the place.
Seen from another standpoint, this discussion also accords with the observations made by this Court in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927. In this case, this Court held that certain forms of expression did not enjoy the protection of s. 2(b) (at p. 970):
While the guarantee of free expression protects all content of expression, certainly violence as a form of expression receives no such protection. It is not necessary here to delineate precisely when and on what basis a form of expression chosen to convey a meaning falls outside the sphere of the guarantee. [Emphasis in original.]
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 of the Charter can be analysed. While the state's main interest is to ensure the effective operation of its property, that is not its only concern; there is, for example, the maintenance of law and order, which is another government objective that might justify certain limitations on s. 2(b). For example, the person presiding over a municipal assembly will generally be justified in limiting the time each member has to speak in order to allow everyone a chance to speak in an orderly manner. In my opinion, such a concern comes under s. 1 of the Charter, as do many others.
d.Application of the Foregoing Principles to the Facts of This Case
It will be recalled that, in the case at bar, the respondents went to the Montréal airport in Dorval to discuss the Committee's aims and objectives with members of the public. As my colleague properly noted, there seems to be no doubt that by their actions the respondents conveyed or tried to convey an idea or message of an expressive nature. In short, the primary purpose of the respondents' visit to Dorval airport was to inform people on the premises of the existence of the Committee for the Commonwealth of Canada, and the ideology promoted by it. It thus only remains to determine whether the form of expression used by the respondents is compatible with the performance of the airport's essential function.
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 of the Charter. As I mentioned at the outset of these reasons, 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. I will now set out the reasons for this conclusion.
2.Section 7 of the Regulations and its Relevance to the Case at Bar
The appellant argues that the wording of s. 7 of the Regulations is wide enough to embrace political propaganda. Both Dubé J. at trial and the majority on appeal (MacGuigan and Hugessen JJ.A.) concluded that para. (b) of the Regulations applies only to commercial rather than purely political activities and that accordingly the respondents' conduct did not fall within the scope of this provision. Pratte J.A., dissenting, concluded that s. 7(b) did not apply only to commercial activities and that the respondents' political propaganda was covered by the said paragraph. Section 7 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.
In my opinion, this question must be answered by applying the rules of statutory interpretation, and in particular by considering the exact meaning of the language of s. 7 and the legislative context in which the latter is placed.
The appellant's argument that the wording of para. (a) of the foregoing section is broad enough to embrace the political propaganda offered by the respondents must be dismissed. First, there is no doubt that the respondents' actions were not strictly speaking an "undertaking". Second, although the expression "business . . . commercial or otherwise" is theoretically wide enough to cover the dissemination of political ideas, I am, as a matter of logic, convinced that the legislature did not intend to give this language such a wide scope. The words "business . . . otherwise" would on that basis be wide enough to encompass virtually any "business" of any nature whatever. Indeed, I do not believe that the legislature intended to make the Minister's authorization necessary for every "business" occurring within an airport. Such a result would be absurd. Despite the broad language of this provision, I conclude from it that para. (a) of s. 7 of the Regulations prohibits businesses or undertakings of a commercial nature, and that the qualifier "or otherwise" cannot extend the scope of this paragraph so as to make it apply to the actions of the respondents in the case at bar.
The French version of para. (b) of s. 7 contains two functional terms which, in the appellant's submission, cover political propaganda: "publicité" and "sollicitation". The Petit Robert dictionary indicates that the word "publicité" may have one of the following two meanings: [translation] "What is public, is not kept secret. The act or art of creating a psychological effect in the public mind for commercial purposes". As this definition indicates, the word "publicité" may be understood in the wide sense, that of "making public", or in the strict and undoubtedly more modern sense of promoting a product or idea for commercial purposes. In my view, the ordinary meaning of this word in present‑day society is more adequately reflected in the commercial connotation of the word "publicité". It is not surprising to find in the English version of the Regulations the word "advertise", which expresses even more clearly the legislature's intent regarding the commercial aspect of "publicité". I therefore conclude that the respondents' actions did not constitute "publicité" within the meaning intended by para. (b). The meaning of the term "sollicitation", however, remains.
The word "solliciter", or "solicit", is defined as follows in the particular dictionaries:
Petit Robert: Inciter (qqn) de façon pressante et continue, de manière à entraîner; ... V. Quémander . . . V. Postuler.
Stroud's Judicial Dictionary of Words and Phrases: "Solicit" means "asks for" or "seeks" (Re A Solicitor, [1945] K.B. 368).
Concise Oxford Dictionary: solicit: invite, make appeals or requests to, importune, ask importunately or earnestly for.
In light of these few definitions, it can be seen that the word "sollicitation" necessarily implies a request or invitation. It in fact refers to conduct for the purpose of inciting someone to do something, characterized by some pressing request, commercial or otherwise, in nature. In the case at bar, I find it difficult to see in the facts admitted by the parties any such inciting conduct by the respondents. The following facts, contained in the respondents' statement of claim and providing the basis for this appeal, were admitted:
[translation] On Thursday, March 22, 1984, between 10:00 and 11:00 a.m., the plaintiffs François Lépine and Christiane Deland went to the Montréal International Airport terminal at Dorval to communicate to members of the public at that place, and discuss with them, the aims and objectives of the Committee, their opinions on current affairs, the Canadian Constitution proposed and promoted by the Committee and publications of a political nature distributed by the Committee . . .
These facts alone lead me to conclude that the mere fact of engaging in a discussion about a political ideology or of distributing political pamphlets to members of the public is not strictly speaking "soliciting" within the meaning of s. 7(b) of the Regulations. Furthermore, even assuming for purposes of argument that the political propaganda offered by the respondents constitutes "soliciting" in the strict sense of the term, I am of the view that the legislative context in which this term occurs excludes the respondents' actions from the scope the legislature intended this section of the Regulations to have. As Professor Côté properly notes in The Interpretation of Legislation in Canada (1984), at p. 199:
The need to determine the word's meaning within the context of the statute remains.
The context of the Regulations must thus qualify the ordinary use of the word "solicit", since in examining this context we can see what the legislature intended, as reflected in the regulations as a whole.
In considering the context in which s. 7 of the Regulations appears, I shall examine first the full title of the Regulations and then the short title. Both form an integral part of the text of the Regulations and may validly be used by anyone interpreting them in order to clarify the meaning of other provisions of the Regulations. (See in this regard O'Connor v. Nova Scotia Telephone Co. (1893), 22 S.C.R. 276; DeWare v. The Queen, [1954] S.C.R. 182.) The full title of the Regulations reads as follows: "Regulations Respecting the Control of Commercial and Other Operations at Government Airports" (emphasis added). Although the words "and Other" give the preceding words a rather broad scope, I note that the title indicates that the Regulations apply to "operations". The very idea of an operation, in my opinion, carries with it a connotation of industry or profit; this term seems to me to have intrinsically commercial overtones.
The short title of the said Regulations reads as follows: "Government Airport Concession Operations Regulations" (emphasis added). It will be seen from reading this version of the title that the commercial emphasis given to the application of the Regulations is still more clearly defined by the reference to the operation of concessions. I cannot imagine a concession being operated for any purpose other than a commercial or lucrative one. Though the short title "[o]f necessity . . . sacrifices precision for concision", it is an indication of the federal legislature's intention to limit the scope of the Regulations to commercial matters (on the use of the title for interpretation purposes, reference may be made to Côté, op. cit., at pp. 36‑40).
A brief review of the other provisions of the Regulations also indicates that the latter deal first and foremost with services providing transportation for passengers by means of commercial vehicles operated in airports and with the terms and conditions to which such operations are subject. Section 6 deals with areas designated as motor vehicle stations, ss. 8 and 9 set out the commercial passenger transportation operations permitted at an airport, and s. 10 states the various conditions to which the said transportation operations are subject. Finally, ss. 11 to 20 deal with the procedure for issuing the permits required to operate a commercial passenger vehicle or courtesy vehicle and the penalties to which anyone contravening the Regulations is liable. In my view, it would be surprising to find that, in these provisions dealing essentially with commercial passenger transportation, the legislature intended to prohibit any form of political propaganda in s. 7(b) of the Regulations. Thus, the context in which the language of this paragraph is found also leads to the conclusion that the latter is prohibiting operations of a commercial nature.
Lastly, I also base my conclusion that s. 7 of the Regulations is not applicable in the case at bar on the interpretative presumption that legislation is constitutional. In Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078, this Court stated this fundamental principle:
Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect.
In an article titled "Le principe d'interprétation issu de la présomption de constitutionnalité et la Charte canadienne des droits et libertés" (1990), 35 McGill L.J. 305, at p. 327, Danielle Pinard summarizes one of the justifications for this rule of interpretation as follows:
[translation] . . . an interpretation reconciling legislative provisions will be justified by the importance of respecting democratic choice and the proper separation of powers. So far as permitted by the ordinary rules of language and the methods used in statutory interpretation, the courts will prefer the interpretation which confirms that the provision is constitutional at the time of its application.
Ultimately, therefore, I will choose an interpretation of s. 7 which confirms that it is constitutional in the circumstances. The limitations undoubtedly imposed by this provision on commercial expression are not in any way relevant to this appeal. They might perhaps be the subject of another appeal, but so far as the facts of the case at bar are concerned, I cannot interpret the wording of s. 7 of the Regulations in such a way as to encompass the acts of the respondents and thereby infringe their freedom of expression.
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 of the Charter. 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 of the Charter.
3. Conclusion
In short, I conclude that the respondents' activities at the Dorval airport benefit from the protection of s. 2(b) of the Charter. The freedom of expression enjoyed by the respondents was limited by the order of the airport manager to cease the said activities. In the absence of a "limit prescribed by law", this limitation cannot be justified under s. 1 of the Charter.
I therefore answer the constitutional questions, as stated by Dickson C.J. on June 26, 1987, as follows:
1.Are ss. 7(a) and 7(b) of the Government Airport Concession Operations Regulations inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?
No.
2.In the affirmative, are the provisions in question to be regarded as a reasonable limit within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms?
In view of the negative answer to the first question, it is not necessary to answer this question.
Like my colleague L'Heureux‑Dubé J., I would dismiss this appeal with costs, as the respondents' freedom of expression was infringed not by the application of the Regulations but by the action of the airport manager.
//La Forest J.//
The following are the reasons delivered by
La Forest J. -- I have had the advantage of reading the reasons of my colleagues and I agree that the appeal should be dismissed.
Like the Chief Justice, I do not think that, as a matter of statutory interpretation, s. 7 of the Government Airport Concession Operations Regulations, SOR/79-373, covers political activities. However, as Justice McLachlin observes, in prohibiting expression of political views at the airport, officials were exercising the Crown's legal right to manage its property. The prohibition was in other words prescribed by law. As a general proposition, the Crown's proprietary rights are the same as those of a private owner, but in exercising them the Crown is subject to the overriding requirements of the Canadian Charter of Rights and Freedoms, including, of course, those flowing from the freedom of expression. I agree with the Chief Justice and McLachlin J. that that freedom does not encompass the right to use any and all government property for purposes of disseminating one's views on public matters, but I have no doubt that it does include the right to use for that purpose streets and parks which are dedicated to the use of the public, subject no doubt to reasonable regulation to ensure their continued use for the purposes to which they are dedicated. I see no reason why this should not include areas of airports frequented by travellers and by members of the public. The blanket prohibition against the use of such areas for the purpose of the expression of views thus violated the freedom of expression guaranteed by s. 2(b) of the Charter, a prohibition which my colleagues have been at pains to demonstrate is not justifiable in a free and democratic society.
This is sufficient to dispose of this appeal, and future cases are best left to be dealt with on a case by case basis, until there has been sufficient experience for the development of more specific guidance. It is right to say, however, that in dealing with future cases, I would tend to approach them in the manner suggested by McLachlin J.
I would answer the constitutional questions in the same manner as the Chief Justice.
//L'Heureux-Dubé J.//
The following are the reasons delivered by
L'Heureux-Dubé J. -- Freedom of expression rests at the heart of this case. The appeal presents this Court with its first opportunity to pronounce on the extent to which ss. 1 and 2(b) of the Canadian Charter of Rights and Freedoms operate to restrict government from forbidding certain expressive activity on its property. It raises two critical issues attaching to the constitutional guarantee of freedom of expression under s. 2(b): first, what is the scope of the right itself, and second, what are the spatial limitations as to where it can be exercised? While this Court has had occasion to address related concerns in other contexts, this appeal raises a "classic" confrontation between the acknowledged value of political expression and legitimate government interests in imposing certain restrictions on expression generally.
For the purposes of this analysis, it will be helpful to discuss the philosophical etymology of freedom of expression, especially political expression, and how it has developed both doctrinally as well as through judicial interpretation. However, rather than importing ready-made "tests" into our jurisprudence, one must be attentive to the unique character of our Constitution, recognizing that it has evolved within, and will continue to shape, the Canadian parameters and approach to these *complex, yet challenging issues. The present case provides a logical context in which to cultivate this undertaking.
The facts are not in dispute. On March 22, 1984, respondents Lépine and Deland, respectively the Secretary and Vice-President of the Committee for the Commonwealth of Canada, went to Montréal 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 such as those in which they were engaged were unauthorized pursuant to the Government Airport Concession Operations Regulations, SOR/79-373, which prohibited any advertising or solicitation in the airport.
After this meeting, the respondents took an action in the Federal Court of Canada against the appellant, in which they asked the court to declare, inter alia, that the appellant had not respected their fundamental freedoms and that the areas open to the public at the airport constituted a public forum where fundamental freedoms could be exercised. The trial judge granted these requests: [1985] 2 F.C. 3.
The Crown appealed. Three separate opinions were rendered at the Federal Court of Appeal: [1987] 2 F.C. 68. Hugessen J.A. held that s. 2(b) was clearly breached as the sole purpose of the action taken by the authorities was to prevent the dissemination by the respondents of their political ideas. Furthermore, the violation was not justified under s. 1. While government has the right to manage "its" property for the public good, it cannot make its ownership right a justification for action the only purpose and effect of which is to impede the exercise of a fundamental freedom.
MacGuigan J.A. also felt that the violation could not be justified under s. 1. Even if the objective was of sufficient importance to warrant overriding the right of expression, it had not been established that the means chosen were proportional to the objective. He also argued that the wording of the Charter dictates that the freedoms entrenched in s. 2, except for the freedom of "peaceful" assembly, are absolute as they are not qualified by any internal modifiers.
Pratte J.A. dissented, finding that the freedom of expression guaranteed by the Charter did not authorize the respondents to act as they did. The government, as owner of the airport, has the right to deny access to anybody who wants to use the premises other than for the purpose of travelling or using the other services provided.
The Federal Court of Appeal, while dismissing the appeal and acknowledging that the appellant had violated the fundamental freedoms of the respondents, was not prepared to rule that airports constitute a public forum for the purposes of freedom of expression under the Charter.
On appeal to this Court, Dickson C.J. framed the constitutional questions as follows:
1.Are ss. 7(a) and 7(b) of the Government Airport Concession Operations Regulations inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?
2.In the affirmative, are the provisions in question to be regarded as a reasonable limit within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms?
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.
Section 8 refers to "Permitted Operations", such as transportation to and from the airport, and does not concern us in this appeal.
The applicable sections of the Canadian Charter of Rights and Freedoms in this case are ss. 1 and 2(b):
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; ...
I propose to explore the scope of the right before gauging whether any prospective attenuation may be legitimated through the use of s. 1. The particular facts of this case also raise the issue of "public forum" -- what it means, and how it applies to this situation.
Freedom of Expression -- An Overview
The debate over the scope of freedom of expression probably began a few short seconds after the dawn of expression itself. The means of expression as well as the polemics surrounding them have taken on many forms. While some have defended freedom of expression as an end in and of itself, most justify free expression as a means to other ends. However, the two notions are largely interrelated -- especially when the form of the expression is political in nature, as in the present case.
Freedom of expression cannot be jettisoned in any system which values self-government -- political participation is valuable in part because it enhances personal growth and self-realization. Rand J. for this Court in Switzman v. Elbling, [1957] S.C.R. 285, at p. 306, described freedom of expression as "little less vital to man's mind and spirit than breathing is to his physical existence". Cardozo J., for the United States Supreme Court in Palko v. Connecticut, 302 U.S. 319 (1937), at p. 327, proclaimed freedom of expression to be "the matrix, the indispensable condition, of nearly every other form of freedom".
The importance of the freedoms in s. 2 of the Charter has been articulated from the earliest Charter cases. I would point to R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, in which Dickson J., referring to the American experience, made these remarks albeit in the context of the freedom of conscience and religion in s. 2(a) (at p. 346):
It is because of the centrality of the rights associated with freedom of individual conscience both to basic beliefs about human worth and dignity and to a free and democratic political system that American jurisprudence has emphasized the primacy or "firstness" of the First Amendment. It is this same centrality that in my view underlies their designation in the Canadian Charter of Rights and Freedoms as "fundamental". They are the sine qua non of the political tradition underlying the Charter.
The profound role of the freedom of expression, as one of the fundamental freedoms in s. 2, was underlined by this Court in several ensuing Charter cases. For instance, Cory J. in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, stated that it would be "difficult to imagine a guaranteed right more important to a democratic society than freedom of expression" (p. 1336). This has been reemphasized in R. v. Keegstra, [1990] 3 S.C.R. 697, by Dickson C.J. at pp. 726-27.
As this Court has discussed on several prior occasions, notably in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, and Keegstra, supra, many different theories have been advanced for promoting freedom of expression. Emerson, "Toward a General Theory of the First Amendment" (1963), 72 Yale L.J. 877, at pp. 878-79, is often cited for delineating the basic rationales for judiciously preserving freedom of expression:
The values sought by society in protecting the right to freedom of expression may be grouped into four broad categories. Maintenance of a system of free expression is necessary (1) as assuring individual self-fulfillment, (2) as a means of attaining the truth, (3) as a method of securing participation by the members of the society in social, including political, decision-making, and (4) as maintaining the balance between stability and change in the society.
However, it is evident that many of the distinctions are artificial. As well, reliance on any rationale in isolation is fraught with difficulty. (On this point, see Cory J., Freedom of Expression Under the Charter: the Difficulties of Adjudicating, paper delivered at the University of Alberta Centre for Constitutional Studies, on April 21, 1990.) Laurence Tribe in American Constitutional Law (2nd ed. 1988) (hereinafter "Tribe") states at p. 789:
No satisfactory jurisprudence of free speech can be built upon such partial or compromised notions of the bases for expressional protection or the boundaries of the conduct to be protected. However tempting it may be to resist governmental claims for restricting speech by retreating to an artificially narrowed zone and then defending it without limit, any such course is likely in the end to sacrifice too much to strategic maneuver: the claims for suppression will persist, and the defense will be no stronger for having withdrawn to arbitrarily constricted territory. Any adequate conception of freedom of speech must instead draw upon several strands of theory in order to protect a rich variety of expressional modes.
Frederick Schauer on the other hand, in Free Speech: A Philosophical Enquiry (1982) focuses on the negative consequences of governmental regulation of expression. At pages 81-86 he remarks:
Freedom of speech is based in large part on a distrust of the ability of governmental determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of governmental power in a more general sense...
I might summarize the foregoing ... by saying that the most persuasive argument for a Free Speech Principle is what may be characterized as the argument from governmental incompetence.
Schauer also avoids ascribing differential value to expression based on its form, thus heeding the warning of Professor Tribe. Any grounds, perhaps otherwise legitimate, put forward for restricting freedom of expression are least compelling when advanced in the political context.
Here the various theories merge to ensure that political participation is concretized through our ability to pronounce upon issues that define the political process governing our lives. Expression is in large part characterized by reference to its purpose. The liberty to comment on and criticize existing institutions and structures is an indispensable component of a "free and democratic society". It is imperative for such societies to benefit from a multiplicity of viewpoints which can find fertile sustenance through various media of communication.
The alternatives are particularly frightening. History is replete with examples of entrenched groups which have sought to maintain their elevated station by suppressing emerging and challenging new thoughts and ideas. Stifling opponents by revoking their right to express dissent and disenchantment may have produced desired results in the short run, but ultimately all such attempts led to insurrection and rebellion. As Brandeis J. proclaimed in Whitney v. California, 274 U.S. 357 (1927), at pp. 375-76, such oppressive endeavours are incompatible with the democratic vision which inspired the United States Constitution and the rights enunciated therein:
Those who won our independence believed that the final end of the State was to make men free to develop their faculties .... They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty .... Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
The United States Supreme Court has long recognized:
... a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. New York Times Co. v. Sullivan, 376 U.S. 254 (1964), at p. 270.
Free debate has often been perceived as the optimal means to discover "truth" -- through the "marketplace of ideas" in which truth will ultimately prevail. A well-known judicial formulation is found in Holmes J.'s dissent in Abrams v. United States, 250 U.S. 616 (1919), at p. 630:
... the best test of truth is the power of the thought to get itself accepted in the competition of the market ....
Furthermore the process will proliferate an abundance of varied perceptions which will expose the weaknesses of certain ideas and the strengths of others. However, as John Stuart Mill argued in On Liberty and Considerations on Representative Government (1946), at p. 16:
Yet it is as evident in itself, as any amount of argument can make it, that ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is as certain that many opinions now general will be rejected by future ages, as it is that many, once general, are rejected by the present.
The argument is appealing in that it acknowledges that one generation's truth is another generation's fallacy -- and there is an underlying optimism in the evolution of ideas. However, especially in the realm of political debate, it is the idea itself that must be encouraged, regardless of its apparent veracity. In fact, there can be no "political truth" -- assertions to the contrary may be welcome in the context of campaign literature, but not as a basis for repression of political challengers.
Freedom of expression, like freedom of religion, serves to anchor the very essence of our democratic political and societal structure. As expressed by Jackson J., in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), at p. 642, "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein". Robert J. Sharpe explains the futility of basing this axiom merely upon some yearning for ultimate truth, in "Commercial Expression and the Charter" (1987), 37 U.T.L.J. 229, at p. 236:
The essence of the market-place of ideas argument is that control and regulation of expression is intolerable because we can trust no government to know the truth. Those who purport to legislate the truth invariably turn out to be tyrants. The market-place of ideas argument prescribes an open process precisely because we cannot agree on what is the truth. [Emphasis added.]
Hence the justification for the widest freedom of political speech stems not only from some abstract search for truth, but also from the tangible goal of preserving democracy. As this Court stated in Reference Re Alberta Statutes, [1938] S.C.R. 100, at pp. 145-46, where Cannon J. held that freedom of expression was beyond provincial competence since expression is necessary to the functioning of a democracy:
Freedom of discussion is essential to enlighten public opinion in a democratic State; it cannot be curtailed without affecting the right of the people to be informed through sources independent of the government concerning matters of public interest. There must be an untrammelled publication of the news and political opinions of the political parties contending for ascendancy .... Democracy cannot be maintained without its foundation: free public opinion and free discussion throughout the nation of all matters affecting the State within the limits set by the criminal code and the common law.
And Duff C.J. stated, at p. 133, that "it is axiomatic that the practice of this right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions".
In Boucher v. The King, [1951] S.C.R. 265, the Court restricted the scope of the crime of sedition, holding that nothing short of an intention to incite the people to violence, public disorder, or unlawful conduct against the government suffices to support a conviction. Rand J. held, at p. 288:
Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill-will as a product of controversy can strike down the latter with illegality .... Controversial fury is aroused constantly by differences in abstract conceptions; heresy in some fields is again a mortal sin; there can be fanatical puritanism in ideas as well as in morals; but our compact of free society accepts and absorbs these differences and they are exercised at large within the framework of freedom and order on broader and deeper uniformities as bases of social stability.
In Switzman v. Elbling, supra, the Court reviewed the Quebec "padlock law", which made it illegal for any owner or tenant to use or allow the use of premises "to propagate communism or bolshevism by any means whatsoever". It was also an offence to print, publish, or distribute any materials tending to have the same effect. Striking down the law, Rand J., at pp. 304-5, again advocated an extensive scope for expression:
That the scene of study, discussion or dissemination of views or opinions on any matter has ever been brought under legal sanction in terms of nuisance is not suggested. For the past century and a half in both the United Kingdom and Canada, there has been a steady removal of restraints on this freedom, stopping only at perimeters where the foundation of the freedom itself is threatened. Apart from sedition, obscene writings and criminal libels, the public law leaves the literary, discursive and polemic use of language, in the broadest sense, free.
Since the advent of the Charter, this Court has discussed the values and principles underlying the freedom of expression. These were admirably reviewed by Chief Justice Dickson in Keegstra, supra, where he stated (at pp. 727-28), referring to a passage from Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712:
As is evident from the quotation just given, the reach of s. 2(b) is potentially very wide, expression being deserving of constitutional protection if "it serves individual and societal values in a free and democratic society". In subsequent cases, the Court has not lost sight of this broad view of the values underlying the freedom of expression, though the majority decision in Irwin Toy perhaps goes further towards stressing as primary the "democratic commitment" said to delineate the protected sphere of liberty (p. 971). Moreover, the Court has attempted to articulate more precisely some of the convictions fueling the freedom of expression, these being summarized in Irwin Toy (at p. 976) as follows: (1) seeking and attaining truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in a tolerant and welcoming environment for the sake of both those who convey a meaning and those to whom the meaning is conveyed.
Before embarking on an analysis of our Charter provisions and their application to the present case, I wish to stress at this point that the above discussion is not designed to carve out "political expression" as a distinct category to be analysed apart from freedom of expression considerations generally. Rather, the political nature of the speech at issue merely focuses on the competing interests that must be balanced on the constitutional scales. The characterization of the particular speech at issue, as political, commercial or otherwise, will merely be among the many factors to be taken into account. These concerns will be explored in greater detail when assessing the constitutionality of the provision itself.
Section 2(b) of the Charter
When reviewing the ambit of protected expression this Court has often referred to American decisions. The United States Supreme Court has long been grappling with the formulation of an appropriate test, and in the process it has created a whole series of standards that have been applied somewhat unpredictably over the years. We must recognize the differences in approach which result from our distinctive constitutional documents. In Keegstra, supra, Dickson C.J. addressed this at p. 740:
Canada and the United States are not alike in every way, nor have the documents entrenching human rights in our two countries arisen in the same context. It is only common sense to recognize that, just as similarities will justify borrowing from the American experience, differences may require that Canada's constitutional vision depart from that endorsed in the United States.
Notwithstanding our differences, it may be helpful here to look at the American experience, not with a view to applying their decisions blindly but rather to learn from the process through which they were derived.
The First Amendment reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The fundamental nature of this set of guarantees is underscored by its primacy -- this is the first amendment. However, the different structures of our two constitutional documents require that the balancing tests be undertaken at different stages of the analysis. In the United States any limitations on the First Amendment, to the extent that any limitations exist, must be internal to the provision itself. The U.S. Constitution does not contain a s. 1. For these and other reasons A. Wayne MacKay cautions, in "Freedom of Expression: Is it All Just Talk?" (1989), 68 Can. Bar Rev. 713, at p. 719, that:
What if anything should Canadian courts do with these various rationales evolved in the United States? As a first preliminary matter, account should be taken of the significant political and social differences between the two countries and how this has been reflected in their historical approaches to freedom of expression and the press. As a second preliminary matter, the linguistic differences between the respective guarantees of freedom of expression should be considered, and in particular the European roots of the Canadian provision -- section 2(b) of the Charter.
On a more substantive basis the American rationales should only be used to the extent that they are useful for advancing the purposes and values of the Canadian document. [Emphasis added.]
And, as Professor MacKay points out at p. 730:
While the Americans must do their balancing in the context of the definition of the right, Canadians can take advantage of the existence of section 1. A priori exclusions of whole categories of free expression are not necessary in Canada.
Hence we should be particularly vigilant to formulate a "made in Canada" standard, that is sensitive to the legal, sociological, and political characteristics which inspired the Canadian Charter of Rights and Freedoms and its subsequent development.
The pre-Charter decisions appreciated that rights are not absolute. See e.g. Reference Re Alberta Statutes, supra; Boucher v. The King, supra; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; and Switzman v. Elbling, supra. Another example of this recognition can be found in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, the last pre-Charter case on freedom of expression, where Chief Justice Dickson wrote, at pp. 467-68:
... our democratic system is deeply rooted in, and thrives on, free and robust public discussion of public issues. As a general rule, all members of society should be permitted, indeed encouraged, to participate in that discussion.
. . .
On the other side, however, it is equally obvious that free speech or expression is not an absolute, unqualified value. Other values must be weighed with it. Sometimes these other values supplement, and build on, the value of speech. But in other situations there is a collision. When that happens the value of speech may be cut back if the competing value is a powerful one. Thus, for example, we have laws dealing with libel and slander, sedition and blasphemy. We also have laws imposing restrictions on the press in the interests of, for example, ensuring a fair trial or protecting the privacy of minors or victims of sexual assaults.
The parameters of freedom of expression have been explored more expansively since the promulgation of the Charter, and these decisions have shed fresh light on venerable principles as well as illuminating a new path for the development of this fundamental liberty.
A threshold question which must first be addressed is whether or not the Charter created new rights or whether it codified pre-existing rights. This debate has focussed on the Canadian Bill of Rights, under which the scope of an invoked freedom was often limited by government property rights. However, the difference in approach has been eloquently presented by Judge Rosalie Abella in "The Social and Legal Paradigms of Equality" (1989), 1 W.R.L.S.I. 5, at p. 6, where she explores the background of equality provisions and its entrenchment in the Charter:
Most of the Charter's rights, including equality, had been substantially included in the Charter's statutory ancestor, the Bill of Rights. But that statute lacked the stature of constitutional entrenchment, and it tended to suffer from juridical emaciation, starved as it was by a judiciary anxious to keep the Bill of Rights on a policy-free diet. [Emphasis added.]
Some courts, such as the British Columbia Court of Appeal in Cromer v. B.C. Teachers' Federation, [1986] 5 W.W.R. 638, have resisted the cultivation of broader rights under the Charter, finding instead that the Charter merely enshrined, and essentially froze, existing rights. In Cromer, a teachers' federation brought disciplinary charges against Cromer, who was alleged to have breached the Code of Ethics by publicly criticising a fellow teacher. Lambert J.A., for the court, held that the Charter contained no new rights, and instead the courts should look to pre-Charter jurisprudence. He framed the question to be resolved as follows, at p. 647:
To adopt Rand J.'s language, the question in this case becomes: whether the phrase "freedom of expression" in s. 2 of the Charter is describing the whole original freedom or the residue within the periphery of countervailing rights. Does it describe an absolute freedom, to be restricted only under s. 1, or does it describe the bundle of civil rights that arise as protection against infringements of free speech?
Lambert J.A. answered, at pp. 652 and 657, that:
... the content and scope of the substantive rights and freedoms is to be found in the description of the rights and freedoms themselves...
. . .
The Charter does not purport to confer new freedoms. It gives a constitutional guarantee to the old freedoms and, in so doing, it protects them. But, in my opinion, it did not transform them. Section 1 merely places limits on the extent of the constitutional guarantee. The freedom of expression itself remains the same freedom as existed before the adoption of the Charter, and it remains subject to the same balancing process against other important and often compelling values.
However, it is now incontrovertible that the Charter, in order to be capable of adapting to the social conditions and problems of the present and the future, must be given a purposive and expansive interpretation. As Dickson J. articulated in R. v. Big M Drug Mart, supra, at pp. 342-44:
The basis of the majority's interpretation in Robertson and Rosetanni, supra, is the fact that the language of the Canadian Bill of Rights is merely declaratory: by s. 1 of the Canadian Bill of Rights, certain existing freedoms are "recognized and declared", including freedom of religion. For Ritchie J. this language dramatically narrowed the possible interpretation of the rights and freedoms enunciated by the Canadian Bill of Rights:
. . .
I agree with the submission of the respondent that the Charter is intended to set a standard upon which present as well as future legislation is to be tested. Therefore the meaning of the concept of freedom of conscience and religion is not to be determined solely by the degree to which that right was enjoyed by Canadians prior to the proclamation of the Charter. [Emphasis added.]
Cory J.A., now of this Court, offered a resonating endorsement of freedom of expression in R. v. Kopyto (1987), 24 O.A.C. 81. Mr. Kopyto was convicted of scandalizing the court for suggesting that the police and the courts were not independent of one another. Cory J.A. announced that "the rights granted by the Charter were not frozen at the moment of its enactment; the Charter does more than recognize and declare pre-existing rights" (p. 89). The critical role of free speech in the political context was specifically underscored, at pp. 90-91:
... it is difficult to imagine a more important guarantee of freedom to a democratic society than that of freedom of expression. A democracy cannot exist without the freedom to express new ideas and to put forward opinions about the functioning of public institutions. These opinions may be critical of existing practices in public institutions and of the institutions themselves. However, change for the better is dependent upon constructive criticism. Nor can it be expected that criticism will always be muted by restraint. Frustration with outmoded practices will often lead to vigorous and unpropitious complaints. Hyperbole and colourful, perhaps even disrespectful language, may be the necessary touchstone to fire the interest and imagination of the public, to the need for reform, and to suggest the manner in which that reform may be achieved.
The concept of free and uninhibited speech permeates all truly democratic societies. Caustic and biting debate is, for example, often the hallmark of election campaigns, parliamentary debates and campaigns for the establishment of new public institutions or the reform of existing practices and institutions. The exchange of ideas on important issues is often framed in colourful and vitriolic language. So long as comments made on matters of public interest are neither obscene nor contrary to the laws of criminal libel, citizens of a democratic state should not have to worry unduly about the framing of their expression of ideas. The very lifeblood of democracy is the free exchange of ideas and opinions. If these exchanges are stifled, democratic government itself is threatened.
History has repeatedly demonstrated that the first step taken by totalitarian regimes is to muzzle the media and then the individual in order to prevent the dissemination of views and opinions that may be contrary to those of the government. The vital importance of freedom of expression cannot be overemphasized. It is important in this context to note that s. 2(b) of the Charter is framed in absolute terms, which distinguishes it, for example, from s. 8 of the Charter, which guarantees the qualified right to be secure from unreasonable search. The rights entrenched in s. 2(b) should therefore only be restricted in the clearest of circumstances.
Cory J.A.'s comments also address another controversy regarding the interpretation of s. 2(b): should it be construed narrowly, thus avoiding the need to resort to s. 1 as fewer Charter violations will be established; or should it be read broadly, thus requiring that most limitations must be anchored within s. 1, with the burden of proof resting upon the government? I prefer the latter approach. As Professor MacKay writes in "Freedom of Expression: Is it All Just Talk?", supra, at p. 730:
Because the burden is on the state rather than on the applicant under section 1, a decision to balance interests there, rather than in the right itself, would be one in favour of expanding freedom of expression.
While I may not go as far as MacGuigan J. at the Court of Appeal, who found that the lack of internal modifiers renders the s. 2(b) guarantee "absolute", I do believe that it should be given a large and liberal application. This appears to be consistent with the approach embraced by this Court in its prior interpretations of the provision.
In RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, the Court examined the issue of secondary picketing. On the issue of freedom of expression, McIntyre J. stressed the continuity with pre-Charter principles, at p. 583:
Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection. [Emphasis added.]
In Ford v. Quebec (Attorney General), supra, this Court held that a ban on commercial signs in languages other than French infringed s. 2(b) and was not justified under s. 1. The decision made it clear that commercial expression fell within the rubric of s. 2(b). After addressing several philosophical justifications for protecting freedom of expression, the Court, at pp. 765-66, acknowledged the value of these contributions, yet stressed the importance of developing a "made in Canada" test, sensitive to the nuances and subtleties of our Charter and the rights secured therein:
While these attempts to identify and define the values which justify the constitutional protection of freedom of expression are helpful in emphasizing the most important of them, they tend to be formulated in a philosophical context which fuses the separate questions of whether a particular form or act of expression is within the ambit of the interests protected by the value of freedom of expression and the question whether that form or act of expression, in the final analysis, deserves protection from interference under the structure of the Canadian Charter . . .
Perhaps the most extensive examination of the freedom of expression guarantee was undertaken in Irwin Toy. There the Court reviewed a ban on advertising directed at children. Though ultimately upheld under s. 1, the ban was found to constitute an infringement of s. 2(b). At pages 968-69, the majority set out the proper approach in freedom of expression issues:
[T]he first step to be taken in an inquiry of this kind is to discover whether the activity which the plaintiff wishes to pursue may properly be characterized as falling within "freedom of expression".
. . .
"Expression" has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content. Freedom of expression was entrenched in our Constitution... so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters, "fundamental" because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.
. . .
We cannot, then, exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being conveyed. Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee . . .
Since Irwin Toy, this Court has had several opportunities to examine the Charter right of freedom of expression and apply the Irwin Toy approach. See for example Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (the "Prostitution Reference"), in Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232, and in Keegstra, supra. It should be noted that in Keegstra, Dickson C.J. emphasized that the content of expression should not be a relevant consideration in the interpretation of s. 2(b) of the Charter. Any activity which conveys or attempts to convey a meaning has expressive content, and whether the meaning expressed is "invidious and obnoxious is beside the point" (p. 730).
Application to the Present Case
At the outset, I should point out that it seems to me obvious that s. 32 of the Charter applies to Regulation 7 inasmuch as it emanates from government and that such regulation does qualify as law for the purpose of s. 52 of the Constitution Act, 1982. Moreover, I do not believe that there is any dispute that airport administrators constitute government officials. These officials also admitted that they had an enduring and intransigent policy prohibiting all forms of solicitation and advertising except perhaps for the sale of poppies by veterans in November. Furthermore, government personnel did forbid the respondents from exercising their activities on government premises, constituting government action. Therefore the refusal of the airport authorities in this case to allow the respondents to distribute publications to members of the public, and to discuss with them their political beliefs, must be assessed in the light of the Charter. To establish whether s. 2(b) is infringed, the analysis set out in Irwin Toy applies.
According to the scheme set out in that case, the first step is to decide whether the activity being limited is "expressive activity". That question presents no difficulty in the present case, as it is clear that the respondents' conduct conveyed or attempted to convey a meaning. 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, as it consisted merely of peaceful attempts to gain adherents through distribution of literature and accompanying conversations.
The next stage of the Irwin Toy inquiry is to ask whether the purpose of the challenged governmental action is to limit expression. The following passages from Irwin Toy, at pp. 974-75, imply that 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:
If the government's purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee of free expression. If the government's purpose is to restrict a form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so, it also limits the guarantee. On the other hand, where the government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression. . . .
. . .
Thus, for example, a rule against handing out pamphlets is a restriction on a manner of expression and is "tied to content", even if that restriction purports to control litter. The rule aims to control access by others to a meaning being conveyed as well as to control the ability of the pamphleteer to convey a meaning. To restrict this form of expression, handing out pamphlets, entails restricting its content. By contrast, a rule against littering is not a restriction "tied to content". It aims to control the physical consequences of certain conduct regardless of whether that conduct attempts to convey meaning. To restrict littering as a "manner of expression" need not lead inexorably to restricting a content.
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:
Even if the government's purpose was not to control or restrict attempts to convey a meaning, the Court must still decide whether the effect of the government action was to restrict the plaintiff's free expression.
. . .
If the activity falls within the protected sphere of conduct, the second step in the analysis is to determine whether the purpose or effect of the government action in issue was to restrict freedom of expression. If the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee.
. . .
If the government's purpose was not to restrict free expression, the plaintiff can still claim that the effect of the government's action was to restrict her expression. To make this claim, the plaintiff must at least identify the meaning being conveyed and how it relates to the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing. Irwin Toy, at pp. 976-79.
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. Therefore, s. 2(b) of the Charter has been breached. The provision categorically excludes advertising and solicitation, and is applied to all such activity except, we are told, veterans selling poppies in November. Hence, aside from that exception, the Regulation is invoked uniformly; it reflects an invariable practice of prohibiting all means of expression, and thus constitutes a restriction of the guaranteed freedom according to the criteria enunciated above.
However, this case also raises an additional element in the equation. The events in question here occurred on government property. How does this affect the right of freedom of expression and prospective limitations with respect to that right? 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.
In the United States, a "public forum" has traditionally been construed as a place where all persons have a prima facie right to express their views by any means at their disposal, subject only to reasonable "time, place and manner" restrictions. The respondents have urged this Court to adopt the "public forum" doctrine, and to include airports within its scope. The implications of both the doctrine itself and the analysis of time, place, and manner restrictions will be considered in greater detail when evaluating the effect of s. 1 on the disputed regulations.
The Attorney General for Ontario ("A.G.O."), an intervener in this appeal, has recommended a middle ground. It has also introduced the term "public arena" to avoid confusion with the American taxonomy where the term "public forum" has caused some confusion, especially regarding the application of formulaic tests from which this Court, in my view, ought to steer clear. What constitutes a "public arena", and its appropriate role in interpreting our own Charter, will be explored below. (The A.G.O. took no position as to the outcome of this particular case. He has intervened because of the implications this case could have on the management of provincially owned property in the government of Ontario and for provincial civil trespass law.) The A.G.O. maintains that s. 2(b) is infringed only where a restriction on expressive activity in a public arena is:
(i) content-based in purpose;
(ii)content-based in effect; or
(iii)content-neutral, but not a reasonable restriction on the time, place or manner of expression.
The first two criteria have been discussed in Irwin Toy and Ford, and are referred to above. Only the third component concerns us here. In this connection, it was argued before the Court that before a breach of s. 2(b) can be established, it must first be shown that a regulation can be characterized as an unreasonable time, place, and manner restriction.
Thus, a variety of perspectives were offered on the "public forum" doctrine, its evolution in the United States, and suggested ways in which it can be incorporated into our own jurisprudence. I found these submissions helpful. Suffice it to say for the moment that, in 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.
As for time, place, and manner restrictions generally, in R. v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395 (C.A.), at p. 431, Tarnopolsky J.A. held that:
Mere regulation as to time and place, however, cannot be considered an infringement of freedom of expression, unless there is evidence that such regulation in intent or effect adversely impacts upon content or adversely interferes with production, availability and use or determines who can be involved in these.
Under the aforementioned circumstances "mere regulation" may survive a Charter challenge, yet such survival, in my view, will hinge on the determination under s. 1. Even when the regulation is content-neutral, both on its face and in its application, it will be up to the government to prove what constitutes reasonable time, place, and manner limitations.
Those arguing for the contrary position have asked rhetorically whether this means that the government's regulation of resources such as CBC radio and television constitutes a restriction on freedom of expression, and hence violates s. 2(b) of the Charter. In fact, such restrictions, along with the Judges' Chambers example, are paradigmatic illustrations of (usually) content-neutral, reasonable time, place, and manner regulation. However, as they constitute violations of s. 2(b), they must also be demonstrably justifiable under s. 1 before they can successfully withstand a constitutional challenge.
The public forum discussion alluded to earlier is an important one. It is almost indispensable when evaluating what is a reasonable restriction on "place" in the review of a time, place, and manner regulation. Nevertheless, on the basis of our Charter's drafting, structure, and subsequent interpretation, such review belongs under s. 1, and I will treat it there. This accords well with the approach taken by this Court in Irwin Toy, supra, and with the opinion of Dickson C.J. in Keegstra, supra, particularly at p. 729. Whatever internal limitations may be properly read into s. 2(b) itself, I am of the view that they do not embrace the proscription of nonviolent expression on government property.
If we examine the traditional standards implemented to evaluate the reasonableness of time, place, and manner restrictions in other jurisdictions (notably the United States), we find that generally the burden of proof lies on the government and the criteria are remarkably similar to the s. 1 language. In Canada, no other approach would be consistent with the broad construction of s. 2(b). If the government wants to impose time, place, and manner limitations on the ambit of nonviolent expression, it must bear the burden of justifying these encumbrances. Such interdiction may be rational, but the government must substantiate its legitimacy.
Having concluded that a breach of s. 2(b) of the Charter has been established here, can the regulations be upheld as a reasonable limit prescribed by law, "demonstrably justified in a free and democratic society"?
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. I will discuss these in turn as well as other factors bearing on the section 1 issues.
A: Government Property
The appellant takes a hard line in urging this Court to allow the appeal, 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:
[translation] It is therefore accurate, in our view, to state that the Charter did not have the effect of reducing in any way the government's rights and prerogatives as an owner.
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, and would stultify the true import of freedom of expression.
When calibrating the s. 1 barometer, the political quality of the stifled expression must be weighed against whatever governmental arguments are raised in opposition. Unlike the American system whereby delineated tests are required for the various "types" of expression, our s. 1 is flexible enough to accommodate all these types, the result depending on what objectives are put forward by the government, and what means are selected to advance these objectives. This enables us to construct a contextual rather than a categorical approach, focusing not only on the scope of the right, but also on the setting in which the freedom of expression claim is made. As Wilson J. explained in Edmonton Journal v. Alberta, supra, at pp. 1355-56:
One virtue of the contextual approach, it seems to me, is that it recognizes that a particular right or freedom may have a different value depending on the context. It may be, for example, that freedom of expression has greater value in a political context than it does in the context of disclosure of the details of a matrimonial dispute. The contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any values in competition with it. It seems to be more sensitive to the reality of the dilemma posed by the particular facts and therefore more conducive to finding a fair and just compromise between the two competing values under s. 1.
The specific context of this claim is that the respondents are asserting a right to use inexpensive means of communication -- leafletting and solicitation -- in a government venue that by its nature concentrates a significant number of persons in one place at one time. Furthermore, many of those persons have time to kill and little to do, and so might be more receptive to information and ideas than they would be in other contexts.
The crux of the Government's attempt to defend the provision at issue relates to its property interest in the airport. It relied heavily on the dissent of Pratte J. at the Federal Court of Appeal, who held at p. 74 that:
Dorval airport belongs to the federal government. The government has the same rights as any owner with respect to its property. Its ownership right, therefore, is exclusive like that of any individual. The only qualification to this rule arises from the fact that the property owned by the government is frequently intended for use by the public, which then has a right to use it for the purposes for which the government intends it.
Hence, the s. 1 analysis in this case must be sensitive to the unique relationship between Government and its property. This will be instrumental as well in establishing criteria for what constitutes a "public" place, and what effect that has on the rationalization of freedom of expression limitations.
Freedom of Expression and its Relationship to Public Property
This Court has long recognized that freedom of expression could be affected by governmental regulation of public property. In Saumur v. City of Quebec, supra, a municipal by-law forbidding the distribution of pamphlets in city streets without the permission of the Chief of Police was struck down as (in the opinion of three justices) ultra vires the province. Rand J. stated at p. 332, with respect to the arbitrary discretion of municipal officers and the need to use public property to disseminate ideas:
What is proposed before us is that a newspaper, just as a religious, political or other tract or handbill, for the purposes of sale or distribution through use of streets, can be placed under the uncontrolled discretion of a municipal officer; that is, that the province, while permitting all others, could forbid a newspaper or any other writing of a particular colour from being so disposed of. That public ways, in some circumstances the only practical means available for any appeal to the community generally, have from the most ancient times been the avenues for such communications, is demonstrated by the Bible itself: in the 6th verse of ch. xi of Jeremiah these words appear: "Proclaim all these words in the cities of Judah, and in the streets of Jerusalem"; and a more objectionable interference, short of complete suppression, with that dissemination which is the "breath of life" of the political institutions of this country than that made possible by the by-law can scarcely be imagined.
Kellock J. stressed that a by-law prohibiting all distribution in the streets would raise "entirely different considerations", but this one was objectionable because it allowed the Chief of Police to decide between viewpoints.
An example of how public property is to be contrasted with private property can be found in articles 399 and 400 of the Civil Code of Lower Canada:
399. Property belongs either to the Crown, or to municipalities or other corporations, or to individuals.
That of the first kind is governed by public or administrative law.
That of the second is subject, in certain respects as to its administration, its acquisition and its alienation, to certain rules and formalities which are peculiar to it.
As to individuals, they have the free disposal of the things belonging to them, under the modifications established by law.
400. Roads and public ways maintained by the state, navigable and floatable rivers and streams and their banks, the sea-shore, lands reclaimed from the sea, ports, harbours and roadsteads and generally all those portions of territory which do not constitute private property, are considered as being dependencies of the crown domain.
The same rule applies to all lakes and to all non-navigable and non-floatable rivers and streams and their banks, bordering on lands alienated by the Crown after the 9th of February, 1918.
The combined effect of articles 399 and 400 of the Civil Code of Lower Canada is that all lands belong to someone. If property rights alone can be invoked to limit, restrain, or abridge a fundamental freedom on any given place of public property, the Charter's guarantees lose all meaning -- only those holding the property-owner's permission could express themselves.
The obvious negative implications of such a standard have motivated the United States Supreme Court to hold that in some extreme circumstances, such as a company town, even technically private ownership may be tantamount to public ownership for the purposes of expression and debate:
Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. (Marsh v. Alabama, 326 U.S. 501 (1946), at p. 506).
But in Harrison v. Carswell, [1976] 2 S.C.R. 200, a pre-Charter decision, the majority of this Court held that an employee of a tenant in a shopping centre had no right to picket on the shopping centre sidewalk. The centre, as a matter of policy, had never permitted the distribution of pamphlets or leaflets, or the carrying of placards, within the mall. As Dickson J. wrote for the majority at p. 219:
Anglo-Canadian jurisprudence has traditionally 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 due 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 the Court.
Chief Justice Laskin dissented, holding at pp. 207-8 that:
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.
In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), one appellant was a private shopping center which had a policy of not permitting visitors to "engage in any publicly expressive activity" while on the premises. The respondents were soliciting signatures for a political cause. The case was essentially about the right of the appellant to control the use of its property and its right to exclude others, versus the right of the respondents to engage in expressive activity on the shopping mall property. The Court upheld the decision of the California Supreme Court, which interpreted the State Constitution as protecting "speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." The United States Supreme Court held, at p. 87, that:
Most important, the shopping center 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.
However, this distinction is not at issue in this appeal. For our present purposes it is only necessary to consider the Charter's impact on the distribution of leaflets on government property. The Charter's effect on leafletting on private property, as well as whether it gives the media a right of access to public property for the purpose of gathering news, are better left for another day. It would be inappropriate to address these issues here, since the facts of the case at bar do not require their consideration, and because substantially affected interests (such as private property owners) are not represented on this appeal. For a discussion of freedom of expression in the context of public and private ownership of property, see Richard Moon, "Access to Public and Private Property Under Freedom of Expression" (1988), 20 Ottawa L. Rev. 339 and "Freedom of Expression and Property Rights" (1988), 52 Sask. L. Rev. 243 by the same author.
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 (whose ownership is largely concentrated), would be able to engage in free expression. This would subvert achievement of the Charter's basic purpose as identified by this Court, i.e., the free exchange of ideas, open debate of public affairs, the effective working of democratic institutions and the pursuit of knowledge and truth. These eminent goals would be frustrated if for practical purposes, only the favoured few have any avenue to communicate with the public.
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 leafletting or demonstrations. It is evident that the right to freedom of expression under s. 2(b) of the Charter does not provide a right of access to all property whether public or private. 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. As this Court held in R. v. Big M Drug Mart, supra, at p. 344, while the Charter should be given a broad and generous interpretation, "it is important not to overshoot the actual purpose of the right or freedom in question".
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. Restrictions on expression in particular places will be harder to defend than in others. In some places the justifiability of the restrictions is immediately apparent. As Dickson C.J. explained in R. v. Oakes, [1986] 1 S.C.R. 103, at p. 138:
I should add, however, that there may be cases where certain elements of the s. 1 analysis are obvious or self-evident.
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". The status of airports can then be determined in light of these standards.
"Public Forums", "Public Arenas", and Airports
In Dupond v. City of Montreal, [1978] 2 S.C.R. 770, Beetz J. for the majority expressed the opinion, at p. 797, that "[f]ar from being the object of a right, the holding of a public meeting on a street or in a park may constitute a trespass against the urban authority in whom the ownership of the street is vested", and that freedom of expression could not be relied upon to strike down a by-law prohibiting all demonstrations for one month. However, this was before the Charter, and the case is evidence of, if nothing else, an understanding that the law of trespass may act as a legal limit on freedom of expression.
But the distinctive nature of government property whittles away at the application of trespass law. As the United States Supreme Court held in Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939), at pp. 515-16:
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. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.
And as Harry Kalven, Jr. stated in "The Concept of the Public Forum: Cox v. Louisiana", [1965] Sup. Ct. Rev. 1, at pp. 11-12:
... in an open democratic society the streets, the parks, and other public places are an important facility for public discussion and political process. They are in brief a public forum that the citizen can commandeer; the generosity and empathy with which such facilities are made available is an index of freedom.
However, even the right of political self-expression is not completely unfettered, and as the U.S. Supreme Court explained in Cox v. Louisiana, 379 U.S. 536 (1965), at p. 554:
The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. [Emphasis added.]
In order to delineate what measures are consistent with and reasonable for the preservation of public order, American courts have enunciated the "public forum" doctrine, mentioned above. Tribe illustrates at p. 987:
The "public forum" doctrine holds that restrictions on speech should be subject to higher scrutiny when, all other things being equal, that speech occurs in areas playing a vital role in communication -- such as in those places historically associated with first amendment activities, such as streets, sidewalks, and parks -- especially because of how indispensable communication in these places is to people who lack access to more elaborate (and more costly) channels. Public forum analysis adds a frequently significant location-specific dimension -- or at least a location-specific label -- to the threshold inquiry of whether the values of free expression are involved in a given case. In some places, some activities are said to be entitled to greater first amendment protection than the same activities might claim in other places. The designation "public forum" thus serves as shorthand for the recognition that a particular context represents an important channel of communication in the system of free expression. [Emphasis in original.]
The American approach has been severely criticized as being too lenient, heavily result-oriented, and insufficiently sensitive to the subtle opportunities for government suppression of unpopular views through seemingly neutral regulations. See Farber and Nowak, "The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication" (1984), 70 Va. L. Rev. 1219; Moon, "Access to Public and Private Property Under Freedom of Expression", supra; Post, "Between Governance and Management: The History and Theory of the Public Forum" (1987), 34 U.C.L.A. L. Rev. 1713; Dienes, "The Trashing of the Public Forum: Problems in First Amendment Analysis" (1986), 55 Geo. Wash. L. Rev. 109; Lee, "Lonely Pamphleteers, Little People, and the Supreme Court: The Doctrine of Time, Place, and Manner Regulations of Expression" (1986), 54 Geo. Wash. L. Rev. 757.
As Farber and Nowak point out at p. 1224:
Our objection to public forum analysis is not that it invariably yields wrong results (although it sometimes does), but that it distracts attention from the first amendment values at stake in a given case. It almost certainly will hinder lower court judges from focusing on those values or from making sense of Supreme Court precedent. Classifying a medium of communication as a public forum may cause legitimate governmental interests to be thoughtlessly brushed aside; classifying it as something other than a public forum may lead courts to ignore the incompatibility of the challenged regulations with first amendment values. [Emphasis added.]
After reviewing several decisions implicating the public forum doctrine, Tribe concluded at pp. 992-93 that:
... whether or not a given place is deemed a "public forum" is ordinarily less significant than the nature of the speech restriction ... even where property does not constitute a public forum, the Court has said that government regulation must ordinarily be content-neutral, and must still be reasonable as to time, place, and manner. To be sure, what the Court views as content-neutral, and what it sees as reasonable, could in theory depend on whether it regards a particular forum as public, or at least semi-public. But since the cases provide scant support for that supposition, and instead suggest that the Court uses "public forum" talk to signal conclusions it has reached on other grounds, it might be considerably more helpful if the Court were to focus more directly and explicitly on the degree to which the regulation at issue impinges on the first amendment interest in the free flow of information; translating this inquiry into public forum language may simply "confuse [ ] the development of first amendment principles." [Emphasis added.]
I agree. An overly rigid categorization focusing exclusively on place would tend to lose sight of the forest for the trees. The First Amendment as well as the Canadian Charter of Rights and Freedoms were designed to protect people, not places. While certain areas can acquire a distinctive character, and people's expectations may be affected by where they find themselves, the rights and freedoms do not extend to the locations, but rather to the people occupying them.
The Federal Court of Appeal refused to recognize the American "public forum" approach. Applying such a broad prohibition here would virtually deny the government any power to regulate expressive activities at airports, and go beyond the jurisprudence of the U.S. Supreme Court to date. Furthermore, too broad a holding might have far-reaching consequences for regulation of expressive activities on public property generally.
With this in mind, when designing "made in Canada" criteria for determining what places are to be considered public, I am of the view that we should selectively draw upon some of the American specifications, without importing them wholesale. As stated, the A.G.O. has suggested that we employ the term "public arena" to avoid confusion with the American terminology, and has also offered certain factors to be considered when inquiring as to whether a given place qualifies. The proposed determinants include:
1.The traditional openness of such property for expressive activity.
This criterion is not a sine qua non as in the U.S. Absence of tradition would not preclude the declaration of a public arena, as the other factors may very well yield the same conclusion.
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.
If the activity interfered with the property's purpose, it would be less likely to be justified. Properties with multiple purposes would be problematic under this criterion.
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.
This is a contextual criterion, linking the property with the purpose or cause of the demonstration.
6.The availability of other public arenas in the vicinity for expressive activities.
A property would be more open to activities if no other property was available.
I find these criteria very valuable. While they are not meant to be dispositive in any given case, they do provide useful guidelines. It was submitted that it should be up to the claimant, as part of demonstrating a case of infringement, to show that the property is a "public arena". If so, then the onus would shift to the government to justify the limitation under s. 1. I disagree for the reasons discussed above. As stated, whether a location qualifies as a "public arena" is simply the "place" component when considering the constitutionality of time, place, and manner regulations generally. Therefore, such place's classification for constitutional purposes should be evaluated under s. 1.
Balancing the Interests at Stake
While the United States Supreme Court has declined to pronounce on whether the "public forum" label should attach to airports, lower courts have held that an airport is a public forum: Chicago Area Military Project v. City of Chicago, 508 F.2d 921 (7th Cir. 1975); Rosen v. Port of Portland, 641 F.2d 1243 (9th Cir. 1981); U.S. Southwest Africa/Namibia Trade & Cultural Council v. United States, 708 F.2d 760 (D.C. Cir. 1983). The logic of these cases is that airports have become "contemporary crossroads"; they are functionally equivalent to other public thoroughfares, and should therefore be on the same constitutional footing as streets and parks.
Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) involved a challenge by a candidate for political office against an ordinance prohibiting political placards on all buses and streetcars. The Court upheld the regulation. As Douglas J., concurring, expressed at pp. 306-7:
. . . if we are to turn a bus or streetcar into either a newspaper or a park, we take great liberties with people who because of necessity become commuters and at the same time captive viewers or listeners.
In asking us to force the system to accept his message as a vindication of his constitutional rights, the petitioner overlooks the constitutional rights of the commuters. While petitioner clearly has a right to express his views to those who wish to listen, he has no right to force his message upon an audience incapable of declining to receive it. In my view the right of the commuters to be free from forced intrusions on their privacy precludes the city from transforming its vehicles of public transportation into forums for the dissemination of ideas upon this captive audience.
Similarly airplanes, even if publicly owned, could not be characterized as a public forum. People who find certain political expression unpleasant or disquieting in a park or on a street can easily move elsewhere. On planes the costs of premature exit are too high. However, bus stations and airports have much more in common with streets and parks than they do with the buses or airplanes which they service. These locations are "contemporary crossroads" or "modern thoroughfares", and thus should be accessible to those seeking to communicate with the passing crowds.
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, newsstands, 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. The Dorval operations manager testified that about 20,000 passengers use the airport daily, often accompanied by other persons. 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. Hence the "traditional" component of the public arena analysis must appreciate the "type" of place historically associated with public discussion, and should not be restricted to the actual places themselves.
This same reasoning applies when assessing the symbolic significance of the property. While the symbolism of a courthouse lawn or Parliament Hill is self-evident, streets and parks have also acquired special significance as places where one can have access to and address his or her fellow citizens on any number of matters. This distinctive attribute does not accrue to a street or a park merely because of its designation. A park has no intrinsic value as a public arena; it only obtains this characteristic because the public chooses to frequent parks. Whether a tree falling in an uninhabited park makes a sound is not a constitutional question. To what extent impediments may be placed upon a person addressing passers-by in a park is.
The same holds true for airport terminals. Respondents did not select the airport in order to convey their message to planes, but rather chose the airport for the people who would be present within it. 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.
B: Regulation 7: A Limit Prescribed By Law?
Before addressing the "demonstrably justified" and "reasonable limits" components of the s. 1 test, I would like to point out that this case raises the preliminary concern of whether the limit at issue is "prescribed by law". Sections 7(a) and (b) of the regulations are potentially implicated, and are reproduced for convenience:
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; . . .
The term "prescribed by law" in s. 1 has been examined by this Court in R. v. Thomsen, [1988] 1 S.C.R. 640. At pages 650-51, Le Dain J. followed his own reasons in R. v. Therens, [1985] 1 S.C.R. 613, at p. 645, in formulating this test:
The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements. The limits may also result from the application of a common law rule.
More recently in R. v. Hebert, [1990] 2 S.C.R. 151, this Court has applied this test. See also Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038.
As indicated above, Regulation 7 and the actions of the airport officials constitute "law" for the purposes of s. 32 of the Charter and s. 52 of the Constitution Act, 1982. Do they also constitute "law" of the purposes of s. 1 of the Charter?
In McKinney v. University of Guelph, [1990] 3 S.C.R. 229, Wilson J. considered the different uses of the word "law" in the Constitution and, referring to two different interpretations of the word in the case law, remarked at p. 386
These two definitions of "law" are obviously quite different. Their difference springs from the fact that s. 1 of the Charter and s. 52 of the Constitution Act, 1982 serve two very different purposes. Section 52 is animated by the doctrine of constitutional supremacy. As such, a wide view of "law" under that provision is mandated so that all exercises of state power, whether legislative or administrative, are caught by the Charter. Section 1, on the other hand, serves the purpose of permitting limits to be imposed on constitutional rights when the demands of a free and democratic society require them. These limits must, however, be expressed through the rule of law. The definition of law for such purposes must necessarily be narrow. Only those limits on guaranteed rights which have survived the rigours of the law-making process are effective. Just as the meaning of "law" in s. 1 of the Charter and s. 52 of the Constitution Act, 1982, depends on the purpose those sections were meant to achieve, so also does the meaning of "law" in s. 15(1). [Emphasis added.]
Does then Regulation 7 here in debate involve a "limit prescribed by law" of the respondents' s. 2(b) freedom of expression? The Regulation forbids the respondents from exercising their constitutionally entrenched freedom: soliciting support for their groups by distributing leaflets. Prima facie, the Regulation appears to limit freedom of expression, here political expression. Does it, however, pass the tests of vagueness and overbreadth? If the law is too vague, it may not constitute a limit "prescribed by law", while if it is overbroad it may not survive the s. 1 Oakes analysis.
While vagueness and overbreadth are two distinct concepts, they are often blurred together. A statutory provision may be vague because it is uncertain or imprecise, so that a "citizen of common intelligence must necessarily guess at its meaning" (Carol Rogerson, "The Judicial Search for Appropriate Remedies Under the Charter: The Examples of Overbreadth and Vagueness" in R. J. Sharpe, ed., Charter Litigation (1987), ch. 10, p. 233, at p. 242). When laws are vague, one cannot tell easily whether one's conduct falls inside or outside the proscribed range of activities. Overbroad laws, on the other hand, are drafted too widely, so that in Rogerson's words, "if applied literally, [they] have the potential to catch more conduct than the government is constitutionally permitted in the pursuit of its legitimate goals" (p. 241). In my view a vague law that infringes a guaranteed freedom under the Charter does not constitute a limit prescribed by law and must be struck for that reason alone as unconstitutional. I propose to discuss Regulation 7 in this context now.
Vagueness
I approach this issue minding the words of the majority in Irwin Toy, supra. In that case, the company had argued that the Regulations there in question created an inordinately wide discretion to decide whether advertising was aimed at children. The majority stated, at p. 983:
Absolute precision in the law exists rarely, if at all. The question is whether the legislature has provided an intelligible standard according to which the judiciary must do its work. The task of interpreting how that standard applies in particular instances might always be characterized as having a discretionary element, because the standard can never specify all the instances in which it applies. On the other hand, where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances, there is no "limit prescribed by law". [Emphasis added.]
The "void-for-vagueness" doctrine and the related idea of overbreadth are relatively new to Canadian constitutional law, but are strangers neither to the American constitutional jurisprudence nor to European law. Importantly, the roots of the concepts can be traced back to the fundamental principle of the rule of law. Before the Charter, as Rogerson notes, supra, at pp. 242-44, vagueness was not a part of Canadian constitutional law; however, examples of the application of the vagueness doctrine exist in our criminal and administrative law. See for example, City of Montréal v. Arcade Amusements Inc., [1985] 1 S.C.R. 368, and Re Hamilton Independent Variety & Confectionery Stores Inc. and City of Hamilton (1983), 143 D.L.R. (3d) 498 (Ont. C.A.). Interestingly, Rogerson notes that vagueness does creep into a Canadian division of powers case, in the opinion of Rand J. in Saumur v. City of Quebec, supra, at p. 333.
In the context of the Charter, this Court has had occasion to consider the concept of vagueness recently in the Prostitution Reference, supra. In his reasons, Lamer J. (now Chief Justice) stated at p. 1155 that a vagueness analysis could arise under either s. 7 or s. 1 of the Charter, and I would limit my comments on vagueness and overbreadth to the context of s. 1.
The doctrine of vagueness finds its sources in the rule of law. See Gary T. Trotter, "LeBeau: Toward A Canadian Vagueness Doctrine" (1988), 62 C.R. (3d) 183, at p. 188; J. C. Jeffries, Jr., "Legality, Vagueness, and the Construction of Penal Statutes" (1985), 71 Va. L. Rev. 189. There appear to be two specific concerns underlying the vagueness concept: the citizen should be given proper notice of the law, and no room for arbitrary government action should exist under that law. While these principles find their application mainly in penal matters, it offends neither common sense nor logic that a law which infringes a fundamental right or freedom guaranteed by the Charter must also be clear, understandable and not subject to arbitrary application.
Interpreting Article 10 of the European Convention on Human Rights in the Sunday Times case, judgment of 26 April 1979, Series A, No. 30, at p. 31, the European Court of Human Rights said:
In the Court's opinion, the following are two of the requirements that flow from the expression "prescribed by law". First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able -- if need be with appropriate advice -- to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.
In Canada, various courts have now considered the void for vagueness doctrine. While some pre-Charter challenges to by-laws have been successful on grounds of vagueness, the first post-Charter challenge on this point appears to have been brought before the Ontario Divisional Court in Re Ontario Film and Video Appreciation Society and Ontario Board of Censors (1983), 41 O.R. (2d) 583, aff'd 45 O.R. (2d) 80 (C.A.) (leave to appeal granted [1984] 1 S.C.R. xi, but appeal discontinued). See also R. v. Red Hot Video Ltd. (1985), 45 C.R. (3d) 36 (B.C.C.A.); R. v. Cohn (1984), 48 O.R. (2d) 65 (C.A.); and R. v. Pelletier (1985), 49 C.R. (3d) 253 (Que. S.C.).
The vagueness principle and its rationale were well expressed by Hugessen J.A. for the court in Luscher v. Deputy Minister, Revenue Canada, Customs and Excise, [1985] 1 F.C. 85 (C.A.), at pp. 89-90:
In my opinion, one of the first characteristics of a reasonable limit prescribed by law is that it should be expressed in terms sufficiently clear to permit a determination of where and what the limit is. A limit which is vague, ambiguous, uncertain, or subject to discretionary determination is, by that fact alone, an unreasonable limit. If a citizen cannot know with tolerable certainty the extent to which the exercise of a guaranteed freedom may be restrained, he is likely to be deterred from conduct which is, in fact, lawful and not prohibited. Uncertainty and vagueness are constitutional vices when they are used to restrain constitutionally protected rights and freedoms. While there can never be absolute certainty, a limitation of a guaranteed right must be such as to allow a very high degree of predictability of the legal consequences.
The same point is made in R. v. Zundel (1987), 58 O.R. (2d) 129 (C.A.), at p. 158.
Lamer J. expanded, at p. 1152, of his reasons in the Prostitution Reference:
It is essential in a free and democratic society that citizens are able, as far as possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid, and that the discretion of those entrusted with law enforcement is limited by clear and explicit legislative standards.
For an analysis of the cases up to the Prostitution Reference, see Don Stuart, "The Canadian Void for Vagueness Doctrine Arrives With No Teeth" (1990), 77 C.R. (3d) 101; see also Professor Stuart's Canadian Criminal Law: A Treatise (2nd ed. 1987), at pp. 16-25; Trotter's comment, supra, on R. v. LeBeau (1988), 62 C.R. (3d) 157 (C.A.).
The American jurisprudence provides some insight in this area. While the original cases dealt with vagueness only in the context of due process, the United States Supreme Court has more recently considered vagueness in the challenge of laws invasive of fundamental freedoms. Indeed, the U.S. Supreme Court has accorded stringent scrutiny to cases involving fundamental freedoms such as speech in the First Amendment, which my colleague Lamer J. has examined in the Prostitution Reference. Although I do not find it necessary here to repeat this exercise, the case of Grayned v. City of Rockford, 408 U.S. 104 (1972), is of interest. It dealt with an anti-noise statute invoked to prohibit disturbances of the peace. The United States Supreme Court expressed the doctrine in these terms, at pp. 108-9:
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.... Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to " 'steer far wider of the unlawful zone' ... than if the boundaries of the forbidden areas were clearly marked." [Emphasis added.]
The same rationale applies in Canada, although our analysis need not be encumbered by the American difficulties because s. 1 of our Charter provides the necessary framework.
Applying these basic notions to Regulation 7 here in question, the Regulation does not, in my opinion, meet the standards necessary to defeat a challenge for vagueness. It has failed to offer an "intelligible standard" that would enable a citizen to regulate his or her conduct: see Irwin Toy, supra, at p. 983. Upon reading the Regulation, one cannot tell even on careful reflection whether one's conduct would fall inside or outside the conduct proscribed. Confusion necessarily follows. This is demonstrated by s. 7(a), which prohibits "any business or undertaking, commercial or otherwise" from the airport. What kind of non-commercial undertakings are permitted? Which are not? Clearly poppy sales are allowed, but we know nothing of other exceptions. When a law can be read, in effect, as an attempt to eradicate all types of expression, and at the same time be read more narrowly to exclude only certain types of expression, the citizen does not know what to do. In all likelihood, the person will exercise caution. This does not create circumstances in which fundamental freedoms are fully exercised -- far from it. While one must be mindful of certain restrictions of language which necessitate a degree of interpretation by the courts and various government officials, when a fundamental freedom is encroached by vague statutory language, the result is that the freedom is not fostered. The specific wording of s. 1 of the Charter should be heeded, because s. 1 not only allows government to limit reasonably the rights and freedoms in the Charter, it also provides the guarantee of these rights and freedoms. Dickson C.J. points out in Keegstra, supra, at p. 736:
As this Court has said before, the premier article of the Charter has a dual function, operating both to activate Charter rights and freedoms and to permit such reasonable limits as a free and democratic society may have occasion to place upon them ....
Rights and freedoms must be nurtured, not inhibited. Vague laws intruding on fundamental freedoms create paths of uncertainty onto which citizens fear to tread, fearing legal sanction. Vagueness serves only to cause confusion and most people will shy from exercising their freedoms rather than facing potential punishment.
In addition, the Regulation provides that "except as authorized in writing by the Minister, no person shall... ". It is clear that the Minister is given a "plenary discretion to do whatever seems best". That in itself may create a standard which is so vague as to be incomprehensible. In any event, vagueness by virtue of the lack of a comprehensible standard does not accord with the requirement that a limit on a right or freedom be "prescribed by law."
It could be argued that in a scheme of prior permission, as in the present appeal, the standard is not vague. The reasoning is that such provisions enable citizens to regulate their conduct by making it clear that any person wishing to solicit or advertise must first go to the Minister for permission. However, this merely shifts the problem of arbitrariness from the "prescribed by law" to the "means" branch of the s. 1 test.
Although in my opinion Regulation 7, which clearly restricts freedom of expression, is too vague to constitute a reasonable limit prescribed by law for the purposes of the s. 1 analysis, I prefer to rest my opinion on the reasonableness analysis as explained in Oakes. In so doing, and for the particular purposes of the following discussion, I will assume without deciding that the objectives pursued by the government are sufficiently pressing and that the Regulation is rationally connected to those objectives, since I believe that Regulation 7 is overbroad and consequently does not pass the means analysis of Oakes.
C: Overbreadth
As I indicated earlier, there is considerable overlap between the overbreadth and vagueness concepts, as the American jurisprudence amply demonstrates. While the topics are nearly always dealt with together, they are distinct. The conceptual distinction was recognized by the Ontario Court of Appeal in R. v. Zundel, supra, at pp. 157-58:
Vagueness and overbreadth are two concepts. They can be applied separately, or they may be closely interrelated. The intended effect of a statute may be perfectly clear and thus not vague, and yet its application may be overly broad. Alternatively, as an example of the two concepts being closely interrelated, the wording of a statute may be so vague that its effect is considered to be overbroad. Vagueness or overbreadth, for the purpose of determining the permissibly regulated area of conduct, and whether freedom of expression under s. 2(b) of the Charter has been breached, may be different from vagueness or overbreadth for the purpose of applying the criteria in Oakes as to the application of s. 1 of the Charter.
The American approach considers the degree to which the overbroad law encroaches on the ambit of protected freedoms. Tribe makes the following remarks to introduce the concept of overbreadth, at p. 1022:
Such overbreadth analysis ordinarily compares the statutory line defining burdened and unburdened conduct with the judicial line specifying activities protected and unprotected by the first amendment; if the statutory line includes conduct which the judicial line protects, the statute is overbroad and becomes eligible for invalidation on that ground. [Emphasis in original.]
Having already made reference to a general definition of overbreadth, I would only note that the American jurisprudence is replete with issues and various types of overbreadth have been created: see Rogerson, supra, at pp. 259-69, and Tribe, supra, beginning at p. 1022. Certain remedial alternatives correspond to the various "kinds" of overbreadth, and these options may be relevant to our jurisprudence in an appropriate case. In addition to the Rogerson and Tribe references above, see P.-A. Côté, "La préséance de la Charte canadienne des droits et libertés" (1984), 18 R.J.T. 105, at pp. 124-29.
In the Prostitution Reference, Lamer J. discussed vagueness and overbreadth in relation to s. 7 of the Charter. When dealing however with s. 1 of the Charter, the approach is somewhat different. It is against the background of the usual s. 1 analysis that the issue of overbreadth in Regulation 7 should be undertaken. This accords well with the reasoning of Wilson J. in the Prostitution Reference, at pp. 1212-15, where my colleague found that the provisions of the Criminal Code impugned in that case were too broad in scope to pass the second part of the Oakes analysis.
The notion of overbreadth is therefore not foreign to Canadian constitutional law, even if it is currently in a thinly disguised form. The concern is already found in the analysis arising under s. 1 from Oakes, supra. After considering the importance of the objectives of the impugned law, the analysis goes on to the means chosen to achieve such objectives; the question becomes whether such means are properly tailored to impair minimally the citizen's right or freedom. It is in the latter analysis that overbreadth is considered.
Does Regulation 7 "cast the net too widely"? Section 7(a) appears to target businesses or similar undertakings within the airports. However, while it may seem merely to restrict commercial activities, the adjectives which follow, "commercial or otherwise", modify the nouns "business or undertaking" and thus tend to preclude such a stringent interpretation. The provision is so broad, especially given the terms "undertaking" and "otherwise", that it can include just about any activity. It certainly can encompass handing out leaflets for a political party. On its face, and certainly in its application, the Regulation reflects a governmental policy administered in a manner that is excessively broad, and hence unconstitutionally invasive of the freedom of expression guarantee.
The words "solicit" and "advertise" in s. 7(b) can similarly cover just about any communication. These terms are neither qualified nor restricted to the commercial setting. In fact, here the respondents were advertising their political party, and were soliciting prospective members. The only element in favour of holding that the Regulation does not apply to this activity is the title, Government Airport Concession Operations Regulations, yet that in and of itself cannot be dispositive, particularly in light of the provisions which follow.
Therefore, the problem is not only that the Regulation applies to the activity at issue, but that it applies to virtually all conceivable activity involving freedom of expression at airports. There is evidence that exceptions are made for veterans selling poppies in November, but such selective application of the Regulation should not alone result in a determination that it is not overbroad. Quite the contrary: the fact that the Regulation has application to such an unnecessarily broad range of activity is determinative of the overbreadth issue in this case. In her s. 1 analysis in the Prostitution Reference, supra, Wilson J. (with whom I concurred) considered the overinclusive scope of the prohibition on communication in s. 195.1 of the Criminal Code. It is instructive to review my colleague's comments at pp. 1213-14:
I believe, with respect, that the Attorney General has overlooked a number of significant aspects of the impugned legislation which go directly to the question of its proportionality. The first is that it criminalizes communication or attempted communication for the prohibited purpose in any public place or place open to public view. "Public place" is then expanded in subs. (2) to include any place to which the public have access as of right or by invitation express or implied. In other words, the prohibition is not confined to places where there will necessarily be lots of people to be offended or inconvenienced by it. The prohibited communication may be taking place in a secluded area of a park where there is no-one to see or hear it. It will still be a criminal offence under the section. Such a broad prohibition as to the locale of the communication would seem to go far beyond a genuine concern over the nuisance caused by street solicitation in Canada's major centres of population. It enables the police to arrest citizens who are disturbing no-one solely because they are engaged in communicative acts concerning something not prohibited by the Code. It is not reasonable, in my view, to prohibit all expressive activity conveying a certain meaning that takes place in public simply because in some circumstances and in some areas that activity may give rise to a public or social nuisance. [Underlining in original; italics added.]
The identical concerns may be raised about Regulation 7 in the case at bar. The Regulation prohibits all expressive activity in the airport, simply because some activities may be disruptive. It may be that a parade is inappropriate in the airport; that is no reason to prohibit legitimate expression such as private conversation. But that is what this Regulation does.
As a result I would conclude for the purposes of this discussion that Regulation 7 is too broad to constitute a reasonable limit on the freedom of expression. I propose now to address the next arguments made by the appellant in attempting to justify the restrictions on the respondents' freedom of expression.
D: Time, Place and Manner Restrictions
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 in a free and democratic society under s. 1.
This "time, place, and manner" terminology has been used extensively in the American jurisprudence, and is described as follows by Farber and Nowak, supra, at p. 1237:
Time, place, and manner regulations involve governmental restrictions on the physical impact of all speech, regardless of content. So long as the governmental regulation is uniformly applied, regulation of the physical attributes of speech poses relatively little threat to first amendment values; the first amendment's central prohibition on censorship is not strongly implicated. Although some people may be unable to express themselves in the exact physical manner, location, or time they find most satisfying, this inconvenience hardly seems a radical intrusion into individual autonomy. Furthermore, so long as a time, place, and manner regulation does not effectively prohibit all communication of a message, but instead affects only one channel of communication, there is only a slight loss in the social, or "marketplace," values inherent in the first amendment.
American courts now fastidiously adhere to a three-part test to determine the constitutionality of time, place, and manner regulations, stated succinctly by the United States Supreme Court in United States v. Grace, 461 U.S. 171 (1983), at p. 177:
... the government may enforce reasonable time, place, and manner regulations as long as the restrictions are "content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication."
This language 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.
Counsel for the A.G.O. suggested several guidelines to determine the reasonableness of content-neutral time, place, and manner restrictions. First, the measure's purpose must be considered. The more significant the purpose, the greater will be the latitude for regulating time, place and manner of expression. Second, the restriction should be tailored to its objectives, such that it did not overreach its purpose. Third, the courts should consider whether the restrictions are designed in a manner which tends to be free from excessive official discretion or undue arbitrariness. Fourth, courts should assess whether in the circumstances, adequate alternative avenues for expression are left open. Fifth, courts should evaluate the extent to which the restriction ensures that the property at issue can be effectively used by the government and the public for the governmental function or activity for which it was intended, apart from its use as a public arena for expression.
While at first this may appear to derogate from the Oakes analysis, in reality it merely restates the qualified Oakes test as described by Dickson C.J. in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 768-69:
Two requirements must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. First, the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right. It must bear on a "pressing and substantial concern". Second, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgement of rights. The Court stated that the nature of the proportionality test would vary depending on the circumstances. Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards. [Emphasis added.]
More recently in Keegstra, supra, Dickson C.J. noted at p. 735 that, notwithstanding that the Oakes framework has been continually reaffirmed by this Court, it would be "dangerously misleading to conceive of s. 1 as a rigid and technical provision, offering nothing more than a last chance for the state to justify incursions into the realm of fundamental rights." Later at p. 738, Dickson C.J. asserted that a formalistic approach to the Oakes analysis must be avoided and that courts should heed the following advise, taken from United States of America v. Cotroni, [1989] 1 S.C.R. 1469, per La Forest J. at pp. 1489-90:
In the performance of the balancing task under s. 1, it seems to me, a mechanistic approach must be avoided. While the rights guaranteed by the Charter must be given priority in the equation, the underlying values must be sensitively weighed in a particular context against other values of a free and democratic society sought to be promoted by the legislature.
These comments strongly suggest that the Oakes approach, especially the second component, is not a talisman or incantation which is dutifully recited in every case. Rather, its purpose is to concentrate the inquiry into reasonableness with sharper resolution. If all restrictions relating to noise, litter, orderliness, and access to property, which may obliquely impinge upon the freedom of expression, had to be predicated upon momentous governmental objectives under the Oakes test, government would hardly ever be able to legislate effectively with respect to these matters. In addition, what may be applied strictly in the context of criminal law may warrant more relaxed implementation with respect to social issues.
If the purposes are legitimate, and the measures taken are reasonable having regard to all the circumstances, the standard of absolute minimal impairment need not be applied. If the government was left to prove that it could not have chosen any less intrusive method in every case in which a s. 2(b) breach is advanced, legislative efforts would be hopelessly stultified, and the balancing inherent in s. 1 would be subverted by indefensibly rigorous demands.
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. Ignoring the selective application with respect to poppy vendors, does the wording of the provision qualify as a rational means of preserving the government's objectives and purposes? For the reasons stated with respect to the unique character of government property, the purposes would have to extend beyond the mere preservation of the government's property interest and the invocation of the right to control all activity thereon.
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 to combat these persistent threats and to minimize their potential repercussions. 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 case of Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc., 107 S.Ct. 2568 (1987), involved a ban on all "First Amendment activities" in the airport (which would include not only solicitation and demonstrations, but also reading, thinking, believing, private conversation, etc.). The Court deliberately avoided the public forum question, because, at p. 2572:
We think it obvious that such a ban cannot be justified even if LAX [Los Angeles Airport] were a nonpublic forum because no conceivable governmental interest would justify such an absolute prohibition of speech. [Underlining omitted.]
Furthermore, it was held that even if the ban was in practice meant to apply only to certain types of activity that interfered with the operation of the airport, it was so broadly worded that it would give the airport officials unfettered discretion in administering it.
The provision at issue suffers from the same infirmities. 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.
Needless to say, besides this overbreadth, the contested provision does not, for the same reason, pass the proportionality test. Its impairment, far from being minimal, could not be greater. In my view then, the contested regulation, s. 7 of the Government Airport Concession Operations Regulations, cannot be saved by s. 1 of the Charter.
Even if I were of the view that the Regulation is restricted to commercial activity, I would still conclude that s. 2(b) of the Charter was infringed. The policy of the government, as demonstrated by its own interpretation of the Regulation and by its action in this particular case, was clearly that practically no form of expression would be permitted on the Dorval Airport premises. As is the case with the jurisprudence of the United States Supreme Court, constitutional protection is not limited to the legislature context (see Roth v. United States, 354 U.S. 476 (1957); Regents of the University of California v. Bakke, 438 U.S. 265 (1978)). This accords with the decision rendered by this Court in Slaight Communications Inc. v. Davidson, supra, which, although rendered in the context of s. 15 of the Charter, is applicable as well to s. 32. Here, the R.C.M.P. officers clearly were government agents when they forbade respondents from distributing their pamphlets. Therefore, be it a regulation or a policy, government action is clearly involved here, attracting Charter review, and the analysis under s. 1 applies.
Conclusion
The impugned regulation, on its face and as applied to the activity of the respondents, as well as government policy and action in prohibiting distribution of pamphlets by the respondents at Dorval Airport did have the effect of restricting freedom of expression, and therefore constituted a breach of s. 2(b) of the Canadian Charter of Rights and Freedoms. In assessing its potential justification under s. 1, on account of its vagueness, Regulation 7 does not constitute a limit prescribed by law. Similarly, because of its overbreadth, Regulation 7 does not pass the means analysis of Oakes. In addition to vagueness and overbreadth, the guidelines as to the scope of content-neutral time, place, and manner regulations put this particular attempt outside the boundaries of constitutional permissibility.
While I do not entirely endorse the "public forum" doctrine which has found favour in the American jurisprudence, the qualified definition of "public arenas" is helpful to appraise the reasonableness of any "place" restrictions within contested time, place, and manner regulations. While clearly not dispositive, those areas traditionally associated with, or resembling, sites where all persons have a right to express their views by any means at their disposal should be vigilantly protected from legislative restrictions on speech. That is not to say that no encumbrances of any kind can be imposed, but simply that any prospective conditions will have to be reasonable having regard to all the circumstances.
This particular provision does not even come close to meeting that standard. As a result of its vagueness and overbreadth, there is no foreseeability as to what activity is in fact being proscribed. Furthermore, the unfettered discretion vested in the Minister itself undermines the reasonableness and predictability of the provision's application. Those affected by the Regulation cannot be left to speculate or surmise how or in what circumstances it will be implemented. Such conjecture is incompatible with the spirit, purposes and goals of our Charter, and will not pass constitutional muster: it has not been demonstrably justified in a free and democratic society.
I would therefore dismiss the appeal, with costs, and answer the constitutional questions presented as follows:
1.Are ss. 7(a) and 7(b) of the Government Airport Concession Operations Regulations inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?
Yes.
2.In the affirmative, are the provisions in question to be regarded as a reasonable limit within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms?
No.
//Gonthier J.//
The following are the reasons delivered by
Gonthier J. -- I have had the benefit of the reasons of Chief Justice Lamer, and Justices L'Heureux-Dubé and McLachlin. While I agree with the several elements put forward by the Chief Justice and L'Heureux-Dubé J. as pertinent to a determination of the extent of freedom of expression on government property according to ss. 1 and 2(b) of the Canadian Charter of Rights and Freedoms, I would structure their application as outlined by McLachlin J. with whose reasons I concur. I also adopt the reasons of L'Heureux-Dubé J. as to the interpretation of s. 7 of the Government Airport Concession Operations Regulations, SOR-79/373, and its application to the conduct of the respondents.
I would dismiss the appeal with costs and answer the constitutional questions as does L'Heureux-Dubé J.
//Cory J.//
The following are the reasons delivered by
Cory J. -- I am in agreement with the reasons of Chief Justice Lamer in so far as they deal with the use of government-owned property by members of the public for the purposes of expressing themselves on various issues, including his suggested method of balancing the use ordinarily made of the particular government premises against the interests of an individual desirous of expressing in public an opinion on some matter.
However, I am in agreement with the conclusion reached by Justice L'Heureux-Dubé and her findings that the impugned Regulation contravened s. 2(b) and could not be saved by the provisions of s. 1 of the Canadian Charter of Rights and Freedoms.
//McLachlin J.//
The following are the reasons delivered by
McLachlin J. -- This case brings before this Court for the first time the question of the extent of the Charter guarantee of free expression on state-owned property. I have had the advantage of reading the reasons of Justice L'Heureux-Dubé and Chief Justice Lamer. I reach the same conclusion but for different reasons.
I. Section 2(b) of the Charter and State-Owned Property
Introduction
L'Heureux-Dubé J. takes the position that all expression on public property falls within s. 2(b) of the Canadian Charter of Rights and Freedoms, with the result that any restrictions which are intended to limit, or which have the effect of limiting expression, must be justified by the government under s. 1 if they are to be saved. The only exception would be for violent or other proscribed forms of expression, which would be excluded from s. 2(b) pursuant to Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927. 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. This means that the main analysis of entitlement to a public forum for purposes of expression falls to be determined under s. 1 of the Charter.
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.
I would adopt a position between the two expressed by my colleagues. In my view, the guarantee of free expression in s. 2(b) of the Charter cannot reasonably be read as conferring a constitutional right to use all government property for purposes of public expression. Only some expression on some government property is protected by s. 2(b). Like my colleagues, I find guidance in Irwin Toy, supra. Unlike them, I cannot conclude that the reasoning in Irwin Toy supports either the conclusion that s. 2(b) applies to all government property, or the conclusion that it applies only to government property whose function it does not unreasonably impede.
Criteria for the Test Under s. 2(b)
Freedom of expression does not, historically, imply freedom to express oneself wherever one pleases. Freedom of expression does not automatically comport freedom of forum. For example, it has not historically conferred a right to use another's private property as a forum for expression. A proprietor has had the right to determine who uses his or her property and for what purpose. 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 in so far as the guarantee of freedom of expression in s. 2(b) of the Charter so requires. This poses squarely the question of whether s. 2(b) should be read as guaranteeing access to some or all government property for use as a forum for public expression. That is the issue at the heart of this case.
Three distinct approaches to this question have been put forward. The first is the submission of the government of Canada that there is no constitutional right to use any of its property for purposes of public expression. Only with its permission and where it considers it appropriate should individuals and groups be permitted to speak and demonstrate. The government submits that as the owner of all such property, it has the absolute right to exclude the use of the property for public expression if it chooses. It relies on the fact that the owners of property are generally entitled to control who enters on it and how it is used, a right which extends to the right to control expression on their property. The Crown, it contends, should be placed in no worse position than a private property owner.
At the other extreme is the position which L'Heureux-Dubé J. adopts -- that s. 2(b) gives Canadians a constitutional right to use any and all government property for purposes of expression, subject only to such limitations as may be found to be justified under s. 1 of the Charter.
Between these two extremes lie intermediate positions (such as that advocated by the Attorney General for Ontario and adopted by Lamer C.J.), which assert that there is a constitutional right to use some but not all government property for purposes of public expression.
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 with L'Heureux-Dubé J. that the rights guaranteed by the Charter cannot be confined to the ambit of the rights that preceded them. Thus, the guarantee of free expression may be larger in scope than the rights of free speech which existed before the Charter. At the same time, however, it is necessary in my view 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. Little would remain of the right. Its purpose -- to permit members of society to communicate their ideas and values to others -- would be subverted.
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. In the ringing terms of Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939), at pp. 515-16:
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.
Or as stated in Marsh v. Alabama, 326 U.S. 501 (1946), at p. 506:
Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.
In Canada, in Saumur v. City of Quebec, [1953] 2 S.C.R. 299, this Court struck down a municipal by-law forbidding the distribution of pamphlets in city streets without the permission of the Chief of Police. Rand J. stated at p. 332:
That public ways, in some circumstances the only practical means available for any appeal to the community generally, have from the most ancient times been the avenues for such communications, is demonstrated by the Bible itself: in the 6th verse of ch. xi of Jeremiah these words appear: "Proclaim all these words in the cities of Judah, and in the streets of Jerusalem"....
Notwithstanding Kellock J.'s view that a by-law prohibiting all distribution in the streets (as opposed to selective distribution) might raise different considerations, the principle remains that the state has not historically enjoyed an absolute right to control expression on property which it owns.
I turn then to the other extreme -- the view that the s. 2(b) guarantee of freedom of speech comprehends the right to use all government property as a forum for public expression. 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? Did they mean it to extend to private government offices, state-owned broadcasting towers and prisons? 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.
Indeed, L'Heureux-Dubé J. appears to concede this at pp. 000 in the course of her discussion under s. 1 of the Charter:
...the Charter's framers did not intend internal government offices, air traffic control towers, prison cells and Judges' Chambers to be made available for leafletting or demonstrations. It is evident that the right to freedom of expression under s. 2(b) of the Charter does not provide a right of access to all property whether public or private. 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. As this Court held in R. v. Big M Drug Mart, supra, at p. 344, while the Charter should be given a broad and generous interpretation, "it is important not to overshoot the actual purpose of the right or freedom in question".
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) of the Charter. 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 that the expression on the public property in question engages traditional free speech concerns and hence falls within the ambit of s. 2(b).
It might be contended that the power of the Crown to restrict access to public property is sufficient to prevent totally unmeritorious claims to free expression on state-owned property being presented for s. 1 analysis. There is a suggestion of this in the reasons of L'Heureux-Dubé J. where she states "the right to freedom of expression under s. 2(b) of the Charter does not provide a right of access to all property whether public or private." (p. 000) In my view, the Crown's property interest and the law of trespass cannot be relied on as a means of excluding totally unmeritorious s. 2(b) claims. The Crown may in fact limit legitimate free speech by the device of denying access. The question in such a case would be whether that denial of access infringed s. 2(b). Thus the notion of access does not advance the analysis, but is itself part of the problem.
I am thus led to conclude that the protection afforded by s. 2(b) as to the forum in which public expression may be made, lies somewhere between the extremes of absolute government control of expression on state-owned property on the one hand, and prima facie protection for all expression on state-owned property on the other. The "public forum" doctrine in the United States and Lamer C.J.'s concurrent reasons in this case are examples of this intermediate approach.
In the United States, the line has been drawn with the aid of the "public forum" doctrine, which focuses on the characteristics of the government property in question. In Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983), the Supreme Court distinguished between public forums which by tradition or express creation have been devoted to assembly and debate, and public property which is not by tradition or designation used for communication. If a forum is classified as "public", speech within it may not ordinarily be abridged unless the regulation is content-neutral, serves a significant governmental interest and leaves open adequate alternative channels for communication: Consolidated Edison Co. of New York Inc. v. Public Service Commission of New York, 447 U.S. 530 (1980).
As my colleagues note, the public forum doctrine has been much criticized. Many commentators suggest that it has been used less as a test than as a means of justifying conclusions based on other factors. It is criticized for failing to address the values involved in finding the proper balance of interest between the individual and the state. The result, it is suggested, has been doctrinal confusion and distorted results. As Tribe puts it in American Constitutional Law (2nd ed. 1988), at p. 992, "whether or not a given place is deemed a "public forum" is ordinarily less significant than the nature of the speech restriction -- despite the Court's rhetoric." See also Farber and Nowak, "The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication" (1984), 70 Va. L. Rev. 1219. Such criticism supports the conclusion adopted by Lamer C.J. that the test should focus on the values at stake rather than rigid concepts related to the nature of the forum.
Lamer C.J. suggests a s. 2(b) test based on the compatibility of the speech with the function of the state-owned property in question. He argues, for example, that the protection of freedom of expression afforded by s. 2(b) of the Charter would not extend to the Parliamentary library because silence is essential to its function. On the other hand, expression in a municipal council chamber would be protected because expression is not incompatible with the function of the council chamber. Limits on expression in such a place would fall to be tested under s. 1. By extension of the reasoning in Irwin Toy, Lamer C.J. views expression which is incompatible with the function of the public property as being expression which takes a form that should not be protected.
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 of the Charter. 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 broadly 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 -- a task which might prove difficult given the superior knowledge of the state regarding how the location best functions. 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).
I have considered a number of options for a s. 2(b) test and found them all wanting. The extremes of extending s. 2(b) to all government property and denying constitutional protection to expression on any government property are inconsistent with the historical and philosophical underpinning of the right of free expression. But the tests lying between these extremes suffer from their own defects. The American public forum doctrine, with its emphasis on the characteristics of the government property in question, has led to ad hoc decision-making and uncertainty. The test proposed by Lamer C.J., while correctly focusing on the values and interests at stake, arguably places under s. 2(b) too much of the balancing between conflicting interests which has come to be associated with s. 1 of the Charter, and may unnecessarily increase the difficulty of bringing legitimate claims before the courts.
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. Reflecting the concepts traditionally associated with free expression, it should extend constitutional protection to expression on some but not all 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, and the test should be sufficiently generous to ensure that valid claims are not excluded for want of proof. Once it has been determined that the expression in question at the location in question 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 -- the individual's interest in using the forum in question for his or her expressive purposes against the state's interest in limiting the expression on the particular property.
Against this background, I turn to the problem of defining what types of government property should prima facie be regarded as constitutionally available for forums for public expression.
The Test Under Irwin Toy
In my view, the methodology set out in Irwin Toy, supra, dictates the test for constitutional protection of expression on a particular state-owned property. 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. The Court quoted the following passage from Archibald Cox (Freedom of Expression (1981), at pp. 59-60):
The bold line ... between restrictions upon publication and regulation of the time, place or manner of expression tied to content, on the one hand, and regulation of time, place, or manner of expression regardless of content, on the other hand, reflects the difference between the state's usually impermissible effort to suppress "harmful" information, ideas, or emotions and the state's often justifiable desire to secure other interests against interference from the noise and the physical intrusions that accompany speech, regardless of the information, ideas, or emotions expressed.
As this passage makes clear, limitations 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. In a place where political messages of all sorts are traditionally tolerated, a restriction is placed on one particular type of message because of its content. To borrow once more the phraseology of Cox, this would be a restriction on place "tied to content." Or to use the language of Irwin Toy, the government's main purpose would be to limit the content of speech. 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" (p. 974). Its purpose is rather to avoid the "harmful consequence of the particular conduct in question" (Irwin Toy, at p. 975); for example, to prevent interference with the proper and orderly functioning of government-owned property.
The test for whether s. 2(b) applies to protect expression in a particular forum depends on the class into which the restriction at issue falls. If the government's purpose is to restrict the content of expression through limiting the forums in which it can be made, then this, as Cox says, is "usually impermissible". The result, under the Canadian Charter of Rights and Freedoms, is that s. 2(b) applies. If, on the other hand, the restriction is content-neutral, it may well not infringe freedom of expression at all. In this case, the jurisprudence laid down in Irwin Toy requires that the claimant establish that the expression in question (including its time, place and manner) promote one of the purposes underlying the guarantee of free expression. These were defined in Irwin Toy (at p. 976) as: (1) the seeking and obtaining of truth; (2) participation in social and political decision-making; and (3) the encouragement of diversity in forms of individual self-fulfillment and human flourishing by cultivating a tolerant, welcoming environment for the conveyance and reception of ideas. Only if the claimant can establish a link between the use of the forum in question for public expression and at least one of these purposes is the claimant entitled to the protection of s. 2(b) of the Charter.
I note in passing that it is at this point that I differ from L'Heureux-Dubé J. who, at p. 000 of her concurrent reasons, concludes that the mere fact that the government limit has the effect of limiting expression means that s. 2(b) is violated. As I read Irwin Toy, supra, a further enquiry into the purpose served by the expression in question must be made before it can be found that s. 2(b) applies. In a case where the restriction involves a state-owned property, that examination will focus on whether the forum's relationship with the particular expressive activity invokes any of the values and principles underlying the guarantee. The effect of that inquiry is to screen out many potential claims to the use of government property as the forum for public expression.
I digress briefly on a semantical point. As Cox and this Court in Irwin Toy recognized, the true distinction is between limits directed at restricting the content of expression and limits which are directed at the consequences of the expression, both of which are capable of being effected by restrictions which relate to "time, place and manner." However, in much of the American literature, the adjectival phrase "time, place and manner" is often used in contra-distinction to the phrase "content-based", as shorthand for restrictions directed not at the content but at the consequences of expression. I proceed on the basis that restrictions as to forum (i.e. place) may have as their purpose either the controlling of content, or the avoidance of the consequences of expression regardless of its content.
It follows from what I have said that the first step in determining whether s. 2(b) applies is to determine whether the government's purpose in imposing the forum restriction is to regulate content of expression or merely to regulate its consequences, regardless of its content. In distinguishing between the two categories of restrictions in the context of forum, the guidelines set out in Irwin Toy are apposite. The Court summarized the test at pp. 975-76:
... the characterization of government purpose must proceed from the standpoint of the guarantee in issue. With regard to freedom of expression, if the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee. Where, on the other hand, it aims only to control the physical consequences of particular conduct, its purpose does not trench upon the guarantee. In determining whether the government's purpose aims simply at harmful physical consequences, the question becomes: does the mischief consist in the meaning of the activity or the purported influence that meaning has on the behaviour of others, or does it consist, rather, only in the direct physical result of the activity.
Where the restriction is aimed at the content of speech, the infringement of s. 2(b) is established and the analysis proceeds immediately to s. 1 of the Charter. Where the restriction is aimed not at content but at avoidance of undesirable consequences of the expression, the claimant may establish a violation by establishing a link between expressing himself or herself in the forum in question and one of the purposes of the guarantee of free speech.
Questions will doubtless arise as to the exact ambit of the pursuit of truth, participation in the community and the conditions necessary for individual fulfillment and human flourishing. It would be wrong to attempt to comprehensively define these values at the outset. Apart from the difficulties of such a venture, there would be a risk of foreclosing constitutional protection for expression which should be protected. As indicated in Irwin Toy, "[t]he precise and complete articulation of what kinds of activity promote these principles is ... a matter for judicial appreciation to be developed on a case by case basis" (p. 977). The result of this process will be an increasingly certain and complete body of law which reflects the experience and emerging judgment of society and the courts on the difficult question of when freedom of expression is violated.
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" (Irwin Toy, at p. 976), 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-fulfillment 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 fulfillment 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.
I conclude that notwithstanding the need for further definition of the values of free expression in future cases, the test which I have proposed for determining when a right arises to use government property for public expression is sufficiently clear and precise to permit determination of when s. 2(b) applies without undue difficulty.
Finally, the test offers sufficient flexibility to permit development of a legal doctrine sensitive to emerging concerns and new situations. The approach I have advocated conforms to the philosophical and doctrinal structures fundamental to free expression which this Court enunciated in Irwin Toy. Moreover, it meets the general requirements for a public forum test which I set out earlier in these reasons. It represents a value-based approach to determining the content of the guarantee of freedom of expression, focusing on the interests served by permitting a particular type of expression in a particular place. It strikes a middle ground between the extremes of the right to expression on all government property and the right to expression on none. The line it draws reflects the purpose of the guarantee of free expression. The guarantee extends only so far as can be justified having regard to these purposes, beyond which the Crown is not called upon to justify its legislation or conduct under s. 1. Claims which clearly do not raise the concerns central to the guarantee are eliminated at the start, avoiding the danger that the right may be trivialized while the burden imposed on members of the public seeking to invoke Charter protection is not unduly onerous.
Application of the Test to the Case
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) of the Charter has been breached. For the reasons expressed earlier, the test enunciated in Irwin Toy requires a further step to be taken before it can be said that s. 2(b) applies. 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. Is there a link between using airports as a forum for political messages and solicitation, and the values embodied in the pursuit of truth, the participation in political or social issues in the community, or individual self-fulfillment or human flourishing?
It is not necessary to go beyond the second value to answer the question. The 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 respondents' 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) of the Charter.
At this point, the onus shifts to the Crown to establish that the limitation on expression is demonstrably justifiable in a free and democratic society under s. 1 of the Charter.
Limit Prescribed by Law
Lamer C.J. concludes that s. 7 of the Government Airport Concession Operations Regulations, SOR/79-373, does not apply to the conduct of the respondents. This leads him to conclude that there is no limit prescribed by law capable of justification under s. 1 of the Charter. L'Heureux-Dubé J., on the other hand, finds that the regulation does apply.
I prefer the view of L'Heureux-Dubé J. on this point. In particular, the words "advertise" and "solicit" in s. 7(b) are broad enough to cover non-commercial publicity (for example, the "advertising" of political candidates or beliefs) and non-commercial solicitation. In the case at bar the respondents were advertising their political position and most certainly were soliciting memberships to their organization. I cannot avoid the conclusion that their conduct falls within the regulation. I note in passing that I cannot agree with Lamer C.J. that the presumption of constitutionality supports the view that the regulation does not apply. Interpreting the regulation as applicable does not render it unconstitutional; it may well be saved under s. 1.
Even if the respondents' conduct did not fall within the regulation, I would incline to the view that the act of the airport officials in preventing them from handing out leaflets and soliciting members constitutes a limit prescribed by law because the officials were acting pursuant to the Crown's legal rights as owner of the premises.
The purpose of restricting s. 1 to limits "prescribed by law" is to eliminate from s. 1 purview conduct which is purely arbitrary. As Le Dain J. stated in R. v. Therens, [1985] 1 S.C.R. 613, at p. 645:
The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements. The limit may also result from the application of a common law rule.
On the same approach, a common law rule was subjected to s. 1 in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573,
Under the Civil Code of Quebec (or the common law of other provinces) the Crown as property owner is entitled to withdraw permission from an invitee to be present on its property, subject always to the Charter. The act of the airport administrator in limiting expression pursuant to that power constitutes the exercise of a discretion conferred on his or her employer by the Code. The limit, in other words, results from the application of the Code. It follows that it is "prescribed by law" within the test set out by Le Dain J. in Therens.
From a practical point of view, it would be wrong to limit the application of s. 1 to enacted laws or regulations. That would require the Crown to pass detailed regulations to deal with every contingency as a pre-condition of justifying its conduct under s. 1. In my view, such a technical approach does not accord with the spirit of the Charter and would make it unduly difficult to justify limits on rights and freedoms which may be reasonable and, indeed, necessary.
The Balance Under s. 1
It is under s. 1 of the Charter that the respective interests of the individual in free expression and the state in limiting that expression are addressed. The exercise is one of balancing. The balancing must be done contextually, having regard to the facts and values of the particular case before the Court: Edmonton Journal v. Alberta, [1989] 2 S.C.R. 1326, per Wilson J. at pp. 1355-56.
The question is whether the Crown's refusal to permit the respondents to distribute their pamphlets and solicit memberships for their organization from members of the public in Dorval Airport is "reasonable" and "demonstrably justified in a free and democratic society." Thus, onus lies on the Crown of establishing this.
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 will then turn to a more specific look at the values and interests to be considered in striking the balance in the case of a limit on the use of state-owned property for public expression.
The Charter recognizes that the exercise of constitutional rights inevitably raises conflicts. Sometimes the conflict is with another right. Sometimes the conflict is with another interest, usually public. As a result, rights cannot be viewed as absolute. Sometimes a right must yield to another, conflicting right; sometimes a right must give way to an overriding objective of public importance. The difficult question is where the balance between the conflicting rights or interests should be struck.
It follows from the fact that the right in question is constitutionally guaranteed as fundamental in our society that it should be trenched on no more than is clearly necessary and justified. Only if certain conditions are established can a limit on a fundamental right or freedom be justified. First, the state should be required to demonstrate a compelling reason for the limitation. Second, the limit on the right should not go beyond what is necessary to achieve that objective -- it should not be overbroad, and should contain sufficient safeguards to ensure that as the law is applied, the right in fact will not be infringed more than necessary. This latter danger may occur, for example, if too much discretion is granted to administrators charged with applying the limit or law in question.
These concerns are reflected in R. v. Oakes, [1986] 1 S.C.R. 103, where this Court laid down guidelines to assist judges in determining whether a limit on aCharter right or freedom was "reasonable" and "demonstrably justified in a free and democratic society." It was there held that two conditions must be met if a limit on a right is to be justified. First, the objective which the limit is designed to serve must be of sufficient importance to warrant overriding a constitutionally protected right. Second, if such an objective is established, the party invoking s. 1 must show that the means chosen to attain the objective are reasonably and demonstrably justified. It was suggested in Oakes that the second condition is met if the Court is satisfied: (1) that the limit is rationally connected to the objective; (2) that the means impairs the right or freedom in question as little as possible; and (3) that the effect of the limit is proportionate to the legislative objective.
Counsel for the Attorney General for Ontario urged us to avoid a mechanical application of the Oakes criteria. He expressed concern that the Oakes test, applied literally, might preclude virtually all limitations by the state on expression on government property, since it would be difficult if not impossible in most cases to demonstrate that the measure impaired the speaker's rights as little as possible.
I share this concern with an overly mechanical application of the Oakes criteria. Without undermining the fundamental requirement that a limit on a right must not be overbroad and must contain sufficient safeguards to prevent unwarranted intrusions on individual rights in the application of the law, the practical limitations of legislation must also be recognized. The reality is that the government must develop rules and policies which apply to many cases. It may be impossible to tailor a rule to fit the precise circumstances of each individual case, with the result that with the benefit of hindsight a less restrictive limit can be conceived for a particular situation. As this Court pointed out in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, some deference must be paid to the legislators and the difficulties inherent in the process of drafting rules of general application. A limit prescribed by law should not be struck out merely because the Court can conceive of an alternative which seems to it to be less restrictive. What is required by s. 1 is that the limit be reasonable and justifiable in a free and democratic society. If the limit represents a reasonable legislative choice tailored so as to limit the right in question as little as possible the minimum impairment requirement is met. What must be guarded against are the evils of vagueness and overbreadth, the broad sweep that catches more conduct than is justified by the government's objective.
Against this background, I turn to the values and interests which are engaged by limits on free expression on government property. The state may have either of two dominant objectives in regulating expression on government property. First, its primary aim may be seeking to control the content of the expression, as where particular messages are banned in a public forum. Alternatively, its purpose may be merely to control the consequences of public expression on the property in question, regardless of the meaning conveyed by the expression. In the latter case, the major consideration from the state's point of view is generally the compatibility of the property's purpose or function with the expressive activities in question.
It is sometimes observed that content-neutral restrictions may be easier to justify than content-based restrictions. This follows from the fact that content-neutral restrictions are likely to be (a) more closely tied to the function or purpose of the place in question, and/or (b) less objectionable than content restrictions. Thus the balance will more often fall on the side of the state. But care must be taken to avoid the trap of acceding to limits on expression on the basis that they relate to content-neutral consequences rather than content. Denial of a particular time, place or manner of expression regardless of content may effectively mean denial of the right to communicate. Conversely, as abhorrent as arbitrary or unfair content-related limitations may be, it must be conceded that when carefully tailored they may be integrally tied to important government purposes outweighing any interest a speaker may have in communicating a conflicting message. Restrictions on content may be capable of being justified on the basis that certain messages are incompatible with the purpose or function of a particular government institution. Pornography or literature promoting drug use, for example, might be legitimately banned at a school or a children's festival in a government park. The point is that generalizations are of little assistance. What is essential is that the court in each case undertake the process of balancing and weighing the true interests at stake with a view to determining whether the limit on free expression in question is "reasonable" and "demonstrably justified in a free and democratic society."
It may be useful to elaborate on the concept of the function or use of government property in the context of the second category, that of content-neutral restrictions. Purpose or function may extend beyond the mechanical aspects of the task to which the location is dedicated, to embrace considerations such as decorum or fairness that affect its overall long-term functioning. For example, political placards might be barred from a courtroom, not because they would be likely to disrupt or influence the judge, but rather because they interfere with the dignity and decorum of the courtroom. In reducing the aura of impartiality which is sought to be maintained in the courtroom, they may in a larger sense detract from its purpose and impact on its function.
I have discussed the government interest in placing restrictions on various forums for public expression. On the other side of the balance lies the interest of the individual in effectively communicating his or her message to members of the public. It is this interest which s. 2(b) is aimed at protecting. Considerations include the following. How suitable is the location for the effective communication of the message to the public? Does the property in question have special symbolic significance for the message being communicated? Are there other public arenas in the vicinity in which the expression can be disseminated? In short, what does the claimant lose by being denied the opportunity to spread his or her message in the form and at the time and place asserted?
I return to the facts of this case and the two conditions set out in Oakes for justification under s. 1. First, is the state's objective of sufficient importance that it is capable of overriding a Charter right? Second, are the means chosen to effect the objective "reasonable" and "demonstrably justified in a free and democratic society"?
In my view, the Crown has failed to establish either of these criteria in the case at bar. 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 of the Charter. 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) of the Charter. 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.
III. Conclusion
I would dismiss the appeal and answer the questions as proposed by L'Heureux-Dubé J.
Appeal dismissed with costs.
Solicitor for the appellant: John C. Tait, Ottawa.
Solicitor for the respondents: Gérard Guay, Hull.
Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General for the province of Ontario, Toronto.
Solicitors for the interveners Watch Tower Bible and Tract Society of Canada, Kenneth Arthur Little and Thomas Richard Jones: W. Glen How & Associates, Georgetown, Ontario.