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What Limits Should we Accept on Freedom of Speech?
Serious concerns arise when government is given the unfettered authority to restrict the freedom of opinion and expression of its citizens.

It is no surprise to most Canadians that there are limits on the Charter of Rights and Freedoms guarantee of freedom of expression. What may surprise you is the extent to which government – of various sorts – may go to silence free speech on issues with which that governing body disagrees.

…when we begin to restrict the ability of people to express different positions on issues we begin to alter the fundamental foundations of our democracy

When international leaders gather for a summit, it is common to see fences and barricades erected to protect the safety of the participants … on both sides. Peaceful demonstrations have resulted in photos of police officers sipping coffee and chatting while watching the crowd. In more aggressive demonstrations, demonstrators have been stopped at attempts to climb the fences of separation. Violent demonstrations produce photos of police in riot gear dispersing crowds with tear gas and fire hoses while rounding up the odd ringleader.

In protest of Canada’s lack of abortion laws, there have been demonstrations on Parliament Hill, provincial legislatures and other locations, such as the annual Life Chain Sunday. There have also been untold numbers of silent vigils and information pamphleteers at or near facilities where abortions are procured.

In British Columbia the government has been experimenting with a new limitation on freedom of expression. BC legislation allows the provincial cabinet to establish invisible perimeter fences around abortion clinics.

A point of clarification: abortion is still a debatable subject in Canada. There is no constitutional right to an abortion. The last decision of the Supreme Court of Canada on abortion produced two significant statements. First, the abortion law as it stood in 1988 failed to meet constitutional standards because it could not be applied even-handedly across the country. Second, the regulation of abortion is properly within the purview of the federal Parliament.

Last week I attended at the British Columbia Court of Appeal for a hearing in regard to the Spratt case. The case concerns a constitutional challenge to the Access to Abortion Services Act (the Access Act), which prohibits “sidewalk interference” and “protest” in a specified access zone around abortion clinics. The access zone is determined on a case-by-case basis by the provincial cabinet, up to 50 metres (approximately 165 feet) from the clinic property. Donald David Spratt protested in one of these so-called bubble zones by carrying a nine-foot cross with a sign saying “You Shall Not Murder” and spoke quietly with two clinic workers about God’s forgiveness and the need of repentance for sins.

Mr. Spratt was charged and convicted under the Access Act and has appealed his conviction on the basis that the legislation infringes on the Charter guaranteed right to freedom of expression.

The government conceded that the legislation violates the Charter right to freedom of expression. They argued this limitation is justifiable in a free and democratic society. The government position is that the legislation protects the right of women to liberty and security of the person under Section 7 of the Charter as women approaching an abortion clinic are at a reasonably foreseeable risk of harm if the Access Act restrictions are not upheld by the court.

The Evangelical Fellowship of Canada, Christian Legal Fellowship and Catholic Civil Rights League, working together on this case as “The Canadian Religious Freedom Alliance” (CRFA), found ourselves sharing a common position on this issue with the British Columbia Civil Liberties Association. That is, the unregulated discretion of a provincial cabinet to determine limits on the freedom of speech of Canadians is unconstitutional. Further, The CFRA argued that the exceedingly broad definitions of “sidewalk interference” and “protest” which prohibit peaceful and innocuous protest should not be a permissible restriction of the right to freedom of expression.

Serious concerns arise when government is given the unfettered authority to restrict the freedom of opinion and expression of its citizens. Restriction in one area of public debate and expression may quickly lead to restriction in other areas.

For example, the reasoning for the restriction imposed under the Access Act has been applied by student governments on several university and college campuses across the country to restrict the freedom of students to express a pro-life position, or even to have public debate on whether or not Canada should implement a law that would restrict abortions in any fashion – the last proposal, in 1988, having passed the House of Commons but died on a tie vote in the Senate.

Also, recent presentations to the Bouchard-Taylor Commission in Quebec have been reported as using similar logic to present endorsement for the restriction of public expression of religious beliefs on the basis that religious expression in a “secular” society infringes on the right to liberty of people who disagree with that expression.

The CRFA presentation before the Court of Appeal included the following statement which is deserving of consideration. “Our rights of conscience and expression become meaningful only in relation to others. Rights are not held by autonomous, isolated individuals immune from any contact with others but by individuals who are inherently interpersonal. Interaction and relationships with other people are essential to the development of the human person in our search for truth, justice and the greater good of society.”

Do women entering an abortion clinic have the right to hear both pro-choice and pro-life positions…

In other words, when we begin to restrict the ability of people to express different positions on issues we begin to alter the fundamental foundations of our democracy.

The following questions put this in the context of the facts and issues in Spratt. Do pro-life supporters have the right to express their position? Do pro-choice supporters have the right to express their position? (It wasn’t so long ago that pro-choice supporters were the ones shouted down in public.) Do women entering an abortion clinic have the right to hear both pro-choice and pro-life positions before engaging in a life-altering act – for both the child and the mother?

Aggressive protest is sufficiently dealt with under the provisions of Canada’s Criminal Code. British Columbia is the only jurisdiction in Canada that has legislation restricting peaceful protest. However, one can be relatively certain that if the Access Act provisions are found to be a reasonable limitation on freedom of expression then other provinces will follow, as will additional restrictions on freedom of speech.

Don Hutchinson is General Legal Counsel for The Evangelical Fellowship of Canada.

 

 
 
 
 

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