Committee for the Commonwealth of Canada v Canada  1 S.C.R. 139: 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
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.
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