LEX VIEW 53

Centre for Cultural Renwal

The Inconsistency of Canadian Laws Regarding Rights in Relation to Expression and Religion when they relate to Abortion Protests

R. v. Lewis (1996)
24 B.C.L.R. (3d) 247 (B.C. Supreme Court) and
R. v. James Roger Demers (2003)
B.C.C.A. 28; Leave to Appeal to the Supreme Court
of Canada denied, September 25, 2003.

Date of Decisions: Lewis - October 8, 1996

Demers - January 17, 2003; September 25, 2003

In this Issue:

Key Terms
Significance of Decision
Summary of Facts
Decision
The Court’s Reasons
Lex View Commentary

1. Key Terms

ss. 1, 2(a), 2(b) and 2(d) of the Canadian Charter of Rights and Freedoms ("Charter"); freedoms of expression, conscience and religion and association; Access to Abortion Services Act, S.B.C. 1996, c. 1; Act (the "AASA") restricting protestors from protesting and interfering with this access within a prescribed zone of access; definitions of "sidewalk interference" and "protest"; does the word "everyone" in s. 7 of the Charter protect foetal life?; do the unborn have a right to life? (NOTE: This Lex View is of an extended length due to the necessity of placing both decisions under review in a historical context that is not often discussed in Canadian legal analysis today); role of the courts in relation to Parliament; proper jurisdiction of law in a free and democratic society.

2. Significance of the Decision

The Scope of the freedom of expression is one of the most central aspects of any free and democratic society. These decisions show that the way in which legislation is challenged is critical. The fact that Mr. Lewis died before his appeal was heard and the Supreme Court of Canada has denied Mr. Demers' appeal means that the AASA has yet to be properly challenged before the Supreme Court for its complete repression of expression and assembly within certain areas around the homes of abortion providers and demarcated facilities. The final result: an overbroad and dangerous law continues in force in British Columbia.

The history and the facts of these cases show that the freedoms of expression, assembly, conscience and religion are genuinely at risk in Canada today.

3. Summary of Facts

In September 1995, the B.C. Access to Abortion Services Act, S.B.C. 1996, c. 1 ("AASA") was passed. It created protective "bubble zones", within which no one is allowed to "protest" or demonstrate, attempt to advise or dissuade anyone from obtaining an abortion ("sidewalk interference"), film or videotape anyone, watch persons repeatedly, or approach or follow anyone with the intent to dissuade them from providing abortion services. These zones are up to 50 meters in size around abortion clinics, 160 meters around the residences of abortion providers, and 10 meters around abortion providers' offices. Violators face a fine not exceeding $5,000 and the possibility of 6 months in jail.

Late in September of 1995, pro-life (Note: The term "pro-life" is used here because that is the name that this group uses for itself. The term preferred by opponents - "anti-choice" is not logically coherent because pro-lifers do not object to "choice" per se but simply how such choices are exercised - a very different matter) activist Mr. Maurice Lewis was charged with violating the new law. He had been protesting, singing and praying with others at the Everywoman's Health Centre. In January of 1996, in R. v. Lewis, Cronin Prov. Ct. J. struck down the provisions of the AASA which had prohibited "sidewalk interference" and "protesting" within the bubble zone as violating the Charter guarantees of freedom of conscience and religion, expression, and association in a manner not justifiable under s.1 of the Charter. The Crown appealed the decision, and in October 1996, Saunders J. (as she then was) overturned the lower court decision, finding that while Mr. Lewis' Charter rights were infringed, such an infringement was justified under s. 1.

When Mr. Lewis passed away, his pending appeal to the B.C. Court of Appeal was denied as it was considered moot. Mr. James Demers, who also had also been convicted pursuant to the AASA for standing in front of an abortion clinic in protest with a sign (he was blindfolded and his sign contained reference to a United Nations human rights treaty), in effect continued the litigation. The B.C. Court of Appeal in Demers held that "the facts between the Lewis case and the Demers case are indistinguishable".

The key difference between the two cases relates to the way in which the AASA was challenged. Mr. Lewis had argued that the AASA infringed his Charter rights of expression, conscience and religion, and association. He did not base his challenge on whether foetal rights (The term "foetus" or "fetus" and the term "unborn child" are used interchangeably in this analysis since this reflects the usage of the terms in the Court decisions themselves. English contains no direct equivalent to the term used in the Civil Code and Quebec judgements in this area: "en ventre sa mere") might be protected by s. 7 of the Charter. Mr. Demers based his challenge in the courts below on a foetus' rights under s. 7 and s. 15 of the Charter, as well as on his own s. 2(b) rights. He abandoned the s. 15 argument at the Court of Appeal, but continued to hinge his challenge on the foetal rights approach. Mr. Demers argument was that s.7 of the Charter, which says "everyone has the right to life, liberty and security of the person" applies to foetuses, and therefore the AASA cannot survive any s. 1 analysis which would arise on the Crown's attempt to justify an infringement of his s. 2(b) rights. As the B.C. Court of Appeal phrased it: "the ruling he wants on s.7 would have the effect of declaring abortion constitutionally unlawful".

In Demers, McGivern J. of the Provincial Court, [1997] B.C.J. No. 3000, and Hood J. of the B.C. Supreme Court, [1999] B.C.J. No. 1818, held that s. 7 of the Charter's reference to "everyone" does not include unborn children and it was "common ground" that they were bound by Saunders J.'s decision in Lewis with regard to Mr. Demers' s. 2(b) expression arguments. Because of that, neither side called evidence in the Provincial Court concerning a possible s. 1 justification; they instead asked permission that the Lewis record be appended to the Demers record. This request was granted by Levine J. on Mr. Demers' summary conviction appeal. Leave to Appeal to the Supreme Court of Canada was denied September 25, 2003.

4. Decision

Mr. Lewis' appeal was rejected by the B.C. Court of Appeal after Mr. Lewis' death on the grounds that the case was now moot. This left the decision of Justice Saunders in place - a decision which had upheld the constitutional validity of the AASA. The appeal of Mr. Demers was dismissed by the B.C. Court of Appeal: foetal life is not protected by the scope of "everyone" as found within s. 7 of the Charter. Since Mr. Demers made no other argument with regard to the constitutional validity of the AASA, his convictions were upheld.

5. The Court’s Reasons

In Demers, Mr. Justice Low, for the Court, claimed that since Morgentaler v. the Queen, [1988] 1 S.C.R. 30, "abortion has been legal in Canada. Woman have the right to abortion as a medical service". Citing Borowski v. Attorney General for Canada (1987), 39 D.L.R. (4th) 731 (Sask. C.A.)("Borowski"), Winnipeg Child and Family Services v. D.F.G., [1997] 3 S.C.R. 925 ("Winnipeg Child") and Tremblay v. Daigle, [1989] 2 S.C.R. 530, Low J.A. held that "the current law of this country supports the position of the Crown… that a foetus is not included in the word "everyone" in s. 7 of the Charter". While noting that this has not been directly decided by the Supreme Court, Low J.A. held that the cumulative effect of the case law makes finding otherwise inconsistent. In particular, Low J.A. stressed McLachlin J.'s (as she then was) statement in Winnipeg Child that "…all aspects of the law…" do not recognise "…the unborn child as a legal or juridical person." How, then, Low J.A. queried, could s. 7 include foetal rights?

Despite so finding, however, Low J. explained that while "[t]hese cases leave no room for this court to entertain the constitutional argument advanced on behalf of Mr. Demers", the courts have made it clear that the balancing of foetal rights and the rights of pregnant woman are best left to "…the careful consideration of the legislators".

Counsel for Mr. Demers failed to advance any substantial arguments, orally or within the factum, about the s. 1 justification arguments employed in Lewis, e.g. arguments relating to the infringements of the freedoms of expression, conscience and religion, and association. Therefore, Low J.A., claimed that since the Court was "…not asked to overturn the case except on the narrow basis" of the s. 7 argument, "…the appellant has otherwise framed his argument in such a way that does not to permit us to interfere with the order appealed from".

6. Lex View Commentary

6. Lex View Commentary It is unfortunate, albeit not surprising, that the B.C. Court of Appeal held in Demers that foetal life does not properly fall within the ambit of "everyone" in s. 7 of the Charter. Since leave to appeal was denied by the Supreme Court of Canada, the highest court has effectively agreed with this interpretation. This denial of leave to appeal is most disappointing for the reason that the core issues which directly manifest from Mr. Lewis' and Mr. Demers' convictions under the AASA, the infringement of the freedoms of conscience and religion, expression and association, will go unexamined. Since counsel for Mr. Demers hinged the whole of the case on the interpretation of s. 7 of the Charter, the Demers case at the Court of Appeal reflects a double loss: a not surprising loss on the interpretation of s. 7 as not protecting foetal life, and a failed opportunity to challenge the AASA's draconian overbreadth.

To focus in on how Demers was argued before the B.C. Court of Appeal, where the s. 7 and s. 2(b) arguments were made dependent upon each other, will yield little more than a lesson in how one ought not frame an appellate argument. An autopsy of the case shows how poor litigation tactics resulted in a complete side-lining of the strong arguments concerning the infringements of the freedoms of expression, conscience and religion, and association imposed on citizens by the AASA in favour of a largely symbolic argument that was unlikely to bring success. Further, this strategy resulted in a legal loss that brings with it a potentially reverberating political loss.

Some in the pro-life movement may find it weak to suggest that the s.7 "everyone" argument should not have been placed at the forefront. After all, it is both true that protecting foetal life is the fundamental issue and true that prior to the denial of leave to appeal in Demers, the Supreme Court of Canada had not yet definitively established whether the reference to "everyone" in s. 7 included foetal life. The s. 7 argument, however, was simply an incredibly difficult argument to make based on existing Canadian legal precedents. To ignore these precedents was legally and strategically imprudent. The writing, so to speak, was on the wall with regard to what courts were most likely do with regard to s. 7. Why, then, force the issue judicially when the legal and juridical status of the foetus could, regardless of what courts have said, be modified legislatively? And, more importantly for the case at hand, why make the two issues dependent upon each other such that a loss on the s. 7 question resulted in a loss on the freedom of expression, conscience and religion, and association questions?

Prior to discussing the legal status of foetal life in Canadian law and Mr. Demers' s. 7 argument, it seems, however, that a refresher course in Canadian abortion law is required. Why? First of all, a review the judgements of Lewis and Demers, as they proceeded through the courts, reflects a generous interpretation of Morgentaler, to which Saunders J. (as she then was) transparently referred to in Lewis as the "lighthouse decision". Second, it also seems that there is a general public, and occasionally judicial, misperception that Morgentaler established a substantive free-standing constitutional right to abortion. It is not, however, the Canadian Roe v. Wade, (1973) 410 U.S. 113.

In Morgentaler, the Supreme Court of Canada held that the existing abortion law was in violation of the Charter and was therefore invalidated. Of note, however, is that five judge majority produced three very different opinions. The most judicially activist judgement came from Wilson J.: her reasons founded a robust substantive s. 7 Charter right to abortion for women in Canada. No other judge agreed with her. The other four judges in the majority limited their analysis to procedural dimensions of s. 7, avoiding the substantive abortion issue almost altogether. Generally, both other sets of reasons in the majority, from Dickson C.J. and Lamer J. and Beetz and Estey JJ., assumed that Parliament could ban non-therapeutic abortions and focused on whether or not the defence available within the Criminal Code provision, s. 251(4) (a certificate of approval from a Therapeutic Abortion Committee), was a violation of s.7's protection of "security of the person" in a manner consistent with the "principles of fundamental justice". The two judgements basically found that the defence was not practically available in a timely and reasonable manner and thus s. 251(4) contravened s. 7 of the Charter. Therefore, it was the lack of uniformity of access to and treatment by such committees across the country that led to this finding, not a requirement that abortions be a generally available service without restrictions.

Therefore, the general conclusions required for understanding the status quo of Canadian abortion law are as follows. First, there was no shared clear explanation as to why s. 251 of the Criminal Code violated s. 7 of the Charter: four of the five judges in the majority argued based on procedural grounds, albeit for different reasons (they were divided as to the seriousness of the procedural violations, with Beetz and Estey JJ. being those who felt that the procedural violations could be easily remedied), and only one of the five, Wilson J., actually declared a substantive constitutional right to abortion. There is thus no clearly established interpretation that that Charter broadly protects abortion: Morgentaler says that as long as abortion is legal, it must be provided in a manner that respects the Charter.

Second, the ramification of the above is that Morgentaler does not mean that abortion cannot be legislated against or even criminalised in certain circumstances, such as, perhaps, late-term or partial-birth abortions. Lastly, it is clear that all seven of the judges held that the state has a legitimate interest in protecting foetal life. Therefore, it is at least an exaggeration, or perhaps a misuse of language concerning the meaning of "right", for Hood J. at the B.C. Supreme Court in Demers to say: "[a] woman has the absolute or unrestricted right to an abortion".

This mistake was actually fundamental to Hood J.'s analysis, since he reasoned that since there was an "absolute right" to abortion for women, unborn children could not also have "rights", as this was "incompatible". But this is not so: in Winnipeg Child, as Hood J. actually recognised, McLachlin J. (as she then was), was explicit that the legislature could introduce measures to protect foetal life. It was said many, many times in the reasons for judgement, an example being "[i]f Parliament or the legislatures wish to legislate legal rights for unborn children or other protective measures, that is open to them, subject to any limitations imposed by the Constitution of Canada". If such protection is possible, rights will vest in unborn children, and may be weighed against and may even outweigh rights of the mother: there is no such thing as Hood J.'s "absolute" right.

Further, to speak of "absolute" rights in the Canadian context is never going to be accurate: there is always s. 1 balancing such that other rights or other considerations can be balanced against rights. This is the essence of making all Charter rights in Canada subject to "…such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

That a foetus is not a "human being" for the purposes of the criminal law is clear. In R v. Sullivan, [1991] 1 S.C.R. 489, the Supreme Court of Canada held that the language of (then) s. 206 of the Criminal Code, dealing with criminal negligence, did not cover foetuses in that they are not "human beings." The current language of the Criminal Code of Canada (R.S.C. 1985, c.C-46), at Section 223, is very clear: 223(1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not (a) it has breathed; (b) it has an independent circulation; or (c) the navel string is severed.

Perhaps the greatest blow to pro-lifers seeking legal or juridical personality for the foetus, visible in the reasons of Low J. in Demers, came when leave to appeal from the decision in Borowski was denied by Supreme Court. Therein, the Court of Appeal reaffirmed the trial court's decision and held that neither s. 7 nor s. 15 of the Charter intended to protect a foetus' right to life. Mr. J. Borowski had argued that s. 251 of the Criminal Code was unconstitutional in that the use of the word "everyone" in s. 7 of the Charter in describing its applicability included the unborn foetus - exactly what Mr. Demers has replicated in the case at hand. The Supreme Court dismissed the appeal since the issue was moot in that s. 251 of the Criminal Code had been found unconstitutional in Morgentaler. In so doing, the Supreme Court refused to address the key question as to whether the foetus was protected by s. 7 of the Charter.

The question did return to the courts, albeit indirectly, in Tremblay v. Daigle. This case was founded on a new grounds for challenge, the "abortion injunction", in which the father of an unborn child went to court and requested an injunction to stop the mother from seeking an abortion. The Superior Court, [1989] R.J.Q. 1980 (Que. S.C.), upheld the injunction, and ruled that "…a conceived child that is not yet born is a human being" and thus protected by the Charte des Droits et libertés de la personne, L.R.Q.,c. C-12, the Quebec Charter. The Court of Appeal, three days later, in a 3-2 decision, upheld the Superior Court's decision ((1989), 59 D.L.R. (4th) 609.) The Supreme Court judges were called back from vacation, the situation now being an "emergency" in that Ms. Daigle was in her twentieth week of pregnancy. Leave was granted. The Supreme Court's hearing of the issue was interrupted in the middle of the first day of hearings by an announcement that Ms. Daigle had already obtained an abortion. The Court recessed, returned to finish hearing the case, and announced that it had voted to overturn the injunction: a foetus was not protected by the Quebec Charter. While the issue was clearly the interpretation of the Quebec Charter, it seems clear from the breadth of the Court's reasons that Tremblay would have implications for interpreting the Charter. This is because beyond interpreting the Quebec Charter, which would have ultimately decided the question before the Court, the judgement also examined the question as if it had been posed by the common law, so as to "…avoid the repetition of the appellant's experience in the common law provinces". The Court's response was unequivocal: the unborn child only became a "person" after it is born - "a fetus is treated as a person only where it is necessary to do so in order to protect its interest after it is born." The private common and civil law situations are therefore the same as the criminal law position: "personhood" or the status of being a "human being" begins at birth.

The Supreme Court in Tremblay v. Daigle did raise the s. 7 Charter argument, but avoided it by stating that R.W.D.S.U. v. Dolphin Delivery, [1986] 2 S.C.R. 573, meant that the Charter did not apply to civil disputes between private parties (i.e. there was no state action which would bring in the Charter.) Technically, therefore, prior to the case being examined, the s. 7 Charter question did remain to be considered. This having been said, what prompts the above comment that the "writing was on the wall", is that the term within the Quebec Charter, "human being", seems, following the Borowski reasoning, to clearly be broader, and thus a persuasive answer to the interpretation of s. 7's "everyone": if a foetus is not a "human being" in Canadian law (a broader category), how can it a "person" or part of "everyone"? If pro-lifers could not convince the Supreme Court that the 20 week-old foetus developing within Ms. Daigle was a "human being", it seems even more unlikely that they could be convinced that a foetus, in the abstract, is caught by "everyone."

Therefore, before Demers, judicial precedents established that an unborn child is neither a "person" nor a "human being" for the purpose of the criminal law, the civil law of Quebec and the common law provinces, and for the Charter. This explains why McGivern J. at the B.C. Provincial Court, Hood J. at the B.C. Superior Court, and Low J.A. at the B.C. Court of Appeal each found it relatively simple to dismiss the claims advanced by Mr. Demers.

What is the relationship between the above summary of Canadian abortion law and the question of the legal or juridical status of the conceived but not yet born child? Foremost, arguing that a foetus is a "person", a "human being", or caught within the scope of "everyone" is not an argument that is necessary for legislation to be introduced that would protect unborn children. Why? First of all, revisit the summary of Canadian abortion law above: it is possible in Canada to regulate, limit, or perhaps even criminalize, under certain circumstances, abortion. Second, even if it is established law in Canada that a foetus does not have "rights" in the sense that it cannot benefit from the rights enumerated in the Charter nor the protections for "human beings" in the Criminal Code, this does not prevent the legislature from extending protection to unborn children. As Margaret Somerville of McGill University noted at p. 1 of an 1981 article in the University of Toronto Law Journal, "Reflections on Canadian Abortion Law: Evacuation and Destruction - Two Separate Issues": "…a foetus may have legal protection without this necessarily entailing its having legal rights." An example offered by Professor Somerville in that article is that it is very clear that while animals do not have "rights" per se, they are clearly protected by the Criminal Code. Legal or juridical personality, thus while being essential for benefiting from rights enumerated under the Charter, is not a necessary condition for the existence of legal protection.

It is important to recognise that Parliament can extend legislative protection to unborn children despite their lacking legal or juridical personality. First, accepting this can serve as the catalyst for proceeding to establish legislation aimed at protecting foetuses and focussing the efforts of the pro-life movement. Second, it is a necessary point that must be established in preparation for any s. 1 Charter analysis. This s. 1 analysis will likely be undertaken in any situation where a court has to weigh competing interests, for example as between a mother's rights and any protection extended to foetal life by the legislature. Basically the foetus may neither be, albeit regrettable, a "person" nor "human being", nor caught in the ambit of s. 7's "everyone", but foetal life is still capable of being legislatively protected and certainly properly a weighty consideration in s. 1 balancing.

In no way do we wish to be condoning the analytical judicial result reached by Low J.A. in Demers; we are simply highlighting that the result on the s. 7 question was expected. What must be said, however, is that it is interesting that in the interpretative context of foetal life and abortion, courts very much feel bound by legal precedent when it comes to evolving the common law, regardless of how blatant the injustice may seem. It must be left to the legislatures is the consistent refrain. Only Major J., with Sopinka J., in Winnipeg Child, suggested otherwise in the context of extending protection to unborn human beings. It is of interest, however, to compare the recent judicial approach to the common law definition of marriage. With respect to marriage, arguably a much less significant question than "life itself", the constraints of common law precedent are readily abandoned. What cannot possibly be anything but a judicial revolution in the context of marriage is characterised as 'incremental change'; the courts insist that they are simply recognising 'changing realities'. Epistemological deconstructivism in the form of more or less traditional judicial wordsmithery, it seems, is a selectively applied science.

This selectivity of judicial intensity of interpretation and evolution of the common law highlights a major problem with the current judicial approach to interpreting the Charter: the lack of a principled interpretative methodology. "Context", we are told, is the key. But what exactly is "context"? Since the current approach views "context" as a vessel to be filled with whatever arguments regarding objectives are advanced by the parties, without rooting in any rigorous historical or literal foundation, and with only minimal emphasis upon what was actually intended by the Charter's framers, it becomes carte blanche. Why should judges be allowed to interpret the constitution in a manner that directly contradicts what was specifically intended by those who adopted it? Why should judges have the ability to extend their powers, seemingly without limit, under the rubric of "remedy." The Charter, after all, is "the supreme law of Canada" (Section 52, emphasis added), nothing more. As a legal document it ought never to be considered as providing a justification for moving all powers to direct social change to the courts. The Charter's Preamble states that it is framed within "the Rule of Law" and Section 1 requires that limits be "prescribed by law"- yet it is fast becoming, under an unconstrained interpretative approach, something very different - the Rule by Law where laws are exclusively a creation of the judiciary.

This ability to interpret without constraint leads Canada away from democracy to something else - a jurocracy: that is to say a system in which judges can read in, read out, strike down, or simply re-write legislation. Without the restraints long understood to be essential to society, law itself can become dangerous. It is for this reason that Western democracies have generally operated with systems of checks and balances, one of the key examples being that law responds to and interprets rather than usurps democratic change. Undergirding this is a recognition that all aspects of society have an understanding of the appropriate jurisdictions of their endeavours.

There are signs that the post-Charter era judiciary is losing sight of its jurisdiction. For example, when Chief Justice McLachlin, at a conference in October 2002 co-sponsored by the Centre for Cultural Renewal and the McGill University Faculty of Religious Studies, spoke of law purporting to be a comprehensive set a beliefs, a set of beliefs that "touches everything", and therefore akin to religion, she overstated law's jurisdiction. As Professor Jean Bethke Elshtain said in response to the Chief Justice, the Chief Justice's claim that law, like religion, makes a "totalistic claim" on the person, is wrong and dangerous (Note: The Chief Justice's paper and that of Professor Elshtain, as well as others from the Centre for Cultural Renewal /McGill event are due to appear in a forthcoming volume edited by Professor Douglas Farrow). We respectfully agree with Professor Elshtain's perspective on this question (For a more in-depth discussion of the conference's presentations, see the articles by Sue Careless and T. Peter Pound in the Centre for Cultural Renewal's CentrePoints Newsletter 10).

Law, and the Supreme Court of Canada's jurisprudence itself, have historically recognized the limits of the competence of law: see, for example, Tremblay v. Daigle. To suggest that law is capable of analyzing, much less developing, the comprehensive claims of religions, takes the law well beyond its competence and will erect a kind of legal theocracy - a notion that conflicts with another important concept recognized in Section 1 of the Charter - that of "a free and democratic society." Judges are not only unelected, but their power is, in a sense, absolute - which is why it must be restricted to matters of law and not matters beyond law. The grave concern is the use of legal frameworks and legal language as a justification for what is little more than raw judicial power.

In 1988, it was expected that Parliament would re-enact a new abortion law. What was not initially to be expected was that legislative failings and confusions amongst the pro-life camps would result in a near-outright victory for the pro-choice camp that would last until the present, leaving for all intent and purpose, a vacuum in Canadian abortion law. This vacuum was, and continues to be, largely a function of legislative will. The concern arising from the Demers case regarding the current level of legislative will is that the not unexpected judicial declaration that a developing child inside its mother is not covered by s. 7's reference to "everyone" does nothing to encourage the legislative action that is possible regardless of a judicial determination with respect to the legal or juridical personality of the foetus.

Risking a legal engagement of the question of whether a foetus is properly caught within the scope of s. 7's "everyone" was not a winning litigation tactic and did not present much chance of furthering the underlying principled goal of protecting the lives of unborn children. Beyond being a legal loss, politically it would seem to only further retrench any legislative willingness to advance in making practical gains for the pro-life movement that are otherwise underway. It could hamper goals such as the introduction of legislation that bans partial-birth abortions or the introduction of legislation that protects unborn victims of violence.

What of the question of the constitutionality of the AASA? To examine this, as unfortunately will not now occur at the Supreme Court, the analysis must turn to the AASA and to the Lewis cases, as the freedom of expression, conscience and religion, and association arguments were left by the wayside by the litigation tactics employed in the Demers cases. In s. 1 of the AASA, "protest" is defined as including "…any act of disapproval or attempted act of disapproval, with respect to issues related to abortion services, by any means, including, without limitation, graphic, verbal means." "Sidewalk interference" is defined to mean "(a) advising or persuading, or attempting to advise or persuade, a person to refrain from making use of abortion services, or (b) informing or attempting to inform a person concerning issues related to abortion services", both "by any means, including, without limitation, graphic verbal or written means."

The most obvious concerning aspect of the AASA is that is completely precludes peaceful, even silent, expression. In fact, it is not only illegal, within a "bubble-zone", to attempt to inform a person concerning any issues related to abortion, but it is also illegal to actually successfully persuade someone from having an abortion if an encounter initially takes place within the zone. This overbreadth of the definitions of "protest" and "sidewalk interference" rivals Stalinist-era limitations on expression or those of any totalitarian regime. An example beyond the case at hand, a striking case in point, is that of Mary Wagner, a B.C. woman who was recently imprisoned for having violated the AASA. Her transgression: handing out roses in front of an abortion clinic. This is an example of how intense alleged "liberalism's" conviction of the correctness of its ideas becomes intolerant and undermining of even more fundamental liberal principles, such as true tolerance and pluralism.

In a free and democratic society that purports to respect the search for truth, the suppression of a particular point of view by the force of the state is simply unacceptable. That it is furthered by judicial decisions is intolerable. As was stated in Lex View 51, "the existence of a hotly contested issue demands, rather than undermines, the need for preciously guarded space for disagreement: as the United States Supreme Court stated in West Virginia Board of Education v. Barnette, 319 U.S. 624 at 642, "freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." Far from furthering the quest for truth on the important, hotly contested issue of abortion, the state is foreclosing an important avenue for public debate and protest concerning the issue - yet the legislation remains.

It was conceded before Cronin Prov. Ct. J. in Lewis that the AASA infringed the freedom of expression, and it was also held that it infringed the freedom of conscience and religion. Therefore, the analysis was undertaken at the s. 1 level. Cronin J. discussed the history of protest at the clinics in question, and the nature of the allegedly problematic "sidewalk counselling" and "prayer vigils". Of note is that while Cronin J. did recognise that while there were some incidents of violence that had occurred against abortion providers, "the access zones is [sic] not designed to protest against such acts of violence". The core of the s. 1 analysis was that the definitions of "protest" and "sidewalk interference" do not allow for any exceptions: "the result is to suppress all protest activity within the access zone. Any form of peaceful protest is an offence". Cronin J. was not satisfied that telling the protesters to protest elsewhere was a satisfactory answer to their infringed rights.

At the B.C. Supreme Court in Lewis, Saunders J. recognised that "abortion is a subject matter which deeply divides public opinion. Reasonable people disagree on the extent, if any, to which society should make abortion services available to women". She then, however, proceeded to disregard completely the value of the expression of some of those "reasonable people" who do disagree with the availability of abortion services and ignore completely the right of women seeking abortions to discuss with those who might help them make their decision in another direction (should they so wish). The court and those groups whose arguments the court adopted treat women as being unworthy of that exchange of ideas - and this in the face of affidavits from women who did change their minds while on the way to have an abortion (as a result of discussion) and were glad they did so.

With regard to whether the protest activity should properly be described as "peaceful", Saunders J. disagreed: "Peace connotes harmony. There is, on the evidence tendered at trial, no harmony here between protesters and those entering the clinic. At its most benign the protest activity could be described as non-violent." This is a strange and worrying notion of "peace." What is a court to do when citizens, non-violently, disagree with each other about "subject matters which deeply divide public opinion"? It would seem that Saunders J.'s solution is to sacrifice the views of those with whom she disagrees in the name of "harmony." But, surely this smacks of illiberalism, the kind warned of in Lex View 51, the "…systematic misunderstanding (implicit or explicit) that liberalism demands "convergence" - that is to say that we are all moving towards agreement on the central questions." This kind of "liberalism" is not actually liberal and we hope that such convergence liberalism will sooner or later cease to be the unstated premise of so much of the current judiciary's Charter analysis.

A further concern with Saunders J.'s approach is that it looks to the content of the expression when determining whether it warrants protections. Saunders J. recognised that the government promulgating the AASA "openly holds a pro-choice policy stance". While this may be so, Saunders J. failed to examine seriously whether this pragmatic policy position also ought to result in the complete suppression of expression to the contrary on this policy matter in certain public spaces. Saunders J. failed to examine adequately whether peaceful protest has redeeming societal value. In fact, the actual hearing of the dissenting message is itself the value which was employed to justify the restriction on expression: Saunders J. seems shocked that Mr. Lewis "candidly admitted…" that "…his protest activity is designed to engage the conscience of women entering the clinic in an effort to change the decision to have an abortion and with the expectation of creating guilt if the abortion is performed." But does not restricting this expression based solely on its content completely undermine the point of the right to freedom of expression, e.g. that the expression of effective dissenting messages is exactly what the right exists to protect? Expression exists to be able to voice ones' views and to be able to convince others of the correctness of them. Therefore, using the content of expression in a particular case to actually curb the right to freedom of expression is not only illiberal but illogical.

What does the AASA say about relations between citizens? It seems to preclude the ability of citizens to peacefully approach fellow citizens to discuss a matter that is important to each of them. Clearly, the goal is to guarantee access to abortion clinics and to preclude women who seek abortions from being harassed, but the AASA's current scope is much broader than that. In the United States, legislation exists to ensure access to abortion clinics, the federal Freedom of Access to Clinic Entrances Act ("FACE".) A key difference, however, is that FACE legislation always permits a 'first approach', that is, the ability of one citizen to approach peacefully a fellow citizen to offer assistance, advice, or some form of communication. The law covers only unprotected conduct, such as assault, trespass, and vandalism, all of which is already covered by civil and criminal penalties. Demonstrators may still distribute pro-life literature, approach those outside the entrances to engage them in conversation, pray, sing hymns, carry signs, etc. outside clinics. Only on actually or attempting to "injure", "intimidate", or "interfere with," does the full weight of the protective legislation apply.

Why is the American approach preferable? It is suggested that this difference demonstrates what is wrong with Saunders J.'s approach in Lewis. What was necessary for Saunders J. to find that the infringement of expression was justified under s. 1 of the Charter was the simultaneous over-inflation of the vulnerable character of those persons seeking abortions (all are highly vulnerable persons who do not desire any communication or assistance with pro-life protesters; all encounters with the protesters are "unsolicited" and "unwanted") and the under-inflation of the chance that communication might be beneficial, as well as the under-valuation of the importance of debate in society regarding the search for truth. Saunders J. said "[w]hile non-violent, even passive, expression of disapproval is captured by this Act, the evidence establishes that such activity, in the context of the well-known history of vigorous protest and the vulnerable nature of many of those who enter the clinic, is contrary to the well-being, privacy and dignity of those using the clinics' services." But this is based at least partially on stereotyping: what of the evidence that was tendered in court regarding successful "sidewalk counselling"? Are all demonstrators potentially violent and hell-bent on harassment?

What of cases where a woman seeking an abortion has changed her mind after having been approached by a pro-life demonstrator who offers assistance, financial and emotional, such that the woman will be able to carry her baby to term, whether to keep or to offer up for adoption? These considerations were notoriously absent from or underplayed within Saunders J.'s "context" calculus even though they were present in the evidence submitted before the courts. Saunders J. also precluded the possibility that a woman might have actually been forced, whether by her family, her boyfriend or husband, by financial circumstances or work-related pressure, or by fear, to seek an abortion which she actually does not want. It is for this reason that the 'first approach' model in the United States is preferable. It puts women first, by actually considering their individual circumstances and, in many possible cases, can bolster a woman's dignity, rather than undermine it, as Saunders J. suggested "sidewalk counselling" and "prayer vigils" did.

Intimidation is not pre-emptively assumed in the American approach (in the manner of Madam Justice Saunders) but occurs only after a first approach to discuss is refused by the person approaching the clinic entrance. The approach of those supporting the AASA views women as helpless, mindless beings who need to be protected from any discussion by the blunt powers of the State, hardly consonant with the view of women usually put forward by those in the "women's rights" movement.

It is for this reason, amongst others, that the existing AASA ought not pass the rational connection, minimal impairment and proportionality steps of the legal test established for s. 1 Charter justification in R. v. Oakes, [1986] 1 S.C.R. 103. There would seem to be no logical basis to defend the extraordinary over-breadth of the legislation as it stands currently.

On the issue of minimal impairment and proportionality, a very interesting parallel can be drawn between the Lewis and Demers litigation concerning the AASA and a recent decision of the Supreme Court of Canada, Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156 ("Pepsi-Cola"), that dealt with the freedoms of expression and association in the context of labour unrest, particularly the issue of "secondary picketing", where striking workers demonstrated at the homes of management personnel and at retail establishments to prevent the delivery of their employer's goods. In this case, the Court had to balance the risk of economic harm to the company and risks to management personnel with freedom of expression. The general conclusion of the Court was that secondary picketing was held to be lawful unless it involved some tortious or criminal conduct. The Court, at para. 32, very clearly identified the significance of picketing, which "…always involves expressive action.": As such, it engages one of the highest constitutional values: freedom of expression, enshrined in s. 2(b) of the Charter. This Court's jurisprudence established that both primary and secondary picketing are forms of expression, even when associated with tortious acts… The Court, moreover, has repeatedly reaffirmed the importance of freedom of expression. It is the foundation of a democratic society… The core values which free expression promotes include self-fulfilment, participation in social and political decision making, and the communal exchange of ideas. Free speech protects human dignity and the right to think and reflect freely on one's circumstances and condition. It allows a person to speak not only for the sake of expression itself, but also to advocate change, attempting to persuade others in the hope of improving one's life and perhaps the wider social, political and economic environment.

To balance the value of freedom of expression against other "values" (Note: The Centre for Cultural Renewal has written frequently about the bankrupt nature of "values" language. For this reason it is ironic that the Court has recently had recourse to another judicially created category: that of "Charter values" as the basis for a decision. This will be dealt with in an upcoming Lex View on the Supreme Court of Canada's decision in Chamberlain v. Surrey School District No. 36 (December 2002)), the Court selected the "wrongful action" model, which defined as wrongful or unjustified picketing that involves a tort (a civil wrong) or a crime (a criminal wrong.) The Court noted, at para. 80ff, that this approach was preferable since it treated labour and non-labour picketing alike. The Court expressed that creating a tort of "secondary picketing" in the labour context only would be "difficult to justify": "…we can find no persuasive reason to deprive union members of an expressive right at common law that is available to all members of the public." Well, here the Court is perhaps wrong. The existence of legislation such as the AASA creates a special category of expression that is more permissibly restricted than others: picketing or publicly protesting abortion. Why, then, are the civil law and criminal law enough protection for everyone else, except in the abortion access context? Why are the rather draconian restrictions against "protest" defined as "any form of disapproval or attempted disapproval….with the provision of abortion services" in the AASA allowed to continue?

On the facts of the Pepsi-Cola case, the Supreme Court actually upheld an injunction that disallowed the employees from picketing at the homes of management personnel, but only because it was tortious in nature: "…it amounted to disorderly conduct accompanied by threats of harm to the resident employees of the company…" In the abortion context, however, there is a permanent prior restraint in the form of the AASA that keeps all protestors 50 metres from clinics and 160 metres from the homes of abortion providers. Silent disapproval, the distribution of roses or even silent prayer are treated the same as actual tortious interferences. Why? In both the labour dispute and the abortion protest contexts, there is the risk of intimidation, harassment, or, unfortunately, perhaps even violence. But why the difference - why can the common and criminal law react appropriately in all protest contexts except abortion? How can the double-standard be justified?

Since leave to appeal was not been granted by the Supreme Court, a great injustice, in the form of the overbreadth of the AASA, will be allowed to persist. Perhaps at some future date another person prosecuted under it will challenge the legislation, but this time on the winnable grounds employed in Lewis. Beyond the legal sphere, however, pro-lifers should heed the advice of the courts which repeatedly say that any action regarding protecting the lives of unborn children must come from the legislatures.

Lex View is researched and written by:

T. Peter Pound, B.A (Hons.), B.A. in Juris. (Oxon.)(Hons.), LL.B, B.C.L., of the Ontario Bar.
Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B., of the British Columbia Bar.

* In researching this Lex View, "Whither Freedom of Religion?", Report No. 16 of the Institute for the Study of Marriage, Law and Culture, authored by Dr. Daniel Cere, was particularly insightful regarding the importance of religion as a group right.

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