A-620-86
International Fund for Animal Welfare, Inc.,
Steven Best and Brian D. Davies (Appellants)
v.
The Queen, the Minister of Fisheries and Oceans,
the Minister of Justice and the Attorney General
of Canada (Respondents)
INDEXED AS: INTERNATIONAL FUND FOR ANIMAL WELFARE,
INC. V. CANADA
Court of Appeal, Mahoney, Hugessen and Mac-
Guigan JJ.—Toronto, March 22 and 23; Ottawa,
April 19, 1988.
Constitutional law — Charter of Rights — Fundamental
freedoms — Freedom of expression — Appellant advocating
abolition of seal hunt — Using helicopters to ferry media
people to hunt scene contrary to Seal Protection Regulations
prohibiting operation of aircraft over seals at low altitude
Applications to obtain sealing access turned down — Trial
Judge finding Regulations impinge freedom of expression, but
saved by Charter s. 1 — Regulations s. 11(6), forbidding
unlicensed persons to approach within half nautical mile of
seal hunt, impinging on freedom of expression and of no force
and effect — Although sufficiently significant objective prima
facie established, Regulations s. 11(6) fails second and third
means test in The Queen v. Oakes: means not limiting
infringement as much as possible and effects of regulations go
beyond what is necessary — Regulations s. 11(5), forbidding
landing of aircraft within half nautical mile of any seal on ice
in Gulf Area, not unreasonable burden on exercise of freedom
of expression.
•
Constitutional law — Charter of Rights — Limitation
clause — Regulations aimed at seal conservation and seal
fishery management — Impinging on right of freedom of
expression — Whether protecting seal herds and sealer's
livelihood could be taken into account under s. I — S.C.C. in
The Queen v. Oakes set out broader formulation for restric
tions on freedom than set out in International Covenant on
Civil and Political Rights — Governmental objectives to be of
sufficient importance relating to substantial concerns — Right
to livelihood and environmental balance between fish and seals
sufficiently important to merit s. I status — Regulations s.
11(6), forbidding unlicensed person to approach within half
nautical mile of seal hunt, completely restraining appellants'
freedom of expression — Licensing procedure cannot save
otherwise complete interference, unless justified under s. 1 —
Tests in Oakes not met as impingement not limited as much as
possible and effects of regulation go beyond what necessary —
Regulations s. 11(5), protecting seals and human life by forb
idding landing of aircraft within half nautical mile, not unrea
sonable burden on freedom of expression.
Fisheries — Seal Protection Regulations prohibiting landing'
of aircraft near seals or operation of aircraft over seals at less
than 2000 feet except with Minister's permission, or approach
within half nautical mile without licence — Appellant
advocating abolition of seal hunt — Whether Regulations
ultra vires s. 34 Fisheries Act — Activities prohibited within
purposes and provisions of Act to conserve and protect fish
"Fishery" including sealers as persons engaged in seal fishery
S. 10 prohibits disturbing or interfering with seal fishery —
Right to legitimately exploit resource — Regulations intra
vires as for proper management and control of seacoast fisher
ies for conservation and protection of seals — Regulation
prohibiting approaching within half nautical mile declared
inconsistent with Charter right of freedom of expression.
Subsection 11(6) of the Seal Protection Regulations prohib
its unlicensed persons from approaching within a half nautical
mile of a seal hunt. Subsection 11(5) prohibits landing a
helicopter or other aircraft within half a nautical mile of any
seal on the ice in the Gulf Area or Front Area or from
operating such aircraft over any seal on the ice at less than
2000 feet unless on a scheduled commercial flight, except with
ministerial permission.
The appellant is the founder and director of the International
Fund for Animal Welfare Inc. (IFAW). In its campaign to
obtain a ban on the seal hunt, the IFAW attempted to create
public pressure by arranging for news media to attend and
report on the hunt. Repeated applications by IFAW to obtain
sealing access were turned down. The appellants sought a
declaration that the Regulations were of no force and effect.
The Trial Judge held that the effect of the Regulations was to
impinge on the appellant's section 2 Charter right to freedom of
expression, but that they were saved by section I of the
Charter. He also rejected the alternative argument that the
Regulations are ultra vires section 34 of the Fisheries Act.
Held, a declaration should be granted that subsection 11(6)
is inconsistent with the Charter and of no force and effect; the
appeal with respect to subsection I l (5) should be dismissed.
The Trial Judge's conclusion, that the Regulations are not
ultra vires the Fisheries Act, was correct. Regulation of the
activities complained of is within the purposes of the Act to
provide for the conservation and protection of fish and the
proper management, allocation and control of fisheries. The
link between the size of the fish stock and the number of seals
is a basic fact of nature. Fishery includes sealers as persons
engaged in the seal fishery. In addition, section 10 prohibits
disturbing or interfering with the seal fishery.
The Trial Judge was also correct in his conclusion that
freedom of expression includes freedom of access to all infor
mation pertinent to the ideas or beliefs sought to be expressed.
An expansive interpretation is justified by article 19 of the
International Covenant on Civil and Political Rights and the
case law. Subsection I 1(6) completely restrains the appellants'
freedom of expression. The existence of a licensing procedure
cannot save an otherwise complete interference with a funda
mental freedom under section 2, unless it can be justified under
section 1.
The governmental objectives reasonably justifiable under
section 1 must be of sufficient importance to warrant overriding
a constitutional freedom, and must relate to concerns which are
pressing and substantial. The objectives are not limited to those
cited in the International Covenant on Civil and Political
Rights, but are open-ended (see The Queen v. Oakes) and
should include the economic rights set out in the International
Covenant on Economic, Social and Cultural Rights, including
the right to a livelihood. The objective of subsection I 1(6) to
prevent interference in legitimate sealing operations and the
objective of obtaining a proper environmental balance between
fish and seals are sufficiently important legislative objectives to
merit section 1 status.
Once a sufficiently significant objective is at least prima
facie established, the party invoking section 1 must show the
means are reasonable and demonstrably justified. The three
components of the Oakes proportionality test are: (1) rational
connection to the objective; (2) minimum interference with the
impaired freedom, and (3) proportionality between the effects
and the objective. The permit procedure in the Regulations
contains no specified standards. Limits on the freedom of
expression cannot be left to official whim, but must be
articulated as precisely as the subject-matter allows. Subsection
11(6) fails, therefore, on the second and third tests.
Subsection 1 I (5), however, contains a partial, and, arguably,
small interference with freedom of expression. For infringement
of a section 2 freedom, the burden imposed must be significant
or unreasonable. The indirectness of a challenge to a protected
freedom is also relevant. The freedom of movement, in the case
at bar, merits the mantle of Charter protection only to the
extent that it is necessary for the exercise of freedom of
expression. The problems of access by water arose from the
nature of the site rather than the regulatory provision. The
degree of inconvenience in not being allowed to land aircraft is
not unreasonable or more than a trivial burden on the exercise
of the appellants' freedom of expression.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, /982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 2(b), 24(1).
Fisheries Act, R.S.C. 1970, c. F-14, ss. 2 (as am. by S.C.
1985, c. 31, s.l), 2.1 (as enacted idem, s. 2), 10 (as am.
by S.C. 1976-77, c. 35, s. 3), 34.
International Covenant on Civil and Political Rights
with Optional Protocol, [1976] Can. T.S., No. 47, arts.
1, 19.
International Covenant on Economic, Social and Cultur
al Rights, [1976] Can. T.S., No. 46, art. 11.
Seal Protection Regulations, C.R.C., c. 833, ss. 11(5),(6)
(as am. by SOR/78-167, s. 3).
Universal Declaration of Human Rights, 1948, G.A. Res.
217A (Ill), U.N. Doc. A/810, s. 19.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295;
18 D.L.R. (4th) 321; 18 C.C.C. (3d) 385; 13 C.R.R. 64;
The Queen v. Oakes, [1986] 1 S.C.R. 103; 26 D.L.R.
(4th) 200; 65 N.R. 87; 24 C.C.C. (3d) 321; 19 C.R.R.
308; R. v. Crown Zellerbach Canada Ltd., [1988] 1
S.C.R. 401; Re Ontario Film and Video Appreciation
Society and Ontario Board of Censors (1983), 147
D.L.R. (3d) 58 (Ont. Div. Ct.); affd. (1984), 5 D.L.R.
(4th) 766 (Ont. C.A.); 41 O.R. (2d) 583; affd. 45 O.R.
(2d) 80; R. v. Edwards Books and Art Ltd., [1986] 2
S.C.R. 713; 35 D.L.R. (4th) 1; 55 C.R. (3d) 193; 30
C.C.C. (3d) 385; 28 C.R.R. 1.
DISTINGUISHED:
Committee for the Commonwealth of Canada v. Canada,
[1987] 2 F.C. 68; 36 D.L.R. (4th) 501.
CONSIDERED:
Fowler v. The Queen, [1980] 2 S.C.R. 213; 113 D.L.R.
(3d) 513; Thorne's Hardware Ltd. et al. v. The Queen et
al., [1983] 1 S.C.R. 106; 143 D.L.R. (3d) 577; Reference
re Public Service Employee Relations Act (Alta.), [1987]
1 S.C.R. 313; 38 D.L.R. (4th) 161; RWDSU v. Dolphin
Delivery Ltd., [1986] 2 S.C.R. 573; 33 D.L.R. (4th) 174;
Shuttlesworth v. Birmingham, 394 U.S. 147 (1969).
AUTHORS CITED
Etherington, Brian (1987), 66 Can. Bar Rev., p. 818.
Gibson, Dale, The Law of the Charter: General Princi
ples, Toronto: Carswell, 1986.
Partsch, Karl Josef, "Freedom of Conscience and Expres
sion, and Political Freedoms", The International Bill
of Rights, New York: Columbia University Press,
1981, p. 218.
COUNSEL:
Peter F. M. Jones and Daniel V. MacDonald
for appellants.
John E. Thompson and Charleen Brenzall for
respondents.
SOLICITORS:
McMillan, Binch, Toronto, for appellants.
Deputy Attorney General of Canada, for
respondents.
The following are the reason for judgment ren
dered in English by
MACGUIGAN J.: This case raises fundamental
issues concerning the freedom of expression, and
arises by way of an appeal from a judgment of
McNair J. dated September 18, 1986, and report
ed at [1987] 1 F.C. 244, dismissing the appellants'
action with costs. The appellants seek declarations
that certain provisions of the Seal Protection
Regulations [C.R.C., c. 833] ("the Regulations")
made under the Fisheries Act [R.S.C. 1970, c.
F-14] ("the Act") contravene the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)]. In the alternative,
they seek a declaration that the Regulations are
ultra vires the Governor in Council's power to
make regulations under section 34 of the Act.
There was also at trial a challenge based on an
alleged improper exercise of ministerial discretion,
but that issue does not enter into this appeal. A
further issue which the appellants raised before
this Court concerned the Trial Judge's exclusion of
expert evidence from a journalist. In the light of
the fact that the appellants conceded in argument
that they did not seek a new trial, there is no need
for this Court to pronounce on the matter.
The Trial Judge found that the effect of the
Regulations was to impinge the appellants' section
2 Charter right to freedom of expression but held
that the Regulations were saved by section 1 of the
Charter. He also rejected the appellants' alterna
tive argument.
The appellant International Fund for Animal
Welfare, Inc. ("IFAW") was incorporated in 1969
and has had, as its primary concern, the ending of
the seal hunt and more generally the protection of
animals from cruelty and exploitation. The appel
lant Brian Davies ("Davies") has served as a
director of IFAW since its incorporation. The
appellant Stephen Best ("Best") served as Nation
al Coordinator of IFAW from 1980 to 1984.
In its campaign to obtain a ban on the seal hunt,
IFAW attempted to create public pressure by
arranging for the news media to attend the hunt
and report on it to the general public. In 1976 it
took approximately 20 members of the media to
the scene of the hunt; in 1977 approximately 55.
In his testimony, Davies expressed the importance
of this activity as follows (Transcript of evidence,
vol. 1, pages 66-67):
We believe that the seal hunt was immoral, that it should be
stopped. We felt that we had to get that message to as many
people as possible in Canada and outside of Canada and there
is only one way to do that and that is through the media,
television, print media, radio. So we felt for us to exercise that
right we needed to take the media to the seal hunt and through
them and through their pictures speak and demonstrate to a
large audience in the hope that change would be effected.
In point of fact, by the time of the trial, the seal
hunt had been effectively terminated by a lack of
markets and continued only on a small-scale basis
(Transcript of evidence, vol. 6, pages 624, 651-
652). It is now a matter of public record that the
Government has since announced that it would no
longer permit commercial hunting of whitecoat
harp seals and blueblack hooded seals.
The relevant provisions of the Charter are as
follows:
1. The Canadian Charter of Rights and Freedoms guaran
tees 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:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
The relevant section of the Regulations in the
form in which it was dealt with by the Trial Judge
and as amended [by SOR/78-167, s. 3] up to
March 28, 1985,' reads as follows:
II. (I) No person shall use a helicopter or other aircraft in
scaling except in searching for seals.
(2) No person shall use a helicopter or other aircraft in
searching for seals unless he has an aircraft sealing licence
issued by the Minister.
(3) An aircraft sealing licence may be issued only in respect
of an aircraft registered in Canada under Part II of the Air
Regulations made pursuant to the Aeronautics Act.
(4) An aircraft sealing licence is subject to such terms and
conditions as the Minister may prescribe.
(5) Except with the permission of the Minister, no person
shall
(a) land a helicopter or other aircraft less than 1 / 2 nautical
mile from any seal that is on the ice in the Gulf Area or
Front Area; or
(b) operate a helicopter or other aircraft over any seal on the
ice at an altitude of less than 2,000 feet, except for commer
cial flights operating on scheduled flight plans.
(6) No person shall, unless he is the holder of a licence or a
permit, approach within half a nautical mile of any area in
which a seal hunt is being carried out.
(7) Subsection (6) does not apply to
(a) commercial flights operating on scheduled flight plans;
(b) a peace officer employed by or assisting the Department
of the Environment;
(c) scientists, technicians and observers employed by the
Department of the Environment or are present at a seal hunt
at the request of the Department of the Environment; and
(d) commercial vessels transiting waters in which a seal hunt
is being conducted.
(8) An application for a permit required pursuant to subsec
tion (6) shall be in the Minister's office on or before the 20th
day of February in respect of the year for which the permit is
requested.
(9) An application for a permit required pursuant to subsec
tion (6) shall contain
(a) the name, address, professional association and occupa
tion of every person to be covered by the permit;
(b) a detailed statement of the reasons why the permit is
required;
' SOR/85-294, s. 4 of March 28, 1985 changed the introduc
tory words of subsection 11(5) to read "Except as otherwise
authorized as a term or condition of licence, no person shall
..." SOR/85-697, s. I of July 24, 1985 altered the distances in
both paragraphs (a) and (b) of subsection 11(5) to 600 metres.
(c) the method of transportation that will be used to go to
and from the area of the seal hunt;
(d) the name, number or description of the vehicle that will
be used to go to and from the area of the seal hunt;
(e) the area and dates for which the permit is required; and
(/) such other information as may be required to verify or
explain the information required in paragraphs (a) to (e).
The appellants' objections are taken to subsection
11(5), which I shall describe as the aircraft
approach limitation, and to subsection 11(6),
which I shall call the locus limitation.
In my view, a more orderly exposition will be
possible by beginning with the appellants' alterna
tive argument, and by then proceeding to deal, in
turn, with the locus limitation and the aircraft
approach limitation.
Before 1970 access to the seal hunt was virtually
unrestricted. It is common ground that there were
serious abuses involving aircraft in the 1960's
which led to the 1970 Regulations [SOR/70-108,
s. 12(5)] prohibiting the landing of a helicopter or
other aircraft within half a nautical mile of any
seal herd on the ice (revised in 1974 [SOR/74-2l6,
s. 2] to read "any seal on the ice"). In 1976 a
further prohibition was enacted [SOR/76-172,
s. 3] prohibiting the operation of any aircraft or
helicopter over any seal on the ice at less than
2,000 feet. In 1978 a further regulation was passed
[SOR/78-167, s. 3] prohibiting any person from
approaching within half a nautical mile of any
area in which a seal hunt is being carried out. The
same year a permit system was adopted for
exempting from this latter prohibition.
The provisions of the Act [s. 2.1 enacted by S.C.
1985, c. 31, s. 2] under which the Regulations are
justified are as follows:
2.1 The purposes of this Act are
(a) to provide for the conservation and protection of fish and
waters frequented by fish;
(b) to provide for the proper management, allocation and
control lof the seacoast fisheries of Canada;
(c) to ensure a continuing supply of fish and, subject to
paragraph (a), taking into consideration the interests of user
groups and on the basis of consultation to maintain and
develop the economic and social benefits from the use of fish
to fishermen and others employed in the Canadian seacoast
fishing industry, to others whose livelihood depends in whole
or in part on seacoast fishing and to the people of Canada;
34. The Governor in Council may make regulations for
carrying out the purposes and provisions of this Act and in
particular, but without restricting the generality of the forego
ing, may make regulations
(a) for the proper management and control of the seacoast
and inland fisheries;
(b) respecting the conservation and protection of fish;
(i) respecting the conservation and protection of spawning
grounds;
In the definitions section (section 2) fish is defined
to include "marine animals" such as seals.
The Regulations taken as a whole establish a
comprehensive system of control over all aspects of
sealing. Sections 3 to 7 regulate the killing of seals
in the most northerly areas of the country.
Section 8 governs sealing from boats and the
licensing of those boats. Section 10 stipulates when
and where seals can be killed and the number
which can be killed. Sections 12 to 14 contain
further restrictions as to when, where and by
whom seals can be hunted. Sections 15 and 16 deal
with methods of killing seals. Sections 16.1 [SOR/
80-115, s. 5] and 18 govern the removal of seal
skins from the ice. Sections 17, 19, and 23 contain
further restrictions on the hunting of seals.
I have already noted that the aircraft approach
limitation had its origin in abuses in the 1960's in
the use of aircraft in the hunting of seals. The
locus limitation was recommended by the Com
mittee on Seals and Sealing ("COSS"), a special
advisory committee to the Ministry of Fisheries
established in 1971 as a result of representations
from humane societies with the mandate of investi
gating all aspects of the hunting of seals in the
Northwest Atlantic and Arctic oceans. The COSS
recommendation of 1977 and the Minister's reply
are recorded as follows (Appeal Book, vol. 4, page
646):
RESTRICTED OBSERVATION OF THE HUNT
COSS recommendation—APPROVED
The Committee is in favour of legislation which would protect
licenced sealers against interference or harassment. It does not
believe that such legislation has yet been formulated.
Minister's reply:
In February 1978 we implemented a system of licencing those
who wish to visit the sealing operations. The object of the
enabling amendments to the Seal Protection Regulations is to
permit reponsible scrutiny by legitimate journalists, media
personnel, scientists and humane society observers, but to pre
vent interference in legitimate sealing operations which charac
terized the 1977 hunt on the Front.
Although the Federal Government's statutory
authority to make regulations will be strictly con
strued when there is a question as to its constitu
tional competence to do so (Fowler v. The Queen,
[1980] 2 S.C.R. 213; 113 D.L.R. (3d) 513), there
is no warrant for a court to speculate on the
Government's motives in making a regulation or
restrictively to interpret its statutory powers in
other contexts (Thorne's Hardware Ltd. et al. v.
The Queen et al., [1983] 1 S.C.R. 106; 143 D.L.R.
(3d) 577). In the case at bar the purposes of the
Act are, broadly, to provide for the conservation
and protection of fish and to provide for the proper
management, allocation and control of the sea
coast fisheries. Fishery is defined in section 2 [as
am. by S.C. 1985, c. 31, s. 1] to include "the
places in Canadian fisheries waters where, and the
times when, fishing and related activities occur"
and "the persons engaged" in fishing activities.
Moreover, the Act provides in section 10 [as am.
by S.C. 1976-77, c. 35, s. 3], specifically with
respect to sealing:
10. No one shall with boat or vessel or in any other way
during the time of fishing for seals knowingly or wilfully
disturb, impede or interfere with any seal fishery or prevent or
impede the shoals of seals from coming into such fishery or
knowingly or wilfully frighten such shoals.
The Trial Judge's conclusion on this point was
as follows (at page 267):
The Fowler case bears another distinguishing facet from the
case at bar in that the constitutional conflict was between the
federal and provincial fields of legislative competence. That
issue does not arise here, where the real point of ultra vires is
whether the Regulations were made by the Governor in Council
for carrying out the purposes and provisions of the Fisheries
Act in terms of the proper management and control of the
seacoast and inland fishery and the conservation and protection
of seals. Unlike Fowler there is ample evidence to show that the
full range of the activities complained of are in fact within the
purposes and provisions of the empowering Act. The definition
of "fishery" in the Fisheries Act includes the sealers as persons
engaged in the seal fishery. The law recognises the fishery as a
natural and public resource that embraces not only the marine
animals themselves but the business of sealing in the context of
the right to legitimately exploit the resource in the place where
it is found and the right is lawfully exercised. In my opinion,
the Seal Protection Regulations are intro vires as being within
the purposes and provisions of the Fisheries Act by reason that
they are Regulations made for the proper management and
control of the seacoast fisheries and for the conservation and
protection of seals. In the result, the plaintiffs' argument of
ultra vires must fail.
I find myself in agreement both with the Trial
Judge's statement of the issue and with his
conclusion.
II
The Trial Judge applied the same analysis to both
disputed provisions of the Regulations. The follow
ing is, then, his analysis of both together (pages
256-264):
It is now settled beyond doubt or question that the Charter is
a constitutional document of the living tree genus that must be
accorded a large, liberal and purposive interpretation in respect
of the enshrined rights guaranteed thereby.
On the issue of constitutionality, it is the plaintiffs' conten
tion that the impugned provisions of the Seal Protection Regu
lations violate their right of free access to information contrary
to paragraph 2(b) of the Charter. It is further contended that
the regulatory prohibitions against landing or flying an aircraft
in proximity to any seal on the ice have the effect of rendering
meaningless any licence or permit to approach within half a
nautical mile of an area where a seal hunt is being carried out.
The plaintiff also submits that IFAW is a member of the
media. I cannot accept this last mentioned submission. The
defendants contend, on the other hand, that the right of free
dom of expression is limited to the dissemination of ideas and
beliefs in the expressible sense and does not comprehend the
broader aspect of access to information as the fountain-head for
the formulation and expression of those ideas and beliefs.
Alternatively, it is argued that if there is such a right of free
access to information then the limitations imposed by the
Regulations are justifiable limits within the meaning of section
1 of the Charter.
An expansive and purposive scrutiny of paragraph 2(b) [of
the Charter] leads inevitably, in my judgment, to the conclu
sion that freedom of expression must include freedom of access
to all information pertinent to the ideas or beliefs sought to be
expressed, subject to such reasonable limitations as are neces
sary to national security, public order, public health or morals,
or the fundamental rights and freedoms of others.
The question thus posed is this: were the Regulations aimed
at the conservation and protection of seals and the proper
management and control of the seal fishery, having regard to
the seal harvest in light of its historic and traditional origins
and the rights of those who earned a living therefrom, or was
the paramount purpose that of suppressing freedom of expres
sion? In my opinion, the purpose behind the Regulations was a
perfectly valid one. Nonetheless, the actual effect was to
impinge on the plaintiffs' right of freedom of expression ensh
rined in the Charter in the broad connotation of freedom of
access to information. Prima facie, their right has been violated
and it becomes necessary to turn now to section 1 of the
Charter to determine whether the limit is one that is "reason-
able" and "demonstrably justified in a free and democratic
society".
The burden of proof of justification rests on the defendants
as the proponents of the impugned legislation. What kind of
proof is required? The answer is far from clear. The prevailing
view is that there should be sufficient cogent evidence to
persuade the court as to the reasonableness of the limitation in
terms of striking a balance between legitimate social interests
and the rights of the individual, except in cases where this is
obvious and self-evident: per Dickson C.J., in R. v. Oakes,
supra, at page 138. In the latter situation, strong submissions
would probably suffice to tip the scale. In other cases the
evidence of justification could conceivably take the form of
social science reports or studies. The modes of proof will
undoubtedly vary according to the circumstances of the par
ticular case.
The Prime Minister made a statement concerning the 1977
conviction of Brian Davies in which he stated that the purpose
of the regulatory prohibitions against landing or flying an
aircraft near any seal on the ice was to bring to an end the
former unregulated and extremely hazardous practice of hunt
ing seals by aircraft. Henceforth, hunters could only approach
the site of the hunt by ship. There is other evidence to the same
effect. There is no compelling evidence that the purpose of the
Regulations was to deny access to the news media. In fact, all
indications point the other way. In 1982 there were forty-nine
requests for observer permits to view the hunt of which eight
were refused, including the three representatives of IFAW. Of
the forty-one requests granted, the bulk were to members of the
media. Similarly, in 1983 nineteen requests for permits were
made, of which fifteen were granted and four were refused.
Among those granted, nine were to media personnel.
What other justifications are there, if any, for the stringent
prohibition against landing or flying aircraft close to any seal
on the ice? I find on the evidence that the presence of low-fly
ing aircraft would cause some dispersion of the seal herds. Dr.
David Lavigne, the plaintiff's principal expert on seals, con
firmed this during his testimony. Davies himself honestly
admitted to it. The fact was also unequivocally corroborated by
the evidence of Messrs. Renaud and Small, sealing captains of
many years proven experience. The evidence also established
that buzzing aircraft would disrupt the normal pattern of
nursing behaviour between mother seal and whitecoat pup but
the quantifiable extent of actual detriment was left to conjec
ture and inference. Conceivably, there would have to be some.
Was the governmental restriction against active protestors
reasonable in the circumstances? There is something of a fine
line between the activity of searching for information to mount
an effective protest against a lawful commercial activity and
the act of protesting that activity at the very scene of opera
tions. The sealers were becoming sensitive to the fanfare and
reluctant to have their photographs taken. The sealers were
perceived by the government as an important social, economic
and political constituency and the governmental objective was
to recognise their right to pursue their livelihood free from the
interference of protestors. The ice pans are no place to stage a
protest. This was the firm conviction of senior fisheries protec
tion officer, Stanley Dudka, born of long experience at the
scene of many hunts. He alluded to five occasions over the
years when he had to rescue Davies or some of his compatriots
because of weather conditions or other adversities.
Dr. Lavigne related the eerie personal experience of having
crossed an ice pan in the morning on his way to the hunt and
retracing his steps in the afternoon to find that his footprints
were obliterated because the ice pan which he had earlier
traversed had afterwards done a complete flip-flop in the leads
of open water. Safety alone would necessarily impose some
restriction of free access.
Based on the totality of evidence, it is my opinion that the
collective governmental interest of protecting both the seals and
the fundamental right of the sealers to pursue their historical
avocation clearly outweighs the plaintiffs' enshrined right of
freedom of access to information. In the result, the limitations
prescribed by the Seal Protection Regulations are reasonable
in the circumstances and demonstrably justifiable by the
normal, perceptive standards of a free and democratic society.
In my view there can be no doubt that the Trial
Judge was right in his "expansive and purposive
scrutiny" of the Charter guarantee of freedom of
expression. In so doing I believe he was also right
in his conclusion that "freedom of expression must
include freedom of access to all information perti
nent to the ideas or beliefs sought to be
expressed." In coming to this conclusion he cited
article 19 of the International Covenant on Civil
and Political Rights with Optional Protocol,
[[1976] Can. T.S., No. 47] to which Canada is a
party, which reads as follows:
ARTICLE 19
I. Everyone shall have the right to hold opinions without
interference.
2. Everyone shall have the right to freedom of expression; this
right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or
through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this
article carries with it special duties and responsibilities. It
may therefore be subject to certain restrictions, but these
shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public
order (ordre public), or of public health or morals.
The inclusion of the freedom to seek information
in subsection 19(2) was a deliberate one, reached
against the views of those who wanted the protec
tion limited to the more passive gathering of infor
mation: Professor Karl Josef Partsch, "Freedom of
Conscience and Expression, and Political Free
doms", The International Bill of Rights, New
York: Columbia University Press, 1981, page 218.
There can be no doubt that, in the words of
Dickson C.J. in Reference re Public Service
Employee Relations Act (Alta.), [1987] 1 S.C.R.
313, at page 349; 38 D.L.R. (4th) 161, at page
185, "these norms provide a relevant and persua
sive source for interpretation of the provisions of
the Charter." The broad language of subsection
19(2) of the International Covenant is indeed vir
tually identical with that of article 19 of the earlier
Universal Declaration of Human Rights [G.A.
Res. 217A (III), U.N. Doc. A/810 (1948)], of
which Canada is also a signatory, as follows:
19. Everyone has the right to freedom of opinion and expres
sion; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and
ideas through any media and regardless of frontiers.
The only Supreme Court of Canada decision on
freedom of expression would support the same
conclusion: RWDSU v. Dolphin Delivery Ltd.,
[1986] 2 S.C.R. 573; 33 D.L.R. (4th) 174. Dol
phin Delivery deals with the other end of the
freedom of expression spectrum, the imparting
rather than the seeking of information. McIntyre
J. for the majority appears to take the view that all
forms of peaceful picketing fall within the scope of
the freedom of expression protected by paragraph
2(b) of the Charter, at pages 786 S.C.R.; 791
D.L.R.: on this point see the case note by Professor
Brian Etherington at (1987), 66 Can. Bar Rev., p.
818. This expansion of the traditionally recognized
freedom of expression at the imparting end would,
by analogy, favour an expansive interpretation at
the source end.
Given this expansive interpretation, I would also
agree with the Trial Judge that the locus limita
tion in subsection 11(6) of the Regulations, which
forbids any unlicensed person to approach within
half a nautical mile of the seal hunt impinges on
the freedom of expression. It differs from the
infringement on freedom of expression before this
Court in Committee for the Commonwealth of
Canada v. Canada, [1987] 2 F.C. 68; 36 D.L.R.
(4th) 501, in that, apparently and as the Trial
Judge found, the limitation in the case at bar does
not have the purpose but only the effect of so
doing.
It does, nevertheless, completely restrain the
appellants' freedom of expression, forbidding as it
does their attendance at the hunt in all circum
stances. The only saving feature is the possibility
of a licence, but in my view a licensing procedure
cannot save an otherwise complete interference
with a fundamental freedom under section 2. If
restraint by licensing is to be justified, it can be
only under section 1. 2 I therefore agree with the
No Canadian decision to this effect was cited to this Court,
but my conclusion is supported by U.S. case law. For example,
in Shuttlesworth v. Birmingham, 394 U.S. 147 (1969), at pp.
150-151, Stewart J. held for a majority of the Supreme Court
that "a law subjecting the exercise of First Amendment free
doms to the prior restraint of a license, without narrow, objec
tive, and definite standards to guide the licensing authority, is
unconstitutional. [Emphasis - added.] The question of the
adequacy of standards is under the Canadian Charter a section
1 consideration (relating to means).
Trial Judge that the locus limitation in section
11(6) impinges on freedom of expression as pro
tected by paragraph 2(b) of the Charter. It is thus
necessary to turn to an analysis under section 1.
The two leading authorities on the approach to
be taken under section 1 of the Charter are the
reasons for judgment by Dickson C.J. in R. v. Big
M Drug Mart Ltd. et al., [1985] I S.C.R. 295; 18
D.L.R. (4th) 321; 18 C.C.C. (3d) 385; 13 C.R.R.
64; and in The Queen v. Oakes, [1986] 1 S.C.R.
103; 26 D.L.R. (4th) 200; 65 N.R. 87; 24 C.C.C.
(3d) 321; 19 C.R.R. 308. In the latter judgment he
set forth the criteria to be applied in this way at
pages 138-139 S.C.R.; 227 D.L.R.; 128-129 N.R.;
348 C.C.C.; 336-337 C.R.R.:
To establish that a limit is reasonable and demonstrably
justified in a free and democratic society, two central criteria
must be satisfied. First, the objective, which the measures
responsible for a limit on a Charter right or freedom are
designed to serve, must be "of sufficient importance to warrant
overriding a constitutionally protected right or freedom": R. v.
Big M Drug Mart Ltd., supra, at p. 352. The standard must be
high in order to ensure that objectives which are trivial or
discordant with the principles integral to a free and democratic
society do not gain s. I protection. It is necessary, at a
minimum, that an objective relate to concerns which are press
ing and substantial in a free and democratic society before it
can be characterized as sufficiently important.
Second, once a sufficiently significant objective is recognized,
then the party invoking s. I must show that the means chosen
are reasonable and demonstrably justified. This involves "a
form of proportionality test": R. v. Big M Drug Mart Ltd., at p.
352. Although the nature of the proportionality test will vary
depending on the circumstances, in each case courts will be
required to balance the interests of society with those of
individuals and groups. There are, in my view, three important
components of a proportionality test. First, the measures adopt
ed must be carefully designed to achieve the objective in
question. They must not be arbitrary, unfair or based on
irrational considerations. In short, they must be rationally
connected to the objective. Second, the means, even if rational
ly connected to the objective in this first sense, should impair
"as little as possible", the right or freedom in question: R. v.
Big M Drug Mart Ltd., supra., at p. 352. Third, there must be
a proportionality between the effects of the measures which are
responsible for limiting the Charter right or freedom, and the
objective which has been identified as of "sufficient
importance".
The appellants contended that in the case at bar
the Trial Judge addressed only the second criterion
and not the first. In my view, he seems to have
held at least implicitly that the criterion as to the
objective of the Regulations was satisfied. But
whether he did or not, the matter was fully argued
before this Court and must now be decided.
The respondents submitted that the legislative
objective was the twofold one of protecting the seal
herds and protecting the sealers' exercise of their
livelihood. The appellants argued that, on the au
thority of the International Covenant on Civil and
Political Rights with Optional Protocol, neither of
these objectives could be taken into account under
section 1. They relied on subsection 19(3) of that
Covenant which, as set out above, limits possible
restrictions on the freedom of expression to
"respect of the rights or reputations of others ... ,
the protection of national security or of public
order (ordre public), or of public health or
morals."
I would be reluctant to follow such an interpre
tation against the clear (and open-ended) wording
of section 1 of the Charter, "such reasonable limits
prescribed by law as can be demonstrably justified
in a free and democratic society." If the framers of
the Charter had wanted to limit the values protect
ed by the Charter in the fashion proposed, they
could easily have done so, but in point of fact they
adopted a different formula. I take the use of a
similar list ("public safety, order, health or morals
or the fundamental rights and freedoms of oth
ers") by Dickson C.J. in a general context in the
Big M Drug Mart case, supra, at pages 337
S.C.R.; 354 D.L.R.; 418 C.C.C.; 97-98 C.R.R., to
be illustrative rather than definitive. Indeed, in
Oakes (at pages 136 S.C.R.; 225 D.L.R.; 125-126
N.R.; 346 C.C.C.; 334-335 C.R.R.) Chief Justice
Dickson sets out a broader formulation which he
also explicitly leaves open-ended:
A second contextual element of interpretation of s. 1 is
provided by the words "free and democratic society". Inclusion
of these words as the final standard of justification for limits on
rights and freedoms refers the Court to the very purpose for
which the Charter was originally entrenched in the Constitu
tion: Canadian society is to be free and democratic. The Court
must be guided by the values and principles essential to a free
and democratic society which I believe embody, to name but a
few, respect for the inherent dignity of the human person,
commitment to social justice and equality, accommodation of a
wide variety of beliefs, respect for-cultural and group identity,
and faith in social and political institutions which enhance the
participation of individuals and groups in society.
Moreover, subsection 19(3) has to be read in the
context of the whole International Covenant. Par
ticularly relevant in this respect is the following
recital to the Covenant:
Recognizing that, in accordance with the Universal Declara
tion of Human Rights, the ideal of free human beings enjoying
civil and political freedom and freedom from fear and want can
only be achieved if conditions are created whereby everyone
may enjoy his civil and political rights, as well as his economic,
social and cultural rights. [Emphasis added.]
Article 1 must also be taken into account:
ARTICLE 1
I. All peoples have the right of self-determination. By virtue
of that right they freely determine their political status and
freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their
natural wealth and resources without prejudice to any obliga
tions arising out of international economic co-operation, based
upon the principle of mutual benefit, and international law. In
no case may a people be deprived of its own means of subsi s t-
ence. [Emphasis added.]
These references indicate that this international
convention is to be interpreted along with the
companion International Covenant on Economic,
Social and Cultural Rights [[19761 Can. T.S.,
No. 46.], to which Canada is a party, and obvious
ly in contemplation of the rights protected by that
covenant, in particular, "the ideal of free human
beings enjoying freedom from fear and want"
(preamble) and "the right of everyone to an ade
quate standard of living for himself and his fami
ly" (subsection 11(1)).
The Trial Judge's findings as to the public inter
ests protected by the Regulations and which there
fore must be taken into account under section 1
are clear. In one passage (page 264) he referred to
them as "protecting both the seals and the funda
mental right of the sealers to pursue their histori
cal avocation." In another (page 267) he spoke of
the fishery "as a natural and public resource that
embraces not only the marine animals themselves
but the business of sealing in the context of the
right to legitimately exploit the resource in the
place where it is found and the right is lawfully
exercised." I shall refer to the two governmental
interests he identifies as the environmental and the
livelihood interests.
The appellants urged this Court to conclude that
the only public interest in play was that as to the
sealers' livelihood, but they were not, in my opin
ion, able successfully to base such an interpreta
tion on the factual materials. Moreover, the link
between the size of the fish stock and the number
of seals, which maintain themselves by eating fish,
is such a basic fact of nature that it would be hard
to see how the environmental factor could be
disregarded.
The Supreme Court has said in the Big M and
Oakes cases that the governmental objectives rea
sonably justifiable under section 1 must be of
sufficient importance to warrant overriding a con
stitutionally protected freedom, not trivial or dis
cordant with the principles integral to a free and
democratic society, relating to concerns which are
pressing and substantial. I do not take the word
pressing to imply any urgency as to timing so as to
constitute an emergency, but rather in the same
sense as substantial and sufficiently important.
In my view the governmental objectives in the
case at bar do meet that high standard. The right
to a livelihood is one of the most fundamental, if
not the most fundamental, of economic rights and
may be said to be necessary to the fufilment of a
human being. In this sense it may perhaps be
thought of as attaining the status of a social right
rather than a merely economic interest. Moreover,
it is certainly an aspect of the right to an "ade-
quate standard of living" recognized by subsection
11(1) of the International Covenant on Economic,
Social and Cultural Rights.
With respect to the environmental objective, I
believe that the recent decision of the Supreme
Court of Canada in R. v. Crown Zellerbach
Canada Ltd., [[1988] 1 S.C.R. 401] is very much
in point. The issue in question was federal legisla
tive competence in the protection of the marine
environment from pollution, and a majority of the
participating judges (four of seven) held that
marine pollution was of sufficient national concern
to be justified by the "peace, order and good
government" power under its "national concern or
dimension", aspect. It seems to me reasonable to
conclude that the related matter of environmental
balance between fish and seals is a substantial and
sufficiently important legislative objective to merit
section 1 status.
Once a sufficiently significant objective is at
least prima facie 3 established, then the party
invoking section 1 must show that the means
chosen are reasonable and demonstrably justified.
The three components of the Oakes proportional
ity test are, in short, rational connection to the
objective, the minimum interference with the
impaired freedom, and proportionality between the
effects and the objective. In this context it is clear
that there is a fatal defect in the locus limitation,
which might also be approached through the
requirement that any limits to protected freedoms
must be "prescribed by law", as that concept has
been developed by Professor Dale Gibson, The law
of the Charter: General Principles, Toronto:
Carswell, 1986, at pages 152-155.
The respondents attempted to establish that the
licensing scheme established by subsection 11(9)
provided an open access system under which all
applications for permits would be granted, but
such a benign interpretation is totally inconsistent
with the fact that applications by or on behalf of
IFAW for permits were refused probably in sever
al years and particularly in 1982, and that in 1981
Davies' and Best's applications were refused and
permission was granted for only one person from
IFAW to attend the hunt on one day, subject to
the availability of a Fisheries Enforcement Officer
(Transcript of evidence, vol. 1, pages 95-102; vol.
2, pages 255-317; vol. 3, pages 321-383). In fact,
counsel for the respondents was unable to sustain
this contention in argument.
To my eye Chief Justice Dickson's interpretation of his
third principle as to means seems to imply that, at the very end
of the process of balancing required by section 1, the sufficien
cy of the objective may be reconsidered. If so, it was never more
than prima facie established.
In fact, the permit procedure set up by the
Regulations is official discretion at large, with no
specified standards at all, not even verbal formula
tions of them. Limits on the freedom of expression
cannot be left to official whim but must be
articulated as precisely as the subject matter
allows: Re Ontario Film and Video Appreciation
Society and Ontario Board of Censors (1983), 147
D.L.R. (3d) 58 (Ont. Div. Ct.); affd. (1984), 5
D.L.R. (4th) 766 (Ont. C.A.); 41 O.R. (2d) 583;
affd. 45 O.R. (2d) 80; leave to appeal to S.C.C.
granted but appeal discontinued December 17,
1985.
The locus limitation therefore fails on at least
the second and third means tests: the means, far
from being a minimal interference with the free
dom of expression, do not even purport to limit the
infringement as much as possible; moreover, the
effects of the Regulations are clearly dispropor
tionate to the legislative objective, going far
beyond what is necessary for that purpose.
III
As I have mentioned, the Trial Judge applied the
same analysis to both the locus limitation and the
aircraft approach limitation of the Regulations
and at all times treated both together. In this I
believe he committed an error of law in that the
effect of the two limitations were different: the
former was a total interference with the freedom
of expression, the latter a partial and, arguably, a
small one.
The evidence I reviewed earlier reveals ample
justification for the aircraft approach limitation to
protect both seal and indeed human life. Granted
that there was some effect on the appellants' free
dom of expression, the appellants must neverthe
less establish that it was sufficient to constitute a
section 2 infringement. In my view this is particu
larly important wherre the putative infringement
occurs only through its effects and was not a
purpose of the regulation.
In the Big M case, supra, where the Court was
concerned with a direct command, on pain of
sanction, to conform to Sunday observance, Dick-
son C.J. put the emphasis on coercion as the
constitutive element of interference with the free
dom of religion (pages 336-337 S.C.R.; 354
D.L.R.; 417-418 C.C.C.; 97-98 C.R.R.):
Freedom can primarily be characterized by the absence of
coercion or constraint. If a person is compelled by the state or
the will of another to a course of action or inaction which he
would not otherwise have chosen, he is not acting of his own
volition and he cannot be said to be truly free. One of the major
purposes of the Charter is to protect, within reason, from
compulsion or restraint. Coercion includes not only such bla
tant forms of compulsion as direct commands to act or refrain
from acting on pain of sanction, coercion includes indirect
forms of control which determine or limit alternative courses of
conduct available to others. Freedom in a broad sense embraces
both the absence of coercion and constraint, and the right to
manifest beliefs and practices. Freedom means that, subject to
such limitations as are necessary to protect public safety, order,
health, or morals or the fundamental rights and freedoms of
others, no one is to be forced to act in a way contrary to his
beliefs or his conscience. [Emphasis added.]
He returned to the same subject in R. v. Edwards
Books and Art Ltd., [1986] 2 S.C.R. 713, at page
759; 35 D.L.R. (4th) I at pages 34-35; 55 C.R.
(3d) 193, at pages 226-227; 30 C.C.C. (3d) 385, at
pages 418-419; 28 C.R.R. 1, at pages 33-34:
This does not mean, however, that every burden on religious
practices is offensive to the constitutional guarantee of freedom
of religion. It means only that indirect or unintentional burdens
will not be held to be outside the scope of Charter protection on
that account alone. Section 2(a) does not require the Legisla
tures to eliminate every miniscule state-imposed cost associated
with the practice of religion. Otherwise the Charter would offer
protection from innocuous secular legislation such as a taxation
act that imposed a modest sales tax extending to all products,
including those used in the course of religious worship. In my
opinion, it is unnecessary to turn to s. I in order to justify
legislation of that sort. The purpose of s. 2(a) is to ensure that
society does not interfere with profoundly personal beliefs that
govern one's perception of oneself, humankind, nature, and, in
some cases, a higher or different order of being. These beliefs,
in turn, govern one's conduct and practices. The Constitution
shelters individuals and groups only to the extent that religious
beliefs or conduct might reasonably or actually be threatened.
For a state-imposed cost or burden to be proscribed by s. 2(a) it
must be capable of interfering with religious belief or practice.
In short, legislative or administrative action which increases the
cost of practising or otherwise manifesting religious beliefs is
not prohibited if the burden is trivial or insubstantial....
[Emphasis added.]
In the passage just cited permissible costs are
described as "miniscule", "trivial", and "insub-
stantial", with the last adjective perhaps having a
broader meaning than the first two. As the Chief
Justice proceeds with his analysis, the emphasis
appears to continue to broaden (at pages 762-767
S.C.R.; 36-40 D.L.R.; 229-233 C.R.; 420-424
C.C.C.; 36-40 C.R.R.):
The Act has a different impact on persons with different
religious beliefs. Four classes of persons might be differently
affected: those not observing any religious day of rest, those
observing Sundays, those observing Saturdays, and those
observing some other day of the week.
(i) Non-Observers
Consider, first, the persons who do not subscribe as a matter
of faith to a duty to refrain from working or shopping on any
specified day of the week.
For reasons which I have outlined above, however, the effects
of the Act on non-observing retailers are generally secular in
nature and do not impair or abridge their freedom of con
science or religion, at least in the absence of convincing evi
dence that the desire to remain open is motivated by dissentient
religious purposes rather than purely business considerations.
(ii) Sunday Observers
The Act has a favourable impact on Sunday observers. By
requiring some other retailers to refrain from trade on a day of
special religious significance to Sunday observers, the latter are
relieved of a loss of market share to retailers who would have
been open for business on Sunday in the absence of the Act.
The cost of religious observance has been decreased for Sunday
observers by the enactment of the legislation.
(iii) Saturday Observers
There is evidence in the record that it is a religious tenet of
the Jewish and Seventh-day Adventist faiths not to work or
transact business on Saturdays. Other faiths may also observe
Saturday as a religious day of rest, but for the purposes of the
present appeals it is the effects on Jews and Seventh-day
Adventists that will be considered.
The Attorney General of Ontario submits that any disability
suffered by Saturday-observing retailers is a consequence of
their religious beliefs, and not of the Act. Even in the absence
of the Act, devout Jews and Seventh-day Adventists would
close on Saturdays. The effect of the Act is to require them and
all other persons, subject to the exemptions but irrespective of
religious persuasion, to close on Sundays.
In view of the characteristics of the retail industry described
in the Report on Sunday Observance Legislation, I find myself
unable to draw such a neat distinction between benefits accru
ing to Sunday-observing retailers and burdens imposed on
Saturday observers. The Report refers on numerous occasions
to the highly competitive nature of the retail industry, such that
an increase in sales by one individual retailer occasioned by
that retailer's marketing practices tends to result in significant
decreases in the sales of other retailers. It follows that if the
Act confers an advantage on Sunday-observing retailers rela
tive to Saturday-observing retailers, the latter are burdened by
the legislation.
A careful comparison of the effects of Sunday closing legisla
tion on different religious groups clearly demonstrates the
manner in which the burden flows from the legislation. In the
absence of legislative intervention, the Saturday observer and
the Sunday observer would be on a roughly equal footing in
competing for shares of the available consumer buying power.
Both might operate for a maximum of six days each week. Both
would be disadvantaged relative to non-observing retailers who
would have the option of a seven day week. On this account,
however, they would have no complaint cognizable in law since
the disability would be one flowing exclusively from their
religious tenets: I agree with Professor Petter that the state is
normally under no duty under s. 2(a) to take affirmative action
to eliminate the natural costs of religious practices. But, exemp
tions aside, the Retail Business Holidays Act has the effect of
leaving the Saturday observer at the same natural disadvantage
relative to the non-observer and adding the new, purely statu
tory disadvantage of being closed an extra day relative to the
Sunday observer. Just as the Act makes it less costly for
Sunday observers to practice their religious beliefs, it thereby
makes it more expensive for some Jewish and Seventh-day
Adventist retailers to practice theirs.
It is apparent from the above analysis that the competitive
disadvantage experienced by non-exempt Saturday-observing
retailers as a result of the Act is at the hands of Sunday-observ
ing retailers. The Report on Sunday Observance Legislation, at
p.269, refers to persons attending church on Sundays as "a
substantial minority of the population". On the only evidence
before the Court, I therefore do not think that the competitive
pressure on non-exempt retailers to abandon the observance of
a Saturday Sabbath can be characterized as insubstantial or
trivial. It follows that their freedom of religion is abridged by
the Act.
It is important to recognize, however, that not all Saturday-
observing retailers are detrimentally affected. The Act is not
merely neutral in its impact on those Jewish and Seventh-day
Adventist retailers who can practically comply with the
employee and square-footage limits of s. 3(4). It confers a
benefit by placing them on a'roughly equal competitive footing
with non-observing retailers, who, in the absence of legislative
intervention, would be free to transact business seven days per
week. The effect of the Act, far from producing a systematic
discriminatory burden on all retailers of a particular faith, is to
benefit some while burdening others.
Finally, I note that the Act also imposes a burden on
Saturday-observing consumers. For single parent families or
two-parent families with both spouses working from Monday to
Friday, the weekend is a time to do the things one did not have
time to do during the week. The Act does not impair the ability
of Sunday observers to go shopping or seek professional services
on Saturdays, but it does circumscribe that of the Saturday
observer on Sundays. Although there is no evidence before the
Court of the degree to which shopping variety is restricted on
Sundays, I am prepared to assume for the purposes of these
appeals that the burden on Saturday-observing consumers is
substantial and constitutes an abridgment of their religious
freedom. I note that the burden may be particularly onerous on
Jewish consumers who rely on retailers such as Nortown Foods
Ltd. to supply them with foodstuffs that conform to religious
dietary laws, although, once again, I must observe that there is
no evidence regarding the degree to which Kosher foods can be
purchased from smaller retailers on Sundays.
(iv) Observers of Another Day of the Week
In the absence of cogent evidence regarding the nature of
Hindu observance of Wednesdays or Moslem observance of
Fridays, I am unwilling, and indeed unable, to assess the effects
of the Act on members of those religious groups ....
The evidence regarding the Islamic faith is even less
adequate.
What is striking is the degree to which the analysis
is carried out in terms of the weight of the burden
imposed (or advantage conferred, in a competitive
situation). It seems apparent that, for infringement
of a section 2 freedom, the burden imposed must
be the opposite of "insubstantial". If in positive
language "substantial" puts the standard too high,
perhaps we can at least say "significant" or
"unreasonable".
In my opinion the indirectness of a challenge to
a protected freedom must surely also be relevant to
a determination of the weight of the burden
imposed on the exercise of that freedom. In the
case at bar, it is not the protected freedom of
expression which is directly in issue but rather the
unprotected right to move about freely. In the
absence of the considerations of assembly and
association under section 2, such freedom of move
ment merits the mantle of Charter protection only
to the extent that it is necessary for the exercise of
the freedom of expression. Hence the use of a
particular, mode of transportation for conveyance
to the place where information is to be gathered
will be protected only to the extent necessarily
incidental to the exercise of the freedom of expres
sion. The appellants bear the burden of demon
strating this necessity, a burden which becomes
heavier of accomplishment as it is more indirect.
Always, the weight of the burden thought to be
imposed amounts to a question of proportionality.
In the case at bar, the traditional means of
access to the seal hunt was by way of boat, or, for
the sealers themselves, often by walking on the ice
either from land or from a boat (Transcript of
evidence, vol. 1, page 46; vol. 3, page 269). In 1981
"the icepack carried the seals onto the very shores
of Prince Edward Island and attracted great num
bers of unskilled landsmen and thrill-seekers to
join in pursuit of the quarry," the Trial Judge
observed (at page 253).
The onus, as 1 have said, is on the appellants to
establish the extent to which they were burdened
by the aircraft approach limitation, which would
have the effect of requiring them either to travel
by boat or to land by aircraft at least half a
nautical mile from the hunt (or indeed from any
perceived seal on the ice). It can be assumed that
this limitation would involve some degree of incon
venience for the appellants, but they must show
that it is unreasonably or more than trivially bur
densome. We shall never know how the Trial
Judge would have weighed the factors involved,
because he did not address this question. Before
this Court, the respondents were careful to say
that they did not concede that there had been any
infringement of freedom of expression. The appel
lants nevertheless directed no argument to this
issue, and we are left to an examination of the
record, which seems to reveal only a minimum
burden on them in this respect.
Their allegation (Transcript of evidence, vol. 4,
page 384) that it rendered aerial photography
ineffective appears trivial given the availability of
ground photography once the locus limitation is
left out of consideration. Their inability to obtain
coverage from two American television networks
(Transcript of evidence, vol. 1, page 19) is not
effectively tied to the aircraft landing limitation.
Indeed, their interpretation of this limitation as
prohibiting landing in all circumstances where
"there was a seal under a ledge of ice, there was a
seal that came up on to the ice, there was a seal
that was covered in snow" (Transcript of evidence,
vol. 1, page 102) is in my opinion an exaggerated
view of its provisions. It is not a law of strict
liability, and would be satisfied by a reasonable
person approach.
No doubt there were serious problems of access
for the appellants, as for the sealers and govern
ment officials, but they arose rather from the
nature of the site than from the regulatory limita
tion. The site, a shifting mass of ice in treacherous
seas, is far removed from the stable land environ
ment in which information gathering is normally
carried on. The appellants were well aware of this,
and even gave consideration to building a boat to
"locate amongst the seals as a base for tourists to
get to" (Transcript of evidence, vol. 1, page 19).
1 must conclude from a review of the record that
they did not establish an unreasonable or indeed
more than a trivial burden on the exercise of their
freedom of expression by the aircraft landing
limitation.
IV
In the result, with respect to subsection 11(6) of
the Regulations I would allow the appeal, set aside
the judgment of the Trial Judge, and grant a
declaration that this subsection is inconsistent with
the provisions of the Charter and consequently of
no force or effect.
With respect to subsection 11(5) of the Regula
tions, I would dismiss the appeal.
Since the appellants have had substantial suc
cess with their appeal, I would grant them costs
both here and below.
MAHONEY J.: I agree.
HUGESSEN J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.