T-865-85
Abie Weisfeld (also known as Eibie Weizfeld)
(Plaintiff)
v.
Her Majesty the Queen and the Minister of
Public Works (Defendants)
INDEXED AS: WEISFELD V. CANADA (T.D.)
Trial Division, McNair J.—Ottawa, December 5,
6, 7, 8 and 9, 1988; Vancouver, May 5, 1989.
Constitutional law — Charter of Rights — Fundamental
freedoms — Freedom of expression — Peace camp shelter set
up on Parliament Hill grounds to protest testing by U.S.A. of
cruise missiles in Canada — Removal of shelter not violating
plaintiffs freedom of expression — S. 2(b) freedom neither
absolute nor unqualified — To be weighed against collective
interest — Public Works Nuisances Regulations aimed at
conduct, not content — Mere presence of structures on grounds
insufficient to render them expressive symbols of anti-cruise
message — No evidence freedom of peaceful assembly and
association interfered with.
Crown — Torts — Peace camp shelter set up on Parliament
Hill to protest testing of cruise missiles in Canada by U.S.A.
— Removal and dismantlement of shelter under ss. 4(2)
Ontario Trespass to Property Act and 6(2) Public Works
Nuisances Regulations within defendants' authority — Shelter
and other chattels constituting trespass and public nuisance —
Federal Crown not subjecting self to provincial law by engag
ing in activity regulated thereby.
Public works — Plaintiff erecting peace camp shelter on
Parliament Hill grounds to protest Canadian policy allowing
U.S.A. to test cruise missiles in Canada — Right of defendants
to remove and dismantle shelter under s. 4(2) Ontario Trespass
to Property Act and s. 6(2) Public Works Nuisances Regula
tions — Shelter and other chattels constituting trespass and
public nuisance — Term "nuisance" in Regulations meaning
public nuisance — Constraints aimed at regulation of conduct.
not content in terms of time, place and manner — Not impact
ing adversely upon content of plaintiffs message.
In 1983 the plaintiff set up a peace camp on the grounds of
Parliament Hill to protest the Canadian government's policy
allowing the U.S.A. to test its cruise missiles in Canada. The
peace camp, originally a rudimentary shelter, was made a more
permanent structure in 1985.
Following complaints from citizens, the Minister of Public
Works, on April 22, 1985, required the plaintiff, by notice
given pursuant to subsection 4(2) of the Ontario Trespass to
Property Act, to remove the peace camp shelter. Upon the
plaintiffs refusal to comply, a work crew of the Department of
Public Works proceeded to dismantle and remove the shelter
and other chattels. Plaintiff subsequently attempted to re-estab
lish the peace camp but was prevented from doing so pursuant
to subsection 6(2) of the Public Works Nuisances Regulations.
That provision, which came into effect on April 23, 1985,
prohibits the construction of any structure on any public work
except under the authority of the Minister.
This action for declaratory relief raises two issues: (1) wheth
er the defendants were entitled to remove the shelter, tents,
tables and other chattels erected on the grounds of Parliament
Hill; (2) whether the defendants' actions violated the plaintiffs
freedom of expression as guaranteed by paragraph 2(b) of the
Charter. The plaintiff argues that the shelter symbolized his
continuous protest against the Canadian government's policy,
that the symbol was essential to the effective communication of
his political message, and that the governmental restrictions
were aimed at content, not conduct, thereby inhibiting his right
to political expression.
Held, the action should be dismissed.
(I) Public nuisance and trespass
The shelter, tents, tables and other objects erected on the
grounds of Parliament Hill contained all the elements of a
public nuisance, whether at common law or by virtue of the
Public Works Nuisances Regulations. They constituted an
unreasonable interference with the use and enjoyment of those
grounds by classes of Her Majesty's subjects, namely, those
charged with their management and control, and members of
the public. There was ample evidence that the peace camp
shelter interfered with the proper maintenance of the grounds
and that its presence imposed additional burdens on the forces
responsible for security on Parliament Hill. The use of open-
flame cooking, lighting and heating devices constituted a poten
tial fire hazard. An inference could be drawn that the lack of
proper sanitary facilities might lead to health problems. Final
ly, the shelter offended the aesthetic sensibilities of a number of
visitors to Parliament Hill, who perceived it as an "eyesore".
The shelter and tents constituted "structures" which contrav
ened subsection 6(2) of the Public Works Nuisances Regula
tions. It was unnecessary to determine whether a folding table
constituted such a "structure" given the finding of public
nuisance.
Although the word "nuisance" in the Regulations refers to a
public nuisance, the Court was not concerned with any element
of criminality. The defendants were entitled to avail themselves
of their common law right of abatement by removing the
obstructions complained of, without first having to take crimi-
nal proceedings, summarily or by indictment, against the
person alleged to have perpetrated the public nuisance.
The plaintiffs action of placing structures on the Parliament
Hill grounds amounted to an actionable trespass sufficient to
justify their removal. Failure to remove an object placed on
another's land constitutes an actionable wrong and there is
continuing trespass as long as the object remains.
(2) Freedom of expression under Charter, paragraph 2(b)
Paragraph 2(b) of the Charter did not deprive the defendants
of their right to remove the shelter, tents, tables and other
chattels.
The freedom of expression guaranteed by paragraph 2(b) of
the Charter is not an absolute and unqualified freedom to
disregard existing laws reflecting the collective interest of
organized society as a whole. The governmental constraints
were directed to the reasonable regulation of conduct in terms
of time, place and manner. Those constraints did not impact
adversely upon the content of the plaintiff's message which was
communicated by word of mouth, by handing out leaflets and
by carrying placards. While the shelter, tents, tables and other
chattels may have been intended as attractions for inviting
further inquiry, their mere presence was not sufficient, of itself,
to make them essential, expressive symbols of the plaintiff's
anti-cruise message.
Finally, the evidence did not show any semblance of interfer
ence with the plaintiff's freedom of peaceful assembly and
association. Although it was unnecessary to express an opinion
as to the application of Charter section 1, the restrictions herein
were within the scope of reasonable limits under that section.
The plaintiffs submission, that subsections 4(2) of the Tre
spass to Property Act and 6(2) of the Regulations, by allegedly
conferring an unlimited discretion upon the Minister of Pubic
Works without articulating any controlling guidelines, imp
inged upon his freedom of expression and violated the rule of
law, had to be rejected. Nor could the submission, that by
engaging in activity regulated by provincial law, the federal
Crown had subjected itself to that law, be accepted. Upon the
application of section 16 of the Interpretation Act, the provin
cial statute was not binding on Her Majesty in right of Canada
nor did it affect Her rights and prerogatives.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada
Act, 1982, 1982, c. 11 (U.K.), ss. 1, 2(b),(c),(d).
Criminal Code, R.S.C. 1970, c. C-34, s. 176.
Interpretation Act, R.S.C. 1970, c. I-23, s. 16.
Public Works Act, R.S.C. 1970, c. P-38, s. 28.
Public Works Nuisances Regulations, C.R.C., c. 1365,
ss. 2, 4 (rep. and sub. by SOR/85-370, s. 1), 5 (as
added idem), 6(2) (as added idem), 8 (as added idem),
9 (as added idem).
Trespass to Property Act, R.S.O. 1980, c. 511, s. 4(2).
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Videoflicks Ltd. et al. (1984), 48 O.R. (2d) 395; 14
D.L.R. (4th) 10 (C.A.); affd sub nom. R. v. Edwards
Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Zundel
(1987), 58 O.R. (2d) 129; 35 D.L.R. (4th) 338 (C.A.);
Re Retail, Wholesale & Department Store Union, Locals
544, 496, 635 and 955 et al. and Government of Sas-
katchewan et al. (1985), 19 D.L.R. (4th) 609 (Sask.
C.A.); Operation Dismantle Inc. et al. v. The Queen et
al., [1985] I S.C.R. 441; New Brunswick Broadcasting
Co., Limited v. Canadian Radio-television and Telecom
munications Commission, [1984] 2 F.C. 410 (C.A.);
Attorney-General for Ontario v. Orange Productions
Ltd. et al. (1972), 21 D.L.R. (3d) 257 (Ont. H.C.).
DISTINGUISHED:
Committee for the Commonwealth of Canada v. Canada,
[1987] 2 F.C. 68 (C.A.); RWDSU v. Dolphin Delivery
Ltd., [1986] 2S.C.R. 573.
CONSIDERED:
Clark v. Community for Creative Non- Violence, 468
U.S. 288; 82 L.Ed. 2d 221 (1984); Cox v. Louisiana, 379
U.S. 536; 13 L.Ed. 2d 471 (1965).
REFERRED TO:
Re Ontario Film & Video Appreciation Society and
Ontario Board of Censors (1984), 45 O.R. (2d) 80
(C.A.); affg (1983), 41 O.R. (2d) 583 (Div. Ct.); Refer
ence re Education Act of Ontario and Minority Language
Education Rights (1984), 47 O.R. (2d) 1 (C.A.); Baird,
et al. v. The Queen, Ont. S.C., No. 1062/85, Maloney J.,
10/I/86, not reported; affd Ont. C.A., No. 96/86, Brooke,
Goodman and Grange JJ., 9/6/87, not reported; Gauthier
v. The King (1918), 56 S.C.R. 176; Her Majesty in right
of the Province of Alberta v. Canadian Transport Com
mission, [1978] 1 S.C.R. 61; Attorney General (Que.)
and Keable v. Attorney General (Can.) et al., [1979] I
S.C.R. 218; Attorney-General v. P. Y. A. Quarries Ltd.,
[1957] 2 Q.B. 169; Reynolds v. Urban District Council of
Presteign, [1896] I Q.B. 604; Georgian Cottagers' Asso
ciation Inc. v. Corporation of Township of Flos & Kerr
(1962), 32 D.L.R. (2d) 547 (Ont. H.C.); Cardiff Rating
Authority and Cardiff Assessment Committee v. Guest
Keen Baldwin's Iron Steel Co., Ld., [1949] 1 K.B. 385
(C.A.); Cromer v. B.C. Teachers' Fed., [1986] 5 W.W.R.
638; 29 D.L.R. (4th) 641 (B.C.C.A.); Roncarelli v.
Duplessis, [1959] S.C.R. 121.
AUTHORS CITED
Clerk & Lindsell on Torts, 15th ed. London: Sweet &
Maxwell, 1982.
Fleming, John G. The Law of Torts, 6th ed. Sydney: Law
Book Co. Ltd., 1983.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed.
Toronto: Carswell Co. Ltd., 1985.
Linden, Allen M. Canadian Tort Law, 4th ed. Toronto:
Butterworths, 1988.
Mill, John S. On Liberty. London: Walter Scott Publish
ing Co., 1900-01.
Salmond and Heuston on the Law of Torts, 18th ed. by
R. F. V. Heuston and R. S. Chambers. London: Sweet
& Maxwell, 1981.
COUNSEL:
Harry Kopyto, Sylvano Debrio and Joseph E.
Magnet for plaintiff.
Luther Chambers, Q. C. for defendants.
SOLICITORS:
Harry Kopyto, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
MCNA IR J.:
A Case for Charter Relief
This case is the aftermath of certain political
activity staged on the grounds of Parliament Hill
by the plaintiff and others to protest the policy of
the Canadian government in permitting the United
States of America to test its cruise missiles in
Canada. The plaintiffs thesis is simply that the
establishment of a peace camp on Parliament Hill
to symbolize his continuous and ongoing protest
against the cruise missile policy was essential to
the effective communication of his political mes
sage. The plaintiff pleads that the actions of the
defendants in dismantling and removing the peace
camp shelter from Parliament Hill and in continu
ing to prevent him from maintaining a peace
encampment thereon violated his constitutional
right of freedom to protest as guaranteed by para
graphs 2(b), 2(c) and 2(d) of the Canadian Chart
er of Rights and Freedoms [being Part I of the
Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.)]. More specifically, the
prayer for relief of the plaintiffs statement of
claim seeks, inter alia, the following declaratory
relief, viz.:
(b) (i) A declaration that section 6(2) of the Public Works
Nuisances Regulations are of no force or effect.
(ii) A declaration that the acts of the Defendant in disman
tling the Parliament Hill Peace Camp and evicting the Plain
tiffs as occupants thereof and in interfering with the Plaintiffs
expressive activities in attempting to protest on Parliament Hill
by distributing literature from a table violated the rights of the
Plaintiffs as guaranteed under Section 2(b), (c), (d) of the
Charter of Rights and Freedoms and are not justifiable under
Section I thereof, and are to that extent of no force or effect
under Section 52 thereof;
In addition to the foregoing, the plaintiff claims
consequential relief in the form of an injunction,
special damages of $2,000 and punitive or general
damages of $200,000.
Facts
In 1983 the plaintiff conceived the idea of estab
lishing a peace camp on the grounds of Parliament
Hill to protest the government's cruise missile
policy. On April 18, 1983 the plaintiff was given
gratuitous permission by officials of the govern
ment of Canada to erect a tent on the Parliament
Hill grounds. The plaintiff and other occupants of
the tent were asked the next day by officers of the
RCMP to remove the tent and, when they refused
to comply, the RCMP officers removed the tent
themselves. The plaintiff was never given permis
sion at any time thereafter to erect tents on the
grounds of Parliament Hill. Nonetheless, the
plaintiff and several of his fellow protestors main
tained their peace camp watch on Parliament Hill
for about a week, handing out leaflets and sleeping
on the ground without shelters or tents. Later in
the spring of 1983, the plaintiff and his compatri
ots erected a banner on poles, to which they
attached tarpaulins to create a rudimentary shelter
to protect them from the elements. The plaintiff
remained there until the end of May 1983.
In the summer of 1983, pursuant to an offer of
officials of the government of Canada the plaintiff
and his colleagues moved their peace camp shelter
to a site on Lebreton flats, approximately 1.5
kilometres distant from Parliament Hill. However,
they left a table and banner on the Parliament Hill
grounds. Later during that summer, the plaintiff
decided to move the shelter back to Parliament
Hill to serve as a more effective symbol of protest.
No express permission was given for the relocation
of the shelter and government officialdom chose to
ignore it, at least until the spring of 1985. The
relocated shelter was maintained on Parliament
Hill during the summer of 1983 and through the
winter of 1984. The plaintiff left the shelter in
May of 1984 and did not return to it permanently
until the fall of that year, except for occasional
visits.
In the fall of 1984 the plaintiff and two associ
ates, Yvon Dubé and Chantal Houle, decided to
reconstruct the present shelter into a more perma
nent edifice. A platform was constructed of two-
by-four wood pieces overlaid by carpeting. Alumi
num poles were fastened to this base to which were
attached from the inside sheets of styrofoam and
reflective aluminum paper and other materials.
The outside of this tent-like structure consisted of
orange and black plastic sheeting. A tricolour flag
or banner was fastened to the side of the structure
fronting on Wellington Street, on which were
inscribed in both English and French the words
"Peace Camp", but there was nothing else on the
shelter to suggest its occupants stood for nuclear
disarmament and against cruise missile testing in
Canada. The actual anti-cruise message was com
municated to the public by word of mouth and
literature hand-outs or by carrying placards
around the grounds of Parliament Hill. The ma
terials for the tent-like stucture were donated by
sympathetic well-wishers. During 1983 there was
also displayed at the peace camp site a mock-up or
replica of the cruise missile, but this had been
removed by university students some time in 1984.
In the eight-month period prior to April 22,
1985 the plaintiff worked full time at his job in
Ottawa with the Palestinian diplomatic office,
leaving only the weekends free for communicating
his political views to members of the public fre
quenting Parliament Hill. However, the message
was conveyed during the plaintiff's absence by his
associates, Mr. Dubé and Ms. Houle. The re
established shelter served as permanent living
quarters for the plaintiff and his two colleagues
during this period.
Some time during this period the plaintiff
received a further offer from governmental offi
cials to establish the peace camp shelter on or near
Lebreton flats from where he could commute to
Parliament Hill to carry banners or placards and
distribute literature as a means of conveying his
anti-cruise message to the public. Nothing came of
this offer, principally because the plaintiff insisted
that any acceptance was conditional on his being
permitted to maintain a table and banners on the
Parliament Hill grounds, which the government
refused.
Meanwhile, the incumbent Minister of Public
Works, Hon. Roch LaSalle, was receiving com
plaints from citizens regarding the presence of the
peace camp on Parliament Hill, the disapprobative
term most commonly employed being that of "eye-
sore". The Minister was persuaded to the view that
the peace camp constituted a trespass on the prop
erty of Parliament Hill. Accordingly, he instructed
his Deputy Minister to apprise the peace camp
contingent of the fact that they were trespassing
and that they must remove the peace camp and its
paraphernalia from the Parliament Hill property.
On the morning of April 22, 1985, Brian Craw-
ford, Property Manager of the Department of
Public Works, appeared on the scene and read to
the occupants of the shelter a notice in both Eng-
lish and French prohibiting them from camping on
the grounds of Parliament Hill and erecting or
maintaining any structure or device thereon and
requiring them to forthwith remove from such
grounds the peace camp shelter and all furnishings
and materials associated therewith, including per
sonal belongings, failing which these items of per
sonal property would be removed by employees of
the Department of Public Works. The plaintiff was
handed a copy of the notice, which was given
under the Minister's signature pursuant to subsec
tion 4(2) of the Trespass to Property Act, R.S.O.
1980, c. 511. A work crew of the Department of
Public Works was standing by at the site. Craw-
ford and members of the work crew offered to
assist the plaintiff and his colleagues in the remov
al of the peace camp shelter and other property
from Parliament Hill and to transport them to the
premises of their choice. However, the offer was
refused because the plaintiff adamantly opposed
their removal.
The plaintiff and one of the other protestors
refused to leave the shelter when the work crew of
the Department attempted to move it and mani
fested their opposition by clinging to the inside.
The tent-like structure of the shelter, when viewed
from the outside by persons unfamiliar with its
constuction, gave no visible clues as to how it
might be dismantled and removed without destroy
ing it. The plaintiff offered no advice or assistance
in this regard, but persisted in clinging to the
shelter and resisting its removal. All attempts
made by the work crew of the Department to lift
the shelter off the ground intact proved unsuccess
ful. Thwarted in their endeavours to remove the
shelter intact, the agents of the Minister of Public
Works then proceeded to dismantle the shelter by
cutting the plastic covering from the aluminum
frame. On completion of this work, they then
attempted to remove the bare frame of the shelter,
but once again their efforts were unsuccessful
because the plaintiff continued to cling to the
frame, thereby causing its eventual collapse. Final
ly, the plaintiff was arrested and taken into cus
tody by RCMP officers on the scene. Prior to this,
the plaintiff had been advised by Mr. Crawford
that the shelter materials and other chattels were
being taken to the Department's warehouse in
Plouffe Park, where they could be retrieved by the
owners at any time. Some were retrieved that same
afternoon. Others were confiscated and held by the
RCMP as evidence for the adjudication of charges
pending against the plaintiff. The remaining goods
and chattels were eventually removed to another
departmental warehouse on Catherine Street.
Following the dismantlement of the original
shelter, the plaintiff and others made several sub
sequent attempts during April of 1985 to re-estab
lish the peace camp by erecting tents and placing
tables and sleeping bags on the grounds of Parlia
ment Hill. RCMP officers interceded and warned
them that the new regulations enacted on April 23,
1985 prohibited the erection of any structures or
the placing of any objects on the Parliament Hill
grounds. The plaintiff paid no heed to this admoni
tion with the result that he was arrested and
removed from the grounds. There were similar
occurrences on October 21, November 12 and
November 14, 1988 during the federal general
election. On these occasions, the plaintiff and his
compatriots erected tables on the grounds of Par
liament Hill, and in one instance put up a tent,
only to be confronted by the same pattern of
authoritative response. RCMP officers on the
scene requested the immediate removal of the
offending articles and cautioned the plaintiff that
he would be arrested if he resisted their removal.
On each of these occasions, the plaintiff forcibly
resisted the removal of the objects by clinging to
them with the result that he was placed under
arrest.
Statutory Framework
I consider it to be undisputed that the title of the
grounds of Parliament Hill is vested in Her Majes
ty in right of Canada and that the Minister of
Public Works is generally charged with the con
trol, management and administration thereof: see
the Public Works Act, R.S.C. 1970, c. P-38, as
amended. Nor can there be any doubt that the
grounds of Parliament Hill are "public works"
within the definition of the Public Works Act.
Section 28 of the Act empowers the Governor in
Council to make such regulations as are deemed
necessary "for the management, maintenance,
proper use and protection of . .. any ... public
works".
Public Works Nuisances Regulations were
enacted under the foregoing statutory authority:
C.R.C., c. 1365. Sections 2 and 4 [rep. and sub. by
SOR/85-370, s. 1] of the Regulations read as
follows:
2. No person shall loiter or commit any nuisance in, on or
about any public work.
4. Every person who violates any of these Regulations is
guilty of an offence punishable on summary conviction and is
liable to a fine not exceeding $50.
These Public Works Nuisances Regulations
were amended by repealing section 4 relating to
the summary conviction offence and fine provi
sions and substituting therefor new sections 4 to
11: SOR/85-370, April 23, 1985. Section 2 of the
amending Regulations provided that the amend
ments enacted by section 1 thereof were to apply
before publication in the Canada Gazette, corn-
mencing on April 23, 1985. The provisions of the
new Regulations most pertinent to this case are
sections 5, 6(2), 8 and 9, which read as follows:
5. No person shall erect, construct or post any thing, ma
terial or object in or upon any public work other than in such
places as are specifically designated for such purposes.
6....
(2) No person shall erect, use, occupy or maintain any
structure in or upon any public work except by or under the
authority of the Minister.
8. Any person found contravening section 6 of these Regula
tions shall forthwith, on receiving notice from the Minister or a
peace officer, either orally or in writing, requiring him to cease
such activity and to quit the public work, remove his personal
property from and quit the public work and shall not thereafter
resume the activity to which the notice applies.
9. A peace officer may remove from a public work any
person who refuses to obey a notice under section 8 and any
personal property apparently in the possession of that person.
Charter Provisions
The relevant provisions of the Charter are sec
tions 1 and 2 which read as follows:
Guarantee of Rights and Freedoms
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.
Fundamental Freedoms
2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
The Issues
The defendants set out in their factum what
they consider to be the issues raised by the case,
which are:
(1) Were the Defendants entitled in law, apart from consider
ations of subsections 2(b),(c) and (d) of the Canadian Charter
of Rights and Freedoms, to remove the shelter, tents, tables and
other chattels erected or placed on the grounds of Parliament
Hill by the Plaintiff and others, whether such removal occurred
on April 22, 1985, and at times thereafter?
(2) Did subsections 2(b),(c) and (d) of the Canadian Charter
of Rights and Freedoms nevertheless deprive the Defendants of
their right so to remove the shelter, tents, tables and other
chattels?
(3) Assuming that the answer to question (2) is in the affirma
tive, was such removal nevertheless justified pursuant to section
1 of the Canadian Charter of Rights and Freedoms?
(4) Are the Defendants liable for any damage to the shelter or
tents or other chattels that were removed in the morning of
April 22, 1985, and at times thereafter?
(5) Are the Defendants liable for exemplary or punitive
damages?
Plaintiff's counsel takes no exception to this
statement of the issues. He chooses, however, to
frame the issue of the case in this way:
The Court is being asked a narrow question. It is asked to
rule only that the actions here, in the circumstances here, under
the legislative authority here, are violating freedom of expres
sion, and assembly and association rights.
The central theme of the plaintiff's case is that
he was expressing a political message of protest to
the cruise missile policy of the Canadian govern
ment by both direct and symbolic means, and that
the symbols represented by the shelters, tents and
tables on Parliament Hill were in fact political
forums for discussions and debate that were essen
tial to the effective communication of the political
message. As I see it, the main thrust of the argu
ment is directed to the Charter guarantee of free
dom of expression and the associated freedoms of
peaceful assembly and association only become
involved as supporting buttresses in a limited and
peripheral sense.
Unfettered Administrative Discretion
For his opening salvo, plaintiff's counsel makes
the point that subsection 4(2) of the Trespass to
Property Act and subsection 6(2) of the Public
Works Nuisances Regulations purport to confer
on the Minister of Public Works an unlimited and
unfettered discretion to prohibit any and all
expressive activities on Parliament Hill without
articulating any controlling guidelines for the exer
cise of such an untrammelled discretion, thereby
directly impinging on guaranteed freedoms of
expression, assembly and association under the
Charter. In support of this proposition, plaintiffs
counsel relies on the Ontario Court of Appeal
decision in Re Ontario Firm & Video Appreciation
Society and Ontario Board of Censors (1984), 45
O.R. (2d) 80, upholding the decision of the Divi
sional Court' that paragraphs 3(2)(a) and (b), and
sections 35 and 38 of the Theatres Act [R.S.O.
1980, c. 498] impose a limit on freedom of expres
sion guaranteed by paragraph 2(b) of the Charter
because they set no limits, reasonable or otherwise,
to the censorship board's discretion to censor and
prohibit films that could be considered "reasonable
limits prescribed by law" within the meaning of
section 1 of the Charter. He also relies on Refer
ence re Education Act of Ontario and Minority
Language Education Rights (1984), 47 O.R. (2d)
1 (C.A.). Plaintiff's counsel takes the matter one
step further by arguing that any regulatory scheme
requiring the exercise of an unfettered administra
tive discretion violates the rule of law if it fails to
incorporate as part thereof some system of jus-
tificatory criteria for the exercise of such discre
tion, irrespective of any question of Charter rights
and freedoms. He also argues that the Minister's
authorization of June 12, 1985 to the Special
Committee or the Use of Parliament Hill to exer
cise the authority vested in him under the Public
Works Nuisance Regulations "in relation to the
management, charge and direction of the lands
comprising Parliament Hill" was an improper
delegation of something within his exclusive man
agement and control.
Defendants' counsel points out that this authori
zation, whatever its intent, was after the fact of the
events of April of 1985 in so far as these affected
the plaintiff. It follows therefore, in his submis
sion, that the question of whether the authoriza
tion was intra vires or ultra vires becomes entirely
academic to the central point of the case because it
is a peace officer who has the authority under the
Public Works Nuisances Regulations to remove
any person refusing to obey a notice given under
section 8 thereof. He cites in support of this sub
mission the Supreme Court of Ontario case of
Baird, et al. v. The Queen (No. 1062/85, January
10, 1986, unreported) in which Mr. Justice
Maloney found in certiorari proceedings that sec
tion 8 of the amended Public Works Nuisances
Regulations did not delegate to a peace officer the
power to make regulations. An appeal from this
decision was dismissed by the Ontario Court of
1 (1983), 41 O.R. (2d) 583.
Appeal (No. 96/86, June 9, 1987, unreported) on
the ground that the Regulations in question were
valid. In my opinion the matter of this so-called
delegation is not something which has any bearing
on the central issue of whether the defendants
were lawfully entitled to remove the plaintiffs
shelter and other chattels in the face of his guaran
teed freedom of expression.
Nor do I accept the submission of plaintiffs
counsel that an administrative discretion, unfet
tered by justificatory guidelines, represents in each
and every case a fundamental violation of the rule
of law, based on the principle of Roncarelli v.
Duplessis, [1959] S.C.R. 121. The point made by
Rand J. in that case regarding the rule of law was
to the following effect [at page 142]:
... that an administration according to law is to be superseded
by action dictated by and according to the arbitrary likes,
dislikes and irrelevant purposes of public officers acting beyond
their duty, would signalize the beginning of disintegration of
the rule of law as a fundamental postulate of our constitutional
stucture.
It seems to me that this statement represents
something far less sweeping than the proposition
contended for by plaintiffs counsel, with which I
do not agree.
The Common Law of Trespass and Public
Nuisance
The decision of the Supreme Court of Canada in
RWDSU v. Dolphin Delivery Ltd., [1986] 2
S.C.R. 573, laid to rest any vestiges of doubt that
the Charter applies to the common law.
Defendant's counsel submits that they had every
right at common law to effect the removal of the
plaintiffs shelter, tents, tables and other chattels
from the grounds of Parliament Hill by reason
that these structures or objects constituted both a
trespass and a public nuisance. Plaintiffs counsel
argues that there is no element of public nuisance
involved which would necessitate making a specific
finding. Instead, he mounts a two-pronged attack
on subsection 4(2) of the Trespass to Property Act
and subsection 6(2) of the Public Works Nui
sances Regulations, arguing that these statutory
enactments were improperly utilised with the sole
object of forcing the plaintiff to remove himself
and his chattels from Parliament Hill. In his sub
mission, the defendants' actions were arbitrary,
capricious and illegal.
As for the Trespass to Property Act, plaintiff's
counsel submits that where the federal Crown is
engaging in activity which is regulated by provin
cial law it must be taken to have subjected itself to
that law. With respect, I disagree. As noted by
counsel for the defendants, section 16 of the Inter
pretation Act, R.S.C. 1970, c. I-23, provides as
follows:
16. No enactment is binding on Her Majesty or affects Her
Majesty or Her Majesty's rights or prerogatives in any manner,
except only as therein mentioned or referred to.
In Gauthier v. The King (1918), 56 S.C.R. 176,
Anglin J. said at page 194:
Provincial legislation cannot proprio vigore take away or
abridge any privilege of the Crown in right of the Dominion.
See also Her Majesty in right of the Province of
Alberta v. Canadian Transport Commission,
[1978] 1 S.C.R. 61, at page 72; Attorney General
(Que.) and Keable v. Attorney General (Can.) et
al. [1979] 1 S.C.R. 218, at page 244; and Hogg,
Constitutional Law of Canada, 2nd ed., at pages
236-239.
The Trespass to Property Act does not specifi
cally mention Her Majesty in right of Canada, let
alone Her Majesty in right of the province. In my
opinion, the statute is not binding on Her Majesty
in right of Canada, nor does it affect Her Majes-
ty's rights and prerogatives. I am further of the
opinion that the reference to a provincial statute in
the notice given to the plaintiff by the defendants
on April 22, 1985 does not vitiate any rights they
may have had at common law to remove the peace
camp shelter and its sundry paraphernalia from
the Parliament Hill grounds.
I accept as an accurate statement of law the
following passage from Fleming, The Law of
Torts, 6th ed., at page 39:
If a structure or other object is placed on another's land, not
only the initial intrusion but also failure to remove it constitute
an actionable wrong. There is a "continuing trespass" as long
as the object remains.....
See also Clerk & Lindsell on Torts, 15th ed.,
paras. 22-01, 22-06 and 22-07; and Salmond and
Heuston on the Law of Torts, 18th ed., pages
36-40.
Counsel for the defendants takes the position
that the establishment of the peace encampment
with all its paraphernalia on the grounds of Parlia
ment Hill amounted to an unreasonable interfer
ence with their use and enjoyment by classes of
Her Majesty's subjects, namely, those charged
with the maintenance and security of the grounds
and. members of the visiting public. In his submis
sion, the placing of shelters, tents, tables and other
chattels on the grounds of Parliament Hill con
stituted a public nuisance at common law prior to
April 23, 1985, and a statutory nuisance
thereafter.
Linden, Canadian Tort Law, 4th ed., defines the
concept of public nuisance, at page 495:
Usually, the phrase "public nuisance" describes a criminal or
quasi-criminal offence which involves actual or potential inter
ference with public convenience or welfare. A public nuisance
must materially affect the reasonable comfort and convenience
of life of a class of Her Majesty's subjects It is not necessary to
establish that every member of the public has been affected, as
long as a substantial number is. Whether the number of persons
affected is sufficient to be described as a class is a question of
fact. One test is to ask whether the nuisance is "so widespread
in its range or indiscriminate in its effect that is [sic] not
reasonable to expect one person to take proceedings on his own
responsibility to put a stop to it, but that it should be taken on
the responsibility to [sic] the community at large".
See also Attorney-General v. P. Y. A. Quarries
Ltd., [1957] 2 Q.B. 169, per Romer L.J. at page
184 and Denning L.J. at pages 190-191.
In Attorney-General for Ontario v. Orange Pro
ductions Ltd. et al. (1972), 21 D.L.R. (3d) 257
(Ont. H.C.), the Attorney-General brought an
application at the instance of a municipality to
restrain the defendant from holding an outdoor
rock festival in a neighbouring park and the Court
held that the festival should be restrained on the
ground that it represented an unfair public nui
sance to the neighbourhood in the absence of
proper sanitary facilities in the park and some
limitation put on the numbers attending. Wells
C.J.H.C. applied the principle of Attorney-Gener
al v. P. Y. A. Quarries Ltd., supra, noting particu-
larly the statements of Romer and Denning LL.J.,
and concluded [at page 268] that "there was a
general air of discomfort which the neighbourhood
should not have been subjected to".
Defendants' counsel makes the point that it is a
matter of no moment that the plaintiff may have
been informed that the shelter, tents, tables and
other objects erected or placed by him on Parlia
ment Hill were being removed pursuant to the
Public Works Nuisances Regulations or any other
statutory enactment; their presence constituted at
common law both a trespass and a public nuisance.
The Public Works Nuisances Regulations,
before their amendment on April 23, 1985, prohib
ited the commission of a nuisance "in, on or about
any public work". I consider that the nuisance
referred to in the Regulations must be taken to
mean a public nuisance, which is a summary con
viction offence. Incidentally, section 176 of the
Criminal Code, R.S.C. 1970, c. C-34, creates the
indictable offence of common nuisance. In my
view, a public nuisance and a common nuisance
are one and the same thing. However, I am not
concerned in the present case with any element of
criminality. The point is that the defendants would
be entitled to avail themselves of their common
law right of abatement by removing the obstruc
tions or encroachments complained of, without
first having to take criminal proceedings, sum
marily or by indictment, against the person alleged
to have perpetrated the public nuisance: see Reyn-
olds v. Urban District Council of Presteign, [ 1896]
1 Q.B. 604; Georgian Cottagers' Association Inc.
v. Corporation of Township of Flos & Kerr
(1962), 32 D.L.R. (2d) 547 (Ont. H.C.), per Gale
J. at pages 561-562; and Fleming, op. cit., at pages
413-415. To paraphrase Mr. Justice Gale in the
Georgian Cottagers' case, I see no reason why the
Minister of Public Works, acting through his
agents, could not lawfully effect the removal of the
plaintiff's shelter and other chattels on April 22,
1985 as a means of putting an end to the interfer-
ence with the public user of the Parliament Hill
grounds within his jurisdictional control.
Defendants' counsel argues that from and after
April 23, 1985 section 5 and subsection 6(2) of the
amended Public Works Nuisances Regulations
served specifically to prohibit the erection or con
struction or use of any structure or object on the
Parliament Hill grounds in places not specifically
designated therefor or without the authority of the
Minister of Public Works. He urges that the
broader definition of the words "erect" and "con-
struct" and "structure", taken in conjunction with
the modern principle of statutory interpretation
that words are to be interpreted broadly in their
entire context, evinces a clear legislative intent
that the word "structure" in subsection 6(2) of the
Regulations was meant to apply to the setting up
of any fabric or framework of material parts on a
public work, whether they represent a building or
a tent or a table. I have no difficulty in finding
that the shelters and tents erected or put up by the
plaintiff on the grounds of Parliament Hill con
travened subsection 6(2) of the Public Works
Nuisances Regulations. The question of whether a
table can be a structure within the meaning of
subsection 6(2) of the Regulations is another
matter. This appears to have been the statutory
provision of which the RCMP officers relied as
justification for removing the plaintiff and his
tables during the occurrences in the fall of 1988.
On one of those occasions, the table erected by the
plaintiff was completely sheathed by plastic sheet
ing, while on another the table appears from the
video tape to have been constructed out of a
wooden pallet resting on some sort of a pedestal
base. It seems to me that those tables could well
come within the meaning of the word "structure"
in subsection 6(2) of the Regulations. The other
occasion during that fall appears to have involved
a folding table and I would have some reservations
as to whether that particular table constituted a
structure. The employment of the word "struc-
ture" in statutory enactments usually seems to
pose something of a conundrum for, as Lord Den-
ning so aptly put it in the Cardiff Ratings case: 2
"A structure is something which is constructed,
2 Cardiff Rating Authority and Cardiff Assessment Com
mittee v. Guest Keen Baldwin's Iron Steel Co., Ld., [1949] 1
K.B. 385 (C.A.) at p. 396.
but not everything which is constructed is a struc
ture." In my view, it is unnecessary to make a
specific finding on the point of whether a folding
table is a structure because the erection or placing
of shelters, tents, tables and other objects on the
Parliament Hill grounds constituted a public nui
sance, whether at common law or by virtue of the
Public Works Nuisances Regulations, which the
defendants had every right to abate by effecting
their removal.
In the present case, there is ample evidence that
the peace camp shelter interfered with the proper
maintenance of the Parliament Hill grounds, that
it actually caused damage to that portion of the
lawn where it sat, and that its presence imposed
additional burdens on the security forces respon
sible for the security of the Parliament Hill
grounds. It can hardly be questioned that the
employment of open-flame cooking, lighting and
heating devices by the occupants of the shelter
constituted a potential fire hazard and danger.
Certainly, the inference can be drawn that the lack
of proper sanitary facilities could pose something
of a health or sanitary problem. There is evidence
that the peace camp shelter offended the aesthetic
sensibilities of a number of visitors to Parliament
Hill, who perceived it as an "eyesore". In my
opinion, there is an abundance of evidence to
support a finding that the shelter, tents, tables and
other objects erected or placed on the grounds of
Parliament Hill by the plaintiff and his colleagues
contained all the elements of a public nuisance
which materially interfered with the use and
enjoyment of the Parliament Hill neighbourhood
by others, namely, those charged with its manage
ment and control and visiting members of the
public. I am also of the opinion that the placing of
the structures and other objects on the Parliament
Hill grounds constituted an actionable trespass
sufficient to justify their removal. It follows there
fore, in my opinion, that the question posed by the
defendants as the first issue to be resolved must be
answered in the affirmative.
Charter Freedoms and Particularly Freedom of
Expression Under Paragraph 2(b)
This leads into the next question which is wheth
er the defendants' actions violated any of the
plaintiffs fundamental freedoms guaranteed by
paragraphs 2(b),(c) and (d) of the Charter and,
more particularly, his freedom to freely express his
message of protest on the grounds of Parliament
Hill. It is undisputed that these Charter provisions
apply to the common law rights relied on by the
defendants as justification for their actions. Plain
tiffs counsel reinforces his front of attack by
arguing that subsection 6(2) of the amended
Public Works Nuisances Regulations strikes at
the very core of the plaintiff's freedom of political
speech as manifested by the expressive symbols of
shelters, tents and tables. In his submission, the
statutory enactment in question goes beyond the
mere regulation of time, place and things and
inhibits the right of political expression, which has
been long recognized as an essential cornerstone of
Canadian parliamentary democracy.
Defendants' counsel urges that section 2 of the
Charter is only meant to proscribe governmental
restrictions capable of directly interfering with the
freedoms guaranteed thereby; peripheral or inci
dental regulation of conduct as opposed to content
is not an objectionable restriction on guaranteed
freedoms per se. He relies strongly on R. v. Video-
flicks Ltd. et al. (1984), 48 O.R. (2d) 395; 14
D.L.R. (4th) 10 (C.A.), aff'd sub nom. R. v.
Edwards Books and Art Ltd., [1986] 2 S.C.R.
713. Defendants' counsel further submits that in
order for the removal of the plaintiffs shelter,
tents, tables and other chattels from the Parlia
ment Hill grounds to amount to a denial of the
plaintiffs freedom to express his views about
cruise missiles, these chattels by themselves and by
their mere presence must have represented an
expression of such views. The facts, he says, negate
any such conclusion. In his submission, the out
ward appearance of these chattels conveyed no
message to public bystanders concerning the plain
tiffs views on the cruise missile. Instead, the mes
sage itself was communicated by word of mouth
solicitation or by handing out literature or by
carrying signs. Furthermore, he contends that the
freedom of expression guaranteed by paragraph
2(b) of the Charter is not a blanket freedom for
anyone to use someone else's property, including
public property, to publish his ideas. Finally,
defendants' counsel submits that the removal of
the plaintiff's shelter, tents, tables and other chat
tels from the grounds of Parliament Hill did not
amount to a violation of his guaranteed freedoms
of peaceful assembly or association within the
meaning of paragraphs 2(c) and (d) of the
Charter.
John Stuart Mill's classic political treatise, On
Liberty (London: Walter Scott Publishing Co.),
eloquently championed the liberty of the individual
and the concomitant right of freedom of opinion.
Nevertheless, the eminent author felt constrained
to point out at page 104:
The liberty of the individual must be thus far limited; he must
not make himself a nuisance to other people.
In New Brunswick Broadcasting Co., Limited v.
Canadian Radio-television and Telecommunica
tions Commission, [1984] 2 F.C. 410 (C.A.), one
of the appellant's arguments was that the require
ment for a broadcasting licence violated its right of
freedom of the press and other media of communi
cation guaranteed to everyone by paragraph 2(b)
of the Charter. Thurlow C.J., stated the opinion of
the Court on this point at page 426:
In my opinion, the argument confuses the freedom guaran
teed by the Charter with a right to the use of property and is
not sustainable. The freedom guaranteed by the Charter is a
freedom to express and communicate ideas without restraint,
whether orally or in print or by other means of communication.
It is not a freedom to use someone else's property to do so. It
gives no right to anyone to use someone else's land or platform
to make a speech, or someone else's printing press to publish his
ideas. It gives no right to anyone to enter and use a public
building for such purposes.
The Federal Court of Appeal adopted a dissimi
lar approach in Committee for the Commonwealth
of Canada v. Canada, [1987] 2 F.C. 68. The
essential portion of the headnote gives a good
summary of the case, and reads [at pages 68-69]:
Respondents Lépine and Deland were prevented from dis
seminating their political ideas by carrying placards and dis
tributing pamphlets in the public areas at Montréal Interna
tional Airport. The refusal was based on a policy of prohibiting
all solicitation therein, whether political, religious or otherwise,
with the exception of the sale of poppies by veterans. It was
argued that this policy is justified by Crown ownership rights
and by Regulations prohibiting unauthorized business and ad
vertising at airports.
The Trial Judge granted a declaration that the appellant had
not observed the respondents fundamental freedoms and that
the public areas at the airport constitute a public forum where
fundamental freedoms can be exercised. This is an appeal from
that decision.
Held (Pratte J. dissenting), the appeal should be dismissed
with respect to the declaration that the appellant had not
observed the respondents' fundamental freedoms but allowed
on the question whether the public areas at the airport were a
public forum for the exercise of fundamental freedoms.
It was common ground that the respondents
were told by the airport authorities that they must
leave the terminal solely because they were engag
ing in political propaganda. In my view, this fact
alone serves to make the Dorval Aiport case readi
ly distinguishable from the case at bar. Further
more, the sole activities engaged in by the respon
dents in the airport terminal were confined to
carrying placards advertising their message and
handing out leaflets to the public and there was no
erection or placing of structures or objects on
government or public property, as in the present
case.
In Clark v. Community for Creative Non-Vio
lence, 468 U.S. 288; 82 L.Ed. 2d 221 (1984), the
issue was whether a National Park Service regula
tion prohibiting camping in certain parks violated
the First Amendment when applied to prohibit
demonstrators from sleeping in tents in Lafayette
Park and the Mall in the heart of Washington,
D.C., in connection with a demonstration intended
to call attention to the plight of the homeless. The
Supreme Court of the United States held that it
did not and reversed the contrary judgment of the
Court of Appeals. White J., delivering the majori
ty opinion of the Court, stated the following rea
sons for decision at pages 293 U.S.; 227 L.Ed.:
Expression, whether oral or written or symbolized by conduct,
is subject to reasonable time, place or manner restrictions. We
have often noted that restrictions of this kind are valid provided
that they are justified without reference to the content of the
regulated speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave open
ample alternative channels for communication of the informa
tion.
Burger C.J., although fully concurring in the
majority opinion, filed a separate opinion in which
he said at pages 300 U.S.; 231 L.Ed.:
Respondents' attempt at camping in the park is a form of
"picketing"; it is conduct, not speech. Moreover, it is conduct
that interferes with the rights of others to use Lafayette Park
for the purposes for which it was created. Lafayette Park and
others like it are for all the people, and their rights are not to be
trespassed even by those who have some "statement" to make.
Marshall J., joined by Brennan J., dissented on the
ground that the demonstrators' sleep was symbolic
speech and that the regulation of it was not
reasonable.
Mr. Justice McIntyre, delivering the majority
opinion of the Supreme Court of Canada in
RWDSU v. Dolphin Delivery Ltd., supra, was of
the view that peaceful picketing in a labour dispute
involved some element of freedom of expression
under paragraph 2(b) of the Charter. However, he
dismissed the appeal against the granting of an
injunction to restrain such picketing on the ground
that the Charter did not apply to the case at bar in
the absence of any offending statute. Rather, the
litigation was between purely private parties and
did not involve any exercise of or reliance on
governmental action which would invoke the
Charter. Defendants' counsel submits that the
Dolphin decision actually turned on the private
litigation point with the result that the comments
regarding Charter protection of picketing as a
form of freedom of expression are largely obiter. I
am inclined to agree that there is merit in that
submission. In any event, nothing significant turns
in the present case on McIntyre J.'s statement
regarding Charter protection of peaceful picketing,
whether obiter or otherwise. The plaintiff's com
plaint is that the governmental restrictions were
specifically tailored to enfold the symbolic mani
festations of his protest message. In other words,
they were aimed at content and not conduct.
In R. v. Videoflicks Ltd. et al., supra, one of the
questions before the Court was whether section 2
of the Retail Business Holidays Act [R.S.O 1980,
c. 453] requiring retail businesses to be closed on
certain holidays, including Sunday, infringed the
appellants' guaranteed freedom of expression
under paragraph 2(b) of the Charter. Mr. Justice
Tarnopolsky, writing the opinion of the Court,
acknowledged that "freedom of expression under
the Charter must extend to all forms of expres
sion". The learned Judge noted at pages 431 O.R.;
46-47 D.L.R.:
The matter does not end there however. Counsel for the
Attorney-General makes clear that the central question is
whether the regulation of sales or rentals through prohibitions
of such on the holidays named in the Act really amounts to a
limit on freedom of expression. To answer in the affirmative,
she argues, would effectively prohibit the government from
adopting any type of regulation in this area since all regulation
implies restriction. I agree. Under the Act, there is no regula
tion of content which, in the absence of justification under s. 1
of the Charter, would constitute contravention of s. 2 there
of• Mere regulation as to time and place, however, cannot
be considered an infringement of freedom of expression, unless
there is evidence that such regulation in intent or effect
adversely impacts upon content or adversely interferes with
production, availability and use or determines who can be
involved in these. No such evidence was provided in this case.
[Emphasis added.]
An appeal from this decision was dismissed by
the Supreme Court of Canada, Wilson J. dissent
ing in part: see R. v. Edwards Books and Art Ltd.,
supra. The question of any infringement of the
fundamental freedom of expression under para
graph 2(b) of the Charter was not argued before
the Supreme Court of Canada. Instead, the consti
tutional questions comparable to those at the
Ontario Court of Appeal level involved only the
application of paragraph 2(a), and sections 7
and 15 of the Charter.
In R. v. Zundel (1987), 58 O.R. (2d) 129; 35
D.L.R. (4th) 338 (C.A.), one of the questions was
whether section 177 of the Criminal Code, which
created the offence of spreading false news, was
unconstitutional because it infringed paragraph
2(b) of the Charter, the fundamental freedom of
expression. The Court held that an offence falling
within the ambit of section 177 lay within the
permissibly regulated area which was not constitu
tionally protected and did not come within the
residue which comprised freedom of expression
guaranteed by paragraph 2(b) of the Charter. In
reaching that result, the Court considered the
limits of freedom of expression, stating at pages
147 O.R.; 356 D.L.R.:
It is essential at the outset to consider just exactly what is the
"freedom of expression" which is constitutionally protected.
The words are extremely broad. They are not like rights
proscribed under some other sections of the Charter such as ss.
10, 11(/) and (i). There the limits of the rights protected are
much clearer, and a breach is more readily apparent and, if a
breach has occurred, can be tested under s. 1 of the Charter.
Freedom of expression must necessarily have regard to the
corresponding rights and freedoms of other persons. It contem
plates the existence of a social order in which other persons
must not be denied similar rights. A simplistic example, which
is often given, is that a person is not at liberty to shout "fire!"
in a crowded theatre.
As Dickson C.J.C. stated when delivering the judgment of
the Supreme Court of Canada in R. v. Big M Drug Mart Ltd.
(1985), 18 C.C.C. (3d) 385 at p. 418, 18 D.L.R. (4th) 321 at p.
354, [1985] I S.C.R. 295:
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.) (See also his dicta to the same effect at p.
425 C.C.C., p. 361 D.L.R.) In that case Chief Justice Dickson
was, of course, addressing his remarks to the limits of the
fundamental freedom of religion under s. 2(a) of the Charter
but his remarks are, in our opinion, opposite for "freedom of
expression".
The Court conducted an extensive review of the
authorities, noting 'particularly McIntyre J.'s con
clusion in the Dolphin Delivery case [at page 586]
that paragraph 2(b) of the Charter "declared free
dom of expression to be a fundamental freedom
and any questions as to its constitutional status
have therefore been settled". However, the Court
recognized that the fundamental freedom guaran
teed by paragraph 2(b) of the Charter was not an
absolute and unqualified value that could never be
balanced against other important, competing
values. The judicial opinion on this point was
stated at pages 150-151 O.R.; 359-360 D.L.R.:
When determining the limits of freedom of expression, a
distinction must be drawn at the outset between "rights" and
"freedoms". A "right" is defined positively as what one can do.
A "freedom", on the other hand, is defined by determining first
the area which is regulated. The freedom is then what exists in
the unregulated area—a sphere of activity within which all acts
are permissible. It is a residual area in which all acts are free of
specific legal regulation and the individual is free to choose.
The regulated area will include restrictions for purposes of
decency and public order, and specifically with respect to the
freedom of expression, prohibitions concerning criminal libel
and sedition. It is what Rand J. described in Saumur v. City of
Quebec and A.-G. Que. (1953), 106 C.C.C. 289 at p. 322,
[1953] 4 D.L.R. 641 at p. 670, [1953] 2 S.C.R. 299 at p. 329,
as "the residue inside the periphery".
In Re Retail, Wholesale & Department Store
Union, Locals 544, 496, 635 and 955 et al. and
Government of Saskatchewan et al. (1985), 19
D.L.R. (4th) 609 (Sask. C.A.), Bayda C.J.S.
observed at page 618:
Indeed, that every freedom has an inherent limit is axiomatic.
A freedom without an inherent limit would lead to an absurdi
ty, for a freedom by everyone to do everything is a freedom to
do nothing. The freedom in those circumtances could be com
pared to Shakespeare's glory which he likened to a circle in the
water "which never ceaseth to enlarge itself, till by broad
spreading it disperse to naught" (Henry VI, Part I, Act 1,
Scene II, line 133). A parallel notion was expressed by Mortim-
er J. Adler in Six Great Ideas (MacMillan Pub. Co., 1981), at
p. 144, as noted by Wilson J. in Operation Dismantle Inc. v.
The Queen (unreported decision of Supreme Court of Canada,
dated May 9, 1985) [now reported 18 D.L.R. (4th) 481 at pp.
516-7]:
Living in organized societies under effective government and
enforceable laws, as they must in order to survive and
prosper, human beings neither have autonomy nor are they
entitled to unlimited liberty of action. Autonomy is incom
patible with organized society. Unlimited liberty is destruc
tive of it.
See also Cromer v. B.C. Teachers' Fed., [1986] 5
W.W.R. 638; 29 D.L.R. (4th) 641 (B.C.C.A.).
Madam Justice Wilson also said in Operation
Dismantle Inc. et al. v. The Queen et al., [ 1985] 1
S.C.R. 441, at page 489:
The rights under the Charter not being absolute, their con
tent or scope must be discerned quite apart from any limitation
sought to be imposed upon them by the government under s. I.
As was pointed out by the Ontario Court of Appeal in Re
Federal Republic of Germany and Rauca (1983), 41 O.R. (2d)
225, at p. 244:
... the Charter was not enacted in a vacuum and the rights
set out therein must be interpreted rationally having regard
to the then existing laws ...
There is no liberty without law and there is no law without
some restriction of liberty: see Dworkin, Taking Rights Seri
ously (1977), p. 267.
The learned Judge was alluding to the "right", of
liberty under section 7 of the Charter, but a
corresponding approach is apposite, in my view, to
the "freedoms" guaranteed by section 2 thereof.
In Cox v. Louisiana, 379 U.S. 536; 13 L.Ed. 2d
471 (1965), the Supreme Court of the United
States reversed the convictions of a civil rights
leader for breach of the peace and obstructing
public passages on the grounds that they infringed
his rights of free speech and assembly. Irrespective
of the actual result, Goldberg J., writing the
majority opinion, stated at pages 554 U.S.; 484 L.
Ed.:
From these decisions certain clear principles emerge. The
rights of free speech and assembly, while fundamental in our
democratic society, still do not mean that everyone with opin
ions or beliefs to express may address a group at any public
place and at any time. The constitutional guarantee of liberty
implies the existence of an organized society maintaining public
order, without which liberty itself would be lost in the excesses
of anarchy.
Conclusion
I find on the evidence that the plaintiff and his
associates were never prevented from communicat
ing their political message of protest to the govern
ment's cruise missile policy on the grounds of
Parliament Hill by word of mouth solicitation or
by carrying placards or banners or by handing out
literature, nor were they ever prevented from
assembling or associating on the Parliament Hill
grounds for the purpose of making their protest
views known by these means. What they were
prevented from doing was erecting or placing shel
ters, tents, tables and other objects on the grounds
of Parliament Hill. The evidence establishes that it
was made abundantly clear to the plaintiff by the
peace officers acting under the explicit instructions
of the Minister of Public Works that he was free
to communicate his message of protest to interest
ed bystanders on Parliament Hill by oral or writ
ten solicitation or by demonstrating with placards
and banners. While the shelters, tents, tables and
other objects may have been intended as attrac
tions for inviting further inquiry, the fact of their
mere presence is not sufficient of itself, in my view,
to make them essential, expressive symbols of the
plaintiffs anti-cruise message. An uninformed
newcomer to the neighbourhood of Parliament
Hill, seeing the plaintiff standing by his table or
seated by his tent, could not possibly know what
the plaintiff was protesting without first asking
and being informed. In short, the mere presence of
the inanimate structures and objects per se could
not be reasonably understood by the unenlightened
viewer to be expressively communicative of the
actual message sought to be portrayed thereby.
In my opinion, the freedom of expression guar
anteed by paragraph 2(b) of the Charter is not an
absolute and unqualified freedom to disregard
existing laws reflecting the collective interests of
organized society as a whole. I find on the facts of
the present case that the governmental constraints
were directed only to the reasonable regulation of
conduct in terms of time, place and manner re
strictions. I am also of the opinion that these
constraints did not impact adversely upon the con
tent of the plaintiffs message as manifested by the
normal vocal, visual or demonstrative means of
communication in respect thereof. The plaintiffs
case, as it seems to me, is that these governmental
restrictions were aimed at inanimate objects or
structures said to represent in themselves, on the
basis of a purely subjective determination, the
quintessential symbols of a message of protest. As
indicated, I do not agree with that proposition.
Furthermore, I am unable to find on the evidence
any semblance of interference with the plaintiffs
freedom of peaceful assembly and association.
Therefore, it necessarily follows that the second
question posed by the defendants must be
answered in the negative. That being the case, it is
unnecessary to express any opinion on the applica
tion of section 1 of the Charter. Assuming that
such were necessary, I would be of the opinion that
the governmental restrictions in this instance were
well within the scope of reasonable limits under
section 1 of the Charter for achieving a significant
governmental interest in the permissibly regulated
area of conduct unrelated to the inhibition of
freedom of expression.
For the foregoing reasons, the plaintiffs action
is dismissed with costs.
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