Committee for the Commonwealth of Canada v. Canada

Committee for the Commonwealth of Canada v. Canada
Collection
Supreme Court Judgments
Date
1991-01-25
Report
[1991] 1 SCR 139
Case number
20334
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Transportation
Notes
SCC Case Information: 20334
Decision Content
Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139
Her Majesty The Queen in Right of Canada Appellant
v.
Comité pour la République du Canada ‑‑
Committee for the Commonwealth of Canada,
François Lépine and Christiane Deland Respondents
and
The Attorney General for Ontario,
Watch Tower Bible and Tract Society of Canada,
Kenneth Arthur Little and Thomas Richard Jones Interveners
indexed as: committee for the commonwealth of canada v. canada
File No.: 20334.
1990: May 22; 1991: January 25.
Present: Lamer C.J.* and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the federal court of appeal
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of expression ‑‑ Airport officials forbidding distributing of political pamphlets ‑‑ Federal regulations prohibiting advertising or soliciting at airports ‑‑ Whether regulations infringe s. 2 (b) of Canadian Charter of Rights and Freedoms ‑‑ If so, whether infringement justifiable under s. 1 of Charter ‑‑ Government Airport Concession Operations Regulations, SOR/79‑373, s. 7(a), (b).
Constitutional law ‑‑ Charter of Rights ‑‑ Reasonable limits ‑‑ Airport officials forbidding distributing of political pamphlets ‑‑ Respondent's freedom of expression infringed ‑‑ Federal regulations prohibiting advertising or soliciting at airports ‑‑ Whether regulations encompass political activities ‑‑ Whether action of officials constitutes a limit prescribed by law ‑‑ Canadian Charter of Rights and Freedoms, s. 1 ‑‑ Government Airport Concession Operations Regulations, SOR/79‑373, s. 7(a), (b).
Transportation ‑‑ Airports ‑‑ Airport officials forbidding distributing of political pamphlets ‑‑ Federal regulations prohibiting advertising or soliciting at airports ‑‑ Whether regulations infringe freedom of expression guaranteed in s. 2 (b) of Canadian Charter of Rights and Freedoms ‑‑ Whether government's proprietary rights allow it to control all activity on its property as it sees fit ‑‑ Government Airport Concession Operations Regulations, SOR/79‑373, s. 7(a), (b).
Respondents L and D were at an airport telling passers‑by about the respondent committee and its goals and recruiting members when they were asked by an R.C.M.P. officer to cease their activities. The airport's assistant manager confirmed to them that such political propaganda activities were not permitted, as ss. 7(a) and 7(b) of the Government Airport Concession Operations Regulations prohibited the conducting of any business or undertaking, commercial or otherwise, and any advertising or soliciting at an airport, except as authorized in writing by the Minister. The trial judge granted respondents' action for a declaration that appellant had not respected their fundamental freedoms. The Federal Court of Appeal affirmed the judgment. This appeal is to determine whether ss. 7(a) and 7(b) of the Regulations are inconsistent with the freedom of expression guaranteed in s. 2 (b) of the Canadian Charter of Rights and Freedoms , and if so, whether they are a reasonable limit under s. 1 of the Charter .
Held: The appeal should be dismissed; respondents' freedom of expression was infringed.
Per Lamer C.J. and Sopinka J.: The government's right of ownership, as a consequence of its special nature, cannot of itself authorize an infringement of the freedom guaranteed by s. 2 (b) of the Charter . When a person claims that his freedom of expression was infringed while he was trying to express himself in a place owned by the government, the interests at issue must be examined, namely the interest of the individual wishing to express himself in a place suitable for such expression and the interest of the government, which must ensure effective operation of the place owned by it. An individual will thus only be free to communicate in such a place if the form of expression he uses is compatible with the principal function or intended purpose of the place and does not have the effect of depriving the citizens as a whole of the effective operation of government services and undertakings. If the expression takes a form that contravenes the function of the place, such a form of expression will not fall under s. 2 (b). It is only after the complainant has proved that his form of expression is compatible with the function of the place that the justifications which may be put forward under s. 1 of the Charter can be analysed.
In this case respondents' activities at the airport benefited from the protection of s. 2 (b) of the Charter . The distribution of pamphlets and discussion with certain members of the public are in no way incompatible with the airport's primary function, that of accommodating the needs of the travelling public. An airport is a thoroughfare, which in its open areas or waiting areas can accommodate expression without the effectiveness or function of the place being in any way threatened. There was thus a limitation on the freedom of expression enjoyed by respondents when the airport manager ordered them to cease their activities. However, in the absence of a limit prescribed by law, this limitation cannot be justified under s. 1 of the Charter . The language of ss. 7(a) and 7(b) of the Regulations, analysed in the context of the section and of the Regulations as a whole, prohibits only undertakings of a commercial nature and does not cover political propaganda. Section 7 is accordingly not applicable in this case. The limitation imposed on respondents' freedom of expression arose from the action taken by the airport manager, a government official, who ordered them to cease their activities. Although this action was based on an established policy or internal directive, it cannot be concluded from this that there was a "law" which could be justified under s. 1 of the Charter . The government's internal directives or policies differ essentially from statutes and regulations in that they are generally not published and so are not known to the public. Moreover, they are binding only on government officials and may be amended or cancelled at will.
Per La Forest J.: Freedom of expression, while it does not encompass the right to use any and all government property for purposes of disseminating views on public matters, does include the right to use streets and parks which are dedicated to the use of the public, subject to reasonable limitation to ensure their continued use for the purposes to which they are dedicated. This should include areas of airports frequented by travellers and members of the public. The blanket prohibition against the use of such areas for the purpose of the expression of views violated the freedom of expression guaranteed by s. 2 (b) of the Charter , and is not justifiable under s. 1 . Section 7 of the Regulations does not cover political activities, but in prohibiting expression of political views at the airport, the officials were exercising the Crown's legal right to manage its property, and the prohibition was thus prescribed by law.
Per L'Heureux‑Dubé J.: Section 7 of the Regulations has the effect of restricting political expression, even if that is not its purpose, and thus breaches s. 2 (b) of the Charter . Where a restriction on expressive activity is content‑neutral, the government must demonstrate that the restriction is not an unreasonable restriction on the time, place and manner of the expressive activity. This must be demonstrated under s. 1 of the Charter .
Although the expressive activity took place on government property, the government cannot have complete discretion to treat its property as would a private citizen. If members of the public had no right whatsoever to engage in expressive activity on government‑owned property, little opportunity would exist to exercise their freedom of expression. While s. 2(b) of the Charter does not provide a right of access to all government property, some property will be constitutionally open to the public. This analysis is properly dealt with under s. 1 of the Charter . A number of factors are helpful to determine whether the restrictions by the government have been applied to property which is a "public arena". These factors include: the traditional openness of such property for expressive activity; whether the public is ordinarily admitted to the property as of right; the compatibility of the property's purpose with such activity; the impact of the property's availability on the achievement of s. 2 (b)'s purposes; the property's symbolic significance for the message being communicated; and the availability of other public arenas in the vicinity. The "traditional" component of the public arena analysis must appreciate the "type" of place historically associated with public discussion, and should not be restricted to the actual places themselves. Bus, train and airport terminals, which draw large numbers of travellers, are contemporary crossroads or modern thoroughfares and should thus be accessible to those seeking to communicate with the passing crowds. Similarly, while the symbolism of a courthouse lawn or Parliament Hill is self‑evident, streets and parks have also acquired special significance as places where one can address one's fellow citizens on any number of matters, and the same holds true for airport terminals. The non‑security zones within airport terminals are thus properly regarded as public arenas, and the government cannot simply assert property rights, or claim that the expression is unrelated to an airport's function, in order to justify the restriction.
Section 7 of the Regulations is too vague and does not constitute a limit "prescribed by law" and thus cannot be saved under s. 1 of the Charter . Section 7(a) prohibits "any business or undertaking, commercial or otherwise" at the airport. It has failed to offer an intelligible standard which would enable a citizen to regulate his or her conduct. The Regulation can be read as an attempt to eradicate all types of expression or, more narrowly, to exclude only certain types of expression, and thus creates confusion. This does not allow fundamental freedoms to be fully exercised. The plenary discretion given to the Minister may also create a vague standard which does not accord with the requirement in s. 1 of the Charter that a limit on a right or freedom be "prescribed by law".
Section 7 of the Regulations is also overbroad and thus does not impair freedom of expression as little as possible. The Regulation applies not only to the activity at issue but also to virtually all conceivable activity involving freedom of expression at airports.
Although some objectives would be reasonable in justifying restrictions on expression in an airport, the time, place, and manner restrictions are not reasonable in the context and circumstances of this case. They bear no rational connection to the government's possible objectives and are broad to the point of being unintelligible. Section 7 of the Regulations does not, for the same reason, pass the proportionality test. Its impairment, far from being minimal, could not be greater.
Per McLachlin J.: The test for the constitutional right to use government property for public expression should be based on the values and interests at stake and should not be confined to the characteristics of particular types of government property. This test should reflect the concepts traditionally associated with free expression and should extend constitutional protection to expression on some but not all government property. The analysis under s. 2 (b) of the Charter should be primarily definitional, and the test should be sufficiently generous to ensure that valid claims are not excluded for want of proof.
The test for whether s. 2 (b) applies to protect expression in a particular forum depends on the class into which the restriction at issue falls. Section 2 (b) of the Charter would usually be infringed if the government's purpose was to restrict the content of expression by limiting the forums in which it can be made. A content‑neutral restriction, however, may not infringe freedom of expression at all. Section 2 (b) of the Charter would apply if it were established that the expression (including its time, place and manner) promoted one of the purposes underlying the guarantee of free expression: the seeking and obtaining of truth; participation in social and political decision‑making; and the encouragement of diversity in forms of individual self‑fulfilment by cultivating a tolerant, welcoming environment for the conveyance and reception of ideas. A link must be established between the use of the forum for public expression and at least one of these purposes if the protection of s. 2 (b) of the Charter is to apply.
The policy of the airport officials of prohibiting all political propaganda was content‑neutral; it was aimed at the consequences of such expression rather than the particular messages communicated. The restriction had the effect of limiting expression, and the expression in question promoted one of the purposes of the guarantee of free expression, namely participation in political or social issues in the community. The government's action thus constituted a limitation of respondents' rights under s. 2 (b) of the Charter .
The limitation of respondents' rights is not justifiable under s. 1 of the Charter . The words "advertise" and "solicit" in s. 7(b) of the Regulations are broad enough to cover non‑commercial publicity and solicitation, and respondents' conduct thus falls within the regulation. Even if it did not, the act of the airport officials in preventing respondents from handing out leaflets and soliciting members constitutes a limit prescribed by law because the officials were acting pursuant to the Crown's legal rights as owner of the premises. The government's objective in imposing the limit is not of sufficient importance to warrant overriding a Charter right, since there is nothing in the function or purpose of an airport which is incompatible with respondents' conduct. Further, the means chosen to attain the objective are neither reasonable nor proportionate to respondents' interest in conveying their message pursuant to their right under s. 2 (b) of the Charter . The practice of airport authorities of preventing all "political propaganda activities" constitutes a blanket exclusion of political solicitation in the airport unrelated to concerns for its function and devoid of safeguards to protect against over‑reaching application. The limitation is overbroad and hence not saved by s. 1 .
Per Gonthier J.: While in agreement with the several elements put forward by Lamer C.J. and L'Heureux‑Dubé J. pertinent to a determination of the extent of freedom of expression on government property, the application of ss. 1 and 2 (b) of the Charter should be structured as outlined by McLachlin J. The reasons of L'Heureux‑Dubé J. as to the application of s. 7 of the Regulations to the conduct of the respondents were agreed with.
Per Cory J.: Notwithstanding agreement with the reasons of Lamer C.J. in so far as they deal with the use of government‑owned property by members of the public for the purposes of expressing themselves on various issues, the impugned Regulation contravenes s. 2 (b) and cannot be saved by s. 1 of the Charter , as found by L'Heureux‑Dubé J.
Cases Cited
By Lamer C.J.
Not followed: Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983); referred to: Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939); Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; O'Connor v. Nova Scotia Telephone Co. (1893), 22 S.C.R. 276; DeWare v. The Queen, [1954] S.C.R. 182; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038.
By L'Heureux‑Dubé J.
Referred to: Switzman v. Elbling, [1957] S.C.R. 285; Palko v. Connecticut, 302 U.S. 319 (1937); R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Keegstra, [1990] 3 S.C.R. 697; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Whitney v. California, 274 U.S. 357 (1927); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Abrams v. United States, 250 U.S. 616 (1919); West Virginia State Board of Education v. Barnett, 319 U.S. 624 (1943); Reference Re Alberta Statutes, [1938] S.C.R. 100; Boucher v. The King, [1951] S.C.R. 265; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Cromer v. B.C. Teachers' Federation, [1986] 5 W.W.R. 638; R. v. Kopyto (1987), 24 O.A.C. 81; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; R. v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395; Harrison v. Carswell, [1976] 2 S.C.R. 200; Marsh v. Alabama, 326 U.S. 501 (1946); PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980); R. v. Oakes, [1986] 1 S.C.R. 103; Dupond v. City of Montreal, [1978] 2 S.C.R. 770; Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939); Cox v. Louisiana, 379 U.S. 536 (1965); Chicago Area Military Project v. City of Chicago, 508 F.2d 921 (1975); Rosen v. Port of Portland, 641 F.2d 1243 (1981); U.S. Southwest Africa/Namibia Trade & Cultural Council v. United States, 708 F.2d 760 (1983); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974); R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Hebert, [1990] 2 S.C.R. 151; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; City of Montréal v. Arcade Amusements Inc., [1985] 1 S.C.R. 368; Re Hamilton Independent Variety & Confectionery Stores Inc. and City of Hamilton (1983), 143 D.L.R. (3d) 498; Sunday Times case, judgment of 26 April 1979, Series A, No. 30; Re Ontario Film and Video Appreciation Society and Ontario Board of Censors (1983), 41 O.R. (2d) 583, aff'd 45 O.R. (2d) 80 (leave to appeal granted, [1984] 1 S.C.R. xi, but appeal discontinued); R. v. Red Hot Video Ltd. (1985), 45 C.R. (3d) 36; R. v. Cohn (1984), 48 O.R. (2d) 65; R. v. Pelletier (1985), 49 C.R. (3d) 253; Luscher v. Deputy Minister, Revenue Canada, Customs and Excise, [1985] 1 F.C. 85; R. v. Zundel (1987), 58 O.R. (2d) 129; R. v. LeBeau (1988), 62 C.R. (3d) 157; Grayned v. City of Rockford, 408 U.S. 104 (1972); United States v. Grace, 461 U.S. 171 (1983); R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc., 107 S.Ct. 2568 (1987); Roth v. United States, 354 U.S. 476 (1957); Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
By McLachlin J.
Considered: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; not followed: Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983); Consolidated Edison Co. of New York Inc. v. Public Service Commission of New York, 447 U.S. 530 (1980); referred to: Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939); Marsh v. Alabama, 326 U.S. 501 (1946); Saumur v. City of Quebec, [1953] 2 S.C.R. 299; R. v. Therens, [1985] 1 S.C.R. 613; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Edmonton Journal v. Alberta, [1989] 2 S.C.R. 1326; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 32 .
Civil Code of Lower Canada, arts. 399, 400.
Constitution Act, 1982, s. 52 .
Government Airport Concession Operations Regulations, SOR/79‑373, s. 6, 7(a), (b), 8-20.
U.S. Constitution, First Amendment.
Authors Cited
Abella, Rosalie Silberman. "The Social and Legal Paradigms of Equality" (1989), 1 W.R.L.S.I. 5.
Concise Oxford Dictionary, 7th ed. Edited by J. B. Sykes. Oxford: Oxford University Press, 1982, "solicit".
Cory, the Hon. Justice Peter deCarteret. Freedom of Expression Under the Charter: the Difficulties of Adjudicating, paper delivered at the University of Alberta Centre for Constitutional Studies, on April 21, 1990.
Côté, Pierre-André. The Interpretation of Legislation in Canada. Translated by Katherine Lippel, John Philpot and Bill Schabas. Cowansville: Yvon Blais Inc., 1984.
Côté, Pierre-André. "La préséance de la Charte canadienne des droits et libertés " (1984), 18 R.J.T. 105.
Cox, Archibald. Freedom of Expression. Cambridge, Mass.: Harvard University Press, 1981.
Dienes, C. Thomas. "The Trashing of the Public Forum: Problems in First Amendment Analysis" (1986), 55 Geo. Wash. L. Rev. 109.
Emerson, Thomas I. "Toward a General Theory of the First Amendment" (1963), 72 Yale L.J. 877.
Farber, Daniel A. and John E. Nowak. "The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication" (1984), 70 Va. L. Rev. 1219.
Jakab, Peter. "Public Forum Analysis After Perry Education Association v. Perry Local Educators' Association -- A Conceptual Approach to Claims of First Amendment Access to Publicly Owned Property" (1986), 54 Fordham L. Rev. 545.
Jeffries, John Calvin, Jr. "Legality, Vagueness, and the Construction of Penal Statutes" (1985), 71 Va. L. Rev. 189.
Kalven, Harry, Jr. "The Concept of the Public Forum: Cox v. Louisiana", [1965] Sup. Ct. Rev. 1.
Lee, William E. "Lonely Pamphleteers, Little People, and the Supreme Court: The Doctrine of Time, Place, and Manner Regulations of Expression" (1986), 54 Geo. Wash. L. Rev. 757.
MacKay, A. Wayne. "Freedom of Expression: Is it All Just Talk?" (1989), 68 Can. Bar Rev. 713.
Mill, John Stuart. On Liberty and Considerations on Representative Government. Oxford: Basil Blackwell, 1946.
Moon, Richard. "Access to Public and Private Property Under Freedom of Expression" (1988), 20 Ottawa L. Rev. 339.
Moon, Richard. "Freedom of Expression and Property Rights" (1988), 52 Sask. L. Rev. 243.
Petit Robert. Paris: Le Robert, 1977, "publicité", "solliciter".
Pinard, Danielle. "Le principe d'interprétation issu de la présomption de constitutionnalité et la Charte canadienne des droits et libertés " (1990), 35 McGill L.J. 305.
Post, Robert C. "Between Governance and Management: The History and Theory of the Public Forum" (1987), 34 U.C.L.A. L. Rev. 1713.
Rogerson, Carol. "The Judicial Search for Appropriate Remedies Under the Charter : The Examples of Overbreadth and Vagueness". In Charter Litigation. Edited by Robert J. Sharpe. Toronto: Butterworths, 1987.
Schauer, Frederick F. Free Speech: A Philosophical Enquiry. Cambridge: Cambridge University Press, 1982.
Sharpe, Robert J. "Commercial Expression and the Charter " (1987), 37 U.T.L.J. 229.
Stroud's Judicial Dictionary of Words and Phrases, 5th ed. By John S. James. London: Sweet & Maxwell, 1986, "solicit".
Stuart, Don. "The Canadian Void for Vagueness Doctrine Arrives With No Teeth" (1990), 77 C.R. (3d) 101.
Stuart, Don. Canadian Criminal Law: A Treatise, 2nd ed. Toronto: Carswells, 1987.
Tribe, Laurence H. American Constitutional Law, 2nd ed. Mineola, New York: Foundation Press, 1988.
Trotter, Gary T. "LeBeau: Toward A Canadian Vagueness Doctrine" (1988), 62 C.R. (3d) 183.
APPEAL from a judgment of the Federal Court of Appeal, [1987] 2 F.C. 68, 36 D.L.R. (4th) 501, 76 N.R. 338, affirming the judgment of the Federal Court, Trial Division, [1985] 2 F.C. 3, 25 D.L.R. (4th) 460, 1 F.T.R. 71, 23 C.R.R. 1, granting respondents' action for a declaration that the appellant had not respected their fundamental freedoms. Appeal dismissed.
Gaspard Côté., Q.C. and Claude Joyal, for the appellant.
Gérard Guay, for the respondents.
D. Lepofsky, for the intervener the Attorney General for Ontario.
W. Glen How, Q.C., for the interveners Watch Tower Bible and Tract Society of Canada, Kenneth Arthur Little and Thomas Richard Jones.
//Lamer C.J.//
English version of the reasons of Lamer C.J. and Sopinka J. delivered by
Lamer C.J. -- I have had the advantage of reading the reasons of Justice L'Heureux‑Dubé. I would ultimately dispose of this appeal in the same way, but would arrive at this conclusion by a different route.
Essentially, my position differs from that of my colleague in two regards: first, with respect, I do not share her position that the concept of "public forum" should be considered exclusively in the context of s. 1 of the Canadian Charter of Rights and Freedoms . Second, like Dubé J. at trial and the majority on appeal, I have come to the conclusion that s. 7 of the Government Airport Concession Operations Regulations, SOR/79‑373 (hereinafter "the Regulation") is not applicable to the activities of the respondents in the case at bar. I will now look at these two points.
1.The Concept of "Public Forum" and its Incorporation in Rules and Burdens Imposed by the Charter
As developed by the American courts in a series of decisions, the concept of "public forum" refers first and foremost to a social reality, namely, that certain places owned by the government constitute a favourable platform for the dissemination of ideas. In an article titled "The Concept of the Public Forum: Cox v. Louisiana", [1965] Sup. Ct. Rev. 1, at pp. 11‑12, Prof. Harry Kalven, Jr. summarized the definition of the term "public forum" as follows:
. . . in an open democratic society the streets, the parks, and other public places are an important facility for public discussion and political process. They are in brief a public forum that the citizen can commandeer; the generosity and empathy with which such facilities are made available is an index of freedom.
The "public forum" concept thus appears as a "label" used by the American courts to describe certain places which are by their very nature suited to free expression. In thus characterizing certain places as "public forums", the American courts have in fact made an exception to the absolute nature of the government's right of ownership in order to conclude that the First Amendment to the American Constitution gives a person wishing to exercise his or her freedom of expression the right to use a parcel of the public domain so identified for purposes of expression (see Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939), at pp. 515‑16, Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983), at p. 45).
In Perry Education Association, the United States Supreme Court divided government properties into three distinct categories: (1) "traditional public forums", (2) "public forums by designation" and (3) forums which are not public. According to this nomenclature, the category within which a government property falls will determine the scope of the limitations which may be imposed on expression taking place on the property:
The first, traditional public forum, comprises streets and parks. Restrictions on access to these properties come under strict judicial scrutiny. If the restrictions are not narrowly tailored to serve a compelling state interest, they are unconstitutional. The second, public forum by designation, encompasses those public properties that the state has dedicated primarily as sites for communicative activity. These include auditoriums, meeting facilities and theaters. Second category properties enjoy the same strict scrutiny protection as properties in the first category.
The third category is defined as "property which is not by tradition or designation a forum for public communication."
(P. Jakab, "Public Forum Analysis After Perry Education Association v. Perry Local Educators' Association ‑‑ A Conceptual Approach to Claims of First Amendment Access to Publicly Owned Property" (1986), 54 Fordham L. Rev. 545, at p. 549).
Two observations should be made regarding the classification exercise undertaken by our neighbours to the south. First, I note that the "public forum" doctrine has been severely criticized by various American professors who, in general, reproach this doctrine for not offering specific functional criteria that can be used to characterize a particular place (see Jakab, op cit.; and Dienes, "The Trashing of the Public Forum: Problems in First Amendment Analysis" (1986), 55 Geo. Wash. L. Rev. 109).
Second, in considering the application of this American doctrine in Canadian law, I feel it is essential to note the fundamental differences between the American Constitution and the Charter . The American Bill of Rights contains no clause similar to s. 1 of our Charter , which provides for the consideration of justifications which may be given by the government to limit a citizen's constitutional rights. To this extent, the characterization of a place as a "public forum" in the United States does not end the matter, since it will then be necessary, under our Constitution, to determine whether the governmental interests are sufficiently compelling to justify an infringement of freedom of expression that would otherwise be unconstitutional.
Additionally, the characterization of a place as a "public forum" cannot mean that every form of expression is therefore permissible in such a place. For example, there are certain forms of expression which could not be permitted even in a public park. To this extent, undoubtedly, the public forum doctrine can be criticized for over-emphasizing the nature of the place at the expense of the real interests involved.
These fundamental considerations lead me to conclude that, in the Canadian legal context, it would be preferable to disregard the nominalistic approach developed by the American courts and instead to balance the interests underlying the public forum doctrine. The American experience shows that the "public forum" concept actually results from an attempt to strike a balance between the interests of the individual and the interests of the government. As there is no provision similar to s. 1 of our Charter , the American "public forum" doctrine is the result of the reconciliation of the individual's interest in expressing himself in a place which is itself highly propitious to such expression and of the government's interest in being able to manage effectively the premises that it owns. For example, parks and public roads which have earned the "public forum" classification are in fact places whose functions will generally not be interfered with by the exercise of freedom of expression. In an article titled "Access to Public and Private Property Under Freedom of Expression" (1988), 20 Ottawa L. Rev. 339, at p. 341, Prof. Richard Moon says the following in this regard:
While the courts purport to attach the categorical labels, public forum and non‑public forum, as a formal threshold matter, it appears that, beneath it all, the determination that a particular state‑owned property is a public forum involves a judgment that public access for communication is reasonably consistent with the state use of the property. Access is required if it can be reasonably accommodated by the state. The focus of judicial analysis shifts from the categories of public and non‑public forum to a balancing of the state's interest in excluding communication from its property against the importance of communicative access to a particular individual or group. [Emphasis added.]
I agree completely with this assessment of the principles underlying the "public forum" doctrine. For this reason, I am of the view that when a person claims that his freedom of expression was infringed while he was trying to express himself in a place owned by the government, the legal analysis must involve examining the interests at issue, namely the interest of the individual wishing to express himself in a place suitable for such expression and that of the government in effective operation of the place owned by it. I will examine these interests in turn.
a.Interest of the Individual Wishing to Express Himself
The interest an individual wishing to express himself has in using a parcel of the public domain can quite easily be explained. Unquestionably, the dissemination of an idea is most effective when there are a large number of listeners; the economic and social structure of our society is such that the largest number of individuals, or potential listeners, is often to be found in places that are state property. One thinks immediately of parks or public roads which, by their very nature, are suitable locations for a person wishing to communicate an idea.
Accordingly, it must be understood that the individual has an interest in communicating his ideas in a place which, because of the presence of listeners, will favour the effective dissemination of what he has to say. Certain places owned by the state are well suited for such purposes; it has to be borne in mind, however, that all government property is used for specific purposes which must be respected by any person seeking to communicate. This is the essence of the government interest.
b.Government Interest
In considering the government interest, I would note at the outset that this should not be confused, strictly speaking, with the ownership held by the government. An analysis of the public status of a place cannot be based on the premise suggested by the appellant that the owner has unlimited rights over his property. Pratte J., dissenting on appeal, articulated this position in the following way ([1987] 2 F.C. 68, at p. 74):
The government has the same rights as any owner with respect to its property. Its ownership right, therefore, is exclusive like that of any individual.
In my opinion, this analytical approach contains inherent dangers. First, it ignores the special nature of government property. The very nature of the relationship existing between citizens and the elected government provides that the latter will own places for the citizens' benefit and use, unlike a private owner who benefits personally from the places he owns. The "quasi‑fiduciary" nature of the government's right of ownership was indeed clearly set out by the U.S. Supreme Court in Hague v. Committee for Industrial Organization, supra, at pp. 515‑16:
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.
I note that in the case at bar Hugessen J.A. eloquently summarized this position, at p. 77:
As regards the government's right of ownership of the airport terminal, in my opinion it can never be made the sole justification for an infringement of the fundamental freedom of a subject. The government is not in the same position as a private owner in this respect, as it owns its property not for its own benefit but for that of the citizen. Clearly the government has a right, even an obligation, to devote certain property for certain purposes and to manage "its" property for the public good. The exercise of this right and the performance of this obligation may, depending on the circumstances, legitimize the imposition of certain limitations on fundamental freedoms. Of course the government may limit public access to certain places; of course it may also act to maintain law and order; but it cannot make its ownership right a justification for action the only purpose and effect of which is to impede the exercise of a fundamental freedom.
Second, an absolutist approach to the right of ownership fails to take into account that the freedom of expression cannot be exercised in a vacuum and that it necessarily implies the use of physical space in order to meet its underlying objectives. No one could agree that the exercise of the freedom of expression can be limited solely to places owned by the person wishing to communicate: such an approach would certainly deny the very foundation of the freedom of expression. I therefore conclude that, as a consequence of its special nature, the government's right of ownership cannot of itself authorize an infringement of the freedom guaranteed by s. 2 (b) of the Charter .
This having been said, it must be understood, since the government administers its properties for the benefit of the citizens as a whole, that it is the citizens above all who have an interest in seeing that the properties are administered and operated in a manner consistent with their intended purpose. In this regard reference may be made to the passages already cited from Hague v. Committee for Industrial Organization, supra, and the reasons of Hugessen J.A., on appeal in the case at bar. In practical terms, it is easy to see that the citizens as a whole benefit from the services offered by Canada Post or by employment centres managed by the state. The state is accordingly responsible for ensuring that such places serve the specific purposes and functions for which they were intended. The fundamental government interest, and by the same token that of the citizens as a whole, is thus to ensure that the services or undertakings offered by various levels of government are operated effectively and in accordance with their intended purpose.
c.Balancing These Poles of Interest Under s. 2(b) of the Charter
Having reviewed the interests at issue, I come to the conclusion that s. 2 (b) of the Charter cannot be interpreted so as to consider only the interests of the person wishing to communicate. As the Attorney General for Ontario properly points out, s. 2 (b) of the Charter does not protect "expression" itself, but freedom of expression. In my opinion, the "freedom" which an individual may have to communicate in a place owned by the government must necessarily be circumscribed by the interests of the latter and of the citizens as a whole: the individual will only be free to communicate in a place owned by the state if the form of expression he uses is compatible with the principal function or intended purpose of that place.
The interest which any person may have in communicating in a place suited for the purpose cannot have the effect of depriving the citizens as a whole of the effective operation of government services and undertakings. Even before any attempt was made to use them for purposes of expression, such places were intended by the state to perform specific social functions. A person who is in a public place for the purpose of expressing himself must respect the functions of the place and cannot in any way invoke his or her freedom of expression so as to interfere with those functions. For example, no one would suggest that an individual could, under the aegis of freedom of expression, shout a political message of some kind in the Library of Parliament or any other library. This form of expression in such a context would be incompatible with the fundamental purpose of the place, which essentially require