[sv 1,68] [sv 75,1] [sv 19,1995]

weisfeld v. canada

A-252-89

Abie Weisfeld (also known as Eibie Weizfield) (Appellant) (Plaintiff)

v.

Her Majesty the Queen (Respondent) (Defendant)

Indexed as: Weisfeld v. Canada (C.A.)

Court of Appeal, Mahoney, Linden and McDonald JJ.A.--Ottawa, May 31 and June 30, 1994.

Constitutional law -- Charter of Rights -- Fundamental freedoms -- Freedom of expression -- Appeal from Trial Division decision removal of Peace Camp from Parliament Hill not infringing appellant's freedom of expression under Charter, s. 2(b) -- Tents, table, banner erected to protest cruise missile testing in Canada -- Appellant's conduct amounting to "expression," conveying message -- Application of public forum doctrine -- No special circumstances warranting removal of appellant's conduct from protected sphere of s. 2(b) -- Effect of Government's actions prima facie infringing appellant's freedom of expression.

Constitutional law -- Charter of Rights -- Limitation clause -- Removal of Peace Camp, erected to protest cruise missile testing in Canada, from Parliament Hill -- Freedom of expression infringed but whether Government action saved by Charter s. 1 -- Whether limit prescribed by law, reasonable in democratic society -- Rights of Government at common law to abate trespass, nuisance and under Public Works Nuisances Regulations -- Whether objective pressing, substantial -- Shelter fire, health hazard -- Other concerns preservation of Parliament Hill's beauty, symbolic importance -- Minimal impairment test.

Public works -- Tents, erected for anti-cruise missile testing Peace Camp on Parliament Hill, dismantled under amended Public Works Nuisances Regulations, s. 6(2) -- Appellant seeking declaration s. 6(2) unconstitutional, infringing freedom of expression -- Respondent's purpose in exercising common law rights to remedy negative, physical consequences of appellant's conduct -- Presence of shelter on Parliament Hill fire, health hazard -- Government also concerned with preserving beauty, symbolic importance of Parliament Hill -- Regulations, s. 6(2) designed to achieve objectives of maintaining Parliament Hill in clean, safe, pleasing condition -- Neither arbitrary, unfair nor unconstitutional.

This was an appeal from a decision by McNair J. that the dismantling of a Peace Camp erected on Parliament Hill to protest cruise missile testing in Canada did not infringe the appellant's freedom of expression under paragraph 2(b) of the Charter. The appellant and other participants started their protest in April 1983 by constructing a Peace Camp consisting of seven tents, a literature table and a banner. Despite several warnings from RCMP officers and Public Works employees, they refused to dismantle their shelter and maintained a presence on the Hill. The appellant was arrested and charges were laid against him for resisting removal of the shelter further to a notice given under provincial trespass to property legislation. The protest continued until April 1985, when Cabinet passed an order in council amending the Public Works Nuisances Regulations to prohibit everyone from erecting or maintaining any structure upon any public work. Three years later, in the fall of 1988, the appellant tried again to establish a presence on Parliament Hill but RCMP officers, relying on section 6 of the amended Regulations, intervened to prevent him from re-establishing the Peace Camp. In dismissing the appellant's action for a declaration of unconstitutionality and for damages, the Trial Judge found that the erecting or placing of the shelter, tables and other objects on the grounds of Parliament did not convey a message and that the respondent's actions in removing the Peace Camp and preventing its re-establishment did not infringe the appellant's freedom of expression. The issues in this appeal were: 1) whether the appellant's actions in erecting the Peace Camp amounted to expression protectable under paragraph 2(b) of the Charter; 2) if so, whether the respondent's actions, either at common law or under the Regulations, infringed the appellant's freedom of expression; 3) if so, whether these actions were justifiable under section 1 of the Charter.

Held, the appeal should be dismissed.

1) The leading case on freedom of expression is Irwin Toy Ltd. v. Quebec (Attorney General) in which the Supreme Court of Canada outlined the steps to be undertaken in analysing an allegation that Government's conduct infringed freedom of expression. The first step was to determine whether the appellant's activity fell within the protected sphere of expression. Expression is not restricted to words, oral or written, but encompasses myriad forms of communication as long as the activity conveys or attempts to convey a meaning. The Charter guarantees freedom of expression, not merely freedom of speech. The Trial Judge was wrong in finding that the appellant's conduct did not convey a message and was therefore not "expression" within the meaning of paragraph 2(b). The actions of private citizens in building a very visible structure on Parliament Hill and maintaining a vigil for more than two years, conveyed some kind of meaning. The Peace Camp structures and the tables fell within the concept of expression. It is the conveying or the attempted conveying of the meaning, not its receipt, that triggers the guarantee under paragraph 2(b). The next step in the analysis under Irwin Toy was to determine whether there are any special circumstances which would warrant removing that expression from the protected sphere under paragraph 2(b). One of the circumstances in which freedom of expression may be limited is when that expression takes place in the "public forum." The "public forum" doctrine, which has been developed by the American courts in addressing the issue of freedom of expression on government-owned property, recognizes that there must be a balancing of competing interests: the interests of the Government in the effective operation of the property it owns and the interests of the individual wishing to express himself. The freedom of the individual to communicate in a public place must be compatible with the principal purpose of that place. The purposes underlying our constitutional protection of free expression were defined in Irwin Toy as: the seeking and obtaining of truth; participation in social and political decision-making; and the encouragement of diversity in forms of individual self-fulfilment and human flourishing by cultivating a tolerant, welcoming environment for the conveyance and reception of ideas. If the use of a particular public place does not promote one of these principles, expression in that forum will not warrant constitutional protection. There were no special circumstances warranting the removal of the appellant's conduct from the protected sphere under paragraph 2(b).

2) Once the claimant has established that the activity in question is expressive, the next step is to determine whether the purpose or effect of the impugned governmental conduct was to control the claimant's attempt to convey meaning. In attempting to establish that the effect of the Government's action was to restrict freedom of expression so as to amount to an infringement of that freedom, the claimant must show that his activity promotes at least one of the three principles underlying freedom of expression. The Government's purpose was to control only the physical consequences of the appellant's actions of expressing himself by erecting and maintaining a structure on Parliament Hill; it was to restrict one of the forms of the appellant's expression, not the content of that expression. The effect of the Government's actions, both at common law and under the Regulations, did restrict the appellant's freedom of expression. The means chosen by the respondent to control the physical consequences of the appellant's actions prevented him from expressing himself in the manner of his choice. The appellant's political protest promoted, at a minimum, the principle of participation in social and political decision-making. The Government's actions, whether exercising its common law right against trespass and public nuisance or under the Regulations, prima facie infringed the appellant's freedom of expression.

3) The analysis under section 1 of the Charter has two distinct steps. The onus was on the Government to show, first, that the limit was prescribed by law and, second, that it was reasonable as demonstrably justified in a free and democratic society. If the Government acted under the amended Public Works Nuisances Regulations, the demands made in April 1985 and the fall of 1988 were actions "prescribed by law" within the meaning of section 1. On the other hand, if all of the Government's actions were in the exercise of the Crown's right at common law to manage its property and not based on statutory authority, the question became whether these actions were "prescribed by law." The exercise of a common law right can be a limit prescribed by law. The action of the Government agents, whether pursuant to the Regulations or to a common law right to abate trespass and nuisance, was a limit on the appellant's freedom of expression which was "prescribed by law." To meet the reasonable limit test in the section 1 analysis, it must be established first that the objective which the limitation is designed to promote is pressing and substantial in a free and democratic society. The second requirement involves a proportionality test. The respondent's purpose in exercising her common law rights and in amending the Regulations was to remedy the negative, physical consequences of the appellant's conduct. The presence of the shelter on Parliament Hill constituted potential fire and health hazards. The Government was also concerned with preserving the aesthetic beauty of Parliament Hill. A final government objective was to prevent the damage that the permanent presence of the Peace Camp could have on the symbolic importance of Parliament Hill. These objectives were pressing and substantial. The proportionality test has three components. The first component is the rational connection: the measure limiting the Charter freedom must be rationally connected to the intended objectives. The Government's exercise of its common law right to remove the appellant's Peace Camp shelter from Parliament Hill and to prevent him from re-erecting it was rationally connected to the objectives of maintaining Parliament Hill in a clean, safe and aesthetically pleasing condition. Similarly, subsection 6(2) of the Public Works Nuisances Regulations is designed to achieve those same objectives and it is neither arbitrary, unfair nor based on irrational considerations. The second component is the minimal impairment test which was also met. In merely denying the appellant the right to erect and to occupy a permanent shelter, but leaving unimpaired his other means of communicating his message, the Government infringed the appellant's freedom of expression as little as was reasonably possible in the circumstances. With respect to the third component of the proportionality test, the Government's exercise of its common law rights against trespass and public nuisance with respect to the shelter had a minimal effect on the appellant's ability to exercise his freedom of expression, which effect was proportional to the objectives of the Government action. As for subsection 6(2) of the Regulations operating as a justification for appellant's removal of table from the Hill, the words do not support such a meaning: a table, simply resting on the ground, is not a "structure." The respondent gave that provision an unreasonable interpretation when she sought to apply it so as to prohibit the appellant from bringing a table onto the Hill and using it to hold literature. It did not and could not justify her conduct, but neither was it unconstitutional.

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.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b),(c),(d), 24(1).

Criminal Code, R.S.C. 1970, c. C-34.

Public Works Act, R.S.C. 1970, c. P-38, s. 3.

Public Works Nuisances Regulations, C.R.C., c. 1365, ss. 5 (as enacted by SOR/85-370, s. 1), 6(2) (as enacted idem), 8 (as enacted idem), 9 (as enacted idem), 11(2) (as enacted idem).

Trespass to Property Act, R.S.O. 1980, c. 511, s. 4(2).

cases judicially considered

followed:

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; (1991), 77 D.L.R. (4th) 385; 4 C.R.R. (2d) 60; 120 N.R. 241; R. v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 14 O.A.C. 335.

applied:

RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; (1986), 33 D.L.R. (4th) 174; [1987] 1 W.W.R. 577; 9 B.C.L.R. (2d) 273; 38 C.C.L.T. 184; 87 CLLC 14,002; 25 C.R.R. 321; [1987] D.L.Q. 69; R. v. Swain, [1991] 1 S.C.R. 933; (1991), 75 O.R. (2d) 388; 71 D.L.R. (4th) 551; 63 C.C.C. (3d) 481; 5 C.R. (4th) 253; 3 C.R.R. (2d) 1; 125 N.R. 1; 47 O.A.C. 81; R. v. Dersch, [1993] 3 S.C.R. 768.

considered:

Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084; (1993), 156 N.R. 2.

referred to:

R. v. Zundel, [1992] 2 S.C.R. 731; (1992), 95 D.L.R. (4th) 202; 75 C.C.C. (3d) 449; 16 C.R. (4th) 1; 140 N.R. 1; 56 O.A.C. 161; R. v. Keegstra, [1990] 3 S.C.R. 697; (1990), 114 A.R. 81; [1991] 2 W.W.R. 1; 77 Alta. L.R. (2d) 193; 61 C.C.C. (3d) 1; 3 C.P.R. (2d) 193; 1 C.R. (4th) 129; 117 N.R. 284; R. v. Kopyto (1987), 24 O.A.C. 81 (Ont. C.A.); Ontario Film and Video Appreciation Society and Ontario Board of Censors, Re (1983), 41 O.R. (2d) 583; 147 D.L.R. (3d) 58; 34 C.R. (3d) 73 (Div. Ct.); affd (1984), 45 O.R. (2d) 80; 5 D.L.R. (4th) 766; 38 C.R. (3d) 271; 2 O.A.C. 388 (C.A.); Tinker v. Des Moines Community School District, 393 U.S. 503 (1969); Spense v. Washington, 418 U.S. 405 (1974); Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990); Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75 Sask. R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38 C.R.R. 232; 92 N.R. 110; R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295; (1985), 60 A.R. 161; 18 D.L.R. (4th) 321; [1985] 3 W.W.R. 481; 37 Alta. L.R. (2d) 97; 18 C.C.C. (3d) 385; 85 CLLC 14,023; 13 C.R.R. 64; 58 N.R. 81; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; (1986), 35 D.L.R. (4th) 1; 30 C.C.C. (3d) 385; 87 CLLC 14,001; 55 C.R. (3d) 193; 28 C.R.R. 1; 71 N.R. 161; 19 O.A.C. 239; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; (1990), 76 D.L.R. (4th) 545; 91 CLLC 17,004; 2 C.R.R. (2d) 1; 118 N.R. 1; 45 O.A.C. 1; R. v. Chaulk, [1990] 3 S.C.R. 1303; [1991] 2 W.W.R. 385; (1990), 69 Man.R. (2d) 161; 62 C.C.C. (3d) 193; 2 C.R. (4th) 1; 1 C.R.R. (2d) 1; 119 N.R. 161; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; (1991), 84 D.L.R. (4th) 161; 67 C.C.C. (3d) 193; 38 C.P.R. (3d) 451; 8 C.R. (4th) 145; 7 C.R.R. (2d) 36; 130 N.R. 1; 49 O.A.C. 161; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; (1988), 54 D.L.R. (4th) 577; 19 Q.A.C. 69; 10 C.H.R.R. D/5559; 36 C.R.R. 1; 90 N.R. 84.

authors cited

Hogg, Peter. Constitutional Law of Canada, 3rd ed. Toronto: Carswell, 1992.

Shorter Oxford English Dictionary, 3rd ed. Oxford: Clarendon Press, 1973, "structure."

APPEAL from a Trial Division decision ([1990] 1 F.C. 367) that the respondent's actions in removing the Peace Camp from Parliament Hill and preventing its re-establisment did not infringe the appellant's freedom of expression as guaranteed by paragraph 2(b) of the Charter. Appeal dismissed.

counsel:

J. J. Mark Edwards for appellant (plaintiff).

Luther Chambers for respondent (defendant).

solicitors:

Nelligan/Power, Ottawa, for appellant (plaintiff).

Deputy Attorney General of Canada for respondent (defendant).

The following are the reasons for judgment rendered in English by

Linden J.A.: This case arises out of the dismantling of the Peace Camp which the appellant and others had erected on Parliament Hill in 1983 to protest cruise missile testing in Canada. The appellant claims that he was expressing a political message and that the establishment of the Peace Camp was essential to the communication of that message. The appellant pleads that the actions of the respondent, in dismantling the Peace Camp and preventing its re-establishment, violated his constitutional freedom of expression, as guaranteed by paragraph 2(b) of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].

This is an appeal from the decision of Mr. Justice McNair, dated May 5, 1989, dismissing the appellant's action for a declaration of unconstitutionality and for damages.¹*ftnote¹ Weisfeld v. Canada, [1990] 1 F.C. 367 (T.D.). The learned Trial Judge found that the erecting or placing of the tents, tables, and other objects of the Peace Camp on the grounds of Parliament Hill did not, itself, convey a message. Rather, the appellant's message of political protest was conveyed to the public through other means, namely by engaging passers-by in conversation, by handing out printed leaflets, and by marching and carrying placards. According to the Trial Judge, since the physical presence of the Peace Camp did not itself convey a message, the appellant's establishing and maintaining of the Peace Camp did not amount to "expression" within the meaning of paragraph 2(b). Therefore, the actions of the respondent in removing the Peace Camp and preventing its re-establishment did not infringe the appellant's freedom of expression. At trial, the appellant asserted that the respondent's actions also infringed his freedom of peaceful assembly and freedom of association pursuant to paragraphs 2(c) and 2(d) of the Charter, but these two grounds were not advanced on appeal.

With respect, while I agree with the learned Trial Judge's decision, I disagree with much of his reasoning, particularly on the freedom of expression issue. I am of the view that the establishment of the Peace Camp on Parliament Hill did convey, or attempt to convey, a message. Therefore, the appellant's activities in placing the Peace Camp on the Hill amounted to "expression" within the protection afforded by paragraph 2(b) of the Charter. I further hold that, in removing the physical objects associated with the protest and in preventing the appellant from restoring them, the respondent prima facie infringed the appellant's freedom of expression. As will be explained below, however, the actions of the respondent can be justified under section 1.

I. Facts

On April 18, 1983, the appellant and others established a peace camp on Parliament Hill, consisting of seven tents, a literature table, and a banner reading "Peace Camp, People with People against the cruise." The participants decided to continue the Peace Camp the following day but the RCMP requested that the tents be removed from the Hill. When the participants refused, the RCMP dismantled the tents. However, the protest continued and from April 1983 to April 1985 the Peace Camp protestors maintained a presence on Parliament Hill, distributing literature and discussing the issue of cruise missile testing with by-standers. Although they were prevented from erecting proper tents, in the spring of 1983 the participants, including the appellant, constructed a rudimentary shelter, consisting of plastic sheets suspended from poles, to protect themselves from the elements. In the summer of 1983, federal government officials requested that the participants move their Peace Camp to a public campsite at Lebreton Flats. The protesters temporarily agreed to this compromise, as long as their table, banner and literature would be allowed to remain on Parliament Hill. Later that summer, however, the appellant decided to move the shelter back to Parliament Hill where the protest would have a higher profile. The federal government neither granted permission nor actively opposed this relocation.

A more permanent shelter was constructed by the appellant and two associates in November of 1984. The base of the structure was made out of two-by-fours and covered with carpeting. Aluminum poles were fastened to the base and covered with sheets of styrofoam and reflective aluminum paper. The outside of the structure was then covered with black and orange plastic sheeting. A banner, with the words "Peace Camp" in both French and English, was fastened to the side of the shelter. This structure remained on the Hill for the next six months or so and served as permanent living quarters for the appellant and two of his fellow protestors.

On the morning of April 22, 1985, employees from the Department of Public Works attended at the Peace Camp. They gave the occupants of the shelter a notice, purporting to be pursuant to subsection 4(2) of the Ontario Trespass to Property Act,²*ftnote² R.S.O. 1980, c. 511. requiring that they remove the structure, furnishings and any materials associated with their camp from the Hill. The participants refused to comply with this demand, whereupon the Public Works employees began to dismantle the shelter. The appellant clung to the shelter, resisting its removal. As a result, he was arrested by RCMP officers and taken into custody.

The appellant was released later that day and the participants retrieved most of their confiscated goods from a government warehouse near Hull. Some of the confiscated items were held by the RCMP as evidence to be used in the trial of the charges laid against the appellant. The appellant and the other participants returned to Parliament Hill on the evening of April 22, 1985, and erected more tents. These tents were also dismantled by Public Works employees.

The next day, April 23, 1985, Cabinet passed an order in council amending the Public Works Nuisances Regulations.³*ftnote³ C.R.C., 1978, c. 1365, as am. by the Public Works Nuisances Regulations, amendment, SOR/85-370, April 23, 1985. The amendments prohibited anyone from camping or sleeping upon any public work and from erecting, using, occupying or maintaining any structure upon a public work without the approval of the Minister. The sections [ss. 5 (as enacted by SOR/85-370, s. 1), 6(2) (as enacted idem), 8 (as enacted idem), 9 (as enacted idem), 11(2) (as enacted idem)] relevant to this case read:

5. No person shall erect, construct or post any thing, material or object in or upon any public work other than in such places as are specifically designated for such purposes.

. . .[qc]

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.

. . .[qc]

8. Any person found contravening section 6 of these Regulations 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.

. . .[qc]

11. . . . 

(2) Any person who fails to forthwith remove his personal property from and quit a public work after receiving a notice referred to in section 8 or who resumes an activity in respect of which he has received such a notice is guilty of an offence punishable on summary conviction and is liable to a fine not exceeding $400.

The appellant and others made several more attempts to re-establish the Peace Camp during April 1985 but were warned each time by the RCMP of the new Regulations enacted on April 23, 1985. The appellant was arrested a second time, this time under the amendments to the Public Works Nuisances Regulations rather than pursuant to a notice under the Trespass to Property Act.

Three years later, in the fall of 1988 during the federal general election, the appellant again tried to establish a presence on Parliament Hill. The findings of the Trial Judge concerning the activities during this period are lacking in detail, but the evidence appears to indicate the following. On the morning of October 21, 1988, the appellant placed a small table there, with literature secured on its top, and a large banner was pegged onto the ground. The RCMP attended and demanded, relying on section 6 of the amended Regulations, that the appellant remove the structure. When he refused, the articles were seized by the police. The appellant resisted the removal of the articles, whereupon he was handed an appearance notice for refusing to comply with a demand from a police officer to vacate the grounds and another appearance notice for assaulting a police officer. He was not taken into custody.

On the afternoon of October 21, 1988, the RCMP returned to find the appellant had erected a four-man tent on the lawn. The appellant was told to remove the tent from the Hill, but he refused. He was then charged with obstructing a police officer contrary to the Criminal Code [R.S.C. 1970, c. C-34] and with failing to remove personal property from a public work, contrary to section 11 of the Public Works Nuisances Regulations. At his show cause hearing, the appellant signed a written undertaking "not to cause any disturbance to any property owned and operated by any municipal or federal properties in Canada" and he was released.

On November 12, 1988, the appellant once again put a table on the lawn and, this time, he tied himself to it and pegged a banner onto the ground. Again the RCMP made a formal demand to remove the table. When the appellant refused, he was arrested and the table and banner were seized.

These events were repeated again, almost identically, on November 14, 1988. The table this time was described as a small table with a piece of plastic wrapped around it on which the appellant was planning to paint a message.

On each of these latter two occasions, the appellant was charged with breach of his undertaking to the Court, contrary to the Criminal Code, and with failure to remove his property from a public work, contrary to section 11 of the Public Works Nuisances Regulations. The appellant waived his right to a show cause hearing with respect to the November 14 charges, because he refused to undertake that he would not protest on the Hill during the balance of the federal election. He was, consequently, remanded into custody until after the election. He remained in jail until November 22, 1988 when, the election over, he gave a second undertaking and was released pending trial.

The appellant brought an action seeking a declaration that the actions of the respondent in removing the Peace Camp and in preventing the appellant from re-establishing it, both during the initial protest in April 1985 as well as during the fall of 1988, infringed his freedom of expression as guaranteed by paragraph 2(b) of the Charter. The appellant is also seeking a declaration that subsection 6(2) of the Public Works Nuisances Regulations is of no force and effect, as well as special damages in the amount of $2,000 for damages to the tent and other belongings of the appellant. In his statement of claim, the appellant had originally also sought punitive and exemplary damages of $200,000 and an injunction prohibiting the respondent from preventing the re-establishment of the Peace Camp, but these latter two remedies were abandoned on appeal.

II. Judgment Below

There appears to have been no dispute before the Trial Judge that the title to the grounds of Parliament Hill is vested in Her Majesty in right of Canada, that the Minister of Public Works is generally charged with their care and control and that the grounds are "public works" within the definition of the Public Works Act.⁴*ftnote⁴ Public Works Act, R.S.C. 1970, c. P-38:

3. In this Part

. . .[qc]

"public work" or "public works" means any work or property under the control of the Minister. No issue was taken with this finding on appeal.

The first issue that the Trial Judge addressed was whether, completely apart from the Charter issue, the Government had the right at common law to remove the appellant and his possessions from the Hill. The Trial Judge found that the appellant's conduct amounted to both public nuisance and trespass at common law and that the respondent, having control and management of the property, had the common law right to take action against the nuisance and trespass. In the Trial Judge's opinion, the fact that the respondent gave an initial notice under a provincial trespass statute did not vitiate any rights they may have had at common law to remove the physical objects of the Peace Camp from the grounds of Parliament Hill. The Trial Judge's conclusion on this issue was expressed as follows:

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 management 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.⁵*ftnote⁵ Weisfeld, supra, at p. 385.

These findings are correct and have not been challenged. Therefore, subject to the Charter, of course, prior to the enactment on April 23, 1985 of the amended Public Works Nuisances Regulations, the respondent was entitled to avail herself of her common law right of abatement against public nuisance and trespass by removing the encroachments placed on public property by the appellant. After April 23, 1985, the respondent had the on-going right to take action against trespass and nuisance by virtue of the common law, as well as the right to take action pursuant to the amended Regulations, subject also to the Charter.

Whereas the appellant did not attack the finding that his conduct amounted to public nuisance and trespass which the Crown had the right at common law to abate, he argues that, in exercising this common law right over the property under their control, the respondent violated the appellant's freedom of expression. As well, the appellant submits that subsection 6(2) of the amended Regulations also infringes freedom of expression.

On the issue of freedom of expression, the Trial Judge made the following key findings:

(a) the message the appellant was conveying or attempting to convey was a political message of protest against the Government's cruise missile policy;

(b) the erecting or placing of the shelter, tables, and other objects on the grounds of the Hill did not convey the appellant's message;

(c) the appellant's communication with bystanders through oral and written means did convey his message and these forms of communication were not prohibited by the Government's actions or by the Regulations. It was the Trial Judge's opinion that the freedom of expression guaranteed by paragraph 2(b) of the Charter did not protect inanimate objects or structures which did not convey a message. He was also of the opinion that the amended Regulations were not directed at the content of the appellant's message but, rather, were directed only to the reasonable regulation of conduct in terms of time, place and manner; and

(d) since, in his opinion, there was no infringement of the appellant's freedom of expression, the Trial Judge found it unnecessary to go on to consider the application of section 1 of the Charter. However, he added that, assuming it were necessary to consider section 1, it was his opinion that the governmental restrictions were reasonable limits "for achieving a significant governmental interest in the permissibly regulated area of conduct unrelated to the inhibition of freedom of expression."⁶*ftnote⁶ Ibid., at p. 394.

III. The Issues

1. Whether the actions of the appellant in erecting the Peace Camp on Parliament Hill amounted to expression protectable under paragraph 2(b) of the Charter;

2. If so, whether the actions of the respondent, either at common law or under the Regulations, in removing the Peace Camp and preventing the appellant from re-establishing it infringed the appellant's freedom of expression; and

3. If so, whether the actions of the respondent was justifiable under section 1 of the Charter.

I shall now discuss each of these issues in turn.

1. Freedom of Expression

The Canadian Charter of Rights and Freedoms declares that:

2. Everyone has the following fundamental freedoms:

. . .[qc]

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

The leading case on freedom of expression is Irwin Toy Ltd. v. Quebec (Attorney General)⁷*ftnote⁷ [1989] 1 S.C.R. 927 (hereinafter Irwin Toy). in which the Supreme Court outlined the steps to be undertaken in analyzing an allegation that government conduct infringed freedom of expression. First, the claimant must establish that his or her activity was "expression." Second, the Court must consider whether there were any special circumstances which would warrant removing that expression from the protected sphere under the Charter, as, for example, if the so-called expression took the form of violence.

In the case of Committee for the Commonwealth of Canada v. Canada,⁸*ftnote⁸ [1991] 1 S.C.R. 139 (hereinafter Commonwealth of Canada). however, the Supreme Court suggested that certain additional limitations on expression protected under paragraph 2(b) may be warranted when that expression takes place in the "public forum."

Therefore, if the claimant can establish that his or her activity amounts to protected expression, and that it is not subject to a special limitation, it is expression which is protected under paragraph 2(b) and the analysis then turns to whether that freedom of expression was infringed.

The first step is to determine whether the appellant's activity falls within the protected sphere of expression. In Irwin Toy, the Supreme Court of Canada explained that expression must be defined broadly to include "the activity [that] conveys or attempts to convey a meaning."⁹*ftnote⁹ Irwin Toy, supra, at p. 969, per Dickson C.J. Expression is not restricted to words, oral or written, but encompasses myriad forms of communication, including music, art, dance, postering, physical movements, marching with banners, etc. as long as the activity conveys or attempts to convey a meaning. As the Supreme Court recognized in Irwin Toy, "the content of expression can be conveyed through an infinite variety of forms of expression."¹⁰*ftnote¹⁰ Irwin Toy, supra, at p. 969. See also, R. v. Zundel, [1992] 2 S.C.R. 731, at p. 753; R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 729, 826; R. v. Kopyto (1987), 24 O.A.C. 81 (Ont. C.A.), at p. 90; and Ontario Film and Video Appreciation Society and Ontario Board of Censors, Re (1983), 41 O.R. (2d) 583 (Div. Ct.), at p. 590; affd (1984), 45 O.R. (2d) 80 (C.A.). And see P. W. Hogg, Constitutional Law of Canada, 3rd ed. (Toronto: Carswell, 1992), at pp. 963-964. In Irwin Toy, the Supreme Court expressly chose to use the phrase "the activity [that] conveys or attempts to convey a meaning," rather than "the words that convey or attempt to convey a meaning." The Court specifically recognized that physical activity, such as parking a car, could have expressive content if the activity was used to convey or to attempt to convey a meaning.

Our Charter guarantees freedom of expression not merely freedom of speech. Even in the United States, where the First Amendment to their Constitution guarantees only freedom of speech, the courts have developed a concept of expressive conduct which amounts to free speech. Conduct such as wearing black arm bands to school as a protest against U.S. policy in Vietnam, flying the American flag superimposed with a peace symbol, and flag burning have all been held to be expressive conduct amounting to speech and, hence, warranting constitutional protection.¹¹*ftnote¹¹ See, e.g., Tinker v. Des Moines Community School District, 393 U.S. 503 (1969); Spense v. Washington, 418 U.S. 405 (1974); Texas v. Johnson, 491 U.S. 397 (1989); and United States v. Eichman, 496 U.S. 310 (1990). Similarly, expression through conduct was expressly recognized in this country in RWDSU v. Dolphin Delivery Ltd.¹²*ftnote¹² [1986] 2 S.C.R. 573, at p. 588, per McIntyre J. (hereinafter Dolphin Delivery). wherein picketing was held to involve the exercise of freedom of expression because the activity of picketing contains expressive elements.

In the freedom of expression cases decided to date, this first step of determining whether the activity in question was "expression" has been easily resolved. It has been obvious that the claimant's conduct was expressive. The reason I have found it necessary to focus at some length on the issue of expression via conduct is that, on the facts of this case, the Trial Judge found that the appellant's conduct did not amount to "expression." He found that the physical structure of the shelter and the placing of it on Parliament Hill by the appellant did not convey the appellant's anti-cruise message. The Trial Judge felt that an uninformed person merely looking at the shelter would not understand that it symbolized a protest against cruise missile testing in Canada. According to the Trial Judge, since the appellant's conduct did not convey a message, it was not "expression" within the meaning of paragraph 2(b).

With respect, I disagree with this conclusion. It may be that a person walking by the Peace Camp would not immediately have realized that the appellant's specific message was "we don't want the Canadian government to accede to U.S. requests to test cruise missiles in northern Alberta." This does not mean, however, that the placing of the structure on Parliament Hill did not convey or attempt to convey a message. The act of private citizens building a very visible structure on the grounds of Parliament Hill, as well as maintaining a vigil there for more than two years, certainly conveys some kind of meaning. Similar peace camp protests were used in other countries at that time. This camp was meant to link up with other similar protests. The structure itself, therefore, helped to dramatize the message the appellant was seeking to communicate. It also manifested the protestors' commitment to the cause.

In my view, expression goes beyond words. People may choose to amplify or dramatize their messages in many ways: a sandwich board, a soapbox, a megaphone, a flag, a banner, a placard, a picture, a petition, all can be used to convey a message or to assist one in conveying a message more effectively. These "props" are part and parcel of the manner in which one chooses to express oneself and are as deserving of protection as the words used to convey the meaning. The Peace Camp structures and the tables used are, therefore, included in the concept of expression.

Furthermore, in my view, to attract constitutional protection, the claimant need not establish that his or her message was received and subjectively understood or appreciated by others. It is the conveying or the attempted conveying of the meaning, not its receipt, that triggers the guarantee under paragraph 2(b). A person protesting in a foreign language or in sign language, though understood by no one in the vicinity, is equally entitled to protection as are those articulately expressing themselves in either official language.

Further, in this case, it does not matter whether the Peace Camp and its constituent structures successfully conveyed a message of peace, or of general protest, or of specific protest against the policy of the federal government in allowing cruise missile testing in Canada. It is enough that the appellant's conduct attempted to convey some meaning, which it clearly did. This brings the appellant's expression prima facie within the scope of the expression protected by paragraph 2(b) of the Charter.

Having found that the appellant's activity is expression because it conveys or attempts to convey a message, the next step in the analysis under Irwin Toy is to determine whether there are any special circumstances which would warrant removing that expression from the protected sphere under paragraph 2(b). While defining the scope of expression very broadly, the Supreme Court has recognized that freedom of expression is not absolute and may properly be limited. The form of the expression, as distinct from the content of that expression, may be excluded from the protection of paragraph 2(b). For example, the Court has repeatedly said that acts of violence cannot be considered expression so as to receive the protection of the Charter.¹³*ftnote¹³ See, e.g., Irwin Toy, supra, at p. 970; Dolphin Delivery, supra, at p. 588. There was no evidence in this case that the appellant's attempts at expression included any acts of violence which would take it outside of the constitutionally protected sphere.

A second circumstance in which freedom of expression may be limited is when that expression takes place in the "public forum." In Commonwealth of Canada, supra, the Supreme Court grappled with this issue. From the six separate reasons for judgment in the case, three distinct approaches to defining the scope of protected expression can be gleaned. Both Chief Justice Lamer and Madam Justice McLachlin, in their separate reasons, suggested that the scope of expression protected under paragraph 2(b) of the Charter may be somewhat different when the expression takes place on government-owned property than in other situations. Madam Justice L'Heureux-Dubé, however, did not think that any particular "public forum" limitations on the scope of protected expression under paragraph 2(b) was required.

Madam Justice L'Heureux-Dubé preferred to follow the standard Irwin Toy approach, pursuant to which expressive activity that is not violent is protected, and any infringement is a constitutional violation unless it can be justified under section 1, which analysis would include, inter alia, any special considerations relevant to expression in the public forum. This is certainly a straightforward and consistent approach, but it did not attract the concurrence of the others.

The approach favoured by Lamer C.J., was based on the the "public forum" doctrine, which has been developed by the American courts in addressing the issue of freedom of expression on government-owned property. That doctrine recognizes that certain places by their very nature are particularly well-suited to the expression and dissemination of ideas in a democratic society. Through the application of the public forum doctrine,

[T]he 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.¹⁴*ftnote¹⁴ Commonwealth of Canada, supra, at pp. 150-151.

The public forum doctrine recognizes that there must be a balancing of competing interests: the interests of the Government in the effective operation of the property it owns and the interests of the individual wishing to express himself or herself.

In applying the American "public forum" doctrine to the freedom of expression guaranteed under our Charter, Lamer C.J. posited an inherent limitation on the scope of free expression: the freedom of the individual to communicate in a public place must be compatible with the principal purpose of that place. Freedom of expression may not be invoked so as to interfere with the effective operations of the public forum or with the right of others to use that place for the purpose it was intended. An individual will only be free to communicate in a public place if the form of expression used is compatible with the principal function or intended purpose of that particular place. Chief Justice Lamer explained:

In my view, if the expression takes a form that contravenes or is inconsistent with the function of the place where the attempt to communicate is made, such a form of expression must be considered to fall outside the sphere of s. 2(b). For example, if a person tried to picket in the middle of a busy highway or to set up barricades on a bridge, it might well be concluded that such a form of expression in such a place is incompatible with the principal function of the place, which is to provide for the smooth flow of automobile traffic. In such a case, it could not be concluded that freedom of expression had been restricted if a government representative obliged the picketer to express himself elsewhere.¹⁵*ftnote¹⁵ Ibid., at pp. 157-158.

Madam Justice McLachlin suggested a different approach to be used in defining the ambit of expression in the public forum which is protected under paragraph 2(b). Rather than limiting protectable expression by reference to the form that expression takes, as in Lamer C.J.'s approach, McLachlin J. focussed instead on the types of government property which should be made available for use as forums for public expression. Under McLachlin J.'s approach, the claimant is entitled to the protection of paragraph 2(b) only if he or she can establish a link between the use of the particular public forum selected for public expression and at least one of the purposes underlying the guarantee of free expression in the Charter. The purposes underlying our constitutional protection of free expression were defined in Irwin Toy as: (1) the seeking and obtaining of truth; (2) participation in social and political decision-making; and (3) the encouragement of diversity in forms of individual self-fulfilment and human flourishing by cultivating a tolerant, welcoming environment for the conveyance and reception of ideas.¹⁶*ftnote¹⁶ Irwin Toy, supra, at p. 976. In a given case, the use of a particular public place might not promote one of these principles and, therefore, expression in that forum would not warrant constitutional protection:

It would be difficult to contend that these purposes are served by "public" expression in the sanctum of the Prime Minister's office, an airport control tower, a prison cell or a judge's private chambers, to return to examples where it seems self-evident that the guarantee of free expression has no place. These are not places of public debate aimed at promoting either the truth or a better understanding of social and political issues. Nor is expression in these places related to the open and welcoming environment essential to maximization of individual fulfilment and human flourishing.¹⁷*ftnote¹⁷ Commonwealth of Canada, supra, at p. 241, per McLachlin J.

According to McLachlin J., if the individual can establish that the use of a particular forum to convey or to attempt to convey a message is linked to one of the principles enunciated in Irwin Toy as underlying our constitutional protection of free expression, then that expression falls within the scope of expression attracting constitutional protection. Only when such a link cannot be established would the expression not come within paragraph 2(b).

The public forum issue was revisited by the Supreme Court of Canada two years later in Ramsden v. Peterborough (City).¹⁸*ftnote¹⁸ [1993] 2 S.C.R. 1084. The Court in Ramsden did not resolve the uncertainty relating to the three possible approaches to the public forum limitation; it decided that it was unnecessary to choose which of the three approaches should be followed. The Court applied all three tests in turn, and came to the same conclusion as to disposition under each.

Applying the various "public forum" criteria to the facts of this case, I believe that there are no special circumstances warranting the removal of the appellant's conduct from the protected sphere under paragraph 2(b). The appellant's expression in this case continues to fall within the ambit of the guarantee under paragraph 2(b) whichever of the approaches is taken. Under the approach favoured by Chief Justice Lamer, erecting a tent on Parliament Hill cannot be said to be incompatible with the function or purpose of that forum. Under the approach advocated by McLachlin J., there is clearly a link between the principle of participation in social and political decision-making which underlies our constitutional protection of freedom of expression and the use of the grounds in front of Parliament to effect such participation. Therefore, none of the inherent limitations within the scope of freedom of expression operate in this case so as to take the appellant's conduct outside the protected sphere. The approach of L'Heureux-Dubé J. is the same as that discussed above under the first stage of the Irwin Toy analysis, wherein I have already found that the appellant's conduct was protected expression within the meaning of paragraph 2(b).

Having established that the appellant's conduct amounted to constitutionally protected expression, it is now necessary to examine whether the respondent's actions infringed that freedom of expression.

2. Paragraph 2(b) Violation

According to Irwin Toy, once the claimant has established that the activity in question is expressive, the next step in determining whether there has been an infringement of paragraph 2(b) is to determine whether the purpose or effect of the impugned governmental conduct was to control the claimant's attempt to convey meaning. If the Government's purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, that would necessarily infringe freedom of expression. On the other hand, where the Government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression but the effect may be to do so. In showing that the effect of the Government's action was to restrict freedom of expression so as to amount to an infringement of that freedom, the claimant must show his or her activity promotes at least one of the three principles underlying freedom of expression, outlined above.

A complicating factor in this case is identifying and defining the impugned government conduct. It will be remembered that the first dismantling of the Peace Camp by government employees occurred on April 22, 1985. Representatives of the Department of Public Works served a written notice on the Peace Camp participants pursuant to the Ontario Trespass to Property Act. When the campers refused to comply with the notice, the Government agents took down the shelter. The following day, Cabinet passed the Order in Council amending the Public Works Nuisances Regulations. Thereafter, on each attempt by the appellant to re-establish some type of structure on Parliament Hill, be it a tent or a table, officers from the RCMP gave the appellant notice under section 8 of the amended Regulations, requiring him to cease such activity and remove his personal property from the Hill. The appellant was arrested four times in late April 1985 and the fall of 1988, and charged with violating section 6 of the amended Regulations.

In his statement of claim, the appellant seeks a declaration that the acts of the respondent, in dismantling the Peace Camp and preventing the appellant from exercising his freedom of expression, infringed his rights under paragraph 2(b). He also seeks a declaration that subsection 6(2) of the Public Works Nuisances Regulations is of no force and effect. At the hearing of the appeal, counsel for the respondent stated that the respondent does not rely on the Regulations or on the Ontario Trespass to Property Act. Instead, the respondent asserts that she relies entirely on her rights at common law to manage the Crown's property, specifically her common law right to take action against trespass and public nuisance.

In my opinion, it does not matter whether the respondent, in defending the action and in arguing the appeal, relies on the Regulations or not. The appellant has challenged the constitutional validity of subsection 6(2) of those Regulations. Clearly the appellant has standing to bring such a challenge: he was arrested and charged four times under those Regulations. It cannot be said that he has not been affected by this legislation. Subsection 24(1) of the Charter provides that:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Since the appellant claims that one of his freedoms has been infringed, he has standing to challenge the specific legislation which is the basis of that infringement.¹⁹*ftnote¹⁹ See, e.g., Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 367. The respondent, though, has chosen not to rely on the Regulations as the authorization for her agents' conduct, and has, therefore, decided not to defend the constitutionality of the legislation. That decision is hers to make. This does not, however, prevent the appellant from maintaining his challenge against the Regulations, nor does it prevent this Court from considering that challenge. (The appellant has not sought to challenge the validity of the Ontario Trespass to Property Act.)

The distinction within the so-called "impugned government conduct," between the respondent's exercise of common law property rights, on the one hand, and the amended Regulations on the other, may in fact be unnecessary at this stage of the analysis. On neither ground can it be said that the purpose of the Government's action was to restrict the content of the appellant's expression. The Government's purpose was clearly to control only the physical consequences of the appellant's actions of expressing himself by erecting and maintaining a structure on Parliament Hill. This can be seen from the fact that the Government's action was directed solely at the appellant's erecting of the physical structure; it did not interfere with the appellant's ability to convey his message by other means such as by word of mouth, by carrying of placards and by the distribution of printed literature. The Government's purpose was clearly to restrict one of the forms of the appellant's expression, not the content of that expression.

That being said, I think it is equally clear that the effect of the Government's actions, both at common law and under the Regulations, did restrict the appellant's freedom of expression. The means chosen by the respondent to control the physical consequences of the appellant's actions, i.e. exercising her common law right to evict him as a trespasser or demanding under the Regulations that he remove the shelter from the Hill, prevented him from expressing himself in the manner of his choice. The effect, therefore, restricted his freedom of expression.

Following the test set out in Irwin Toy, once it has been established that the effect of government action was to restrict freedom of expression, the appellant must show that his or her activity promoted at least one of the three principles underlying freedom of expression. It is not difficult to conclude that the appellant's political protest in this case promoted, at a minimum, the principle of participation in social and political decision-making.

Therefore, I find that the actions of the Government, whether exercising its common law right against trespass and public nuisance, or under the Regulations, prima facie, infringed the appellant's freedom of expression as guaranteed by paragraph 2(b) of the Charter.

3. Section 1

Since the appellant's activity amounted to protected expression within the meaning of paragraph 2(b) and the respondent's actions had the effect of infringing the appellant's freedom, it is necessary to turn to section 1 of the Charter which provides:

1. The Canadian Charter of Rights and Freedoms guarantees 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.

The analysis under section 1 has two distinct steps. The onus is on the Government to show, first, that the limit is prescribed by law and, second, that it is reasonable as demonstrably justified in a free and democratic society.

(a) Prescribed by Law

I do not think it can be disputed that if the Government acted pursuant to the amended Public Works Nuisances Regulations, i.e. the demands in late April 1985 and in the fall of 1988, this was action that was "prescribed by law" within the meaning of section 1. However, the respondent asserts that all of the Government action, both before and after the amended Regulations came into force on April 23, 1985, was an exercise of the Crown's right at common law to manage its property and was not based on any statutory authority. The question then becomes whether this action which was done pursuant to its common law rights was "prescribed by law".

There has been an on-going debate in the case law as to whether government action pursuant to a common law rule is "prescribed by law". In Dolphin Delivery, supra, an injunction was awarded on equitable principles. These principles were held to be "laws" within the meaning of section 1. In Commonwealth of Canada, supra, the Court grappled with the issue and it is not completely certain which judges formed the majority on this point. At issue in the case was conduct by airport officials in preventing the claimants from handing out leaflets and soliciting for members at the Dorval airport. There were Regulations which purported to authorize the officials' interference with the claimants activities. The problem before the Court was that the Regulations were vague and overbroad and it was not certain whether the Regulations were sufficiently precise so as to prescribe by "law" the specific official conduct.

Notwithstanding the fact that the Regulations might be inapplicable, Madam Justice McLachlin found that the Government action constituted a "limit prescribed by law" because the airport officials were also acting pursuant to the Crown's legal rights as owner of the airport premises.²⁰*ftnote²⁰ In Commonwealth of Canada, supra, the legal rights arose under the Civil Code of Lower Canada which entitles a property owner to revoke permission for an invitee to be present on its property. Madam Justice McLachlin, at p. 245, points out that it is the same under the common law in other provinces. According to her, exercise of a common law right can be a limit prescribed by law. Mr. Justice La Forest agreed. With respect, so do I.

As McLachlin J. explained, the purpose of imposing the restriction of "prescribed by law" in section 1 is to prevent the Government from relying on conduct which is purely arbitrary. She also pointed out that, if it is only government action pursuant to enacted laws or regulations which can be justified under section 1, this would be unduly burdensome:

From a practical point of view, it would be wrong to limit the application of s. 1 to enacted laws or regulations. That would require the Crown to pass detailed regulations to deal with every contingency as a pre-condition of justifying its conduct under s. 1. In my view, such a technical approach does not accord with the spirit of the Charter and would make it unduly difficult to justify limits on rights and freedoms which may be reasonable and, indeed, necessary.²¹*ftnote²¹ Ibid., at p. 245.

If it was not certain after Commonwealth of Canada whether action pursuant to the common law could be "prescribed by law", any doubt has now been laid to rest by two subsequent decisions of the Supreme Court: R. v. Swain²²*ftnote²² [1991] 1 S.C.R. 933. and R. v. Dersch.²³*ftnote²³ [1993] 3 S.C.R. 768. At issue in Swain was the right of the Crown, under an existing common law rule, to raise evidence of insanity over and above the accused's wishes. Lamer C.J., for the majority on this point reaffirmed that common law rules are limits which are "prescribed by law" for the purposes of section 1. In Dersch the police obtained a blood sample taken by hospital staff without the accused's consent. Mr. Justice Major wrote:

Since the respondent has failed to demonstrate that there is any basis under statute or the common law for the conduct of the police in this appeal, that conduct cannot be said to be "prescribed by law" within the meaning of s. 1.²⁴*ftnote²⁴ Ibid., at p. 779. [Citations omitted; emphasis added.]

Therefore in this case, the action of the Government agents, whether pursuant to the Regulations or to a common law right to abate trespass and nuisance, was a limit on the appellant's freedom of expression which was "prescribed by law."

It must be remembered, however, that reliance on a regulation or common law right does not, in itself, justify the Government conduct. This is only the "prescribed by law" stage of the section 1 analysis. The conduct pursuant to the common law rule must still meet the reasonable limit test in the remainder of the section 1 analysis.

(b) Reasonable Limit

The basic framework for the section 1 analysis remains that set out by the Supreme Court of Canada in R. v. Oakes,²⁵*ftnote²⁵ [1986] 1 S.C.R. 103. although it has been modified somewhat in subsequent decisions. To demonstrate that a limit on a Charter freedom is reasonable and demonstrably justified in a free and democratic society, the party seeking to uphold the limitation must satisfy two requirements. First, it must be established that the objective which the limitation is designed to promote is "of sufficient importance to warrant overriding a constitutionally protected right or freedom."²⁶*ftnote²⁶ R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295, at p. 352. At a minimum, an objective must be "pressing and substantial in a free and democratic society" to qualify as sufficiently important.²⁷*ftnote²⁷ Oakes, supra, at pp. 138-139.

If this requirement is met, the second requirement involves a proportionality test. The proportionality test includes three components. First, the measure limiting the Charter right must be rationally connected to the intended objective. In other words, the measure must be carefully designed to achieve its objective without being arbitrary, unfair, or based on irrational considerations. Second, the limiting measures must impair the Charter right as little as possible. This condition has been modified by decisions subsequent to Oakes²⁸*ftnote²⁸ R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Irwin Toy, supra; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; R. v. Chaulk, [1990] 3 S.C.R. 1303; Commonwealth of Canada, supra; and R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154. wherein the Court has looked, instead, at whether Parliament could "reasonably have chosen an alternative means which would have achieved the identified objective as effectively" as the means actually chosen.²⁹*ftnote²⁹ Chaulk, supra, at p. 1341, per Lamer C.J. The issue of when the modified version of the minimal impairment branch of the proportionality test is applicable and when, or if, the conventional Oakes version should be relied upon has not yet been settled³⁰*ftnote³⁰ See McKinney, supra, at pp. 398-405; Chaulk, supra, at pp. 1388-1393; Wholesale Travel Group Inc., supra, at p. 257. although it appears from the two recent Supreme Court decisions that in a "public forum" case, the modified approach can be used.³¹*ftnote³¹ Commonwealth of Canada, supra, at pp. 219-222 and 246-249; and Ramsden, supra, at p. 1105. Third, the effects of the measures must be proportional to the significance of the objective which is to be achieved. Even if an objective is pressing and substantial, it should not override a Charter right if the effect of the means used to accomplish that objective severely compromises an individual's rights. A provision limiting a Charter right that fails to satisfy any one of these criteria will not be justified under section 1.

In applying the Oakes test to the facts of this case, it must be remembered that there are two distinctly different types of legal justification at issue here. First, there is the Government conduct pursuant to the exercise of the Crown's common law right to prevent trespass and public nuisance on its property. Second, there is subsection 6(2) of the Public Works Nuisances Regulations.

Looking first at the objectives of the impugned governmental action, whether pursuant to their common law rights or under the Regulations, they were the same. These objectives can be described under two general headings of (a) safety, health, maintenance and security; and (b) aesthetics and symbolism.

As described above in the paragraph 2(b) analysis, the respondent's purpose in exercising her common law rights and in amending the Regulations was to remedy the negative, physical consequences of the appellant's conduct. There was evidence before the Trial Judge, which he was entitled to accept, that the presence of the shelter on the grounds of Parliament Hill constituted a danger. There was a potential fire hazard due to the employment of open-flame cooking and lighting. There was a potential health hazard due to the absence of appropriate sanitary facilities and to the infestation of the shelter with insects. The shelter interfered with the proper maintenance of the grounds of Parliament Hill, both with snow removal in the winter and with lawn maintenance in the summer. It actually caused damage to the lawns of the Hill. The shelter also imposed an additional burden on the security forces responsible for the security of the Parliament Buildings and its grounds during events thereat, as well as necessitating that the RCMP protect the participants in the Peace Camp twenty-four hours a day from the actions of other citizens who might, and at least once did, tear down the camp.

In addition to these safety, health, maintenance and security concerns, the Government was also concerned with preserving the aesthetic beauty of Parliament Hill. The majesty and grandeur of the Parliament Buildings and the great expanse of attractive green lawns makes Parliament Hill a site of which all Canadians can be proud. Parliament Hill is a major tourist attraction seen by millions of people each year. One of the Government's legitimate objectives in this case was to keep the Hill in a clean and aesthetically pleasing condition, so that it could be enjoyed by Canadians and visitors alike. It is easy to understand the desire of the Government to remove what was described in letters of protest to it as an "eyesore," a "blemish," a "blot" and a "mess."

A final government objective which can be identified is that of preventing the damage that the permanent presence of the Peace Camp could have on the symbolic importance of Parliament Hill. Madam Justice McLachlin, in Commonwealth of Canada, supra, pointed out that the objective underlying government regulation over the use of public property may, properly, extend beyond concerns with the purely physical consequences to that forum, to include theoretical considerations such as dignity or decorum, damage to which could affect the long-term functioning of that forum:

For example, political placards might be barred from a courtroom, not because they would be likely to disrupt or influence the judge, but rather because they interfere with the dignity and decorum of the courtroom. In reducing the aura of impartiality which is sought to be maintained in the courtroom, they may in a larger sense detract from its purpose and impact on its function.³²*ftnote³² Commonwealth of Canada, supra, at p. 249, per McLachlin J.

Parliament Hill is a powerful symbol of Canada, representing our democratic tradition both to its citizens and residents, as well as to the millions of visitors who come to this country each year. As the seat of our federal system of government, the Parliament Buildings and the grounds upon which they are situate deserve respect and admiration from all Canadians. The care and management of these, the most important institutions of our democratic society, is vested in the Government and the Department of Public Works. Their objective is to maintain these symbols in a manner which accords with their importance as political institutions and in a condition to be enjoyed by all Canadians.

Described in these terms and taken together, the various objectives of the Government in exercising its common law rights over the property under its control and the objectives of the impugned Regulations are, in my view, pressing and substantial.

The next step in the Oakes test is the three-part proportionality test: rational connection, minimal impairment and proportionality of objectives and effects. The first component is the rational connection. The measure limiting the Charter freedom must be rationally connected to the intended objectives. It must be designed to achieve the objectives without being arbitrary, unfair or based on irrational considerations. I think it is easy to conclude that the Government's exercise of its common law right to remove the appellant's Peace Camp shelter from Parliament Hill and to prevent him from re-erecting it was rationally connected to the objectives, outlined above, of maintaining Parliament Hill in a clean, safe, and aesthetically pleasing condition. In the same way, the Government's exercise of those common law rights in the fall of 1988 were rationally connected to the objectives. Similarly, subsection 6(2) of the Public Works Nuisances Regulations is clearly designed to achieve those same objectives and it is neither arbitrary, unfair, nor based on irrational considerations.

Turning to the second component, it must be established that the means chosen by the respondent restricted the appellant's freedom of expression as little as is reasonably possible. I find that the Government's exercise of its common law rights in removing the shelter and preventing its re-erection meets that test. In Ramsden, supra, Iacobucci J., citing from the earlier Supreme Court decision on freedom of expression in Ford v. Quebec (Attorney General),³³*ftnote³³ [1988] 2 S.C.R. 712, at p. 772. focussed on the distinction between the negation of a freedom and a limit on a freedom:

While the negation of a right or freedom does not necessarily require that such an infringement not be upheld under s. 1, "the distinction between a limit that permits no exercise of a guaranteed right or freedom in a limited area of its potential exercise and one that permits a qualified exercise of it may be relevant to the application of the test of proportionality under s. 1" (at p. 773). In Ford, the Court held that a complete prohibition on the use of languages other than French on commercial signs could not meet the requirements of the proportionality test, particularly the rational connection and minimal impairment branches. In contrast, in Irwin Toy, supra, the Court upheld substantial content-based restrictions (as opposed to a total ban) on advertising directed at children. It will therefore be

more difficult to justify a complete ban on a form of expression than time, place or manner restrictions.³⁴*ftnote³⁴ Ramsden, supra, at pp. 1105-1106.

In Ramsden, supra, the Court found that a total ban on postering on all public property did not impair the right as little as was reasonably possible. In this case, however, in exercising its common law rights the Government restricted only one form of the appellant's expression: the shelter. The Government did not interfere with the various other means by which the appellant could communicate his message to the public. The appellant was free to talk with passers-by, to hand out printed literature, and even to display a banner. There were no tanks or guns used here to suppress all dissent. Much milder restrictions were employed. I am of the view that merely denying the appellant the right to erect and to occupy a permanent shelter, but leaving unimpaired his other means of communicating his message, infringed the appellant's freedom of expression as little as was reasonably possible in the circumstances.

With respect to the third component of the proportionality test, the Government's exercise of its common law rights against trespass and public nuisance with respect to the shelter had a minimal effect on the appellant's ability to exercise his freedom of expression, which effect is proportional to the objectives of the Government action. Similarly, subsection 6(2) cannot be said to be disproportional to the objectives it sought to achieve.

As for the conduct of the respondent in preventing the appellant from using a table to distribute protest literature on Parliament Hill during the federal election campaign in the fall of 1988, I have some difficulty. The evidence did not focus on this particular matter. This case was mainly the "Peace Camp" case; it was not simply a "table on Parliament Hill" case. In part because of this, the Trial Judge paid little attention to the facts concerning the table by itself, saying only:

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 Parliament 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.³⁵*ftnote³⁵ Weisfeld, supra, at pp. 375-376.

There were no findings about whether the tables used by the appellant to hold his printed literature posed any safety or health hazard. There were no findings about any problems maintaining the grounds as a result of the tables. Nor were there any findings about whether it impinged on the resources of the RCMP by requiring extra security or whether the table was a blight on the overall aesthetics of the Hill or that it damaged our respect for Parliament. There was no consideration of whether a table set up by this appellant, in the context of the history of his past activities on the Hill, could be dealt with by the respondent in isolation. Therefore, absent such findings, I am unable to say that the respondent's actions in preventing the appellant from using a table on Parliament Hill to distribute literature in 1988 infringed the appellant's freedom of expression in a manner which was not justified under section 1 of the Charter. I am able to say, however, that, in an appropriate case, it may well be beyond the respondent's right to remove a table or a soap box or other prop from Parliament Hill as that may violate someone's constitutional rights, although it may also be permissible for the respondent to regulate these matters as to time, place and manner. In other words, tables or other supporting articles might have to be allowed, but the duration of their use, their location on the property and the way in which they are employed may be reasonably controlled.

As for subsection 6(2) of the Regulations operating as a justification by the RCMP for removal of any table from the Hill, I am of the view that the words do not support such a meaning. It will be recalled that it provides that no one "shall erect, use, occupy or maintain any structure in or upon any public work except by or under the authority of the Minister." A table, simply resting on the ground, is not a "structure" within any dictionary definition of that ordinary English word.³⁶*ftnote³⁶ See, for example, Shorter Oxford English Dictionary,

Vol. II, p. 2156.

On its face, this section does not interfere with freedom of expression. The Public Works Nuisances Regulations in general, and this section in particular, are directed at preventing the erection and maintenance of structures which could interfere with the use, enjoyment or care of public works. The Regulations are not directed at preventing the use of an ordinary table or other articles in support of the expression of a message. The respondent gave subsection 6(2) of the Regulations an unreasonable interpretation when she sought to apply it so as to prohibit the appellant from bringing a table onto the Hill and using it to hold literature. It did not and could not justify her conduct, but neither was it unconstitutional.

CONCLUSION

For these reasons, I find that subsection 6(2) of the Public Works Nuisances Regulations was not unconstitutional. The actions of the respondent in removing the Peace Camp in April 1985 pursuant to the common law were justified as reasonable limits on the appellant's freedom of expression. In the result, the appeal will be dismissed, but, in the circumstances, without costs.

Mahoney J.A.: I agree.

McDonald J.A.: I agree.

diane et denis