A-23-86
Comité pour la République du Canada—Commit-
tee for the Commonwealth of Canada, François
Lépine and Christine * Deland (Respondents)
v.
The Queen in right of Canada (Appellant)
INDEXED AS: COMMITTEE FOR THE COMMONWEALTH OF
CANADA v. CANADA
Court of Appeal, Pratte, Hugessen and Mac-
Guigan .11.11.—Montréal, November 17 and 21,
1986; Ottawa, January 30, 1987.
Constitutional law — Charter of Rights — Fundamental
freedoms — Freedom of expression — Absolute prohibition of
political solicitation in airport public areas contrary to Chart
er — Whether airport public areas "public forums" —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), ss. 1, 2, 33 — Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), s. 52(1) — U.S. Const.,
1st Amend. — Civil Code of Lower Canada, art. 406.
Transportation — Airports — Government ownership of
airport and regulatory prohibition of advertising or soliciting
at airports not justifying absolute prohibition of political
solicitation in public areas of airport — Infringement of
freedom of expression — Department of Transport Act, R.S.C.
1970, c. T-15, .ss. 25, 26 — Government Airport Concession
Operations Regulations, SOR/79-373, s. 7.
Respondents Lépine and Deland were prevented from dis
seminating their political ideas by carrying placards and dis
tributing pamphlets in the public areas at Montréal Interna
tional Airport. The refusal was based on a policy of prohibiting
all solicitation therein, whether political, religious or otherwise,
with the exception of the sale of poppies by veterans. It was
argued that this policy is justified by Crown ownership rights
and by Regulations prohibiting unauthorized business and ad
vertising at airports.
The Trial Judge granted a declaration that the appellant had
not observed the respondents fundamental freedoms and that
the public areas at the airport constitute a public forum where
fundamental freedoms can be exercised. This is an appeal from
that decision.
Held (Pratte J. dissenting), the appeal should be dismissed
with respect to the declaration that the appellant had not
observed the respondents' fundamental freedoms but allowed
* Editor's Note: This name was inadvertently misspelled
throughout the proceedings. It should read Christiane.
on the question whether the public areas at the airport were a
public forum for the exercise of fundamental freedoms.
Per Hugessen J.: This is a clear-cut case of an infringement
of the freedom of expression guaranteed in section 2 of the
Charter: the sole purpose of the action taken by the authorities
was to prevent the dissemination by the respondents of their
political ideas. And it cannot be justified under section 1 of the
Charter. While the government has the right to manage "its"
property for the public good, 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.
The prohibition, in paragraph 7(b) of the Regulations, from
engaging in advertising or solicitation applies to commercial
rather than purely political activities. However, even if it did
apply to the latter, such an absolute prohibition accompanied
by an unlimited and purely discretionary exception does not
meet the criteria of importance and proportionality laid down
by the Supreme Court in The Queen v. Oakes.
The categories developed by American courts (in this case,
the concept of a "public forum") to limit the overly absolute
formulation of certain rights in their Constitution need not and
should not be adopted in Canada.
Per MacGuigan J.: The Trial Judge correctly concluded that
the Regulations apply only to commercial activities. Further
more, both the purpose and the effect of the Department's
policy constitute an infringement of the respondents' right of
expression. While this prohibition is "prescribed by law"
because it results from a clear policy based on the ownership
rights in the civil law and at common law and set out in a
regulation, it is not justified in a free and democratic society.
Even if the objective were of sufficient importance to warrant
overriding the right of expression, it has not been established
that the means chosen are proportionate to the objective. The
policy of allowing solicitation in some cases is arbitrary (no
criteria), unfair (veterans only are permitted) and potentially
based on irrational considerations (it is not known what they
really involve).
It would be premature to adopt the American position that
airport terminal buildings are public forums open to First
Amendment (freedom of speech) activity.
Per Pratte J. (dissenting): The appeal should be allowed.
By acting as they did, the respondents were engaging in an
activity prohibited by paragraph 7(a) of the Regulations and
were also advertising and soliciting within the meaning to
paragraph 7(b). Furthermore, the freedom of expression guar
anteed by the Charter did not authorize the respondents to act
as they did. The government, as owner of the airport, has the
right to deny access to anybody who wants to use the premises
other than for the purpose of travelling or using the various
services provided there.
CASES JUDICIALLY CONSIDERED
APPLIED:
The Queen v. Oakes, [1986] 1 S.C.R. 103; (1986), 65
N.R. 87; 26 D.L.R. (4th) 200.
CONSIDERED:
R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713;
The Sunday Times case, [1979] Eur. Court H.R. 30, ser.
A; (1979-80), 2 E.H.R.R. 245; R. v. Therens et al.,
[1985] 1 S.C.R. 613; (1985), 59 N.R. 122; 18 D.L.R.
(4th) 655; United States et al. v. Grace, 103 S.Ct. 1702
(1983).
REFERRED TO:
Cornelius v. NAACP Legal Defense & Ed. Fund, 105
S. Ct. 3439; 87 L Ed 2d 567 (1985); M'Ara v. Eding-
burgh Magistrates, [1913] S.C. 1059 (Scot. Sess.); New
Brunswick Broadcasting Co., Limited v. Canadian
Radio-television and Telecommunications Commission,
[1984] 2-F.C. 410 (C.A.); Soenen and Thomas et al., Re
(1983), 3 D.L.R. (4th) 658 (Alta Q.B.); R. v. Big M
Drug Mart Ltd. et al., [1985] 1 S.C.R. 295; (1985), 58
N.R. 81; 18 D.L.R. (4th) 321; Switzman v. Elbling and
Attorney-General of Québec, [1957] S.C.R. 285;
RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573;
Harrison v. Carswell, [1976] 2 S.C.R. 200; Operation
Dismantle et al. v. The Queen et al., [1985] 1 S.C.R.
441; Jews for Jesus, Inc. v. Board of Airport Comrs of
City of Los Angeles, 785 F.2d 791 (9th Cir. 1986).
COUNSEL:
Marie Nichols and Carole Johnson for
appellant.
Gérard Guay for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Gérard Guay, Hull, Quebec, for respondents.
The following is the English version of the
reasons for judgment rendered by
PRATTE J. (dissenting): Her Majesty is appeal
ing from a judgment of the Trial Division (Dubé
J.) [[1985] 2 F.C. 3], which allowed the declarato-
ry action brought by the respondents and declared:
(1) that Her Majesty "did not observe the fun
damental freedoms" of the respondents,
and
(2) that the areas open to the public at Mon-
tréal International Airport "constitute a
public forum where fundamental freedoms
can be exercised".
The respondents François Lépine and Christiane
Deland were respectively the Secretary and Vice-
President of the Committee for the Common
wealth of Canada, a non-profit corporation created
pursuant to the Canada Corporations Act [R.S.C.
1970, c. C-32]. On March 22, 1984, they went to
the Dorval airport to tell the public about their
organization and its political aims and to recruit
members. Equipped with placards, advertising
leaflets and magazines, they went to the first floor
of the building where travellers depart and where
airline ticket counters, shops and restaurants are
located. They began spreading their "message"
among the travelling public and were challenged
by an officer of the RCMP who ordered them to
cease their activities or leave the premises. They
appealed to the assistant manager of the airport,
who confirmed that political propaganda activities
such as those in which they were engaged were not
authorized. They accordingly left, and some time
later brought against Her Majesty the declaratory
action allowed by the judgment a quo.
This judgment by Dubé J. is based on abundant
U.S. precedents holding that airports, like streets
and public squares, are forums in which any
individual has a right to go and express himself
freely without any other limitations than are
necessary to protect a compelling state interest.'
The Judge concluded from this that, under section
2 of the Canadian Charter of Rights and Free
doms [being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11
' In Cornelius v. NAACP Legal Defense & Ed. Fund, 105
S.Ct. 3439; 87 L Ed 2d 567 (1985), O'Connor J., delivering the
judgment of the U.S. Supreme Court, said at p. 578 L Ed:
Because a principal purpose of traditional public fora is the
free exchange of ideas, speakers can be excluded from a
public forum only when the exclusion is necessary to serve a
compelling state interest and the exclusion is narrowly drawn
to achieve that interest.
(U.K.)], 2 any individual is entitled to express him
self freely in an airport and that this right can only
be taken away from him in accordance with sec
tion 1. In the case at bar, the Judge found, there
'was no legal prescription limiting the right of the
respondents to go and disseminate their political
ideas at Dorval airport and accordingly the airport
authorities could not prevent them from doing so
without being in breach of section 2 of the
Charter.
It was common ground that Dorval airport
belongs to the Canadian government and that, as
part of his responsibility for aeronautics, the Min
ister of Transport is responsible for administering
it. It was also admitted that, under sections 25 and
26 of the Department of Transport Act [R.S.C.
1970, c. T-15], the Governor in Council has made
the Government Airport Concession Operations
Regulations [SOR/79-373]. These Regulations
were in effect at the time in question and section 7
provided as follows:
7. Subject to section 8, except as authorized in writing by the
Minister, no person shall
(a) conduct any business or undertaking, commercial or
otherwise, at an airport;
(b) advertise or solicit at an airport on his own behalf or on
behalf of any person; or
(c) fix, install or place anything at an airport for the purpose
of any business or undertaking.
Counsel for the appellant argued in this Court,
as she did at trial, that the respondents were in
breach of paragraphs (a) and (b) of this section
and that this breach justified the decision taken to
expel them from the airport. The Trial Judge
dismissed this argument because, in his opinion,
the Regulations did not prohibit the type of activ
ity engaged in by the respondents [at page 6]:
2 Sections 1 and 2 of the Canadian Charter of Rights and
Freedoms read as follows:
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
In my view these Regulations deal with control over the
operation of concessions at airports and apply to that type of
activity, not to the right of persons to express their philosophies
or beliefs or their political ideas through direct communication
with other persons who may be on the premises.
I should say at once that I do not agree with this
strict construction of the Regulations. I think it is
clear from reading section 7 that the prohibitions
it contains are not directed only at commercial
activities and that, by acting as they did, the
respondents were engaged in an activity ("acti-
vité") prohibited by paragraph 7(a) and were also
"advertising" and soliciting within the meaning of
paragraph 7(b). However, that does not dispose of
the case, for if it is true, as the Trial Judge held,
that the respondents' freedom of expression was
limited by prohibiting them from distributing their
propaganda in the airport, I think it is impossible,
in view of the wide discretion conferred on the
Minister, to see in section 7 of the Regulations a
legal prescription limiting their rights and free
doms in a manner consistent with section 1 of the
Charter.
The real question raised by the case at bar is not
whether the limitation imposed on the respondents'
freedom of expression by the Dorval airport
manager was authorized by section 1 of the Chart
er. It is actually whether, by making the respon
dents cease their activities, the airport manager
invaded their freedom of expression. Accordingly,
this Court must consider whether the freedom of
expression now being relied on by the respondents
authorized them to act as they did.
Exercising the freedom of expression guaranteed
by the Charter ordinarily assumes use of certain
property. For example, a journalist uses paper and
a typewriter; in addressing a crowd of people, a
public speaker must go where the crowd is located
and, in some cases, use loudspeakers. Freedom of
expression authorizes each individual to express
himself by using the property he owns or is entitled
to use; it does not authorize him to use things he
does not own to express himself. The journalist
cannot plead his freedom of expression as a reason
for using a typewriter not belonging to him; nor
can a political leader plead that freedom as a
justification for addressing his supporters in a
location where according to the ordinary rules of
law he had no right to be. The media of expression
available to an individual are thus limited and the
right each person has to express himself is limited
accordingly. However, this limitation is not a limi
tation on freedom of expression because that free
dom does not include a freedom to use media of
expression other than those at the disposal of the
individual. This indeed is what Lord Dunedin
observed in M'Ara v. Edinburgh Magistrates: 3
Now the right of free speech undoubtedly exists, .... But the
right of free speech is a perfectly separate thing from the
question of the place where that right is to be exercised. You
may say what you like provided it is not obnoxious in the ways I
have indicated, but that does not mean that you may say it
anywhere.
And this is what the Chief Justice of this Court
said even more clearly in New Brunswick Broad
casting Co., Limited v. Canadian Radio-television
and Telecommunications Commission: 4
The freedom guaranteed by the Charter is a freedom to express
and communicate ideas without restraint, whether orally or in
print or by other means of communication. It is not a freedom
to use someone else's property to do so. It gives no right to
anyone to use someone else's land or platform to make a
speech, or someone else's printing press to publish his ideas. It
gives no right to anyone to enter and use a public building for
such purposes.
It follows that there was only an invasion of the
respondents' freedom of expression in the case at
bar if they had a right to go to Dorval airport and
engage in a political propaganda exercise there.
Dorval airport belongs to the federal govern
ment. 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. The only qualification to this rule arises
from the fact that the property owned by the
government is frequently intended for use by the
public, which then has a right to use it for the
purposes for which the government intends it.
Air terminals are buildings with a very special
purpose which, despite the U.S. precedents cited
by Dubé J., differs from that of public streets and
squares. They exist for the convenience of the
travelling public and those who wish to use the
' [1913] S.C. 1059 (Scot. Sess.), at p. 1073.
4 [1984] 2 F.C. 410 (C.A.), at p. 426.
various services they provide. Only such persons
are invited onto the property. Accordingly, all
others who have no business there cannot claim to
have a right to be there. The owner or his repre
sentative may, if he wishes, deny them access in
the same way as the owner of a store may deny
access to his store to someone coming there just in
order to shelter from bad weather.
In the case at bar, I think it is clear that the
respondents were making a use of the airport other
than that for which it is intended, since they were
there solely in order to engage in a political propa
ganda exercise and to try and convince the public
to join their organization. The airport manager
therefore could demand that they leave the prem
ises, especially as their conduct was a breach of
section 7 of the Regulations. The respondents
cannot argue that their freedom of expression was
invaded since that freedom did not authorize them
to use the airport for purposes other than that for
which it was intended.
I would allow the appeal, set aside the Trial
Division judgment and dismiss the respondents'
action with costs at trial and on appeal.
* * *
The following is the English version of the
reasons for judgment rendered by
HUGESSEN J.: This is an appeal from a
decision' by Dubé J. of the Trial Division allowing
the plaintiffs' [respondents] declaratory action.
The facts out of which the case arose are set out
in paragraphs 4 to 8 inclusive of the statement of
claim, which were admitted in the defendant's
[appellant's] statement of defence:
[TRANSLATION]
4. On Thursday, March 22, 1984, between 10:00 and 11:00
a.m., the plaintiffs François Lépine and Christiane Deland
went to the Montréal International Airport terminal at
Dorval to communicate to members of the public at that
place, and discuss with them, the aims and objectives of the
Committee, their opinions on current affairs, the Canadian
Constitution proposed and promoted by the Committee and
5 [1985] 2 F.C. 3.
publications of a political nature distributed by the
Committee;
5. Constable T. Y. Piette of the RCMP challenged the plain
tiffs and asked what they were doing;
6. The plaintiff François Lépine explained the political nature
of their activities;
7. The officer asked the plaintiffs to cease the said activities;
8. The plaintiffs subsequently met with the assistant manager
of the airport, Mr. Serge Rouleau, who told them that under
the Act the plaintiffs had no right to engage in politics in the
airport.
It was common ground that the plaintiffs were
told to leave the airport terminal solely because
they were engaging in political propaganda. The
evidence also established to my satisfaction that
any member of the general public has free access
to the "unrestricted areas" of the airport at normal
times; that access is in no way limited to travellers
or to customers of the various businesses located
there. Moreover, it seems clear that the plaintiffs
would have been prevented from distributing their
propaganda even if they had been at the airport in
the capacity of travellers with tickets; in other
words, the dispute was not as to their right to be
there but solely as to their right to disseminate
their political ideas there.
In my view, it would be hard to find a more
clear-cut case of an infringement of the freedom of
expression guaranteed in section 2 of the Canadian
Charter of Rights and Freedoms. This case does
not concern the government's right to manage its
property in the Dorval airport terminal, to limit
access to it, to keep the peace or to prevent inter
ference with the legitimate comings and goings of
travellers. In other words, the refusal to allow the
plaintiffs to express their political opinions was not
simply incidental to the pursuit of another purpose
by the government: on the contrary, the sole pur
pose of the action taken by the authorities was to
prevent the dissemination by the plaintiffs of their
political ideas. Paragraph 12 of the defence says
this:
[TRANSLATION] 12. The plaintiffs were not asked to leave
because of the specific type of activity engaged in by the
Committee. Any advertising or solicitation of a racial, political
or religious nature is prohibited in Dorval airport on reasonable
grounds. [Record, page 8.]
In these circumstances the plaintiffs, having
established a prima facie invasion of their freedom
of expression, are entitled to the remedy sought
unless the government establishes a defence based
on section 1 of the Charter, which reads as follows:
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
What legal prescription is relied on as a basis
for limiting the plaintiffs' freedom of expression?
The answer is twofold: first, the Crown is the
owner of the airport and may exercise its owner
ship rights there freely; second, section 7 of the
Government Airport Concession Operations
Regulations 6 is applicable.
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 obli
gation, to devote certain property for certain pur
poses and to manage "its" property for the public
good. The exercise of this right and the perform
ance 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 fundamen
tal freedom.
Two examples will illustrate this. In the interests
of good administration, the government may legiti
mately prohibit its office employees from making
political speeches or holding meetings at the work
place; on the other hand, it definitely cannot pro
hibit them from having private discussions, even of
a political nature, in their free time. Similarly, in a
government office which is open to the general
public (such as a post office or unemployment
insurance office) the government may limit access
to persons having business there, prohibit loitering
6 SOR/79-373.
or act to ensure freedom of movement; but it may
not prohibit customers from peacefully expressing
themselves and exchanging points of view.
I repeat, the only reason given by the airport
authorities for telling the plaintiffs to leave was
that they were engaging in political propaganda, a
fundamental right of the individual the exercise of
which is guaranteed by section 2 of the Charter.
So far as section 7 of the Regulations is con
cerned, it reads as follows:
7. Subject to section 8, except as authorized in writing by the
Minister, no person shall
(a) conduct any business or undertaking, commercial or
otherwise, at an airport;
(b) advertise or solicit at an airport on his own behalf or on
behalf of any person; or
(c) fix, install or place anything at an airport for the purpose
of any business or undertaking.
To begin with, like the Trial Judge, I consider
that in the context the prohibition in paragraph
(b) from engaging in advertising or solicitation
applies to commercial rather than purely political
activities. However, even assuming that the word
ing of the section applies to the plaintiffs, it does
not meet the requirements of section 1 of the
Charter. An absolute prohibition accompanied by
an unlimited and purely discretionary exception
does not meet the criteria of importance and pro
portionality laid down by the Supreme Court in
The Queen v. Oakes, [1986] 1 S.C.R. 103.
It follows, in my view, that the Trial Judge was
right in allowing the plaintiffs' action and declar
ing that the defendant had not observed the plain
tiffs' fundamental freedoms. However, I consider
that the second part of this declaration, holding
that the areas of the Montréal International Air
port open to the public constitute a "public
forum", should be struck out. The concept of a
"public forum" is borrowed from American deci
sions. The Constitution of the United States differs
appreciably from our own, notably in -that it con
tains no equivalent to our sections 1 and 33. It is
neither necessary nor advisable for us in Canada to
adopt the categories developed by the U.S. courts
to limit the overly absolute formulation of certain
rights in their Constitution.
For these reasons, I would dismiss the appeal
but vary the judgment of the Trial Division by
declaring only that the defendant did not observe
the plaintiffs' fundamental freedoms.
* * *
The following is the English version of the
reasons for judgment rendered by
MACGUIGAN J.: On March 22, 1984 the
respondents Lépine and Deland, both leading
members of the Committee for the Commonwealth
of Canada, went to the Dorval airport terminal "to
communicate to members of the public at that
place, and discuss with them, the aims and objec
tives of the Committee". They walked up and
down on the first level (departures) carrying pla
cards and distributing leaflets to the public. This
part of the airport is an unrestricted area occupied
by restaurants, bars, bookshops, drugstores and
airline ticket counters. After an hour, they were
challenged by a constable on duty and subsequent
ly the assistant manager of the airport told them
that under the Act they had no right to engage in
politics in the airport. The respondents left the
airport at once and brought an action asking the
Court to make the following declarations:
(a) a declaration that the defendant has not observed the
fundamental freedoms of the plaintiffs;
(b) a declaration that the areas of the Montréal International
Airport open to the public constitute a public forum where
fundamental freedoms can be exercised;
The applicable regulations are the Government
Airport Concession Operations Regulations
(SOR/79-373), made pursuant to the Department
of Transport Act, R.S.C. 1970, c. T-15. Section 7
reads as follows:
7. Subject to section 8, except as authorized in writing by the
Minister, no person shall
(a) conduct any business or undertaking, commercial or
otherwise, at an airport;
(b) advertise or solicit at an airport on his own behalf or on
behalf of any person; or
(c) fix, install or place anything at an airport for the purpose
of any business or undertaking.
Sections 1 and 2 of the Canadian Charter of
Rights and Freedoms are also relevant:
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
The most important part of the reasons of Dubé
J. at trial is the following [at pages 6, 7, 11 and
121:
In my view these Regulations deal with control over the
operation of concessions at airports and apply to that type of
activity, not the right of persons to express their philosophies or
beliefs or their political ideas through direct communication
with other persons who may be on the premises.
In the case at bar, the two plaintiffs were not carrying on a
business in the airport. They were trying to disseminate their
political ideas. They were carrying placards and distributing
pamphlets in the open area on the first floor of the airport, the
level open to the public for the purchase of tickets and for
awaiting departures. Their purpose was not to hold public
meetings on the premises or to make speeches from a podium or
with a loud-speaker.
It was established at the hearing that the Dorval airport
management have always uniformly and impartially prohibited
all public activities of the kind, whether political, religious or
otherwise. The only exception to this prohibition, as mentioned
at the hearing, is the sale of poppies by veterans each
November.
In his testimony, the Dorval operations manager explained
that about 20,000 passengers use the airport daily, often
accompanied by other persons. There may be some 2,000
arrivals an hour. There are about 3,800 employees in the
building. The total area of the first floor is 170,000 square feet
and the public has access to some 63,000 sqt.are feet. This floor
also offers booths operated by airlines, shops, news-stands, drug
stores, restaurants, hairdressing parlours, and so on, for the
convenience and the comfort of the travelling public. Space is
distributed so as to expedite the movement of air traffic. The
public areas are thronged with people in peak periods. Passen
gers waiting to depart are already sufficiently nervous. It is not
in their interests to allow solicitation, the manager said.
On the other hand, the plaintiff François Lépine has trav
elled by air to the U.S. and testified that political activities are
allowed in major U.S. airports. In particular, he recalled seeing
there persons sitting at a table located in the public area of an
airport distributing leaflets with political posters up on the wall.
Section 1 of the Canadian Charter of Rights and Freedoms
guarantees certain rights and freedoms, subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society. One of the funda
mental freedoms guaranteed in section 2 is the freedom of
opinion and expression, including freedom of the press and
other media of communication.
I was quoted no Canadian jurisprudence (and I was not able
to find any) either under the Charter or the Canadian Bill of
Rights [R.S.C. 1970, Appendix III], dealing with the exercise
of the freedom of expression in such public places as airports.
American courts, however, have on several occasions applied
the First and Fourteenth Amendments to U.S. airport termi
nals and acted to protect the exercise of the right of free
expression therein.
Obviously, I am not bound by those American decisions. But
in the absence of any precedents in this area in Canada—as the
Canadian Charter is still in its early infancy—it would be
preposterous on my part to disregard the thoughtful consider
ations of American jurists who, after all, have for years applied
the U.S. Constitution to situations which are quite often very
similar to ours.
Freedom of speech in Canada was imported along with the
common law from the United Kingdom and so enshrined in the
Confederation Act [Constitution Act, 1867, 30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 1)]. The provinces expressed therein their desire to
be federally united into a Dominion "with a constitution similar
in principle to that of the United Kingdom". A Dominion with
a "government resting ultimately on public opinion reached by
discussion and the interplay of ideas. If that discussion is placed
under license, its basic condition is destroyed." (See Rand J. in
Saumur v. City of Quebec, [ 1953] 2 S.C.R. 299, at p. 330.)
It seems plain and obvious to me that the public terminal
concourses in our Canadian airports, as well as in American
airports, have become contemporary extensions of the streets
and public places of yesterday. They are indeed "modern
crossroads" for the intercourse of the travelling public. In
principle, freedom of expression and communication ought not
to be abridged in those public forums. The absolute prohibition
imposed by the Dorval authorities upon the rather benign and
innocuous activities of the plaintiffs flies in the face of the
Canadian Charter of Rights and Freedoms.
Of course, freedom of expression in a public forum is not
unlimited. It may be circumscribed within reasonable limits for
the general comfort and convenience of the travelling public.
The proper authorities may draw regulations so as to safeguard
the well-being and security of the passengers as well as the
efficiency of the transportation functions of an airport. But the
airport authorities may not impose a categorical interdiction so
as to smother the fundamental freedom of persons to peacefully
disseminate their political, religious, or other beliefs in a public
place.
For those reasons, the declaration sought by the plaintiffs is
granted with costs.
I accept the conclusion of the Trial Judge that
the regulations in question do not deal with the
type of activities at issue, but with commercial
activities when seen in their general context. In
addition, the expression "faire ... de la publicité"
contained in paragraph 7(b) is the equivalent of
the English word "advertise". The word "solicit"
in the same paragraph is qualified by the expres
sion "on his own behalf or on behalf of any
person", which implies a commercial activity.
However, counsel for the Crown argued, in my
opinion correctly, that an owner has in all circum
stances a right to control access to his property, in
the case at bar under Article 406 of the Civil Code
of Quebec, and elsewhere in Canada under the
common law (together with legislation on unlawful
entry). Consequently, even if there is no specific
legislation, the Crown is assured of the right to
control the airport in this regard. In this case, the
evidence established that the policy adopted by the
Department of Transport as owner appears exactly
in the wording of the Regulations, even if they do
not formally apply. Thus, the evidence established
that the Department was following a general prac
tice, set out in Regulations, regarding the use of
unrestricted areas of the airport.
I I
Counsel for the Crown argued that the rights
protected by section 2 are not absolute and there
fore a court must begin by assessing the relative
weight of rights under section 2 and should not
force the Crown to assume all responsibility for
establishing a justification for the limitations in
question under section 1.
Nevertheless, it is the wording of the Charter
which must prevail. The Charter refers to certain
rights in absolute terms: this is especially the case
with fundamental freedoms, except the "freedom
of ... assembly", which is qualified by the word
"peaceful". All other fundamental freedoms are
set forth in absolute form.
However, when the rights in the Charter are
accompanied by internal modifiers (for example
"unreasonable", "arbitrary" and "reasonable")
the internal norm so established must be met.
In this connection I accept the analysis of
Professor Dale Gibson, who in The Law of the
Charter: General Principles, Carswell, 1986, says
at page 141:
For all these reasons the Charter's pattern with respect to the
balancing of social values appears, in general, to be as follows.
The alleged victim of a Charter violation must always establish
a prima facie case before the alleged violator is called upon to
respond. Where the right or freedom in question is expressed in
absolute terms, with no explicit modifier, the prima facie case
involves proving the facts of the incident in question, and
establishing to the court's satisfaction that these facts involved
a significant infringement of the asserted Charter right. At that
point the onus shifts to the alleged violator to establish that the
infringement was authorized by a law that satisfies the require
ments of section 1. If the right or freedom asserted is explicitly
modified by an internal standard like "reasonable" or "arbi-
trary", the alleged victim's prima facie responsibility extends to
showing that the violation is one which, in ordinary circum
stances, would exceed that standard. The victim having estab
lished that much, the violator's responsibility to establish a
section 1 limit comes into operation.*
Professor Gibson states, at page 139, that, in
order to rely on section 2, a victim need establish
only three things: (1) the facts of the incident; (2)
that the infringement is in conflict with a protect
ed right; (3) that the infringement is significant.
Regarding the third, he cites Scenen and Thomas
et al., Re (1983), 3 D.L.R. (4th) 658, in which
McDonald J. of the Alberta Court of Queen's
Bench dismissed as insignificant a complaint by a
prisoner regarding the use of an insecticide.
In my view, Professor Gibson's opinion is in
accord with cases decided by the Supreme Court
of Canada. In R. v. Big M Drug Mart Ltd. et al.,
* An objection can be raised to according different treatment
to rights depending on whether or not they have implicit
internal modifiers, since this would, to some extent, involve
higher priority for one group of rights than the other—an
aspect of American law that was criticized above .... While
this is true, it appears to be dictated by the wording of the
Charter, and it involves a simpler and more rational classifi
cation than under the United States Constitution.
[1985] 1 S.C.R. 295; (1985), 58 N.R. 81; 18
D.L.R. (4th) 321, which examined the provisions
of the Lord's Day Act [R.S.C. 1970, c. L-13], the
Supreme Court analysed the freedom of religion
(to determine whether the recognition of the reli
gious character of Sunday amounted to a form of
constraint contrary to the freedom of conscience
and religion guaranteed by section 2), and the Act
itself in light of its purpose and effects.
Dickson C.J. stated (at pages 331 S.C.R.; 105
N.R.; 350 D.L.R.) that "both purpose and effect
are relevant in determining constitutionality".
Wilson J., for her part, emphasized at pages
360-361 S.C.R.; 121 N.R.; 372 D.L.R., the priori
ty that should be given to an analysis of effects:
"The first stage of any Charter analysis ... is to
inquire whether legislation ... has the effect of
violating an entrenched right or freedom".
This analysis was taken up by the Supreme
Court in R. v. Edwards Books and Art Ltd.,
[1986] 2 S.C.R. 713, a judgment delivered on
December 18, 1986. The majority of the Court
decided this question as follows, at pages 758-759
(per Dickson C.J.):
The first question is whether indirect burdens on religious
practice are prohibited by the constitutional guarantee of free
dom of religion. In my opinion indirect coercion by the state is
comprehended within the evils from which s. 2(a) may afford
protection .... It matters not, I believe, whether a coercive
burden is direct or indirect, intentional or unintentional, fore
seeable or unforeseeable. All coercive burdens on the exercise of
religious beliefs are potentially within the ambit of s. 2(a).
This does not mean, however, that every burden on religious
pratices is offensive to the constitutional guarantee of freedom
of religion. It means only that indirect or unintentional burdens
will not be held to be outside the scope of Charter protection on
that account alone. Section 2(a) does not require the legisla
tures to eliminate every miniscule state-imposed cost associated
with the practice of religion. Otherwise, the Charter would
offer protection from innocuous secular legislation such as a
taxation act that imposed a modest sales tax extending to all
products, including those used in the course of religious wor
ship. In my opinion, it is unnecessary to turn to s. I in order to
justify legislation of that sort. The purpose of s. 2(a) is to
ensure that society does not interfere with profoundly personal
beliefs that govern one's perception of oneself, humankind,
nature, and, in some cases, a higher or different order of being.
These beliefs, in turn, govern one's conduct and practices. The
Constitution shelters individuals and groups only to the extent
that religious beliefs or conduct might reasonably or actually be
threatened. For a state-imposed cost or burden to be proscribed
by s. 2(a) it must be capable of interfering with religious belief
or practice. In short, legislative or administrative action which
increases the cost of practising or otherwise manifesting reli
gious beliefs is not prohibited if the burden is trivial or insub
stantial: see, on this point, R. v. Jones, [1986] 2 S.C.R. 284, per
Wilson J. at p. 314.
It is the duty of the Court to make a similar
analysis in the case at bar. First, political solicita
tion is a fundamental manifestation of freedom of
expression. Political discourse is at the heart of
freedom of expression: Switzman v. Elbling and
Attorney-General of Québec, [1957] S.C.R. 285.
No analysis is necessary to conclude that the
policy of the Department of Transport as owner
had the effect of infringing the respondents' free
dom of expression. The effect of that approach was
to prohibit any type of solicitation, including
political solicitation. In view of the fact that the
respondents would have had an opportunity to
disseminate their political ideas to the 20,000 pas
sengers using Dorval airport daily, in my opinion
the effect of this prohibition cannot be regarded as
insubstantial or negligible. It follows that their
freedom of expression was diminished.
Further, it is equally clear that the purpose as
well as the effect of the Department's policy con
stitutes an infringement of the respondents' right
of expression. In the view of the Department of
Transport, it is not in the interest of passengers to
allow solicitation of any kind, and the Depart
ment's policy is designed to prohibit it. According
ly, in my opinion, this is a clear case of infringe
ment of the respondents' freedom of expression.
However, even if a right protected by the Chart
er is infringed, the government may argue under
section 1 that the limit imposed is reasonable and
that this limit can be demonstrably justified in a
free and democratic society. Once again, however,
under section 1 such a limit must be prescribed by
law. Was there such a legal prescription in the
case at bar?
Ill
The question as to the meaning of the phrase
"prescribed by law" in section 1 has not been
settled by the Courts. The difficulty of the matter
is increased by the fact that the connotation of the
phrase "prescribed by law" in the English version
is different from the phrase "restreints ... par une
règle de droit" in French. In and of itself, the
English version could mean that the constraints
had to be made only by statute enacted by Parlia
ment or by a provincial legislature. However, it
would seem that the use of the word "droit" rather
than "loi" in French requires that a broader mean
ing of the phrase be adopted.
In this regard I agree with Professor Peter W.
Hogg, who says in Constitutional Law of Canada,
2d ed., Carswell, 1985, at pages 684-685:
What kind of legal prescription will fulfil the requirement
that a Charter limit be "prescribed by law"? It could be argued
that the purpose of this phrase is to ensure that the Charter
limit was the deliberate product of an open parliamentary
process. On this basis, the phrase "prescribed by law" could be
satisfied only by a statute enacted by either the federal Parlia
ment or a provincial Legislature. Regulations or by-laws would
not suffice; nor would a rule of the common law. This strict
view is difficult to reconcile with the French version of s. 1,
which uses the word "droit" rather than the narrower word
"loi". Nor is this strict view supported by the legislative
history* or the few cases that have so far been decided.
An alternative view of the purpose of the phrase "prescribed
by law" is that it is designed to ensure that citizens are plainly
advised of any restrictions on their guaranteed rights, so that
they can regulate their conduct accordingly. On this basis, the
phrase would be satisfied by any law that fulfilled two require
ments: (1) the law must be adequately accessible to the public,
and (2) the law must be formulated with sufficient precision to
enable the citizen to regulate his conduct by it.
Professor Dale Gibson's analysis, supra, at page
152, is also to this effect.
In The Sunday Times case, [ 1979] Eur. Court
H.R. 30, ser. A; (1979-80), 2 E.H.R.R. 245, the
Court had to consider an injunction against pub
lishing an article regarded as constituting a con
* Christian ["The Limitation of Liberty: A Consideration of
Section 1" (1982) U.B.C.L. Rev. (Charter ed.) 105], 109-
103, shows that delegated legislation and common law were
asserted to be within "prescribed by law" in s. 1 by the
Minister of Justice and his Deputy in testimony before the
Special Joint Committee on the Constitution.
tempt of court. The Court said the following, at
pages 30-33 Eur. Court H.R.; 270-273 E.H.R.R.:
47. The Court observes that the word "law" in the expression
"prescribed by law" covers not only statute but also unwritten
law. Accordingly, the Court does not attach importance here to
the fact that contempt of court is a creature of the common law
and not of legislation ....
49. In the Court's opinion, the following are two of the
requirements that flow from the expression "prescribed by
law". First, the law must be adequately accessible: the citizen
must be able to have_ an indication that is adequate in the
circumstances of the legal rules applicable to a given case.
Secondly, a norm cannot be regarded as a "law" unless it is
formulated with sufficient precision to enable the citizen to
regulate his conduct: he must be able if need be with appro
priate advice—to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may
entail. Those consequences need not be foreseeable with abso
lute certainty: experience shows this to be unattainable ....
52. ...
To sum up, the Court does not consider that the applicants
were without an indication that was adequate in the circum
stances of the existence of the "prejudgment principle". Even if
the Court does have certain , doubts concerning the precision
with which that principle was formulated at the relevant time,
it considers that the applicants were able to foresee, to a degree
that was reasonable in the circumstances, a risk that publica
tion of the draft article might fall foul of the principle.
53. The interference with the applicants' freedom of expres
sion was thus "prescribed by law" within the meaning of
Article 10(2).
I am persuaded that this foreseeability rule is
also the reason underlying the presence of the
words "prescribed by law" in section 1 of the
Charter. Accordingly, the limitation may result
from the application of a common law rule if it is
sufficiently accessible and precise.
This is the view of Le Dain J., the only judge
who analysed the meaning of the words "pre-
scribed by law" in R. v. Therens et al., [1985] 1
S.C.R. 613, at page 645; (1985), 59 N.R. 122, at
page 136; 18 D.L.R. (4th) 655, at page 680:
Section 1 requires that the limit be prescribed by law, that it
be reasonable, and that it be demonstrably justified in a free
and democratic society. The requirement that the limit be
prescribed by law is chiefly concerned with the distinction
between a limit imposed by law and one that is arbitrary. The
limit will be prescribed by law within the meaning of s. 1 if it is
expressly provided for by statute or regulation, or results by
necessary implication from the terms of a statute or regulation
or from its operating requirements. The limit may also result
from the application of a common law rule. [My emphasis.]
It is true that four out of the eight judges were of
the view that section 1 of the Charter was not at
issue since in the circumstances of that case, the
limitation on individual rights was imposed by the
police and "not by Parliament", but in the context
there was no question of a common law justifica
tion. Additionally, in RWDSU v. Dolphin Delivery
Ltd., [1986] 2 S.C.R. 573, a judgment handed
down on December 18, 1986, a majority of the
Supreme Court recently interpreted the word
"law" [règle de droit] in subsection 52(1) of the
Constitution Act, 1982 [Schedule B, Canada Act
1982, 1982, c. 11 (U.K.)] to include the common
law.
In the case at bar, the limitation on freedom of
expression results from a policy of the Depart
ment, based on the civil law and the common law,
which is accessible, well-defined and so foresee
able. The policy of the Department of Transport is
clearly stated in the wording of the Regulations. In
this case, even though the Regulations themselves
do not apply to the respondents' conduct, they
serve to indicate the government's policy based on
its ownership rights.
In my view, there is a prima facie limit pre
scribed by law, the law in this case being the policy
of the Crown as owner, and the government is
therefore entitled to rely on section 1 of the
Charter.
Iv
The appellant's arguments under section 1 in its
Statement of Fact and Law read as follows:
[TRANSLATION] Alternatively, we submit that even if the
plaintiff-respondents had the right and freedom to use the
unrestricted areas of the Montréal International Airport at
Durval, that right or freedom was subject to reasonable limits
prescribed by law which are justifiable in a free and democratic
society.
The purpose of those legally prescribed limits is to protect
Her Majesty's ownership right and her incidental right to invite
onto her premises members of the public wishing to use the
services associated with the nature of her property.
In asking the plaintiff-respondents to cease their activities,
the appellant was exercising her right of oversight on her
property, exercise of that right being closely bound up with the
nature of operations at the airport. In so doing, the appellant
was only reminding the plaintiff-respondents that they were on
property which was at the disposal of travellers wishing to use
the services offered there. As their presence was in no way
related to those services or operations, the appellant was en
titled to require the plaintiff-respondents to leave the premises.
Though these arguments refer expressly only to
the ownership rights of Her Majesty, it is clear
that counsel for the Crown also had in mind the
needs of the travelling public, and her argument
under section 2 in this respect may have some
bearing on section 1:
[TRANSLATION] The plaintiff-respondents' freedom of
expression is not absolute and is to be weighed against the
government's rights and duties to preserve law and order and to
maintain, manage and supervise the government's airports and
the right of the travelling public to make peaceful use of the
unrestricted areas of Canadian air terminals, rights which take
priority over the rights of other individuals or groups to use
those premises for purposes they were not specifically intended
for....
The fact that the travelling public is a captive audience must
also be taken into account. Someone waiting for a plane or for
the arrival of another person by plane has no choice but to wait
in the unrestricted areas of the terminals.
In Harrison v. Carswell, [1976] 2 S.C.R. 200, a
majority of the Supreme Court held that Anglo-
Canadian jurisprudence had traditionally recog
nized an individual's right to enjoy his property as
a fundamental freedom. Accordingly, it ruled that
the owner of a shopping centre had sufficient
control or possession of the common areas of the
centre, despite the unrestricted invitation to the
public to enter upon the premises, for him to bring
an action for trespass against a person taking part
in a legal strike who was engaged in peaceful
picketing on the sidewalk in front of the premises
of her employer.
Nevertheless, the appellant's position as owner is
quite different from that of a private owner. The
appellant is not owner for the government's benefit
but for the benefit of the public. Moreover, the
appellant unlike private owners is subject to the
dictates of the Charter: Operation Dismantle et al.
v. The Queen et al., [1985] 1 S.C.R. 441. Addi
tionally, in RWDSU v. Dolphin Delivery Ltd.,
supra, a majority of the Court has recently held
that peaceful picketing in connection with a labour
dispute is protected by the Charter.
In The Queen v. Oakes, [1986] 1 S.C.R. 103;
(1986), 65 N.R. 87; 26 D.L.R. (4th) 200, Dickson
C.J. clearly stated the relevant factors under sec
tion 1 at pages 138-139 S.C.R.; 128-129 N.R.; 227
D.L.R.:
To establish that a limit is reasonable and demonstrably
justified in a free and democratic society, two central criteria
must be satisfied. First, the objective, which the measures
responsible for a limit on a Charter right or freedom are
designed to serve, must be "of sufficient importance to warrant
overriding a constitutionally protected right or freedom": R. v.
Big M Drug Mart Ltd., supra, at p. 352. The standard must be
high in order to ensure that objectives which are trivial or
discordant with the principles integral to a free and democratic
society do not gain s. 1 protection. It is necessary, at a
minimum, that an objective relate to concerns which are press
ing and substantial in a free and democratic society before it
can be characterized as sufficiently important.
Second, once a sufficiently significant objective is recognized,
then the party invoking s. I must show that the means chosen
are reasonable and demonstrably justified. This involves "a
form of proportionality test": R. v. Big M Drug Mart Ltd.,
supra, at p. 352. Although the nature of the proportionality test
will vary depending on the circumstances, in each case courts
will be required to balance the interests of society with those of
individuals and groups. There are, in my view, three important
components of a proportionality test. First, the measures adopt
ed must be carefully designed to achieve the objective in
question. They must not be arbitrary, unfair or based on
irrational considerations. In short, they must be rationally
connected to the objective. Second, the means, even if rational
ly connected to the objective in this first sense, should impair
"as little as possible" the right or freedom in question: R. v. Big
M Drug Mart Ltd., supra, at p. 352. Third, there must be a
proportionality between the effects of the measures which are
responsible for limiting the Charter right or freedom, and the
objective which has been defined as of "sufficient importance".
I might add that, in a situation involving section 1,
the burden of proof on a balance of probabilities
rests with the government.
In the present case, even if it were admitted for
purposes of argument that the objective of the
Department's policy is of sufficient importance to
warrant overriding the right of expression, the
government has still not established that the means
chosen are proportionate to that objective. The
government's policy of allowing solicitation in
some cases, based on a decision by the Minister, is
arbitrary (no criteria), unfair (veterans only are
permitted) and potentially based on irrational con
siderations (who knows what they really involve?).
Further, the government has not shown that the
means chosen impair the right of expression as
little as possible. According to the testimony of the
operations manager at Dorval, "the public areas
are thronged with people". However, the govern
ment's practice does not apply only to Dorval
airport, but to all large airports in Canada, includ
ing Mirabel, where as is generally known, passen
gers are remarkable for their absence.
The freedoms solemnly enshrined by the Chart
er must not be violated, except in cases where an
objective of sufficient importance would warrant
the injury caused to the victim, and then only by
the use of means which are strictly proportional to
that objective. Here, the government has not
established that the means used were justified.
Accordingly, the Department's policy does not
meet the criteria of section 1 of the Charter, and
the Trial Judge was right to allow the first part of
the declaration sought by the respondents and find
that the appellant had not respected the respon
dents' fundamental freedoms.
V
The respondents further argued that the unre
stricted areas of airports should be recognized as
forums in the sense of U.S. constitutional law, and
the second part of their action for a declaration
seeks a judgment to this effect. In a recent case,
United States et al. v. Grace, 103 S.Ct. 1702
(1983), White J. summarized the American case
law [at pages 1706-1707]:
The First Amendment provides that "Congress shall make no
law ... abridging the freedom of speech .... " There is no
doubt that as a general matter peaceful picketing and leaflet
ting are expressive activities involving "speech" protected by
the First Amendment ....
It is also true that "public places" historically associated
with the free exercise of expressive activities, such as streets,
sidewalks, and parks, are considered, without more, to be
"public forums." ... In such places, the government's ability to
permissibly restrict expressive conduct is very limited: the
government may enforce reasonable time, place, and manner
regulations as long as the restrictions "are content-neutral, are
narrowly tailored to serve a significant government interest,
and leave open ample alternative channels of communication."
... Additional restrictions such as an absolute prohibition on a
particular type of expression will be upheld only if narrowly
drawn to accomplish a compelling governmental interest.
Up to now the U.S. Supreme Court has not
ruled on the status of airports in this regard, but
case law has been clearly established by the deci
sions of Federal Courts of Appeal. For example, in
Jews for Jesus, Inc. v. Board of Airport Comrs of
City of Los Angeles, 785 F.2d 791 (9th Cir. 1986)
at page 793, the Court made the following
observation:
This court, like a number of other circuits, has addressed the
First Amendment forum issue in the context of airport termi
nals and concluded that airport terminal buildings are public
forums open to First Amendment activity.
Even if the U.S. Supreme Court were to adopt
this position, I think it would be premature to
adopt it in Canada at this stage of development of
our case law on the Charter. The Canadian
approach to this question may perhaps be less rigid
than that of the Americans. I would therefore
dismiss this part of the declaration sought.
vl
For these reasons, I would dismiss the appeal and
affirm the first part of the Trial Judge's order,
declaring that the appellant did not observe the
respondents' fundamental freedoms. On the second
part of his order, I decide in favour of the appel
lant, but since the respondents were right on the
fundamental point, I would award them their
costs.
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