by Joyce Arthur, Pro-Choice Action Network
September 2007, REVISED January 2009
On September 13 and 14, 2007, the British Columbia Court of Appeal heard the appeal of anti-abortion protesters Donald Spratt and Gordon Watson, who were challenging their 2000 conviction under the Access to Abortion Services Act ("the Act"). The Act establishes buffer zones around the homes and offices of abortion providers and allows them to be established around facilities where abortions are performed. The purpose is to prevent anti-abortion protesters from harassing women and staff, specifically to protect their ability to access (and provide) abortion as a necessary health service and "be treated with courtesy and with respect for their dignity and privacy."
The appeal focused only on whether the Act's admitted infringement of freedom of speech (a constitutional right under Section 2b of the Charter of Rights and Freedoms, http://laws.justice.gc.ca/en/Const/annex_e.html#1) meets the test of Section 1 of the Charter, which states that an infringement of a fundamental right is allowed only if it meets "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
Court of Appeal panel: Justices Rowlands, Lowe, and Ryan.
The Spratt/Watson case is also a continuation of a case first initiated by anti-abortion protester Maurice Lewis, who was convicted in 1996 of violating the bubble zone. Lewis appealed the decision but died before his appeal could be heard. The 1996 Lewis decision by Justice Mary Saunders, containing a comprehensive account of the evidence supporting the Act, was adopted into the Spratt/Watson appeal (by Justice Koeningsberg).
Four parties intervened in this appeal: three for the Appellants and one for the Crown. (An intervenor is a group or coalition of groups with an interest and stake in the case, which can apply to present an argument in support of the Appellant or Crown.)
The intervenors for the Appellants were:
The intervenor for the Crown was the Access Coalition, whose members included:
Donald Spratt (represented by Scott Stenbeck).
From oral arguments: There is no evidence of harm to women from protesters. Evidence in the Saunders decision is only hearsay from clinic staff. The real harm that women experience is related to abortion itself and the clinic's treatment of women. Existing legislation already protects against any illegal activities, and the Act exists only to quiet dissent and make a statement. Even if there was a pressing and substantial reason for the Act when it was enacted, that is not the case now. The right to freedom of expression is fundamental, as is the ability to exercise it in a public place such as a sidewalk. Saying you can go somewhere else to exercise free speech is a violation of the substance of that right, because location matters. You have to go where the people are and where the activity is.
The subject of the speech is not trivial - a fetus is a human being and the speech also protects women, e.g., abortion causes breast cancer, and some women will change their minds after talking to a sidewalk counselor (1 in 20). This may be their one opportunity to learn there's a choice. If it was a "captive audience" the speech may not be appropriate, but women don't have to talk to the protesters.
The protesters do not impede access, they do not prohibit women from entering. The buffer zone cannot prevent violence, so there is no "rational connection" between the Act and violence. The Act itself violates women's rights because they are prohibited from hearing the other side. The Act is too broad - no pickets of any kind are allowed. Staff can't even picket during a labour strike. Abortion is singled out as needing special protection, which is not necessary. The Act is out of all proportion to its stated need. No proof it impairs access for women, but it does impede the fundamental right of free speech. Reducing the size of the zone may satisfy a minimal impairment requirement.
Gordon Watson (representing himself).
(Justice Rowlands cautioned him that his brief is mostly unrelated to the Section 2b freedom of expression issue, and he will not be allowed to raise other issues.) Watson complained about the "egregious" treatment of him by the courts. The Act was a political exercise targeting him. Abortion is still illegal under the Criminal Code and the Court previously admitted that (Justice Koeningsberg). The courts do not obey their own rules; Watson cited a couple examples. He accused a Crown lawyer of obstruction of justice. He said there is no evidence of any harm that the Act needs to prevent, it's all hearsay.
Represented by Mark Andrews.
From oral argument: The Act establishes zones at doctors' homes and offices but gives power to Cabinet to establish zones at specific facilities. The Act is unconstitutional because the delegation of the power to establish buffer zones lacks sufficient guidance and criteria for what are appropriate access zones. There are no "intelligible standards". The history of protest is not set out in the Act, when it should have been. What criteria do Cabinet use? What does the Lieutenant Governor actually consider? Scrutiny must be applied to the statute itself, not just to the Cabinet decision afterwards. There is no balance between women's right to access services under Section 1 and protesters' Section 2b free speech rights. You can't take away an important constitutional right for reasons of "courtesy" without balancing rights.
From brief: A limit is not "prescribed by law" if it is so vague that it fails to provide an intelligible standard and an adequate basis for legal debate. No regulations have been passed setting out any criteria or providing any guidance on establishing an access zone. This lack of criteria and guidance means the Act does not meet the standard "prescribed by law" and is unconstitutional. The Act is of no force and effect until regulations are passed setting out criteria by which an access zone can be established.
Represented by Patricia Fleming.
From brief: Justice Koeningsberg erred in adopting the Saunders decision in the Maurice Lewis decision, and erred in ruling that the Act's infringement of freedom of speech is justified under S1 of the Charter. Any harm caused to women by the protesters should be considered along with the harm done to them by the decision to abort without full and free access to information, which the protesters provide in what may be the woman's only opportunity to ever hear it. The Act does not allow "life and death" informed decision-making by the woman. The Appellant's right to free speech should not be restricted because their position is unpopular. The right to free speech must not be relegated to a time and place where it is of least possible relevance to those who need to hear it. There ought to be some consideration given to the rights of the fetus as well as the rights of the woman. The rights of those who advocate abortion must be balanced with those opposed, especially because the latter involves freedom of religion. The action of protesters is not violent or harmful when carefully scrutinized. The Act is too broad and sweeping in preventing any kind of protest. It overreaches, and does not balance rights.
Represented by Julie Owens.
From brief: Prohibition of "protest" and "sidewalk interference" (S 2(1)(a) and (b) of the Act) are not justified under S1 of the Charter. The fundamental freedoms of both protesters and women seeking abortions are not minimally impaired. Protesters are prevented from speaking, and women are prevented from hearing and considering the message. The evidence in the Lewis case was overstated. 31% of women are not upset by protesters. No women were denied access to the clinic. Many women are coerced into abortion because they lack sufficient information. The deleterious effects of the trampling of fundamental freedoms of both protesters and women far outweigh the tenuous benefits of the Act. The interests of the women are more pressing than the interests of the clinic staff who should not be deciding for them. The sections of the Act banning "protest" and "sidewalk interference" are not rationally connected to the objective of reasonable and secure access to the clinic. The impairment of freedom of expression is not minimal or proportionate.
Represented by Lisa Mrozinski and Roger Cutler.
Main position: The challenged provisions of the Access to Abortion Services Act are constitutionally valid under Section 1 of the Charter. The Act advances the constitutional values of liberty, security of the person, and gender equality.
Lisa Mrozinski: There is plenty of evidence for the need for the Act. (Over an hour was spent reviewing the evidence, page by page, in the Saunders decision.) For example:
The Act was needed because it was not a private dispute between a business and protesters, it became a very public ongoing intractable dispute and the Crown had to step in. "Peaceful" is not the same as "non-violent." The best that can be said is that the protests were non-violent but they were not peaceful or harmonious.
The purpose of the Act is to protect women's privacy. So it doesn't make sense that women must testify about the effects of the protesters, this defeats the purpose of the Act. Having an abortion is a very private decision and private act, women do not want to come forward and testify in court, and they don't have to. Under S1, the legislature can have deference as to where they draw the line, plus the legislature can't get direct evidence either, and normally doesn't for any legislation.
Section 1 analysis: The right to free speech is very broad as deemed by the Supreme Count. The Act can't help but infringe it, so it's necessary to defend it using Section 1. For example, tobacco advertising is protected speech under S2b, but it's severely restricted under S1. Women are a captive audience at the clinic, they have no realistic option to avoid the service. The context of the protesters' message must be considered - the attention is unsolicited, most women are made anxious and find it negative and intimidating. The values fostered by the limitation on free speech include: ensures access to the healthcare service; protects privacy in context of healthcare services, protects dignity which underlies all rights, ensures women's ability to exercise their rights and the right to choose healthcare. It's not ok to offer unsolicited non-expert medical advice, that's "interposing."
Roger Cutler: to rebut the BCCLA argument that the Act is vague or overbroad. The Act is "prescribed by law" under S1 just by virtue of it being enacted by a legislature. The Act actually goes well beyond what is required in terms of detail and breadth. It didn't have to say anything more than "Cabinet may create access zones." (Justice Rowlands asked if there should be clear articulation of the criteria for drawing up bubble zones and definitions of prohibited activities, whether the Act picks up activities that are benign such as "acts of disapproval or attempts at disapproval.") Cutler: Legislatures have deference to enact the law and decide how to best meet its objectives, the law itself does not have to spell everything out. A very high threshold must be met to prove the "prescribed by law" requirement is not met. The Act easily meets the requirement.
Represented by Nitya Iyer.
From oral argument: Regarding "disapproval" and the content based approach, it's only restricted within narrowly-defined geographic zones; it's inextricably tied to geographic location. The legislation has achieved a legally permissible balance between women's rights and protester's rights. A specific location can turn valuable free speech into oppressive speech. The content of speech at that particular location (the clinic) causes harm and may be prescribed. It's impractical to just reduce the prohibited activity somehow, there's no practical alternative, injunctions don't work.
From brief: When the nature and extent of the harm addressed by the Act are considered together with the manner in which the Act advances the constitutional values of liberty, security of the person, equality, privacy and dignity, any infringement of the Charter rights by the impugned provisions of the Act is constitutionally justified under S1 of the Charter. The objective of the legislation is pressing and substantial, and the means chosen by the legislature are proportional to the objective and rationally connected to it, and impair as little as possible the right of freedom to speech.
On September 4, 2008, the BC Court of Appeal upheld the Access to Abortion Services Act. The three justices agreed unanimously that the legislation infringes only minimally on constitutionally protected right to freedom of expression, and was justifiable to protect a woman's right to medical services. The protesters said they would appeal to the Supreme Court of Canada, but it's considered highly unlikely the court would take the case.
For more details, see: