This summer, the Ontario government conducted consultations regarding its plan to enact \u201csafe access zones legislation\u201d (SAZL) modeled on British Columbia\u2019s.<\/p>\n
I\u2019ll give a brief background on B.C.\u2019s law before diving into a division of powers argument against enacting such a law in Ontario. In short, I will argue that just as a province cannot enact a penal prohibition on abortion (Morgentaler <\/em>1993), so too it cannot enact criminal law to prohibit anti-abortion expression. It is a rule of Canadian constitutional law that provincial and municipal governments may not censure certain messages based on their content. This guards against local ideological biases. A province may also not \u201cfill gaps\u201d in the criminal law.<\/p>\n <\/p>\n B.C.\u2019s Access to Abortion Services Act<\/em><\/strong><\/p>\n British Columbia\u2019s Access to Abortion Services Act<\/u><\/em> (AASA) came into force in 1996. Section 2 AASA makes it an offence, punishable by fine and imprisonment, to do the following while in an \u201caccess zone\u201d:<\/p>\n (a) engage in sidewalk interference;<\/p>\n (b) protest;<\/p>\n (c) beset;<\/p>\n (d) physically interfere with or attempt to interfere with a service provider, a doctor who provides abortion services or a patient;<\/p>\n (e) intimidate or attempt to intimidate a service provider, a doctor who provides abortion services or a patient.<\/p><\/blockquote>\n Important terms are defined in section 1<\/u>:<\/p>\n “protest<\/strong>” includes any act of disapproval or attempted act of disapproval, with respect to issues related to abortion services, by any means, including, without limitation, graphic, verbal or written means;<\/p>\n “sidewalk interference<\/strong>” means (a) advising or persuading, or attempting to advise or persuade, a person to refrain from making use of abortion services, or (b) informing or attempting to inform a person concerning issues related to abortion services.<\/p><\/blockquote>\n The law also prohibits harassment of service providers, doctors, or patients under section 4<\/u>, which is not<\/em> limited in its application to access zones:<\/p>\n 4<\/strong>\u00a0 (1) A person must not do any of the following for the purpose of dissuading another person from providing or facilitating the provision of abortion services:<\/p>\n (a) repeatedly approach, accompany or follow the other person, or a person known to the other person;<\/p>\n (b) beset;<\/p>\n (c) engage in threatening conduct directed at the other person or a person known to the other person.<\/p>\n (2) A person must not repeatedly communicate by telephone, facsimile or electronic means with another person without their consent for the purpose of dissuading a service provider or doctor who provides abortion services from beginning or continuing to provide, or to facilitate the provision of, abortion services.<\/p><\/blockquote>\n The rest of the AASA is centred around and gives effect to these offences.<\/p>\n \u00a0<\/em><\/p>\n Ontario\u2019s proposed law is beyond its jurisdiction to enact<\/strong><\/p>\n The Ontario government cannot enact \u201csafe access zones legislation\u201d (SAZL).<\/p>\n The government of Ontario, or any province, cannot enact criminal law or attempt to supplement, stiffen, replace, or \u201cfill gaps\u201d in the criminal law. This is a basic constitutional rule.<\/p>\n While British Columbia\u2019s law was upheld under challenge, the issue of the government\u2019s jurisdiction was only addressed by a provincial court judge presiding over a self-represented litigant. The provincial court judge\u2019s reasoning in dismissing the claim that B.C.\u2019s Access to Abortion Services Act<\/em> is beyond B.C.\u2019s jurisdiction is very weak. Just because B.C.\u2019s government claimed it wanted to promote \u201caccess to abortion\u201d does not mean that health care is the \u201cpith and substance\u201d of the law. Rather, B.C.\u2019s entire Access to Abortion Act<\/em> centres around and gives effect to the penal provisions, which target and punish certain conduct.<\/p>\n Minister Naqvi cites reports of alleged harassment by a small group of protesters in his riding in Ottawa as justification for introducing SAZL. Newfoundland and Labrador\u2019s Justice Minister, similarly, cited intimidation and harassment as the reason for that province\u2019s new law.<\/p>\n The SAZL of British Columbia, Quebec, and Newfoundland and Labrador violate Canada\u2019s constitutional division of powers by (1)<\/strong> attempting to supplement Canada\u2019s criminal law, which already prohibits harassment, intimidation, assault, terrorism, mischief, and common nuisance; and, (2)<\/strong> prohibiting certain categories of expression defined by their content<\/em>.<\/p>\n \u00a0<\/em><\/strong><\/p>\n Ontario\u2019s proposed law would create new criminal offences or broaden existing ones, which only Parliament can do<\/strong><\/p>\n If there were many crimes taking place in a particular area, a province or city might try to pass laws or bylaws to suppress the conditions leading to crime. Establishments that serve alcohol might have to close at a certain time or lose their liquor license, for example. Or a city might want to promote the safe use of sidewalks, instituting fines for holding large, obstructive signs.<\/p>\n B.C.\u2019s law, however, makes it an offence, punishable by major fines and imprisonment to behave in certain ways. It makes it an offence to communicate disapproval of abortion in any way, or even to inform a person concerning issues related to abortion services. The fact that these penal provisions are limited to \u201caccess zones\u201d does not change their essential character. Their intent is to punish behaviour that the government considers a public evil, a form of harassment, intimidation, or oppression of vulnerable persons. They seek to broaden the criminal law.<\/p>\n Consider what the Supreme Court of Canada said in Westendorp <\/em>([1983] 1 SCR 43) about a municipal law, limited in application to public streets, that prohibited approaching another person for the purpose of prostitution:<\/p>\n \u00a0<\/strong>And,<\/p>\n If a province or municipality may translate a direct attack on prostitution into street control through reliance on public nuisance, it may do the same with respect to trafficking in drugs. And, may it not, on the same view, seek to punish assaults that take place on city streets as an aspect of street control’?<\/p><\/blockquote>\n \u00a0<\/strong>To prohibit people from communicating for the purpose of informing people about abortion is patently an attempt to punish what this government considers to be a public evil.<\/p>\n \u00a0<\/em><\/strong><\/p>\n Ontario\u2019s proposed law would attempt to lower the threshold for the crimes of harassment and intimidation<\/strong><\/p>\n \u00a0<\/strong>The provinces with SAZL have general prohibitions on \u201charassment\u201d, an offence which includes repeatedly communicating with a person by phone, facsimile or electronic means for the purpose of dissuading that person from providing abortion services, among other conduct.<\/p>\n The provision is remarkably similar to the Criminal Code <\/em>prohibition on harassment, except that it lowers the standard for conviction. To be convicted of harassment under the Criminal Code<\/em>, the Crown must prove: (1) that the accused engaged in the prohibited conduct (repeated communication, approaching, besetting, etc.); (2) that the complainant was in fact harassed by the prohibited conduct, meaning he or she was \u201ctormented, troubled, worried continually or chronically, plagued, bedevilled and badgered\u201d; (3) that the accused knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed; (4) that the conduct caused the complainant to fear for his or her safety or the safety of anyone known to him or her; and (5) that the complainant\u2019s fear was reasonable in the circumstances.<\/p>\n Under B.C.\u2019s law, however, requirements (2) \u2013 (5) are simply absent, meaning essentially that abortion providers are given a level of protection not accorded to anyone else. The province simply cannot do this; it violates the division of powers. B.C.\u2019s law also effectively broadens the offence of intimidation (Code<\/em>, s. 423) by removing the exception permitting peaceful protest.<\/p>\n <\/p>\n Ontario\u2019s proposed law would attempt to tailor criminal offences to particular settings<\/em><\/strong><\/p>\n Assault is assault whether you hit someone with your hand or elbow, whether you are big or small. Murder is the intentional killing of a human being, regardless of the means used. In many ways, however, the Criminal Code <\/em>is tailored for certain settings. The Code <\/em>prohibits conduct in certain places or contexts or towards certain people that is not prohibited in other places or contexts or towards other people, or is prohibited but subject to lesser penalties when committed in other places or contexts or in relation to other categories of people.<\/p>\n For example, the criminal prohibition against mischief in section 430 of the Code<\/em> spells out different penalties depending on the nature of the property in relation to which mischief is committed, with special protections for religious and cultural property and war memorials. The Criminal<\/em> Code <\/em>prohibits obtaining sexual services for consideration or communicating with anyone for that purpose, but imposes more severe penalties where the offence is committed \u201cin a public place, or in any place open to public view, that is or is next to a park or the grounds of a school or religious institution or that is or is next to any other place where persons under the age of 18 can reasonably be expected to be present\u201d. So the Code <\/em>is tailored for particular places<\/em><\/strong>.<\/p>\n The offence of intimidation in section 423 of the Code<\/em> \u2013 which is similar in some ways to the offence of harassment \u2013 gives particular attention to journalists and justice system participants. Threatening an internationally protected person or United Nations personnel is specifically prohibited (ss. 424 and 424.1), as is attacking the premises, residence or means of transport of such persons (ss. 431 and 431.1). So the Code <\/em>is tailored for certain categories of persons<\/em><\/strong>.<\/p>\n Where Parliament has not enacted extraordinary or targeted protections for certain persons, places, or activities (or categories thereof), it does not mean that provinces may do so. Provinces may not supplement, stiffen, or fill perceived gaps in the criminal law.<\/p>\n Canada\u2019s Parliament has not decided that extraordinary restrictions are necessary on conduct or expression on public property near abortion facilities. Nor has Parliament decided that extraordinary protections are needed for personnel involved in providing abortion services. Abortion facilities are protected by criminal provisions generally related to protecting property. Abortion service providers and patients likewise are protected by many Criminal Code <\/em>provisions prohibiting others from assaulting, threatening, harassing, or intimidating them.<\/p>\n \u00a0<\/strong><\/p>\n Ontario\u2019s proposed law impermissibly targets a message that this government dislikes<\/strong><\/p>\n Notably, existing SAZL in Canada do not simply prohibit setting up signs outside of health service facilities, for example, but target only the pro-life message in any form. Under B.C.\u2019s law, handing out pro-choice pamphlets or holding pro-choicesigns outside of abortion clinics, or pregnancy care centres for that matter, is completely legal. Imagine a more pro-life government in this or another province enacting such a law, but changing \u201cdissuade\u201d to \u201cpersuade\u201d. The pro-life message happens to be the message that is disliked by this government.<\/p>\n[The bylaw] is activated only by what is said by a person<\/u> [\u2026]. For persons to converse together on a street, [\u2026] and to discuss a recent or upcoming sporting event or a concert or some similar event would not attract liability. It is triggered only by an offer of sexual services or a solicitation to that end. There is no violation of section 6.1 by congregation or obstruction per se; the offence arises only by proposing or soliciting another for prostitution.<\/p><\/blockquote>\n