ARPA made a presentation last week to the Ontario Legislature’s Standing Committee on General Government. The topic was Bill 163 – Ontario’s pending “bubble zone” legislation that would prohibit demonstrations outside abortion clinics in the province.

The presentation was made by ARPA articling law student Tabitha Ewert, and she started by referencing this spring’s court victory on Ontario’s ban on the publication of abortion statistics.

Here’s a partial transcript of what she said:

The court found in that case that censoring of such data was an unconstitutional violation of free expression. In essence, the court recognized that there is an ongoing discussion about abortion in this province, and that the government cannot interfere with that discussion.

And so we are happy to see that this government is bringing FIPPA in line with that ruling, but we have major concerns about the rest of this bill and the way that it interferes with the ongoing public discussion.

I have two main points that I would like to make regarding this bill. The first is that it’s unnecessary – we have Criminal Code prohibitions that cover all of the extreme behaviours such as assault. And the second point I want to make is with regard to freedom of expression and peaceful protestors who would be covered by this bill.

So first of all, it is unnecessary. There is just no evidence that without this bill women’s safety or access to abortion would at all be infringed. In Canada, we have safe access to abortion. And part of the reason for this safe access is the fact that we have Criminal Code prohibitions that prohibit such things as assault, threatening, intimidation, or harassment. These provisions cover abortion clinics just as they cover the rest of the province.

And the one incident that is referred to in support of this bill – the alleged spitting in Ottawa – that is assault. That can be charged under the Criminal Code. There’s no reason for the province to supplement the Criminal Code in that situation. In fact, it is unconstitutional for them to do so because only the Federal government can pass Criminal Code prohibitions. And the sponsor of this bill, the Attorney General, should be prosecuting such crimes rather than inventing new laws that also silence peaceful protestors.

And for my second point – the freedom of expression – making it illegal to show disapproval of abortion; that is not about protecting patients or physicians. That is about silencing dissent on the issue. It’s about silencing pro-life speech. But we have no right to be free from dissent in Canada, no matter what issue is at stake.

I just want to be clear on this point, because there’s a lot of rhetoric around this issue. Protecting women’s rights or making a step forward for women’s rights, cannot include fining and imprisoning women who disagree.

And that is what this bill does. It says if you hold a certain opinion, you cannot express it. Your constitutional rights are not protected. That is unconstitutional, and it does not aid the important ongoing public discussion that is going on in Ontario over the issue.

For extreme behaviour – for harassment, for assault – that is covered under the Criminal Code. For peaceful protestors, there is no need to silence them in this ongoing discussion.

You can watch a full video of Tabitha’s appearance at this link.

The Ontario government is out with its long-promised “bubble zone” legislation to prohibit protests around abortion clinics. It’s called the “Safe Access to Abortion Services Act“, and it sets strict limits around where protests can take place. The restriction around abortion clinics is automatic; a 50-metre zone that can be expanded up to 150 metres. Hospitals and places where abortions are performed, or where the abortion pill is prescribed can also apply to get an “access zone” designation. The law prohibits all pro-life messaging, without exception, in those zones. The bill also responds to a court ruling earlier this year; a ruling in favour of ARPA and pro-life blogger Patricia Maloney. That ruling said the Ontario government couldn’t arbitrarily withhold all abortion statistics under the Freedom of Information Act.

We Need a Law articling student Tabitha Ewert says the new bill addresses that issue in two ways. “It replaces the complete exclusion of abortion information with (the notion) that information related to abortion cannot be released if it identifies individuals or a facility.” And she says the second exclusion is “a bit of an unknown”; that provision prohibits the release of any information that “could reasonably be expected to threaten the health or safety of an individual or the security of a facility.” She says that part of the law is still being analyzed.

ARPA is looking at various options to oppose the bill. Ewert says initially, those efforts will focus on lobbying MPP’s to vote against it, but if the bill does pass, there is “a potential for a legal challenge.” If you live in Ontario, you can send an EasyMail to your MPP on this issue at this link.

The Ontario government is set to introduce legislation this fall that would ban protests outside the province’s abortion clinics. The government is justifying the need for the law by citing several protests that happened outside a clinic in Ottawa earlier this year, but ARPA’s legal counsel, John Sikkema, has done some research on this situation. On the feature this week, he talks about the notion that the proposed law would not withstand a court challenge, based on several considerations.

LN: “Safe Access Zones Legislation”. It’s kind of like BC’s so-called “bubble zone” law. The idea is to prevent protests within a certain distance of abortion clinics specifically. You appeared before a panel of Ontario government regulators last week to talk about this. ARPA had actually written a submission on the issue. Fundamentally, that submission starts with the notion that this proposed law is beyond the jurisdiction of a province to enact. Can you expand on that a little bit?

JS: Sure. So what the law in BC does is basically say “if you are caught doing certain things in certain places, you can be subject to a major fine or actually go to jail.” Obviously that limits freedom of expression, and there’s a Charter of Rights and Freedoms argument to be made there. There’s also a division of powers argument. If this law basically condemns certain actions that the government considers a public evil or a threat to people’s safety and so on, that is essentially criminal law. To prohibit something – penalize it, have prison as a penalty – is criminal law. And the province isn’t allowed to do that. Only the federal government is.

LN: But BC’s “bubble zone” legislation has gone to court, and it was upheld. Was that just a weak court ruling that didn’t go all the way through the process? Because I sense the Ontario government is kind of hanging its’ hat on the fact that this has already been challenged and found to be OK in British Columbia.

JS: That’s right. So the BC history is quite interesting. BC introduced its law in the mid-nineties, shortly after new abortion clinics had opened following the Morgentaler ruling. Those clinics actually were subject to large protests that actually obstructed people from entering; locks were glued and that kind of thing. Now, court injunctions generally took care of most of that, and yet kind of in that moment or responding to that tension the government introduced its bill. You might say it took advantage of the tension at that time. And the people who challenged that law in the early stages were self-represented. And one self-represented litigant did raise the division of powers issue.

It’s hard to know how it was argued; I don’t have the record of the transcript of that case. But it seemed to be dismissed kind of out-of-hand, with (no) great explanation from the lowest court, (and) it was never given substantial treatment by the higher court. In fact the BC Court of Appeal doesn’t even give leave to appeal on that issue, and I suspect that’s because there was no one really making good submissions on that at the time.

LN: One of the other cases you make – and as I was reading through the brief, this is sort of where my eyes glazed over a little bit, frankly, and maybe I don’t “get it” – but the bullet headline says “Ontario’s proposed law would attempt to tailor criminal offences to particular settings.” I get that in a sense, because the law says you can’t protest outside “abortion clinics” specifically. But what’s wrong with that?

JS: The way the province would try to defend this law is to say: “We’re not sending people to jail for a general act that we disapprove of and so on” (which would be criminal law). “We’re basically just ensuring access to health care.” This is the kind of language that they use: “People need to enter clinics, the Ontario government is responsible for providing health care. Abortion we consider to be health care, and so if you’re getting in the way of that, we just need to make sure that people can access Ontario government services. This isn’t about punishing people for something we consider bad. It’s just necessary at these particular locations to make sure people can get in the door without being harassed, intimidated, and so on.”

Now the fact that the law is applying specifically to activity outside of abortion clinics – although it does have another provision that applies generally to communications with abortion providers anywhere – but the fact that it applies to certain locations; that would be used to argue that the province is allowed to do that. Provinces and towns can regulate activity in the streets.  They can prohibit you from holding large signs that might be unsafe for the sidewalk and in the street and things like that. So they would argue that it’s “regulation of local matters”, “conduct in the street” for the purpose of these “services being accessible”, “the streets being safe”, and so on.

But if we look at the Criminal Code, we have offences like harassment and intimidation and mischief, the Criminal Code already is tailored for certain situations and certain people. So towards certain geographical settings; certain offences have higher penalties if they’re committed near a school; the offence of mischief – damaging property – has specific provisions relating to religious property, cultural property, war memorials, things like that. You can have a higher penalty for damaging that kind of property. Likely because certain offences committed in certain contexts and with relation to certain kinds of property are considered a bigger threat to public peace and that kind of thing.

So if Parliament thought it were necessary to say “look, given that abortion is a sensitive issue, if harassment occurs outside of a hospital or a clinic,that can be factored into your sentence.” Parliament can do that. If Parliament wanted to say “look, if you’re harassing a doctor, that’ll factor into your sentencing.”

LN: So the point is that it’s Parliament that has to enact this, it can’t be a province that does it.

JS: That’s right.

LN: The report concludes with what I consider to be a fairly powerful statement, and I’m just going to read it here. “If this government enacts (this law), it can expect robust legal challenges. The precedents upholding B.C.’s law are not binding here.” Is ARPA already looking at a legal challenge, should this pass?

JS: We are. I can’t make any promises, of course, but we are definitely exploring all the possible legal arguments; this division of powers argument being part of that. You know, the situation in BC – which the courts there thought justified that law – they really don’t apply here. I mean, the review of every law is going to be fact-specific, and in our recent FIPPA victory, the court there looked and said, “Where is your evidence that this law is necessary; censoring abortion data?” And they pointed to a story from over 15 years ago about a violent attack on an abortion doctor, which seemed to have no connection to abortion data. And similarly, certain threats and things that may have no connection to peaceful protestors or people just trying to provide information on pregnancy care – that kind of thing – near abortion clinics.

The question would be: “If you’re blanket-prohibiting all kinds of talking to people outside of abortion clinics about abortion, what is the connection between some kind of threat and that kind of a law?” And if there’s no evidence there, then that makes for a pretty good case on our side.

The Ontario government has signaled that it plans to introduce a new law later this year to specifically ban protests outside all abortion clinics in the province. A so-called “bubble zone” is already in effect for the Morgentaler abortion clinic in Toronto due to a special court injunction, but there have been complaints about the actions of some protestors outside a clinic in Ottawa, so the government is moving to make the ban province-wide.

ARPA’s Director of Law and Policy, André Schutten, says there are big problems with the legislation. “To quote Christie Blatchford from the National Post, who is herself pro-choice, the State is using an ‘elephant gun’ to kill a flea.” Schutten says just because there have been a few complaints about protestors outside one clinic in Ottawa, it’s “ludicrous” for the government to impose a total ban on all clinics across the province. He says the proposed law would be a “total infringement” on freedom of expression, amounting to “total overkill.”

There’s already a law like this in place in BC, which has been upheld by the Court of Appeal in that province, but the issue has never actually been taken to the Supreme Court of Canada.

ARPA lawyer John Sikkema is also researching another issue around this. The argument could be made, Schutten says, that the province has no jurisdiction to make such a law; that “the infringement of expression in this way is something that only the federal government could pass.” Sikkema is researching that issue over the summer, and hopes to publish on the issue in a legal journal later this year. The law will likely be introduced in the fall sitting of the Ontario legislature.