Feature Transcript: Popping the Bubble



September 5, 2017
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.

Bill 163: Bubble Zone (Ontario), Bubble Zones, Ontario Email Us 

Get Publications Delivered

TO Your Inbox

Sign up for our newsletter to stay informed about upcoming events, action items, and everything else ARPA
Never miss an article.