"Does anyone actually expect to attend a university campus and encounter only the ideas they already embrace? Are only select viewpoints now permissible
on our university campuses? John Stuart Mill in his essay "On Liberty" opined that "he who knows only his own side of the case, knows little of that."
Justice P. R. Jeffrey, Alberta Court of Queens Bench
--------------------------------------------------------------------------------------------------------------
Court of Queen's Bench of Alberta . CALGARY. ALBERTA
Citation: R v Whatcott, 2012 ABQB 231
Between:
Her Majesty the Queen (Appellant)
-and-
William Whatcott (Respondent)
---------------------------------------------
Reasons for Judgment
of the
Honourable Mr. Justice P. R. Jeffrey
----------------------------------------------
Date: April. 11/ 2012
Docket: 111428108Sl
Registry: Calgary
[1] The University of Calgary's "Campus Security" received a complaint about the content of pamphlets a man was distributing on campus. They located the man. It turned out to be William Whatcott who, 3 years earlier, was prohibited from returning to the campus under the Alberta Trespass to Premises Act (the "TP A"). He was placed in handcuffs, searched, placed in a holding cell and, when the Calgary Police arrived, charged with an offence under the TP A.
[2] After a trial the Provincial Court of Alberta decided, for the reasons found at 2011 ABPC 336, that Whatcott's Charter right to freedom of expression had been violated. The Trial judge stayed the proceedings.
[3] The Crown appealed that decision to this Court. The appeal was dismissed without calling on the Respondent, with reasons to follow. These are those reasons.
Facts
[ 4] The Appellant Crown took no issue with the Trial Judge's findings of fact. They are:
[14] Lisa Walker, campus security, ... on January 16,2005 ... received a complaint of a male putting flyers on vehicles. She attended and found Mr. Whatcott. She asked
him to stop distributing flyers and when he would not, he was asked to leave and when he refused he was issued a Trespass Notice and then was arrested. Ms.
Walker indicated that the complaint she received on January 16, 2005 was due to the content of the flyers being distributed by Mr. Whatcott. As stated by Ms.
Walker Trespass Notices are handed out by campus security for those who are on university property soliciting, harassing students or staff, causing disturbances,
causing damage to property, fighting, "anything basically that is not associated with the proper use of the property which is attending school, working" (p. 30 11.
39-41).
[15] Jean Beaudoin, campus security testified concerning the events of July 25, 2008: Well, we received a complaint-- sorry. We received a complaint about an
unknown subject posting some anti-gay literature without permission. We were given a vague description that was called into our dispatch. Our dispatcher
broadcast that on the air via radio. All available officers were now aware and on the lookout for any suspicious activity. And at around noon, my partner, Officer
Wiser, spotted Mr. Whatcott and his partner, still unknown to me at this time, but spotted Mr. Whatcott and his partner in lot 28, I believe - -no, sorry, it was lot 21,
handing out flyers . Officer Wiser took - - well, he tried to confront them and they started walking away.
( 16] Mr. Beaudoin tried to stop Mr. Whatcott and obtain his name. Mr. Whatcott provided him with one of the flyers. Mr. Beaudoin attempted to stall Mr.
Whatcott while dispatch checked for Mr. Whatcott's name. Mr. Beaudoin received confirmation that Mr. Whatcott had received a Trespass Notice. Mr.
Beaudoin placed Mr. Whatcott under arrest for trespassing, handcuffed him and did a pat-down search. Mr. Whatcott was cooperative and accompanied Mr.
Beaudoin to a holding cell.
[17] Mr. Beaudoin testified that they had received complaints from members of the university community concerning the content of Mr. Whatcott's flyers. Mr.
Beaudoin stated that the university policy did not tolerate soliciting despite the fact there were no signs posted banning solicitation or even indicating no
trespassing.
[ 19] Mr. Whatcott entered the university property with a purpose to distribute his literature to students, staff and public. His activity was peaceful and presented no
harm to the university structures or those who frequented the campus. Traditionally universities have been places for the exchange of ideas. The
constitutio habita of 1158 guarantee the right of a travelling scholar to unhindered passage in the interest of education .... Mr. Whatcott's pamphlet is not scholarly,
.... The concept of free expression is part of the University of Calgary philosophy; Exhibit 'H' academic foundations- principles to guide university planning at
page I:
As an academic institution, the University of Calgary carries on a tradition
dating back to the Middle Ages. Universities support the societies they
serve by helping to conserve the understanding of the past and by
discovering new knowledge. They also critique and oppose ideas or
practices that their communities value, and history has shown that this
critical role can be just as valuable in leading to societal progress as, for
example, the role of universities in developing new ideas.
Academic freedom and collegial governance are at the heart of the unique
opportunity offered by universities, " ... the opportunity to give others the
personal and intellectual platform they need to advance the culture, to
preserve life, and to guarantee a sustainable human future" (Kennedy,
1997, p.viii).
We know that our city, province and country provide a context for our
future directions, as does our position in the international context. Along
with our University's roles as critic, explorer and conscience, we will
strive to align our own sense of purpose, priority and potential with
society's needs and ambitions. We will advance our civic engagement, or
societal contributions, at all levels of the academy through engaged
scholarship that is 'predicated on the idea that major advances in
knowledge tend to occur when human beings consciously work to solve
the central problems confronting their society" (Gibson, 2006, para. 5).
[20] The original complaint, which resulted in the ban, was based on the content of Mr. Whatcott's flyer. This particular flyer [related to] : "Distributing graphic antiabortion leaflets." ....
[5] A ticket issued to Mr. Whatcott referring to section 3 of the TPA.
[6] The Trial Judge also made the following findings of mixed fact and law:
[8] The University of Calgary operates subject to the provisions of the Post Secondary Learning Act, S.A. 2003, Chapter P-19.5 as amended. This Act
provides for the establishment of a Board of Governors. The Board has the capacity, rights, privileges and obligations of a natural person, subject to the
ability of the Lieutenant Governor in Council to prohibit, restrict or prescribe how such right, power and privilege may be exercised (Section 59). The Board is
comprised of a chair (appointed by the Lieutenant Governor in Council) and a number of members appointed by the Minister and nominated by various other
bodies within the university ....
[9] ... I find that the University of Calgary is not part ofthe Government so as to make all of its actions subject to the Charter.
[ 12] ... The University of Calgary was created by statute and the Government of Alberta retains responsibility.
[ 13] I find that the Charter of Rights and Freedoms applies to the University of Calgary.
[20] ... When a university employee makes a decision, based on a complaint about the content of distributed material, that results in the prevention of an opportunity to
participate in a learning opportunity, "it directly impacts the stated policy of providing an accessible educational system as entrusted to it under the PSL Act".
(p. 67, Pridgen)
[22] ... I find that Mr. Whatcott's distribution of his flyers falls within the first step and can be classified as freedom of expression protected by the Charter.
[24] Campus security used the trespass legislation to respond to an individual'scomplaint concerning the content of Mr. Whatcott's flyer. ... the university used
trespass legislation to answer a complaint about a flyer, the content of which isprotected by the Charter.
[25] The use and effect of the trespass legislation restricts Mr. Whatcott's freedom of expression. I find that the second step of the test outlined by the Supreme Court of
Canada in Irwin Toy is satisfied. The implementation of this legislation violates Mr. Whatcott's freedom of expression and violates Section 2(b) of the Charter.
[28] Preventing the peaceful distribution of leaflets that an individual attendee finds offensive does not relate to an objective that is pressing and substantial. It is
therefore not of sufficient importance to override a constitutionally protected right. ... I find that banning Mr. Whatcott is arbitrary and unfair. The means used
by campus security halted Mr. Whatcott's distribution of these flyers and violated his right of free expression. In addition, the indefinite ban for Mr. Whatcott's
actions of January 16, 2005 are out of proportion. I find that the implementation of the Provincial Trespass Legislation cannot be justified using a Section 1
analysis. I find that the defendant's Section 2(b) Charter rights to free expression were infringed and cannot be justified under Section 1 of the Charter.
Grounds of Appeal
[7] The Crown alleges that:
1. the Trial Judge erred at law in concluding that the Charter applied at all in the
circumstances of this case;
11. in the alternative, if the Charter did apply, the trial judge erred in finding Mr.
Whatcott's Charter rights had been infringed; and
111. in the further alternative, if the Charter did apply in these circumstances and if
Whatcott's Charter rights had been infringed, then the trial judge erred in his
application of section 1 of the Charter.
Statutory and Constitutional Provisions
[8] Sections 2(1) and 3 ofthe Trespass to Premises Act, R.S.A. 2000, c. T-7, as amended,
state:
2(1) No person shall trespass on premises with respect to which that person has had
notice not to trespass.
3. A trespasser, whether or not any damage is caused by the trespass, is guilty of an
offence and liable
(a) for a first offence, to a fine not exceeding $2000, and
(b) for a 2"d or subsequent offence in relation to the same premises, to a fine not
exceeding $5000.
[9] The Canadian Charter of Rights and Freedoms, (Constitution Act, 1982, R.S.C. 1985) (the "Charter") states, in part:
1. The Canadian Charter of Rights and Freedoms guarantees 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:
(b) freedom of ... expression ... ;
24. (I) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain
such remedy as the court considers appropriate and just in the circumstances.
32. (1) This Charter applies
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
Standards of Review
(1 0] Each of the Crown's grounds of appeal involve the application of the law to a set of facts; each therefore is an issue of mixed fact and law: Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., (1997] I S.C.R. 748 at para. 35; St-Jean v. Mercier, [2002] 2002 SCC 15, 1 S.C.R. 491 , at para. 48; Hausen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 33 and 36.
(11] The standards ofreview for "(m]atters of mixed fact and law lie along a spectrum": Hausen, at para. 36. In that regard the Supreme Court said, at paras. 36-37:
To summarize, a finding of negligence by a trial judge involves applying a legal standard
to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and
law lie along a spectrum. Where, for instance, an error with respect to a finding of
negligence can be attributed to the application of an incorrect standard, a failure to
consider a required element of a legal test, or similar error in principle, such an error can
be characterized as an error oflaw, subject to a standard of correctness. Appellate courts
must be cautious, however, in finding that a trial judge erred in law in his or her
determination of negligence, as it is often difficult to extricate the legal questions from
the factual. It is for this reason that these matters are referred to as questions of "mixed
law and fact". Where the legal principle is not readily extricable, then the matter is one of
"mixed law and fact" and is subject to a more stringent standard. The general rule, as
stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial
judge's interpretation of the evidence as a whole, it should not be overturned absent
palpable and overriding error.
In this regard, we respectfully disagree with our colleague when he states at para. 106
that "[o]nce the facts have been established, the determination of whether or not the
standard of care was met by the defendant will in most cases be reviewable on a standard
of correctness since the trial judge must appreciate the facts within the context of the
appropriate standard of care. In many cases, viewing the facts through the legal lens of
the standard of care gives rise to a policy-making or law-setting function that is the
purview of both the trial and appellate courts". In our view, it is settled law that the
determination of whether or not the standard of care was met by the defendant involves
the application of a legal standard to a set of facts, a question of mixed fact and law. This
question is subject to a standard of palpable and overriding error unless it is clear that the
trial judge made some extricable e1Tor in principle with respect to the characterization of
the standard or its application, in which case the error may amount to an error of law.
[12] When reviewing a trier's decision on whether reasonable and probable grounds existed, the Supreme Court of Canada in R. v. Shepherd 2009 SCC 35, [2009] 2 S.C.R. 527, said at para.20:
While there can be no doubt that the existence of reasonable and probable grounds is
grounded in the factual findings of the trial judge, the issue of whether the facts as found
by the trial judge amount at law to reasonable and probable grounds is a question of law.
As with any issue on appeal that requires the court to review the underlying factual
foundation of a case, it may understandably seem at first blush as though the issue of
reasonable and probable grounds is a question of fact. However, this Court has repeatedly
affirmed that the application of a legal standard to the facts of the case is a question of
law: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18; R. v. Biniaris, 2000
SCC 15, [2000] 1 S.C.R. 381, at para. 23. In our view, the summary conviction appeal
judge erred in failing to distinguish between the trial judge's findings of fact and his
ultimate ruling that those facts were insufficient, at law, to constitute reasonable and
probable grounds. Although the trial judge's factual findings are entitled to deference, the
trial judge's ultimate ruling is subject to review for correctness.
[13] In R. v. Wolbeck, 2010 ABCA 65, 474 A.R. 331 , at paras. 9 and 10, the Alberta Court of Appeal applied this approach to summary conviction appeals:
Trial judges have considerable leeway in their appreciation of the evidence and the
proper inferences to be drawn therefrom, in their assessment of the credibility of
witnesses, and in their ultimate assessment of whether the Crown's case is made out,
overall, beyond a reasonable doubt: R. V. Biniaris, 2000 sec 15, [2000] 1 S.C.R. 381 at
paras. 24, 37. Findings of credibility and of fact by a trial judge are entitled to great
deference, and should only be interfered with on appeal if they are unreasonable, or in
other words that they display palpable and overriding error: F. H. v. McDougall, 2008
SCC 53, [2008] 3 S.C.R. 41 at paras. 55, 72; R. v. W®.), [1992] 2 S.C.R. 122, 137 N.R.
214; Housen V. Nikolaisen, 2002 sec 33, [2002] 2 S.C.R. 235; R. v. Cornell, 2009
ABCA 147, 454 A.R. 362 at para. 2.
Questions of law are reviewed for correctness. While the trial judge' s factual findings are
entitled to deference, the application of a legal standard to the facts of the case is a
question of law: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. Araujo, 2000
SCC 65, [2000] 2 S.C.R. 992 at para. 18; R. v. Biniaris at para. 23.
[ 14] Based upon these criteria the standard of review applicable to all three grounds of appeal is correctness.
[15] For the first ground of appeal, on whether or not the Charter applies in these circumstances, a reasonable argument could be made for the more deferential standard of review. The legal test that is applied to the facts for this first issue involves assessing the impugned University activity and determining its degree of connection with the University's governmental role. It involves assessing where the activity falls on a notional spectrum between the University's public role and its private dealings, between its core statutory raison d 'etre and its peripheral mission-neutral activities, between the sorts of quasi-public activities addressed in
McKinney v. University ofGuelph, [1990] 3 S.C.R. 229, on the one hand, and Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, on the other. This entails a more nuanced, evidence-driven and contextual analysis that, typically, would militate in favour of greater deference on review. However, this is not unlike the issue in Shepherd, of whether reasonable and probable grounds existed both subjectively and objectively, for which the standard of review was correctness. In any event the question of whether the Charter applies must always be answered correctly, because of its import and paramounce. See, for example: Amalgamated
Transit Union Local No. 569 v. Edmonton (City) , 2004 ABQB 280, 365 A.R. 228 at para. 24. Therefore the standard of review on this issue is correctness.
[ 16] For the second ground of appeal, the applicable law is more cleanly extricable. The standard is correctness.
[ 17] For the third ground of appeal of whether any Charter infringing conduct by the University can be upheld under section 1, like the first issue a reasonable argument could be made that the standard is palpable and overriding error. The Supreme Court of Canada very recently, in Dore v. Barreau du Quebec, 2012 SCC 12, recognized that the Oakes analysis entails a degree of deference by the trier in balancing value considerations. It said, at para. 57:
... Though this judicial review is conducted within the administrative framework, there is
nonetheless conceptual harmony between a reasonableness review and the Oakes
framework, since both contemplate giving a "margin of appreciation", or deference, to
administrative and legislative bodies in balancing Charter values against broader
objectives.
[ 18] In respect of the Oakes section 1 test the Supreme Court observed in Eldridge at paras. 85 and 86:
This Court has recently confirmed that the application of the Oakes test requires close attention to the context in which the impugned legislation operates; see Ross v. New Brunswick School District No. 15, [I 996] I S.C.R. 825, at para. 78 . ... At the same time, the leeway to be granted to the state is not infinite. Goverrunents must demonstrate that their actions infringe the rights in question no more than is reasonably necessary to achieve their goals.
(19] Despite the contextual and value balancing aspects of applying the Oakes test this is not markedly different from a trier's application of the reasonable and probable grounds test as in Shepherd for which the standard of review was correctness. In any event, while a Charter analysis addresses as separate steps whether the Charter was infringed and, if so, whether the infringement can be justified, the steps are not completely distinct one from the other. Where the first step is reviewed on a correctness standard, so too should be the second. Therefore the third issue is also reviewed for correctness.
Analysis
Does the Charter apply to this activity?
[20] The Supreme Court of Canada in Eldridge, at para. 36, said that when it is alleged that a public or quasi-public institution [such as the University here] "violates the Charter, it must be established that the entity, in performing that particular action, is part of ' government' within the meaning ofs. 32 ofthe Charter."
(21] Central to that determination is whether "there is a 'direct and ... precisely-defined connection' between a specific goverrunent policy and the [institution]'s impugned conduct": Eldridge at para. 51. The Court looks at whether the impugned activity is closer to the institution's public functions - its core raison d'etre, as was the case in Eldridge, or to its private ' mission-neutral' activities, as was the case in McKinney.
(22] The Crown says the University of Calgary's activity at issue here was its establishing and enforcing a policy that prohibits the distribution on campus of all printed material, regardless of content, without its permission. It argues that this was not governmental and therefore the Charter does not apply. It says:
The decision to create a rule banning solicitation or leafleting on the campus (without prior approval) was not a governmental decision.
This, it says, was therefore not an activity that is subject to the Charter.
[23] But this was not the activity the Trial Judge found to be subject to the Charter. The Crown failed to address the actual decision it appeals. Therefore the Crown has not demonstrated any error in that decision on its first ground of appeal.
(24] The activity that the Trial Judge found to be subject to the Charter was the University using provincial trespass legislation to respond to an individual's complaint concerning the content of Mr. Whatcott's flyer. The Trial Judge describes that as the activity that is subject to the Charter a number of times in his decision, saying:
Campus security used the trespass legislation to respond to an individual's complaint concerning the content of Mr. Whatcott's flyer. (para. 24)
Here the university used trespass legislation to answer a complaint about a flyer ... (para. 24)
The use and effect of the trespass legislation ... (para. 25)
The implementation of this legislation violates Mr. Whatcott's ... (para. 25)
The means used by campus security ... (para. 28)
... the implementation of the provincial trespass legislation cannot be justified ... (para. 28)
[25] This characterization of the activity did not originate with the Trial Judge, but with Mr. Whatcott. The Trial Judge said, at para. 7: Mr. Whatcott's constitutional challenge is not to the legislation itself but to the actions of the university in applying it, which Defence argued can be ascribed to the government.
[26] The Trial Judge considered this activity and concluded that it was a governmental activity. He applied the correct law, considering McKinney and Eldridge. He also considered this Court's application of the principles from those cases to the University of Calgary in a different context, in Pridgen v. University of Calgary, 20 I 0 ABQB 644, 497 A.R. 219 (currently under appeal with decision pending).
[27] The Trial Judge found this activity to have the effect of "preventing an opportunity to participate in a learning opportunity." That finding was not challenged by the Crown.
(28] In so finding, the Trial Judge tracked the reasoning, conclusions and wording from Pridgen. Pridgen similarily considered whether the Charter applied to an activity of the University of Calgary. In that case the Court found that the activity in question, academic discipline imposed on students who had expressed on-line their adverse views about a professor, had the effect of preventing an "opportunity to participate in learning opportunities," an objective found in the Preamble to the Post-Secondary Learning Act. On that basis the Court in Pridgen found a direct connection between the specific governmental policy for the University and its impugned conduct.
(29] The Trial Judge adopted the following reasoning from Pridgen, at para. 67:
... the University [of Calgary] is performing a function that is integrally connected to the
delivery of post-secondary education as set out by the [Post-Secondary Learning] Act.
The University operates as a partner in the provision of post-secondary education within
Alberta with the province and the other institutions that make up Campus Alberta. The
PSL Act preamble clearly states that "the Government of Alberta is committed to
ensuring that Albertans have the opportunity to enhance their social, cultural and
economic well-being through participation in an accessible, responsible and flexible postsecondary
system" and that "the Government of Alberta is committed to ensuring
Albertans have the opportunity to participate in learning opportunities." The Government
of Alberta retains responsibility with respect to access to, and participation in, the postsecondary
system. The University is the vehicle through which the government offers
individuals the opportunity to participate in the post-secondary educational system. When
a university committee renders decisions which may impact, curtail or prevent
participation in the post-secondary system or which would prevent the opportunity to
participate in learning opportunities, it directly impacts the stated policy of providing an
accessible educational system as entrusted to it under the PSL Act. The nature of these
activities attracts Charter scrutiny.
(30] In making the same finding about denial of a learning opportunity as in Pridgen, and adopting the reasoning in Pridgen as to the legal effect of that finding, the Trial Judge therefore found a direct connection between the institution's governmental mandate and the impugned activity, and found the Charter to apply. No reviewable error is apparent.
[31] In any event, the Trial Judge was correct in his conclusion for the following additional reasons. First and foremost, in utilizing provincial trespass legislation to curtail Mr. Whatcott from disseminating his viewpoint that some other University attendee did not like, the University cannot act contrary to the Charter any more than could the Alberta Legislature when it created by statute the trespass offence: Eldridge, at paras. 21 and 35. This basis alone is dispositive of the issue.
(32] Second, there are additional connections between the University's governmental role and its impugned activity (that is, beyond the connection to the availing of learning opportunities). The University elaborated on the nature of its statutory mandate, explaining that it included providing a platform for the exchange of ideas and advancement of knowledge (quoting from para. 19 of the trial decision):
... helping to conserve the understanding of the past and by discovering new knowledge.
[Universities] also critique and oppose ideas or practices that their communities value.
It also explained there that its mandate included providing a platform to engage in current and relevant societal issues:
Along with our University's roles as critic, explorer and conscience, we will strive to align our own sense of purpose,
priority and potential with society's needs and ambitions. We will advance our civic engagement, or societal contributions,
at all levels of the academy through engaged scholarship that is 'predicated on the idea that major advances in knowledge
tend to occur when human beings consciously work to solve the central problems confronting their society.'
[33] This is consistent with a University campus that is censorship-free not Charter-free. This is consistent with divergent viewpoints on campus being encouraged, not curtailed by wielding the powers of the state merely to save an attendee from having to contend with, or even just encounter, an alternate perspective. Does anyone actually expect to attend a university campus and encounter only the ideas they already embrace? Are only select viewpoints now permissible on our university campuses? John Stuart Mill in his essay "On Liberty" opined that "he who knows only his own side of the case, knows little of that."
[34] The impugned activity has a direct connection to these additional governmental intentions for the University's existence. In these ways, therefore, the impugned activity falls closer to the core public functions of the University, as was the case in Eldridge, than to its private 'mission-neutral' functions, as was the case in McKinney. Indeed, those core educational and societally relevant functions are facilitated when a campus community can generate, incubate, advocate, formulate and repudiate a plurality of ideas, not just regurgitate those of a central filtering cabal. Therefore, for these reasons also, the impugned activity attracts Charter scrutiny.
[35] Third, the University is publicly funded. While not determinative for Justice L'HeureuxDube in McKinney (at para. 361), she did observe that the public funding of universities was a factor that could not be easily discounted in assessing the applicability of the Charter.
[36] Fourth, the University's use of the province's trespass legislation led, amazingly in the circumstances, to the hand-cuffing, pat-down search and imprisonment of Mr. Whatcott, whom the Trial Judge found was "cooperative", "peaceful" and "presented no harm." Its use of the province's trespass legislation engaged the powers of the state in issuing the ticket, prosecuting the charge and enforcing and receiving any fine. It is not insignificant that here the University is not appearing as litigant to enforce its private property rights but the Crown appearing as litigant to enforce the laws and interests of the state, armed with all the machinery of the state. Such action is subject to Charter scrutiny.
[37] For these additional reasons I regard the Trial Judge's conclusion that the Charter applies to this University activity to be correct.
If the[b] Charter applies, was it infringed?[/b]
[38] The Trial Judge found that the implementation of the provincial trespass legislation violated Mr. Whatcott's freedom of expression as protected by section 2(b) of the Charter. Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, summarized the jurisprudence surrounding the right to freedom of expression and was cited by the Trial Judge. La Forest J., stated at paras. 59-60, in Ross:
Section 2(b) must be given a broad, purposive interpretation; see Irwin Toy Ltd. v.
Quebec (Attorney General), [1989] 1 S.C.R. 927. The purpose of the guarantee is
to permit free expression in order to promote truth, political and social
participation, and self-fulfilment; see Zundel, supra. As Cory J. put it in
Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at p.
1336, "[i)t is difficult to imagine a guaranteed right more important to a
democratic society"; as such, freedom of expression should only be restricted in
the clearest of circumstances.
Apart from those rare cases where expression is communicated in a physically
violent manner, this Court has held that so long as an activity conveys or attempts
to convey a meaning, it has expressive content and prima facie falls within the
scope of the guarantee of freedom of expression; see Irwin Toy, supra, at p. 969.
The scope of constitutional protection of expression is, therefore, very broad. It is
not restricted to views shared or accepted by the majority, nor to truthful
opinions. Rather, freedom of expression serves to protect the right of the minority
to express its view, however unpopular such views may be; see Zundel, supra, at
p. 753. The wide ambit ofs. 2(b) is underscored by the following passage from
McLachlin J.'s reasons in that case, at pp. 752-53:
The purpose of the guarantee is to permit free expression to the
end of promoting truth, political or social participation, and
self-fulfilment. That purpose extends to the protection of minority
beliefs which the majority regard as wrong or false: Irwin Toy,
supra, at p. 968. Tests of free expression frequently involve a
contest between the majoritarian view of what is true or right and
an unpopular minority view. As Holmes J. stated over sixty years
ago, the fact that the particular content of a person's speech might
"excite popular prejudice" is no reason to deny it protection for "if
there is any principle of the Constitution that more imperatively
calls for attachment than any other it is the principle of free
thought -- not free thought for those who agree with us but
freedom for the thought that we hate": United States v.
Schwimmer, 279 U.S. 644 (1929), at pp. 654-55.
[39] The Supreme Court then reviewed the two step inquiry outlined in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927. The first step is to determine whether Mr. Whatcott's activity falls within the freedom of expression protected by the Charter; the second step is to determine whether the purpose or effect of the impugned government action is to restrict the individuals freedom of expression. The flrst step of the two stage inquiry was discussed by La Forest J. in Ross at para. 62:
There can be no doubt that the first step is satisfied. The writings, publications
and statements of Malcolm Ross constitute expression within the meaning of
s.2(b). They clearly convey meaning. The truth or falsehood oftheir contents is
not a matter to be considered in the context of determining whether they fall
within the guarantee of freedom of expression; nor is the unpopularity of the
views espoused within them.
[ 40] The Trial Judge had no trouble concluding that Mr. Whatcott' s distribution of the flyers fell within the freedom of expression protected by the Charter. I agree. It is clear that the first step is satisfied.
[41] The second part ofthe test was described by LaForest J. at para. 64:
This brings me to the second step of the test, determining whether the purpose or effect of the impugned government action is to restrict the individual's freedom
of expression. In this case, it is the order, rather than its constituent legislation, that is called into question. Consequently, it is the purpose of that order that must
be considered.
[ 42] The Trial Judge concluded that campus security used the trespass legislation to respond to an individual's complaint concerning the content of Mr. Whatcott's flyer. The Trial Judge was correct in his conclusion that the effect of the provincial trespass legislation restricted Mr. Whatcott's freedom of expression as enshrined in the Charter. The effect of the enforcement of the provincial trespass legislation was to prohibit Mr. Whatcott from distributing his flyers on campus and therefore violated his Section 2(b) Charter rights.
If the Charter applies and was infringed was the infringement justifiable?
[43] Section 1 of the Charter provides:
The Canadian Charter of Rights and Freedoms guarantees 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.
[44] The Trial Judge concluded that the infringement on Mr. Whatcott's freedom of expression was not justified and stated at para. 28:
Preventing the peaceful distribution of leaflets that an individual attendee finds
offensive does not relate to an objective that is pressing and substantial. It is
therefore not of sufficient importance to override a constitutionally protected
right. Having found the university actions in banning Mr. Whatcott is not a
significant objective, it is unnecessary to move to the second part of the test that
is, the means chosen are reasonable and demonstrably justified. However, in
considering the proportionality test I find that banning Mr. Whatcott is arbitrary
and unfair. The means used by campus security halted Mr. Whatcott's distribution
of these flyers and violated his right of free expression. In addition, the indefinite
ban for Mr. Whatcott's actions of January 16, 2005 are out of proportion. I find
that the implementation of the Provincial Trespass Legislation cannot be justified
using a Section 1 analysis. I find that the defendant's Section 2(b) Charter rights
to free expression were infringed and cannot be justified under Section 1 of the
Charter.
[ 45] In R. v. Oakes, [ 1986] 1 S.C.R. 103, the Supreme Court outlined the criteria that must be satisfied to establish whether a limit on a Charter right is reasonable and demonstrably justified in a free and democratic society. Dickson C.J. (as he then was) stated at p. 138:
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 pressing 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.
1 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 adopted 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 rationally 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 identified as of "sufficient importance".
[46] In Committee for the Commonwealth ofCanada v. Canada, [1991] 1 S.C.R. 139, the Supreme Court of Canada held that federal regulations and airport officials that prohibited the distribution of political pamphlets at Montreal's then Dorval airport infringed on the freedom of expression of the two respondents.
[47] The court was unanimous in its decision that s. 2 (b) of the Charter conferred a right to use public property for purposes of free expression (several of the Justices reached the same conclusion but for different reasons). McLachlin J., as she then was, (Gonthier J. concurring) reviewed the balance under s. 1 and stated at p. 250:
I have discussed the government interest in placing restrictions on various forums
for public expression. On the other side of the balance lies the interest of the
individual in effectively communicating his or her message to members of the
public. It is this interest which s. 2(b) is aimed at protecting. Considerations
include the following. How suitable is the location for the effective
communication of the message to the public? Does the property in question have
special symbolic significance for the message being communicated? Are there
other public arenas in the vicinity in which the expression can be disseminated?
In short, what does the claimant lose by being denied the opportunity to spread
his or her message in the form and at the time and place asserted?
[48] The Trial Judge found that the university's prevention of the distribution ofleaflets did not relate to an objective that was pressing and substantial and therefore, the University's use of the provincial trespass legislation cannot be justified using a section 1 analysis. Further, although the Trial Judge did not need to analyze whether or not the means chosen by the University were proportional he concluded that the indefinite ban of Mr. Whatcott was excessive. I agree and would add that the use of handcuffs, the pat-down search and the imprisonment of Mr. Whatcott were a disproportionate response to the peaceful distribution of flyers.
[49] I agree with the Trial Judge's conclusion that Mr. Whatcott's section 2(b) Charter right to free expression was infringed by the University and the infringement cannot be justified under section 1 ofthe Charter.
[50] For these reasons the appeal was dismissed.
P.R Jeffrey
J.C.Q.B.A
Appearances:
Andrew Barg
for the Crown
Dale Fedorchuk, Q.C.
for the Respondent
honey! 
