Freedom of Expression in the Context of Airports Richard J. Charney Global Head, Employment and Labour Norton Rose Fulbright Canada LLP September 24,

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1 Freedom of Expression in the Context of Airports Richard J. Charney Global Head, Employment and Labour Norton Rose Fulbright Canada LLP September 24, 2016

2 Freedom of Expression and the Charter: s.2(b) RWDSU v. Dolphin Delivery Ltd., [1986] 2 SCR 573 Representative democracy, as we know it today, is in great part the product of free expression and discussion of varying ideas. 2

3 Freedom of Expression and Property Rights Privately owned property is not open for free expression Government property is generally open to the public, except for: Air traffic control towers Internal government offices Prison cells and other areas that are not public arenas (Committee for the Commonwealth of Canada, at 137) Freedom of Expression and Secondary Picketing RWDSU Local 558 v Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8 What is secondary picketing? Secondary picketing is generally lawful unless it involve tortious or criminal conduct 3

4 Freedom of Expression and Union Strikes Picketing activities that constitute interference to an employer's right to carry on business and amount to more than mere inconvenience can be restricted. In certain circumstances, picketing should be confined to areas outside the airport terminal. (Pacific Western Airlines Ltd. v UAW, 1985 CarswellSask 313, (QB)). Lawful picketing is informational or persuasive in character; it is not coercive or intimidating. (UAW v Pacific Western Airlines Ltd, 1986 ABCA 38). 4

5 Freedom of Expression at Airports Committee for the Commonwealth of Canada v. Canada [1991] 1 SCR 139 A group went to the Montreal International Airport at Dorval to promote their political goals and recruit members. The airport manager ordered the cessation of their activities, citing a violation of the Government Airport Concession Operations Regulations. The Supreme Court: airports are government property. The government's actions therefore constituted a limitation of the respondents' rights under s. 2(b) of the Charter. 5

6 Canadian Airport Ownership The Charter applies only to entities or decisions that have a substantial connection to the government. Canada s airports now are privatized operated, managed and developed by local entities. There is a barrier to asserting Charter rights and claiming infringement, since it is not entirely clear that the Charter applies to local airport authorities. 6

7 Determining when the Charter Applies Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 at 44 The actor: is the entity by nature a government actor? What degree of control does the government exercise over the entity? The activity: is the entity charged with performing a governmental activity? R v Booyink, 2013 ABPC 185 (Prov Ct) Calgary Airport Authority v Canadian Centre for Bio-Ethical Reform, 2014 ABQB 493 A pro-life group demonstrated at an airport in Calgary. They were charged with trespass. The Court found that the government exercised substantial control over the Calgary Airport Authority such that the Charter applied. The CAA's use of the Trespass to Premises Act to remove the defendants from the Airport infringed their right to freedom of expression under section 2(b) of the Charter. A pro-life group demonstrated at an airport in Calgary. The airport requested and obtained an interlocutory injunction. In balancing the right of the CAA to govern the use of property under its lease with the right of demonstrators to express their views, the court found that the balance of convenience favoured the CAA. 7

8 Is the Right to Freedom of Expression Violated? Irwin Toy Ltd. v Quebec (Attorney General), [1989] 1 SCR 927 and Montreal (City) v Quebec Inc., [2005] 3 SCR Do the words or conduct in question have expressive content? Cannot be violent or threatening 2. Does the method or location of the expression undermine the values underlying freedom of expression? 3. Is government measure s purpose or effect to limit expression? 8

9 Reasonable Limits The Oakes test: The right to freedom of expression can be limited if a pressing and substantial purpose exists and the limitation is proportional in its means and effects. The limitation cannot be arbitrarily imposed, and must impair freedom of expression as minimally as possible. Committee for the Commonwealth of Canada: When expressing yourself, you must do so in a way that does not interfere with the function of the location of the expression. Shouting a political message in a public library interferes with the library s function: to have a quiet setting for literary pursuits. Wearing a shirt with a political message in a public library does not interfere with the library s function. Staging a mass protest in an airport terminal interferes with the airport s function of efficiently managing passenger travel. Displaying a poster expressing one s political agenda in an airport may not interfere with the airport s functioning of efficiently managing passenger travel. 9

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