Her Majesty the Queen - v. -, 2014 SKPC 215

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 215 Date: December 22, 2014 Information: 24283633 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - William Gary Whatcott and Peter LaBarbera Appearing: James Fitz-Gerald For the Crown Michael Weger For the Accused JUDGMENT M. BEATON , J Introduction [ 1 ] The accused, William Gary Whatcott and Peter LaBarbera, are charged that: On or about the 14 th day of April, A.D. 2014 at or near Regina, Saskatchewan, did commit mischief by wilfully interfering with the

lawful use, enjoyment or operation of property to wit: the University of Regina of a value not exceeding five thousand dollars, the property of the University of Regina contrary to section 430(1) (

c) of the Criminal Code . [ 2 ] Both parties pled not guilty, and a trial was held on October 30, 2014. The Crown called 6 witnesses. Two of them, Cst. Bates and Cst. Dunford, were the officers who arrested Mr. Whatcott and Mr. LaBarbera. Cameron Runge and Aaron Davis were security patrolmen at the University of Regina, and were involved in the events of April 14. Finally, the Crown called Patricia Patton, who is the Director of Security and Operations at the University of Regina, and Dr. Thomas Chase, who is the Provost and Vice- President (Academic) at the University of Regina. On April 14, 2014, Dr.

Chase was acting President of the University of Regina. The defence called Mr. LaBarbera and Mr. Whatcott. Facts [ 3 ] In some sense, the relevant events began before April 14, 2014. Mr. Whatcott and Mr. LaBarbera described themselves as Christian activists, and both spent a significant amount of time promoting their beliefs. Mr. Whatcott described his employment as being “odd cleaning jobs and activism.” Mr.

LaBarbera is an American citizen who is the head of an organization called “Americans for Truth About Homosexuality.” He was in Canada as he had been invited to give a speech by the Saskatchewan Pro-Life Association, and planned to be in Saskatchewan for six days. Although he had not specifically planned to protest at the University of Regina or any other venue, he had discussed doing so on the phone with Mr. Whatcott. [ 4 ] While Mr. LaBarbera did not have much of a history of protest in Regina, Mr. Whatcott did. According to Ms.

Patton, he had protested at the University of Regina several times since at least 2003. She had personally spoken to him four or five times, and prior to the events of April 14, 2014, she asked him to leave the University. Additionally, Mr. Whatcott had been arrested on other universities in the past. Charges had been laid pursuant to university bylaws and provincial trespass legislation, and were ultimately dismissed.

These cases are R. v Whatcott , 2002 SKQB 399 , 225 Sask R 205 [ Whatcott 2002] , R. v Whatcott , 2011 ABPC 336 , 514 AR 154 [ Whatcott 2011] , and R. v Whatcott , 2012 ABQB 231 , 259 CRR (2d) 94 [ Whatcott 2012] . Whatcott 2012 is the appeal decision of Whatcott 2011 . [ 5 ] In approximately January 2014, Mr. Whatcott posted on Facebook and on Twitter that he was intending to protest at the University of Regina on April 14, 2014. It is not clear exactly what he wrote, but Mr.

Whatcott testified that it was to the effect of “ Whatcott bringing the truth about abortion and homosexuality to U of R ” with a link to his website. Mr. Whatcott did have a media server which contacted different media outlets directly, but was unsure whether or not he used this prior to April 14, 2104. He testified that he is not using it as much as he has in the past because the media follows him on Facebook and Twitter. It was not disputed that at least part of the reason that he posted on Facebook and Twitter was to inform the media of his plans. [ 6 ] Shortly after Mr.

Whatcott posted online, security at the University of Regina was informed of Mr. Whatcott ’ s plans. They did not have any discussions about this until March, and there was what Ms. Patton described as a “ flurry of discussion ” the weekend before April 14, 2014. The University of Regina personnel did not directly contact Mr. Whatcott. Because Mr. Whatcott had handed out material at the University of Regina previously, the administration was concerned that his material may violate the University of Regina Respectful Workplace Policy (the “ Policy ” ). According to Dr.

Chase, the test for a violation of this policy was to ask whether the material in question would cause the campus community to feel discriminated against. Students had complained in the past that they felt discriminated against as a result of Mr. Whatcott ’ s material. The University administration, including Ms. Patton, Dr. Chase, and the executive team decided that on April 14 they would work to make the event as low-key as possible, and review the material to determine whether it violated the Policy. [ 7 ] Mr.

Whatcott did not deny that he was familiar with the Policy, but said that it was “ rubbish. ” It was his opinion that some universities, including the University of Regina, University of Saskatchewan, and University of Toronto, had abused their right to control access to their property and so had lost that right. He also stated that he had tried to follow the University ’ s procedures, and had contacted the Student Union to book space for his protest. He admitted that he did not have the right to protest anywhere, and that protesting in a classroom would be inappropriate.

However, he felt that as a taxpayer, he had the right to protest on university property in what he felt was a non-disruptive manner. [ 8 ] On April 14, Mr. LaBarbera and Mr. Whatcott drove directly to the University of Regina from Mr. Whatcott ’ s

home outside of Weyburn. They met three to six other protestors, as well as reporters, at an outdoor plaza in front of the Riddell Centre, which they chose as it is fairly public and receives a lot of foot traffic. [ 9 ] Upon arrival, Mr. Whatcott and Mr. LaBarbera spoke to the media and distributed t-shirts that Mr. Whatcott had made, as well as some signs and literature. Ms. Patton, believing that the material may be contrary to the Policy, asked Mr. Whatcott and Mr. LaBarbera to leave soon after they arrived.

In particular, she was concerned with a 3 ” x3 ” sign that said “ Sodomy is Sin. ” The evidence also established that Mr. LaBarbera and others were wearing t-shirts which referenced the murder of a female by a homosexual male. Ms. Patton contacted the University administration. Both she and Dr. Chase personally felt that the material violated the Policy, and she stated that the executive agreed with their assessment. [ 10 ] None of the protestors physically interfered with anyone ’ s ability to access the plaza, buildings, or any other space.

The physical interference was limited to making individuals walk around the space that they were occupying. When asked if he approached any pedestrians, Mr. Whatcott said “ they come to me. ” [ 11 ] Dr. Chase instructed Ms. Patton to ask the protestors to leave again, and to contact Regina Police Services if they did not. Ms. Patton identified herself to the group and asked them to leave. They refused. She then asked a security officer to contact the police. Around this time, Mr. Runge, a security person, arrived and began monitoring the situation from his vehicle. Cst. Bates and Cst.

Dunford arrived at approximately 1:30 p.m. Also present was Acting-Sergeant McFetridge (who did not testify). They were both wearing their police uniforms. They observed the events for approximately ninety minutes. Cst. Bates testified that during this observation period, she felt that there were adequate grounds to arrest for trespass. Cst. Dunford also testified that she felt that there were grounds to arrest for mischief. They did not arrest immediately because they were waiting for direction from the University and from superior officers. At some point, they also discussed with Ms.

Patton whether the University of Regina was public or private property, and were informed by Ms. Patton that The University Act stated that it was private property. [ 12 ] The officers asked Ms. Patton to arrange for patrolpersons to ask Mr. Whatcott and Mr. LaBarbera to leave again. Ms. Patton instructed Mr. Runge and Mr. Davis to do so. Both of them were wearing their uniform, which clearly identified them as patrolpersons. Mr. Davis approached Mr. Whatcott, placed a hand on his shoulder, and asked him to leave. Mr.

Whatcott said that he would not leave, and that they would need to arrest him in order to make him leave. He stated that he believed that he had a right to be there. At the trial, he stated that “ I don ’ t give up my Charter rights easily. ” Similarly, Mr. Runge approached Mr. LaBarbera, took his elbow in hand, and asked him to leave. Mr. LaBarbera said “ I ’ d rather stay. ” Neither patrolperson made any further effort to expel Mr. LaBarbera or Mr. Whatcott from the campus. [ 13 ] At 3:09 p.m., Cst. Bates and Cst. Dunford were told by Sgt. McFetridge to arrest the accused for assault by trespass. Cst.

Bates was told that, generally, this offence involved a refusal to leave and/or resistance to leave property. Cst. Dunford testified that she felt that mischief was the correct charge but, as it was a complicated situation, she relied on her superior officers. Cst. Bates arrested Mr. LaBarbera, and Cst. Dunford arrested Mr. Whatcott. Both officers advised the accused of their s. 10(

b) rights immediately, as well as the police warning. Mr. Whatcott and Mr. LaBarbera were told that they were under arrest for assault by trespass and were both taken to the police station. [ 14 ] At the police station, the officers discovered that the charge of assault by trespass no longer existed. In fact, it had been repealed on March 11, 2013. Cst. Bates and Cst. Dunford were instructed by more senior officers to immediately inform Mr. Whatcott and Mr. LaBarbera that their charges had changed to mischief. Mr. LaBarbera was informed at 4:47 p.m., and Mr. Whatcott was informed around that time as well. They were again advised of their s. 10 (

a) and s. 10 (

b) Charter rights, as well as the police warning. Both of them spoke to their lawyer. [ 15 ] Mr. LaBarbera, being a citizen of the United States, was not released but given the opportunity to contact the U.S. embassy. He spent one night in jail, and was given the option to be voluntarily deported at approximately noon the next day. He took this option, and was placed on a flight to Denver that afternoon. Mr. Whatcott was released a few hours after his initial arrest. He denied that he was hoping to be arrested, but testified that he was not surprised to be arrested.

He also stated that “ I wish more Canadians would be as I. ” Issues [ 16 ] There are three main issues to be determined in this case;

a) Did Mr. Whatcott and Mr. LaBarbera commit mischief, contrary to s. 430(1)(

c) of the Criminal Code?

b) Were Mr. Whatcott and Mr. LaBarbera unlawfully detained, thereby breaching

section 9 of the Charter?

c) If Mr. Whatcott and Mr. LaBarbera’s

section 9 Charter rights were violated, what is the proper remedy? [17] It is important to emphasize that the validity of Mr. Whatcott and Mr. LaBarbera’s beliefs are not in issue. As well, theRespectful Workplace Policy itself was not challenged. As such, I make no comment about the validity of the Policy. Analysis

a) Did Mr. Whatcott and Mr. LaBarbera commit mischief, contrary to s. 430(1)(

c) of the Criminal Code? [18] On the facts of this case, there are several questions which must be answered in order to determine whether Mr. Whatcott andMr. LaBarbera committed the offence of mischief. I will first discuss whether they committed the actus reus and mens rea of theoffence. I will then discuss the effect of the two provisions raised by the defence: s. 430(7) and s. 429(2) of the Criminal Code. [19] Section 430(1)(

c) states: Every one commits mischief who wilfully (

c) obstructs, interrupts or interferes with the lawful use, enjoyment, or operation of property. [20] The defence suggests that the Crown has not established with which specific property Mr. Whatcott or Mr. LaBarberainterfered, or how they interfered with the property. Defence also argues that the protestors did not obstruct anyone on the property. Inresponse, the Crown points to s. 3(

c) of the Trespass to Property Act, RSS 2009, c T-20.2 and interprets the

section to mean that anoccupier of a premise is entitled to ask a person to leave and refusal to do so would constitute an offence. As such, the Crown argues,the mischief occurred when the protestors failed to leave the University when the University officials requested that they leave. Theinterference is that the University had to dedicate resources (security staff and the time of officials) to deal with the protestors after theyrefused to leave.

The Actus Reus of Mischief [21] The actus reus of this offence was considered in R v Maddeaux, (ON CA), 115 CCC (3d) 122 (QL)(ONCA) At paragraph 13, the Court stated: “Use” of this property would include being present in the apartment for the purposes of cooking, eating, cleaning, resting, sleeping,listening to the radio and watching television.

The word “enjoyment” might include any or all of those uses. “Operation” would notnormally be employed in connection with a residential property, such as an apartment, but would be used in connection with acommercial, institutional or industrial enterprise as, for instance, a music shop, a grocery store, a library, or a mill. [emphasis added] This definition of the actus reus of mischief has been widely applied by the courts.

[22] In R v Green, 2014 MBPC 42, the accused, a former student, repeatedly attended the University of Winnipeg when he hadbeen barred from the University. As a result, four security guards were hired for a period of about 10 days in order to watch the mainentrance doors. As well, the university had to lock doors regularly which had previously been left unlocked. The Court found that thenormal operation of the university was interfered with by the addition of more security and by the locking of previously accessibledoors. This was sufficient to make out the actus reus of the offence.

The Court did state however that not every breach of provincialtrespass legislation would necessarily constitute a criminal mischief charge. [23] In R v Day, [2002] NJ No. 353 (NLSCTD), the Court found that the actus reus had been committed when the accusedattended her son’s school and refused to leave his classroom despite being asked by several school officials to leave. She claimed thatshe wished to observe her son’s class as she was concerned about the quality of education that her son was receiving. She advised policethat she would only leave upon being handcuffed.

The Court found that the accused, after being repeatedly asked to leave, interferedwith the class being taught by her son’s teacher and the school itself. [24] The Court in R v Waters (1990), (SK KB), 81 Sask R 126 (SKQB), upheld the trial court decision that anaccused who obtained access to an office building and hung a protest banner against the development of uranium mines from the roofinterfered with the operation of the property by its owners, through its managers and tenants. [25] In R v Wagner [2010] OJ No. 5018 (ONCJ), the accused who was known as an anti-abortion activist, engaged an employee ina public area outside of an abortion clinic, and refused to leave the area.

As there was concern for the safety of the clinic’s patients andstaff, they were not allowed to enter and leave the premises for approximately 30 minutes. When police arrived, the accused refused toleave and she was arrested for trespass. Prior to the arrival of the police, the accused had placed pamphlets near the clinic doors. TheCourt held that the Crown had not proven the actus reus of mischief. The accused’s conduct did not objectively justify the temporaryclosing of the clinic.

As the Court stated at para. 70, “her conduct was passive and while the staff was uncomfortable about herpresence, there is no rational basis to conclude that she posed a specific threat.” [26] In R v Tan, (1992) (BC CA), 15 BCAC 231 (BCCA), the accused climbed up the chain of the anchor of anAmerican aircraft carrier believed to have nuclear warheads on board. One accused chained herself to the anchor chain.

The Court heldthat the accused interfered with the potential use of the ship’s anchor and the peaceful engagement of the ship’s use, even though therewas no actual prevention of the anchor being raised. [27] In R v Freeman, 2009 SKPC 36, 334 Sask R 15 (QL), Judge Green found the accused farmers who attended a grainprocessing plant to remove their grain at a time when the plant was closed did not interrupt or interfere with the plant’s businessoperation. As well, the mere presence of the accused in this plant was not sufficient to prove the actus reus of mischief.

The Court atpara. 25 applied R v Pearson (1999),43 WCB (2d) 205 (MBPC), which held that trespass onto property is not, in itself, sufficient unlessthe trespass has the effect of interrupting or interfering with the use, enjoyment, or operation of the property in question. [28] It was clear from the testimony of all parties that security was involved in the event. However, this is not a situation where, asin the Green decision, extra security was hired to deal with the accused. At best, security officers were directed from patrolling otherareas of the campus.

I have no evidence that their services were required elsewhere. The protestors did not interfere with anyone’s accessto the university or its buildings. I am not persuaded by the Crown’s argument that the actus reus in this case was committed when theaccused refused to leave and resources were used to remove them. The fact that the university personnel had to seek the assistance ofsecurity officers and the police to have the accused removed from the property does not, on its own, create the interference orinterruption with property which is required to be proven in this case.

If that was the case, any time security officers dealt with difficultor unruly individuals, such individuals could be charged with mischief. Something more than simply being removed by security isrequired to prove the actus reus of mischief. [29] I find that the Crown has not proven the actus reus of the offence of mischief. The Mens Rea of Mischief [30] In the event that I am incorrect in my finding that the accused did not commit the actus reus of mischief, I will deal with theissue of mens rea and sections 430(7) and 429(2) of the Criminal Code.

[31] Section 430(1) requires that the person act “wilfully”. This is defined, for the purpose of

section 430, in section 429(1) of theCriminal Code as follows: Every one who causes the occurrence of an event by doing

an act or by omitting to do

an act that it is his duty to do, knowing that the actor omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed for thepurposes of this Part, wilfully to have caused the occurrence of the event. [32] As stated by the Saskatchewan Court of Appeal in R v St Pierre (1987), (SK CA), 61 Sask R 80, mischiefis a general intent offence.

As such, the “mental element is satisfied by showing no more than an intentional or reckless causing of theactus reus.” More recently, this Court in R v Tesar, 2009 SKPC 92 at para. 7, 352 Sask R 1, held that under s. 430, the test is “whetherthe accused knew or was uncaring as to the result of his actions.” As well, this Court in the Freeman decision followed R v Bodnarek(2001), 22 Sask R 124 (SKPC) in holding that the mens rea for the offence of mischief requires subjective foreseeability that theaccused’s conduct will cause the actus reus. [33] I find that both accused were at the University to promote and share their beliefs on abortion and homosexuality.

Both areactivists. Mr. Whatcott had been asked to leave universities and had been charged due to his activities on previous occasions. Mr.Whatcott had ensured that the media was aware that he would be demonstrating at the University. In fact, the media was already presentwhen they arrived on campus. Both accused discussed this demonstration. I find that both accused were prepared to deal with theUniversity administration, security officers, and police in order to convey their message. They both refused to leave the property whenrequested to do so and they were prepared to be arrested if necessary. Mr.

Whatcott testified that he was not surprised to be arrested. Ifthe accused’s actions did constitute the actus reus of mischief, I find that both accused intended or did subjectively foresee the resultingconsequences of their actions. The impact of s. 430(7) [34] Section 430(7) states that: No person commits mischief within the meaning of this

section by reason only that he attends at or near or approaches a dwelling-houseor place for the purpose only of obtaining or communicating information. [35] The defence argues that Mr. Whatcott’s entire purpose was to communicate information, whereas the Crown argues that thisprovision does not apply as a defence to the act of refusing to leave the University when requested to do so. [36] The Ontario Court of Appeal in R v Tremblay, 2010 ONCA 469, 256 CCC (3d) 389, held that the section 430(7) defenceapplies to conduct which, but for this section, would construe mischief.

However, the Court agreed with the following comments madein R v Dooling (1994), 94 CCC (3d) 524 (Nfld SC)(QL) at para. 35: If the acts of the accused involve more than mere attending at or near a place for the purpose of communicating information, subsection430(7) will, of course, not apply.

Thus, if the acts complained of constitute something more than mere presence at a place in a mannerthat is reasonably necessary to communicate information or if the communication is in fact a mask or subterfuge for a different purpose(and thus the attendance at the place is not necessary to accomplish the purpose of the communication) the accused will not be able totake advantage of subsection 430(7). [37] Earlier in the Dooling decision, at para. 32, the Court had stated that acts of trespass may not amount to mischief:

In my view, the fact that an accused is trespassing and may be guilty of the provincial offence of petty trespass or may be subject to liability in tort for trespass is only relevant to the offence of mischief if it can be said that the acts constituting the trespass have the effect of obstructing, interrupting or interfering with the use or enjoyment of the property in question. Mere presence on the property, depending on its character and location, may or may not constitute an obstruction, interruption or interference with its use and enjoyment. [ 38 ] The Court in the Tremblay decision stated that the purpose of the s. 430(7) defence was consistent with the preservation of the s. 2(

b) Charter right to freedom of thought and expression, and that there was an interplay between the two sections. The Court therefore interpreted s. 430(7) to include, at para. 26, “communication done with the intention of accomplishing some other purpose as a consequence of that communication - in this case the wilful intent to interfere with the lawful enjoyment by Mr. Huppé and Ms.

Perry of their property in order to persuade them to settle their lawsuit.” The Court went on at para. 28 to set perimeters on the communication: Of course, the communication must be peaceful and non-violent, to be entitled to protection. And, it must not simply be a mask or subterfuge for conduct that is not solely communicative and that has some entirely different purpose. This line will not always be easily drawn and will depend upon the circumstances of the case. [ 39 ] The Waters case has been cited in many cases as standing for the proposition that s. 430(7) does not apply to private property.

The Court in essence found that s. 430(7) did not apply to an accused who entered into a private building and gained access to an area to which the public did not have access. The Court did not state that an individual may not attend at a privately owned space to which the public has access for the purpose of communication. [ 40 ] In the Wagner decision, the Court cited Tremblay for the proposition that s. 430(7) must be interpreted and applied with the values embodied in s. 2(

b) of the Charter . As a result, s. 430(7) would apply to an anti-abortion protestor who attended near an abortion clinic situated in a privately owned office building. This was because her actions were done in a “passive, non-aggressive manner” (para. 103).

Notwithstanding that the communication interfered with the clinic, it was still lawful. [ 41 ] I note that in the Tremblay decision, notwithstanding that the accused was communicating on his own property, which had the effect of interfering with his neighbours’ lawful use and enjoyment of their private property, s. 430(7) was successfully used as a defence. [ 42 ] I find that s. 430(7) may apply as a defence to interference with private property depending on the manner of the communication. [ 43 ]

Section 61 of The University of Regina Act , RSS 1978, c U-5 gives the board of the University the right of “control of the property.” They also have the ability to expand the property of the University. There are also cases from other jurisdictions, including Whatcott 2012, which suggest that universities are considered private property, at least for the purpose of controlling its premises. [ 44 ] While the university does have the right to make rules which control its property, this does not necessarily mean that its property is private in the way that a residence is private. A number of Charter cases, discussed below, demonstrate that s. 2(

b) may apply to universities in different ways. In particular, Whatcott 2002 at para. 47 states that a university campus is “a locale one would expect to facilitate and encourage free and open intellectual discussions.” I find that individuals have the right to attend university property to commutate subject to the restrictions mentioned in Tremblay . [ 45 ] I find that the purpose of Mr. Whatcott and Mr. LaBarbera attending the University of Regina was to communicate information and their actions were passive and non-aggressive.

Therefore, notwithstanding that the University may be private property, I find that s. 430(7) can be used by the accused as a defence to a finding of mischief by interfering with university property as they had the right to communicate in a peaceful manner on university property. The Impact of Section 429(2)

[46] Section 429(2) states that: No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse andwith colour of right. [47] The Court in R v Creaghan (1982), (ON CA), 1 CCC (3d) 449 (QL) para. 13 (ONCA) summarized the lawof legal justification and colour of right as follows: If the accused acted with legal justification or excuse he is not criminally liable and that is the end of the matter and there is no need toresort to colour of right.

We think that “colour of right” in this context means an honest belief in a state of facts which, If it existed, wouldbe a legal justification or excuse. See R. v. Johnson (1904), (ON SC), 7 O.L.R. 525.

The Court also held that “and” should be read as “or” so that an accused need only prove legal justification or colour of right. [48] In R v Dorosh 2003 SKCA 134, 183 CCC (3d) 224, the Court examined the basis for a colour of right argument and held atpara. 18 that: A colour of right can have its basis in either a mistake of civil law (a colour of right provides an exception to s. 19 of the Code; see: TheLaw of Theft and Related Offences p. 153) or in a mistake in a state of facts.

The mistake in each case must give rise to either an honestbelief in a proprietary or possessory right to the thing which is the subject matter of the alleged theft or an honest belief in the state offacts which if it actually existed would at law justify or excuse the act done. [49] The British Columbia Court of Appeal in R. v Manuel, [2008] CNLR 389 (QL) at para. 50 confirmed that the followingfactors should be used to determine whether there is a colour of right:

a) The accused must be mistaken about the state of a private law, not a moral right;

b) That law, if it existed, would provide a legal justification or excuse;

c) The mistaken belief must be honestly held. [50] To demonstrate that Mr. Whatcott and Mr. LaBarbera had legal justification or colour of right, the defence has submitted threecases which dealt with Mr. Whatcott’s previous activity on university property. These cases are Whatcott 2002, Whatcott 2011, andWhatcott 2012. [51] At the outset, I believe that Mr. LaBarbera relied on Mr. Whatcott for Canadian legal information. Any findings relating tothe effect of s. 429(2) on Mr. Whatcott also apply to Mr. LaBarbera. [52] In the first Whatcott decision, Mr.

Whatcott was charged with littering pursuant to Bylaw 5.3 for placing anti-abortionpamphlets on parked vehicles. The bylaw, which had been passed by the University of Regina, stated that pamphlet distribution wasbanned anywhere on campus as a means of preventing littering. The Saskatchewan Court of Queen’s Bench held that the bylaw wasultra vires the authority to enact parking bylaws conferred upon the University by s. 90.1 and 90.2 of The University of Regina Act. TheCourt also held that the bylaw infringed the accused’s right to freedom of expression protected by s. 2(

b) of the Charter and it was notsaved by s. 1 of the Charter. The Charter applied to the University in this case as the action that the University took in enacting andenforcing the bylaw was a government function.

[53] In Whatcott 2011, Mr. Whatcott attended the University of Calgary to distribute anti-gay literature. Campus security receiveda complaint about the literature and proceeded to arrest Mr. Whatcott for trespassing pursuant to the provincial trespass legislation asMr. Whatcott had been issued a Trespass Notice three years before at the same university for distributing similar flyers. The AlbertaProvincial Court found that Mr. Whatcott entered the university property in order to distribute his literature and that his activity waspeaceful and presented no harm to property or people.

The Court held that the Charter applied to the University’s actions in enforcingthe provincial trespass legislation and that the accused’s right to freedom of expression was infringed by such actions. As a result, thecharge was stayed. [54] On appeal by the Crown, the Alberta Court of Queen’s Bench upheld the lower court decision in Whatcott 2012. Theappellate court confirmed the decision that the actions of the University in using the provincial trespass legislation to respond to Mr.Whatcott was governmental activity.

The Court accepted that this activity had the effect of “preventing an opportunity to participate in alearning opportunity” which was an objective found in the

Preamble to The Post-Secondary Learning Act, SA 2003, c P-19.5 andtherefore there was “a direct connection between the specific governmental policy for the University and its impugned conduct” (Seepara. 28). The Court found additional connections between the University’s governmental role and its impugned activity. In particular,the University’s mandate included providing a platform to engage in current and relevant societal issues and it was publicly funded. Aswell, at para. 31 the Court stated: …in utilizing provincial trespass legislation to curtail Mr.

Whatcott from disseminating his viewpoint that some other Universityattendee did not like, the University cannot act contrary to the Charter any more than could the Alberta Legislature when it created bystatute the trespass offence… [55] The Court concluded that Mr. Whatcott’s actions in distributing flyers fell within freedom of expression and that theUniversity’s actions restricted the accused’s freedom of expression thereby breaching his s. 2 Charter rights. The infringement was notjustified pursuant to s. 1 of the Charter as the University’s objective was not pressing and substantial.

As a result, the lower court’sdecision to enter a stay of proceedings was upheld. Legal Justification [56] If there was legal justification for Mr. Whatcott’s actions, it must be found in s. 2(

b) of the Charter, which states: Everyone has the following fundamental freedoms: (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication [57] Section 32(1) of the Charter states that the Charter applies to the “Parliament and government of Canada” and to the“legislature and government of each province” in respect of all matters within their respective legislative authority. The Supreme Courtof Canada has interpreted this

section to mean that the Charter applies only to government actors and government action, not to purelyprivate activity: RWSDU v Dolphin Delivery Ltd, (SCC), [1986] 2 SCR 573.

The Charter applies to legislation passed bygovernment and the actions of government or its delegated decision-makers in applying legislation (Eldridge v BC, (SCC), [1997] 3 SCR 624 (QL) at para. 20). [58] To determine whether the Charter applies to a particular entity, the first step is to consider whether the entity is, in performingthat particular action, part of “government.” [59] Universities, notwithstanding significant government funding and regulation, have been characterized as autonomous bodies,not under sufficient government control to be classified as essentially “governmental” see: McKinney and Harrison v University ofBritish Columbia, (SCC), [1990] 3 SCR 451.

However, the courts have found that universities are bodies whichexercise statutory authority and therefore certain of their actions may be subject to the Charter.

[ 60 ] In Pridgen v University of Calgary, 2012 ABCA 139 , 258 CRR (2d) 134, the University of Calgary had disciplined students who criticized a professor on the internet, which the students argued violated their freedom of expression. The University argued that the Charter did not apply to its actions. The Court of Appeal held that the Charter does apply to disciplinary proceedings against students, as they related to the delivery of post-secondary education.

Interestingly, the Whatcott 2011 and Whatcott 2012 decisions had relied on the Court of Queen’s Bench decision in the Pridgen case, which was later upheld by the Court of Appeal. [ 61 ] The Court of Appeal in the Pridgen decision also discussed to which entities s. 32(1) of the Charter would apply at para. 76: The reality and complexity of modern government has led to a plethora of jurisprudence assessing the “ governmental ” characteristics of various entities in order to determine if they or their activities attract Charter scrutiny.

The Supreme Court of Canada has recently confirmed that, broadly speaking, there are two ways to determine whether the Charter applies to an entity’s activities: by enquiring into the nature of the entity (whether the entity itself is “government”, in which case all of its activities will be subject to the Charter ), or by enquiring into the nature of the particular activity in question: Greater Vancouver Transportation Authority v Canadian Federation of Students - British Columbia Component , 2009 SCC 31 ,[2009] 2 SCR 295at para. 16 . [ 62 ] Further at para. 78, the Court stated: . . . the task of determining who is a government actor or what is a government act remains a challenge.

A review of the authorities yields five broad categories of government or government activities to which the Charter applies. 1. Legislative enactments; 2. Government actors by nature; 3. Government actors by virtue of legislative control; 4. Bodies exercising statutory authority; and 5.

Non-governmental bodies implementing government objectives. [ 63 ] The Court further discussed, starting at para. 88, the circumstances under which a body may be exercising statutory authority: 88 Professor Hogg points out that in many (although not all) of the cases where the Charter has been found to apply to non-governmental actors, the entity in question is exercising a power of compulsion delegated to it by statute; that is, the statutory delegate is exercising some form of coercive power that belongs to government alone and that is not exercisable by a private individual or organization.

He says, at 37-13 of his Constitutional Law of Canada , 5th ed supp: Action taken under statutory authority is valid only if it is within the scope of that authority. Since neither Parliament nor a Legislature can itself pass a law in breach of the Charter, neither body can authorize action which would be in breach of the Charter.

Thus, the limitations on statutory authority which are imposed by the Charter will flow down the chain of statutory authority and apply to regulations, by-laws, orders, decisions and all other action (whether legislative, administrative or judicial) which depends for its validity on statutory authority. 89 On this basis the Charter has been applied, for example, to the power of a Human Rights Commission to compel documents: Blencoe v British Columbia (Human Rights Commission) 2000 SCC 44 [2000] 2 SCR 307.

At paras 37-38, Bastarache J. held: One distinctive feature of actions taken under statutory authority is that they involve a power of compulsion not possessed by private individuals (P. W. Hogg, Constitutional Law of Canada (loose-leaf ed), vol 2, at p 34-12). Clearly the Commission possesses more extensive powers than a natural person. The Commission's authority is not derived from the consent of the parties. The Human Rights Code grants various powers to the Commission to both investigate complaints and decide how to deal with such complaints.

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of the Code specifically allows the Commissioner to compel the production of documents. [...] The Commission in this case cannot therefore escape Charter scrutiny merely because it is not part of government or controlled bygovernment. In Eldridge, a unanimous Court concluded that a hospital was bound by the Charter since it was implementing a specificgovernment policy or program. The Commission in this case is both implementing a specific government program and exercising powersof statutorycompulsion.(emphasis added) 90 There are many other examples of bodies exercising powers of statutory compulsion.

A similar analysis has led to the application ofthe Charter to a university in the creation and enforcement of parking bylaws prohibiting the distribution of pamphlets (R v Whatcott2002 SKQB 399), and to a first nation purporting to prevent band members from protesting at the band council office (Horse Lake FirstNation v Horseman, 2003 ABQB 152).

In both cases, it was noted that the body’s authority to govern and regulate the activity inquestion, where it was greater in scope than the authority of a private citizen or corporation, was derived from statute. 91 Where a statutory authority is being exercised, theCharterwill apply not only to rules and regulations enacted pursuant to thatauthority, but also to the application and

interpretation of those rules in making decisions: Slaight Communications. At 1077-78 of thatcase, Lamer J. articulated the principle as follows (quoted with approval recently by Bastarache J. in Société des Acadiens et Acadiennesdu Nouveau-Brunswick Inc. v Canada 2008 SCC 15, [2008] 1 SCR 383 at para. 20): The fact that the Charter applies to the order made by the adjudicator in the case at bar is not, in my opinion, open to question. Theadjudicator is a statutory creature: he is appointed pursuant to a legislative provision and derives all his powers from the statute.

As theConstitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of noforce or effect,it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, ofcourse, that power is expressly conferred or necessarily implied ...Legislation conferring an imprecise discretion must therefore beinterpreted as not allowing the Charter rights to be infringed.

Accordingly, an adjudicator exercising delegated powers does not have thepower to make an order that would result in an infringement of the Charter, and he exceeds his jurisdiction if he does so.(emphasis ofBastarache J.) …. 105 Applying the Eldridge analysis to the facts of this case is one possible approach. However, I find that the nature of the activitybeing undertaken by the University here, imposing disciplinary sanctions, fits more comfortably within the analytical framework ofstatutory compulsion.

The issue is whether in disciplining students pursuant to authority granted under the PSL Act, the University mustbe Charter compliant. The statutory authority includes the power to impose serious sanctions that go beyond the authority held byprivate individuals or organizations. Those sanctions include the power to fine, the power to suspend a student's right to attend theuniversity, and the power to expel students from the university: PSL Act,

section 31. Accordingly, Charter protection for students’fundamental freedoms, including freedom of expression, applies in these circumstances. This goes to the fundamental purpose of theCharter as noted by Wilson J. at 222 of her dissent in McKinney, where she stated that those who enacted the Charter “were concernedto provide some protection for individual freedom and personal autonomy in the face of government’s expanding role”. [64] For the reasons relied upon by the Court in Whatcott 2012, I find that the actions of University administrators, in deciding thatMr.

Whatcott’s actions were contrary to policy, asking him to leave and when he refused, seeking police assistance to have him removedfrom University property can be characterized as governmental action. It is therefore subject to Charter scrutiny. [65] Having found that the Charter applies, the next question is whether it was infringed and if so, whether the infringement isjustifiable. Irwin Toy Ltd. v Quebec (Attorney General), (SCC), [1989] 1 SCR 927 (QL), is one of the earliest cases ons. 2(b).

Here, the majority of the Court held that when speech is intended to convey meaning, it falls within the scope of s. 2(b). Evenillegal parking may, if it has expressive content, be within the protected sphere of s. 2(b) (para. 41). Given this broad reading, I have nodoubt that Mr. Whatcott’s actions are covered by s. 2(

b) of the Charter.

[66] Once there is an infringement of s. 2(b), the question becomes whether the infringement is reasonable and demonstrablyjustified in a free and democratic society, pursuant to s. 1 of the Charter. The case R v Oakes, (SCC), [1986] 1 SCR103, provides the framework for this question. The first requirement is that the objective is sufficiently important to warrant a limit of aCharter right. The second requirement is that the means used to reach that objective are reasonable and demonstrably justified.

Thiswill require ensuring that the measures are rationally connected, that they are minimally impairing, and that they are proportional to theeffect of the limit of the Charter right. [67] Ms. Patton and Dr. Chase both testified to the effect that the decision to remove Mr. Whatcott was made to prevent studentsfrom feeling discriminated against. This is a sufficiently pressing and substantive objective. Freedom of expression is not an unqualifiedright.

As stated again in the Pridgen decision at para. 124: The University must be able to place reasonable limits on speech on campus in order, for example, to maintain a learning environmentwhere there is respect and dignity for all. [68] The means used to prevent students from feeling discriminated against was the removal of Mr. Whatcott and Mr. LaBarbera. Ido not accept that the accused’s removal, in order to protect students from the accused’s message, represented a minimal impairment onfreedom of expression.

In this case, the University’s response was disproportionate to the peaceful distribution of flyers and was notreasonable and demonstrably justified. [69] In

summary, I find that the Charter does apply to the University of Regina in this situation. I also find that Mr. Whatcott’sand Mr. LaBarbera’s actions were protected by s. 2(

b) of the Charter and that the infringement on this right cannot be permitted under s.1 of the Charter. Given my findings, Mr. Whatcott and Mr. LaBarbera were acting with legal justification pursuant to s. 429(2) of theCriminal Code. Colour of Right [70] The Crown has argued that it would be unreasonable to believe that the right existed, as Mr. Whatcott had been asked to leaveby campus security several times over the last few years and was denied space by the University of Regina Student’s Union. Hetherefore knew that his form of communication was not welcomed at the University. [71] However, Mr.

Whatcott’s testimony left me with no doubt that he believed that he had a right to protest at the University ofRegina under s. 2(

b) of the Charter. Given that he had been successful before various courts in the past, I have no doubt that this beliefwas reasonable. His testimony also left me with no doubt that he does not think that the Policy applies to him, or perhaps to anyone. Hetestified clearly that the Policy is “rubbish” and that several universities, including the University of Regina, have abused their rights toexclude people and so do not have that right. However, if his belief that s. 2(

b) of the Charter protects his speech is correct, then theCharter would overrule the Policy. Mr. Whatcott understands this principle. [72]

Section 19 of the Criminal Code clearly states that ignorance of the law is not a defence. The decision in R v Dorosh, 2003SKCA 134, 241 Sask R 180, confirms that the colour of right defence does not include a mistake of criminal law. It follows that amistake of constitutional law is also not a defence under s. 429(2) (See: R v Montagne 2010 ONCA 141). [73] I find that Mr. Whatcott’s belief was a belief in the state of the law. I also find that colour of right does not apply to mistakesof law of this nature. As such, if Mr. Whatcott did not have legal justification for his actions, he cannot rely on the defence of colour ofright.

b) Were Mr. Whatcott and Mr. LaBarbera unlawfully detained, thereby breaching

section 9 of the Charter? [74] Counsel for the defence has argued that, because Mr. Whatcott and Mr. LaBarbera were originally arrested with an offencethat was not in the Criminal Code, they were unlawfully arrested. Additionally, the defence argues that the accused and in particular Mr.

LaBarbera were held at the station for too long prior to being released. Defence properly did not allege in oral submissions that thebreach of his client’s s. 2 Charter rights required a remedy. I have dealt with the right of freedom of expression as a defence of legaljustification. [75] The case of R v Poletz, 2014 SKCA 16, 112 WCB (2d) 211, involves an accused who was detained for 12 hoursafter an investigation. The Court of Appeal held that as there was no nexus between the arbitrary detention and the charges, there was noreason to warrant a stay.

A nexus is required unless it falls into a ‘residual’ category of cases where a nexus is unnecessary because thestate’s misconduct is “so egregious that the mere fact of going forward in the light of it will be offensive” (at para. 10). [76] Mr. LaBarbera was held for longer than Mr. Whatcott as a result of his citizenship, not as a result of any misconduct on thepart of the police. It is not clear for how long Mr. Whatcott was held.

Assuming his two hour estimate is correct (for the time he wasdetained after being charged with mischief) this detention does not meet the standard for a breach as outlined in Poletz. [77] There is more merit in the defence argument that the incorrect charge resulted in an unlawful arrest. It is clear since R. vGrant, 2009 SCC 32, [2009] 2 SCR 353, that an unlawful arrest is arbitrary and contrary to s. 9 of the Charter. In other words, adetention not authorized by law will be deemed to be arbitrary. [78] The authority for a peace officer to arrest without a warrant comes from s. 495 of the Criminal Code.

Section 495(1)(a)requires that the arrest be for an indictable offence and s. 495(1)(

b) requires that the arrest be for a criminal offence. [79] In R v Gunn (1997) 1997 ABCA 35 , 6 CR (5th) 405, the Alberta Court of Appeal held that there must be a lawfulbasis or a legal substratum for a lawful arrest. This decision was based in part on R. v Houle (1985), 1985 ABCA 275 , 24 CCC (3rd) 57, another decision of that Court, which involved an officer who honestly and reasonably believed he was enforcing an existingregulation. That regulation had been rescinded a few days before. The Court held that the officer was acting unlawfully. [80] In this case, the arresting officers arrested Mr.

Whatcott and Mr. LaBarbera under a provision of the Criminal Code whichhad been repealed approximately one year prior. As such, was no lawful basis for the arrest. Since the arrest was unlawful, it followsfrom Grant that there was a violation of Mr. LaBarbera and Mr. Whatcott’s s. 9 rights under the Charter.

c) If Mr. Whatcott and Mr. LaBarbera’s

section 9 Charter rights were violated, what is the proper remedy? [81] The defence is seeking a stay of proceedings in this case. The standard for a stay of proceedings was discussed in Poletz.

Here, the Court of Appeal emphasized that a stay of proceedings is not to be granted except in the ‘clearest of cases.’ This requires thatthere is prejudice caused by the abuse in question which would be manifested, perpetuated, or aggravated through the conduct of thetrial, and that no other remedy is reasonably capable of removing the prejudice. [82] In this case, the defence has not pointed to any instance of prejudice to Mr. Whatcott or Mr. LaBarbera which was caused bythe Charter violation, beyond perhaps a delay in being advised of the correct charge.

In addition, the officers clearly had the power toarrest Mr. Whatcott and Mr. LaBarbera for mischief at the time of their arrest, and the arrest was done in good faith. The officers alsoremedied the mistake as soon as they realized their error, and properly provided Mr. Whatcott and Mr. LaBarbera with their Charterrights immediately. [83] On the facts before me, I find that a stay of proceedings would be grossly disproportionate. In fact, no remedy is warranted. Conclusion [84] To summarize, I have found that the Crown did not prove that Mr. Whatcott and Mr. LaBarbera interrupted or interfered with

the use, enjoyment, or operation of the University of Regina. [ 85 ] I also find that the accused can rely on ss. 430(7) and 429(2) as a defence to the charge of mischief. In particular, the accused can rely on the defence of legal justification as their actions were justified by s. 2(

b) of the Charter . I therefore find both accused not guilty. _______________________ M. Beaton, J