R. v. Breen, 2023 BCPC 84

Citation: R. v. Breen 2023 BCPC 84 Date: 20230501 File Nos: 89874-1, 89829-1, 89768-2C, 89830-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. HOWARD GERARD BREEN and MELANIE JOY MURRAY RULING ON APPLICATION OF THE HONOURABLE JUDGE LAMPERSON Counsel for the Crown: M. Rankin and N. Bennet Counsel for the Defendant: J. Doyle Place of Hearing: Nanaimo , B.C. Dates of Hearing: March 16 and 17, 2023

Date of Judgment: May 1, 2023 Introduction [ 1 ] Howard Breen and Melanie Murray (the “applicants’) are charged with committing criminal offences in connection with their actions while engaged in protest activities to express concerns about the logging of old growth forests. [ 2 ] They allege that their rights to freedom of expression and of assembly under sections 2(

b) and 2(

c) of the Charter of Rights and Freedoms were violated when the police arrested them for various contraventions of the Criminal Code . They say their rights were further violated when the Crown subsequently approved charges and proceeded with the prosecution. They seek an order pursuant to section 24(1) of the Charter for judicial stays of proceedings and, in the alternative, an acquittal on all charges. [ 3 ] The applicants do not take issue with the facts underlying the offences.

They acknowledge that those facts are sufficient for the Crown to prove the requisite actus reus and mens rea with respect to the offences in question. [ 4 ] The applicants are not alleging that the sections of the Criminal Code under which they are charged are unconstitutional. They do not say their arrests infringed their right not to be arbitrarily detained or imprisoned as protected by s. 9 of the Charter . The applicants do not allege that the Crown’s decision to approve charges against them amounted to an abuse of process. [ 5 ] Counsel made submissions on this application over two full days.

They provided the Court with a large number of case authorities and with comprehensive written submissions. [ 6 ] The applicants’ Charter application applies to the charges contained in four separate Informations. They are Informations 89829, 89830, 89874 and 89768-2C. All of these charges relate to activity in Nanaimo. [ 7 ] On Information 89829, Mr. Breen is charged in count 1 that, on or about the 10 th day of January 2022, he did commit mischief by wilfully obstructing, interrupting or interfering with the users of the public roadway contrary to

section 430 of the Criminal Code . In count 2, he is charged with causing a disturbance in or near a public place, at Milton Street and Nicol Street, by impeding or molesting other persons contrary to section 175(1) (

a) of the Criminal Code . [ 8 ] On Information 89830, Ms. Murray is charged in count 1 that, on or about the 17 th of January, 2022, she did commit mischief by wilfully obstructing, interrupting or interfering with the users of the public roadway contrary to

section 430 of the Criminal Code . In count 2, she is charged with causing a disturbance in or near a public place, at Comox Road and Terminal Avenue, by molesting or impeding other persons contrary to section 175(1) (

a) of the Criminal Code . [ 9 ] On Information 89874, Mr. Breen is charged in count 1 that, on or about the 27 th of January 2022, wrongfully and without lawful authority, and for the purpose of compelling users of the public roadway to abstain from driving on the highway, which they had the lawful right to do, he did block or obstruct a highway, Island Highway South (Trans-Canada Highway) contrary to section 423(1) (

g) of the Criminal Code . He is charged in count 2, with committing mischief by wilfully obstructing, interrupting or interfering with the users of the public roadway contrary to

section 430 of the Criminal Code . He is charged in c ount 3 with failing to comply with a condition of an undertaking by impeding traffic on a public roadway contrary to section 145(4) (

a) of the Criminal Code . [ 10 ] On Information 89768-2C, Mr. Breen and Ms. Murray are charged, in count 1, that, on or about the 31 st day of January, 2022, they did commit mischief contrary to section 430(4) of the Criminal Code by wilfully obstructing, interrupting or interfering with the users of a public roadway . In count 2, Mr. Breen is charged with breaching a condition of an undertaking by impeding traffic on a public roadway contrary to section 145(4) (a). In count 3 they are both charged with causing a disturbance in or near a public place by impeding traffic on a public roadway contrary to section 175(1) (

a) of the Criminal Code . Agreed Facts [ 11 ] Counsel filed a separate agreed statement of facts with respect to each of the four Informations to which this application applies. I will quote portions of each of the Statements of Agreed Facts. [ 12 ] File No. 89829-1

a) On January 10, 2022, the Nanaimo RCMP responded to reports of a protest blocking traffic on Highway 1, the Trans-Canada Highway, at the intersection of Nicol Street and Milton Street, Nanaimo, British Columbia.

b) The Trans-Canada Highway is a transcontinental highway across all ten provinces of Canada.

c) At 11:27 a.m. members of the Nanaimo RCMP attended the intersection of Nicol Street and Milton Street. There were approximately a dozen protestors standing or sitting on the roadway, holding signs and banners protesting the chopping down of old growth trees.

d) The main group of protestors was on Nicol Street, blocking the southbound intersection with Milton Street. Two men – Howard Gerard Breen and James Robert Darling – were sitting on the roadway holding a banner. Five more people were standing behind them on the roadway, also holding a banner.

e) The protestors were entirely preventing vehicle traffic in the southbound lane of Nicol Street from entering the intersection, and partially preventing the flow of traffic in the northbound lane.

f) Several police officers assisted in redirecting traffic.

g) At 11:30 a.m., SSgt. Legary spoke to the protestors. Mr. Breen indicated that he was one of the leaders of the group. Mr. Breen stated that they would not stop the protest, and would not stop blocking traffic, until the police arrested him and Mr. Darling. Mr. Breen stated that once he and Mr. Darling were arrested, the remaining protestors would depart.

h) SSgt. Legary spoke to the protestors at length but could not persuade them to leave the roadway. At first the police allowed the protest to continue, but after a time the protestors began planning to move to a new spot to disrupt traffic. SSgt. Legary then decided to arrest Mr. Breen and Mr. Darling.

i) Mr. Breen went limp and passively resisted the police. Cst. Zhao repositioned the police van and officers carried Mr. Breen to it.

j) At 5:48 p.m. Cst. Stephen Casey released Mr. Breen on an Undertaking.

k) It is admitted that on January 10, 2022, Howard Gerard Breen wilfully obstructed, interrupted, or interfered with the users of the public roadway.

l) It is admitted that on January 10, 2022, Howard Gerard Breen caused a disturbance at or near a public place by impeding or molesting other persons. [ 13 ] File No. 89830-1

a) On January 17, 2022, the Nanaimo RCMP responded to reports of a protest on Highway 1, the Trans-Canada Highway, at the intersection of Terminal Avenue and Comox Road, Nanaimo, British Columbia.

b) The intersection of Terminal Avenue and Comox Road is a major downtown intersection with heavy traffic at most times.

c) The detour route to bypass closures on Terminal Avenue is four kilometres away via Wall Street; Wall Street has significantly less traffic capacity than Terminal Avenue.

d) At 9:27 a.m., on January 17, 2022, an anonymous person phoned the Nanaimo RCMP and advised that a “Save Old Growth” protest was scheduled to take place at 11:00 a.m. at the intersection of Terminal Avenue and Comox Road.

e) By 11:00 a.m., a group of about 20 protestors had assembled on the sidewalk, carrying signs and banners.

f) Constable Stephen Casey spoke with a woman called “Emily” who identified herself as a liaison for the group. Emily told Cst. Casey that the protestors would block traffic to garner as much media attention as possible, until asked to move; protestors already on conditions to not impede traffic would follow police direction. Cst. Casey advised Emily that police would provide warnings to protestors blocking traffic, and then arrest those who continued to do so.

g) The protestors blocked the southbound and left-turn lanes entirely.

h) The protestors held up red letters spelling “S A V E O L D G R O W T H”. Three people – Robert Fuller, Daniel Goodeve, and Melanie Joy Murray – sat down on the roadway holding a banner.

i) Police officers spoke to the protestors and asked them to move. The protestors refused. Constable Jeffrey McMann and Constable William Bain told the people sitting on the roadway that they would be arrested if they did not move to allow traffic to pass.

j) A woman approached Cst. Bain and said she was the group’s media liaison. She asked if they could continue for 5 minutes to get some press coverage. Cst. Bain replied that the group had received enough attention from the previous week’s blockade; the protestors had to move off the roadway within 30 seconds or the police would begin making arrests.

k) Corporal Jana Rose spoke to Ms. Murray. Cpl Rose told Ms. Murray she could not block the highway and asked her to move. Cpl Rose told Ms. Murray if she did not, the police would arrest her. Ms. Murray told Cpl Rose she was not moving and remained seated on the roadway. Cpl Rose arrested Ms. Murray and asked her to stand up. Ms. Murray refused. The police carried her off the roadway.

l) At 11:15 a.m., Cpl Rose advised Ms. Murray of her rights and the official warning. Ms. Murray indicated she understood and declined to speak to a lawyer.

m) At 11:30 a.m., the police transported Ms. Murray to the Nanaimo RCMP detachment. Cpl Rose told Ms. Murray the police would release her on an Undertaking with a condition of “not impeding traffic on a public roadway.” Ms. Murray refused to agree to that condition and was lodged in cells for a bail hearing. Cpl Rose offered Ms. Murray access to a lawyer, which she declined.

n) At around 11:50 a.m. the protestors blocked the intersection again. The protestors stood in a line on the crosswalk, facing the southbound vehicles on Terminal Avenue, holding a white banner reading “STOP OLD GROWTH LOGGING”. The protestors refused to move, and traffic in both directors stopped entirely.

o) Consequently, at 11:58 a.m. Cst. Zhao arrested Daniel Carlos.

p) Thereafter, the protest continued without blocking traffic.

q) At 2:09 p.m. Cst. Casey attended police cells and spoke to Ms. Murray, who was refusing to sign a police undertaking. Cst. Casey told Ms. Murray the police were going to release her, but she had to agree with the conditions of the Undertaking. Ms. Murray again declined to speak to a lawyer when it was offered. Cst. Casey read the Undertaking to Ms. Murray and Ms. Murray signed it.

r) It is admitted that on January 17, 2022, Melanie Joy Murray wilfully obstructed, interrupted, or interfered with users of the public roadway.

s) It is admitted that on January 17, 2022, Melanie Joy Murray caused a disturbance at or near a public place by impeding or molesting other persons. [ 14 ] File No. 89874-1

a) On January 10, 2022, Constable Stephen Casey of the Nanaimo RCMP released Howard Gerard Breen on an Undertaking with the condition: “[You] must not impede traffic on any public roadway.”

b) On January 27, 2022, the Nanaimo RCMP responded to reports of a protest on Highway 1, the Trans-Canada Highway, at the intersection of Island Highway South and Cranberry Road, Nanaimo, British Columbia.

c) At 11:12 a.m. on January 27, 2022, the police received several calls reporting that protestors were blocking Island Highway South at Cranberry Road. The weather was foggy. Chris Falconer reported almost hitting one of the protestors in the fog.

d) At 11:18 a.m. members of the Nanaimo RCMP were dispatched to the scene. The police found a small crowd of protestors on the roadway in the crosswalk. Seven people held up a white banner reading “STOP OLD GROWTH LOGGING”. Three people – Howard Gerard Breen, Victor Brice, and Deborah Brummel – sat on the roadway in front of the banner. Other protestors were milling about.

e) The protestors were blocking the southbound lanes entirely, preventing any vehicles from travelling south through the intersection.

f) The police told the protestors to move the protest to the side of the road because it was unsafe and impeding traffic, and that if they did not, they would be arrested. All the protestors moved off the roadway, except the three people sitting on the ground.

g) Mr. Breen and Mr. Brice told Cst. Neil Fabbi they were not going to move and that the police would have to arrest them to remove them from the roadway. Mr. Breen and Mr. Brice had secured a U-shaped bicycle lock around their knees so that they were stuck together. When the police asked about the key, they said they had “lost it down a storm drain”. Cst. Fabbi arrested Mr. Breen and Mr. Brice. Officers tried to help them stand but Mr. Breen and Mr. Brice became dead weight and the police had to carry them off the roadway.

h) It is admitted that on January 27, 2022, Howard Gerard Breen wrongfully and without lawful authority, for the purpose of compelling users of the public roadway to abstain from driving on the highway, which they had a lawful right to do, blocked or obstructed Island Highway South.

i) It is admitted that on January 27, 2022, Howard Gerard Breen wilfully obstructed, interrupted, or interfered with the users of the public roadway.

j) It is admitted that on January 27, 2022, Howard Gerard Breen was at large on an undertaking and failed to comply with a condition of the undertaking by impeding traffic on a public road. [ 15 ] File No. 89768-2C

a) On January 10, 2022, Constable Stephen Casey of the Nanaimo RCMP released Howard Gerard Breen on an Undertaking with the condition: “[You] must not impede traffic on any public roadway.”

b) On January 17, 2022, Cst. Casey released Melanie Joy Murray on an Undertaking with the condition: “Do not impede traffic on a public roadway.”

c) On January 31, 2022, the Nanaimo RCMP responded to a protest blocking traffic on Highway 1, the Trans-Canada Highway, at the intersection of Terminal Avenue and Commercial Street in downtown Nanaimo, British Columbia.

d) On January 31, 2022, Sergeant Michael Eggen was the General Duty Watch Commander for Nanaimo RCMP. Sgt Eggen was aware that an upcoming protest was planned where protestors intended to block the highway. There were extra police officers on duty in preparation for this event.

e) At around 11:00 a.m. Constable Stephen Casey was on patrol in the downtown core of Nanaimo. Casey noted a group of about ten protestors in the Diana Krall Plaza. The protestors left the Diana Krall Plaza and started walking on Commercial Street towards Terminal Avenue. Cst. Casey alerted other officers in the area.

f) At the intersection of Terminal Avenue and Commercial Street, the protestors stopped in the north crosswalk. They held up a banner reading “STOP OLD GROWTH LOGGING” and prevented the flow of traffic on Terminal Avenue with the banner and their bodies. Two people sat on the roadway next to the banner: Mr. Breen and Ms. Murray. Vehicles stopped moving in both directions.

g) At around 11:20 a.m. Cst. Casey updated other police officers that the group had moved down the street and obstructed the intersection. Cst. Casey, Corporal Scott Ross, and other police officers drove their police cars into the intersection and activated the police lights. The police got out to speak with the protestors, and with drivers who were visibly upset.

h) One driver had moved his vehicle so close to protestors it had become a safety concern. Cst. Casey calmed the driver down and persuaded him to back up while police dealt with the matter.

i) At around 11:25 a.m. Cpl Ross approached the group and told them that they were committing the criminal offence of Intimidation and had to clear the roadway. The protestors ignored Cpl Ross.

j) Cst. Casey walked up and down the line of protestors holding the banner and repeatedly announced that they had to leave the roadway, and if they did not get off the road they would be arrested. Cst. Casey made this announcement at least four times.

k) Most of the protestors eventually complied and moved to the adjoining sidewalks. Everyone left the roadway except Mr. Breen and Ms. Murray. Mr. Breen lay on his back in the intersection and Ms. Murray sat cross-legged next to him. There was a red fabric banner reading “THE LAST STAND – OLD GROWTH” at their feet. Mr. Breen and Ms. Murray remained on the roadway and refused to move.

l) Mr. Breen had a large amount of glue on his left hand, completely covering it. Mr. Breen had placed his left hand against the roadway surface to try to glue himself to the highway.

m) The rest of the protestors stood on the corners of the intersection, banging drums, recording video, and holding up the “STOP OLD GROWTH LOGGING:” banner.

n) When it was clear that Mr. Breen and Ms. Murray did not intend to move, Cpl Ross asked Cst. Casey to arrest them.

o) At 11:31 a.m., Cst. Casey arrested Mr. Breen for Intimidation and Mischief and advised him of his rights and the official warning from a prepared card.

p) At 11:33 a.m., Cst. Casey did the same for Ms. Murray. While Cst. Casey was dealing with Ms. Murray, Mr. Breen yelled out “save old growth”, “no more logging” and “it’s a crime against humanity and nature”.

q) The police removed Mr. Breen’s hand from the roadway. An officer stayed beside Mr. Breen, holding his left hand up to stop the glue from spreading.

r) After her arrest, Ms. Murray remained sitting and refused to move on her own. The Tactical Troop carried her to the police van on a plastic tarp stretcher.

s) After his arrest, Mr. Breen remained lying on his back also refusing to move. At 11:41 a.m. the Tactical Troop carried him off the roadway.

t) Shortly after the police removed Mr. Breen and Ms. Murray, the police cleared the intersection and the flow of traffic resumed.

u) Emergency Health Services attended the Nanaimo RCMP detachment to assist with Mr. Breen’s hand. In the sally port, a paramedic used acetone to dissolve the glue.

v) Sgt Eggen provided Mr. Breen and Ms. Murray with private phone calls to speak to the lawyer of their choice.

w) Sgt Eggen then arrested Mr. Breen for breach of Undertaking, and again advised him of his rights and warning.

x) Sgt Eggen seized a banner and 3 containers of superglue from Mr. Breen.

y) On February 1, 2022, at approximately 11:20 a.m. Sgt Eggen released Ms. Murray on a police undertaking.

z) On February 1, 2022, at 11:55 a.m. Sgt Eggen released Mr. Breen on his Release Order. Mr. Breen told Sgt Eggen that his goal was to do whatever was needed to have his court cases heard before a Jury. Mr.

Breen said that he believed an acquittal by a Jury would force change. aa) It is admitted that on January 31, 2022, Howard Gerard Breen and Melanie Joy Murray wilfully obstructed, interrupted, or interfered with the users of the public roadway in the lawful use, enjoyment, or operation of property. bb) It is admitted that on January 31, 2022, Howard Gerard Breen was at large on an undertaking and failed to comply with a condition of the undertaking by impeding traffic on a public road. cc) It is admitted that on January 31, 2022, Howard Gerard Breen and Melanie Joy Murray caused a disturbance at or near a public place by impeding traffic on a public roadway.

Conclusions from the Agreed Facts [ 16 ] I have reached the following conclusions from the Statements of Agreed facts:

a) With respect to each offence, the applicants blocked traffic in a main Nanaimo intersection at a busy time in the middle of the day.

b) In each instance, they made it clear that they would continue to block traffic indefinitely unless and until they were arrested.

c) On January 27, 2022, Mr. Breen deliberately made it more difficult for the police by locking his legs to those of another protester. On January 31, 2022, he made it more difficult by attempting to glue himself to the roadway.

d) It is accepted and agreed that the applicants’ actions contravened the Criminal Code .

e) The applicants’ conduct was very disruptive and caused some drivers to become upset. The times, locations and manner of their protests were chosen specifically to maximize such effect. The Position of the Applicants

[17] As stated earlier, the applicants assert that the activity which underlies the criminal charges against them is Charter – protectedexpression under s. 2(

b) and Charter-protected peaceful assembly under s. 2(c). [18] They say that their Charter rights were violated by the police arresting them when they did and by the Crown approving variouscharges and proceeding with prosecutions. They say that judicial stays of proceedings or, alternatively, acquittals are the appropriateremedy. The Position of the Respondent Crown [19] The Crown takes the position that, for several reasons, the application of Mr. Breen and Ms. Murray should not succeed. Itasserts the following:

a) The applicants’ Charter challenge is misconceived because it is framed as a challenge to enforcement action taken by the police andthe Crown when the root of the alleged Charter infringements are sections of the Criminal Code.

b) Even assuming that the enforcement action of the police and the Crown can be challenged under s. 2(

b) and/or s. 2(

c) of the Charter,given the method and location of the protests, the defendants have failed to establish an infringement of their rights.

c) If there was an infringement of s. 2(

b) and/or s. 2(

c) of the Charter, then the infringement(

s) are justified under s. 1 of the Charter.

d) Finally, if the defendants have established an unjustified breach of s. 2(

b) and/or s. 2(c), judicial stays of proceedings or acquittals arenot the appropriate remedy. Issues [20] In deciding whether the applicants will succeed in their application and obtain the remedy they are seeking, I will address thefollowing questions:

a) Assuming that the applicants can challenge the enforcement action of the police and/or the Crown under s. 2(

b) and/or s. 2(

c) of theCharter, are the protest activities in which they engaged Charter- protected expression and/or peaceful assembly?

b) If the enforcement action taken by the police and/or the Crown infringed the applicants’ rights to freedom of expression and/orfreedom of peaceful assembly, is that enforcement action justified under s. 1 of the Charter?

c) If the enforcement action taken by the police and/or the Crown is not justified under s. 1 of the Charter, what is the appropriateremedy?

d) Can the applicants challenge the enforcement actions of the police and/or the Crown under s. 2(

b) and/or s. 2(

c) of the Charter ratherthan challenging the constitutionality of the Criminal Code provisions under which they are charged? Analysis Assuming the applicants have framed their Charter challenge in a proper manner, are the activities in which they engagedprotected by

section 2(

b) and/or 2(

c) of the Charter? [21]

Section 2(

b) and 2(

c) of the Canadian Charter of Rights and Freedoms reads as follows: 2. Everyone has the following fundamental freedoms: (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication (

c) freedom of peaceful assembly [22] Counsel agree that s. 2(

b) and s. 2(

c) analysis in this case is largely identical. Counsel for the applicants notes that “Thejurisprudential consideration of

section 2(

c) largely defers to an analysis of

section 2(

b) expression.” Accordingly, when addressing thequestions, I will focus on s. 2(

b) knowing that the conclusions I reach will also apply to s. 2(c). [23] In Retail, Wholesale & Department Store Union, Local 580 et al v. Dolphin Delivery Ltd., (SCC), [1986] 2 S.C.R.573 at para. 12, Justice McIntyre stated as follows: Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for thehistorical development of the political, social and educational institutions of western society.

Representative democracy, as we know ittoday, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection. [24] In Irwin Toy Ltd. v.

Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927, Chief Justice Dickson, writing forthe majority, speaks of freedom of expression at para. 41: Freedom of Expression was entrenched in our Constitution and is guaranteed by the Quebec Charter so as to ensure that everyone canmanifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to themainstream.

Such protection is, in the words of both the Canadian and Quebec Charters, “fundamental” because in a free, pluralistic anddemocratic society we prize a diversity of ideas for their inherent value both to the community and to the individual. [25] In defining what is meant by expression in the context of s. 2(

b) of the Charter, Chief Justice Dickson says: “Indeed if theactivity conveys or attempts to convey a meaning it has expressive content and falls within the scope of the guarantee.”: Para 41.

[26] The leading case dealing with the application of s. 2(

b) of the Charter to publicly owned property is Montreal (City) v. 2952-1366 Quebec Inc., 2005 SCC 62. In that case the Supreme Court of Canada considered the power of the City of Montreal to prohibitnoise in the street by a loudspeaker located in the entrance of a commercial establishment. The Court considered whether the city by-lawprohibiting the noise infringed

section 2(

b) of the Charter. [27]

Section 2(

b) protects most methods of expression short of actual or threatened violence: Montreal (City) at para. 72. [28] At paragraph 56, the Court adopted a three-part test for analysing s. 2(

b) arguments in relation to public property:

a) Does the activity in question have expressive content, thereby bringing it within

section 2(

b) protection?

b) If so, does the method or location of this expression remove that protection?

c) If the expression is protected by

section 2(b), does the government action in question infringe that protection, either in purpose oreffect? [29] Expressive activity which is non-violent is not excluded from Charter protection because of its particular message. Subject toobjections on the ground of method or location, all expressive activity is presumptively protected by s. 2(b): Montreal (City) at para. 58. [30] However, the onus of satisfying the three-part test rests on the applicants: Montreal (City) at para. 73. [31] The purpose of s. 2(

b) of the Charter is to promote (1) democratic discourse, (2) truth finding and (3) self–fulfilment. The basicquestion with respect to expression on government-owned property is whether the place is a public place where one would expectconstitutional protection for free expression on the basis that expression in that place does not conflict with those purposes. To answerthis question, the following factors should be considered:

a) the historical or actual function of the place; and

b) whether other aspects of the place suggest that expression within it would undermine the values underlying free expression:Montreal(City) at para. 74. [32] The Supreme Court goes on to elaborate on what it means by historical or actual function of a place. [33] The historical function of a place for public discourse is an indicator that expression in that place is consistent with the purpose ofs. 2(b). In places where free expression has traditionally occurred, it is unlikely that protecting expression undermines the valuesunderlying the freedom: para. 75. [34] Actual function is also important.

Is the space in fact essentially private, despite being government-owned, or is it public? Is thefunction of the space – the activity going on there - compatible with open public expression? Or is the activity one that requires privacyand limited access? Would an open right to intrude and present one’s message by word or action be consistent with is done in the space?Or would it hamper the activity: para. 76. [35] Counsel for the applicants submits that the jurisprudence recognizes that streets are acceptable and appropriate venues for publicexpression.

He refers to the cases of Montreal (City) supra, Vancouver(City) v. Zhang et al, 2011 BCCA 138, and Committee for theCommonwealth of Canada v. Canada, [1991] 1 S.C.R .139. [36] As I stated earlier, Montreal (City) involves music being played at the entrance to an establishment which could be heard on thestreet. The Supreme Court found that the activity was protected by s. 2(

b) and went on to ask whether the limit imposed by the by-lawwas justified under s. 1. It found that it was justified under s.1 as a reasonable limit in a free and democratic society and concluded thatthe by-law was constitutional. [37] The Crown notes that while the Court in Montreal (City) concluded that s. 2(

b) protected the right to transmit amplified musicinto public streets it offered some caveats concerning the method of expression. It quotes from the decision as follows: 67 This method of expression is not repugnant to the primary function of a public street, on the test of Lamer C.J. Streets providemeans of passing and accessing adjoining buildings. They also serve as venues of public communication. However, one defines theirfunction, emitting noise produced by sound equipment onto public streets seems not in itself to interfere with it.

If sound equipment werebeing used in a way that prevented people from using the street for passage or communication, the answer might be different: see, e.g.MacMillan Bloedel Ltd. v. Simpson (1994), (BC CA), 89 C.C.C. (3d) 217 (B.C.C.A.) However, the evidence heredoes not establish this. 68 The method and location of expression also arguably serve the values that underlie the guarantee of free expression, on theapproach advocated by McLachlin J. Amplified emissions of noise from buildings onto a public street could further democraticdiscourse, truth finding and self-fulfillment.

Again, if the evidence showed that the amplification inhibited passage and communicationon the street, the situation might be different. [38] In the case of Vancouver (City), the City sought an injunction requiring the respondents to remove structures, consisting of a hutand a billboard, from a city street in front of the Chinese Consulate. The structures were erected as part of a protest against thepersecution, in China, of practitioners of the spiritual discipline Falun Gong. [39] The City asserted that the structures were erected in contravention of a by-law.

The structures were located on a small grassyportion of the street that abutted the private property of the Chinese Consulate on one side and the side walk on the other. [40] The chambers judge found that the respondents’ protest vigil, including the structures, was expressive content within themeaning of s. 2(

b) of the Charter. The judge then went on to consider whether the method or location of the expression excluded s. 2(

b) protection. She concluded that the method of the respondents’ expression, insofar as it involved the structures, was excluded from the protection of s. 2 (b). [ 41 ] The respondents appealed, arguing that the chambers judge erred in concluding that because of its location, and particularly its method, that the expression fell outside the protected sphere of s. 2(

b) of the Charter . [ 42 ] The unanimous decision of our Court of Appeal was written by Huddart, J.A. She noted that it is well-accepted that the function of public streets is compatible with open public expression subject to the caveat that expression in public streets would not be compatible with s. 2 (

b) values if the “medium of expression would subvert the values of s.2 (b).”: para. 38. [ 43 ] At paragraph 39, she states: The City says that unregulated construction of permanent structures is not consistent with the values of s. 2(b). It says that democratic discourse must occur in a manner consistent with the proper functioning of a municipality. While that may be, this submission fits better within the analysis under s.1 as part of the balancing process it requires.

It is, after all, the City’s Council who instituted a complete prohibition on the use of structures on its streets without any mediating policy for exemptions or exceptions to accommodate political expression, while nonetheless establishing policies for the use of structures to accommodate commercial and aesthetic expression. This being so, it cannot be said that any and all structures encroaching on City streets without obstructing either pedestrian or vehicular traffic per se subvert democratic discourse.

They may well enhance it, as the trial judge found. [ 44 ] The Court concluded that the by-law in question was too broad because it placed a blanket prohibition on structures on city streets and did not grant exceptions for a political structure. It decided that the by-law formed a prohibition against the practitioners’ chosen form of expression and therefore infringed s. 2(b): para. 48. [ 45 ] The Court then went on to consider s. 1 of the Charter .

It found that the by-law was unconstitutionally disproportionate and was not saved by s. 1. [ 46 ] The third case which the applicants cite as authority for the proposition that streets are acceptable and appropriate venues for public expression is C ommittee for the Commonwealth of Canada. In that case, representatives of the organization went to the Montreal International Airport to promote knowledge of their group and their political goals, and to recruit new members. It was the leading case on the application of s.2 (

b) to government owned property before the Montreal (City) decision. [ 47 ] In its written submissions, the Crown states the following regarding Committee for the Commonwealth : While the Supreme Court of Canada divided on the appropriate analytical method for evaluating a s. 2 (

b) claim on government property, Chief Justice Lamer (writing for a plurality of the Court) tendered the following remarks: In my view, if the expression takes a form that contravenes or is inconsistent with the function of the place where the attempt to communicate is made, such a form of expression must be considered to fall outside the sphere of s. 2(b).

For example, if a person tried to picket in the middle of a busy highway or to set up barricades on a bridge, it might well be concluded that such a form of expression in such a place is incompatible with the principle function of the place, which is to provide for the smooth flow of automobile traffic.

In such a case, it could not be concluded that freedom of expression had been restricted if a government representative obliged the picketer to express himself elsewhere. [ 48 ] The Crown notes that this statement of Chief Justice Lamer is consistent with obiter dicta in the Supreme Court of Canada’s decision in Montreal (City) . [ 49 ] In further support of their submission, Mr. Breen and Ms. Murray refer to the case of Batty v. City of Toronto , 2011 ONSC 6862 .

In that case, the applicants and others had been camping for a month in a park in downtown Toronto as part of the “Occupy Toronto” movement when the City served them a notice under the Trespass to Property Act . The notice stated that, in accordance with the City’s parks by-law, they were prohibited from installing, erecting or maintaining a tent, shelter or other structure in the park and from using, entering or gathering in the park from 12:01 a.m.to 5:30 a.m. [ 50 ] The judge adopted the reasoning of the B.C.

Court of Appeal in Vancouver (City) and held that the structures erected in the park by the applicants and others formed part of the manner of expressing their political message and, therefore, engaged s. 2(b). [ 51 ] The judge then went on to apply s.1 and decided that the case was different from that of Vancouver (City) .

The judge noted that the by-law in question in Vancouver (City ) amounted to a blanket prohibition on the construction of structures on a street, but that in Batty a person could apply for a permit for an exemption from the rule that precluded use of the park from 12:01 a.m. to 5:30 a.m. each day.

The judge concluded that the City of Toronto had established that the limitations resulting from the enforcement of the Trespass Notice on the applicants’ s. 2 freedoms are “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. [ 52 ] In the course of the s. 1 analysis, the judge noted that the permissible use of the parks must take into account the negative effects on those living by and around the parks if park use was unrestricted. [ 53 ] Another case on which the applicants rely is R. v. McCann , 2014 ONSC 2987 .

In McCann , three appellants argued that the trial judge erred in finding that their actions constituted attempted mischief and also erred in finding the conduct was not within “the limits of tolerance in a democratic society”, such that it did not constitute criminal wrongdoing. [ 54 ] The appellants were charged with wilfully attempting to interfere with the lawful use and enjoyment of a correctional institution in Kingston, Ontario.

The charge was in relation to a series of demonstrations organized by a group that was created in response to a federal government decision to cancel a rehabilitative prison farm program. Charges resulted when the appellants attempted to block cattle trucks from removing a herd of cattle from the institution. The cattle were considered to be essential to the operation of the prison

farm program. [ 55 ] On appeal, the appellants argued that their actions constituted a de minimus interference with property and were protected by s. 2(

b) of the Charter . [ 56 ] Justice Johnston dismissed the appeal and stated “Further, even if viewed with a purposeful approach, with the intent to give weight to s. 2(

b) of the Charter , the Appellants’ conduct was not Charter protected: para 24. [ 57 ] At paragraph 16, the judge states as follows:

Section 2 (

b) of the Charter protects individuals’ right of expression. The trial judge specifically considered individuals’ rights to freedom of expression at page 24, line 18 to page 25, line 5: In a free and democratic society such as Canada, we welcome and encourage people to hold demonstrations if necessary to exercise their right to freedom of expression, freedom of peaceful assembly and their right to freedom of association as guaranteed by

section two of the Canadian Charter of Rights and Freedoms . However, society also expects demonstrators who exercise those rights to do so without violating the rights of others to move about freely or to engage in activities which they have a perfect legal right to do. [ 58 ] The Justice noted that the trial judge had referred to four unreported Ontario decisions in which s. 2 (

b) was raised as a defence to criminal charges related to protest activity. I note that those unreported cases were all decided before the Supreme Court’s decision in Montreal (City) . [ 59 ] Justice Johnston states: 17 In Barclay et al, supra , Justice Fontana found the accused persons not guilty of mischief pursuant to Section 430(1)(

c) in circumstances where a peaceful protest was held on the streets of Ottawa blocking a busy bridge, tying up rush hour morning traffic for approximately one hour. The judge stated at page 6: (there is

a) certain tolerance for peaceful demonstration, even where there may be some aspects of it that are not entirely coincident with the law. 18 Justice Fontana relied upon a principal, relied upon by Justice Frazer and Justice Hogan, in Burch, et al, supra by stating: After considering the evidence, I simply do not find that a peaceful, polite demonstration wherein traffic had to be diverted for fifteen minutes, and the police were able to plan in advance for such an event, tests a democratic society’s limit of tolerance such as to constitute criminal wrongdoing. 19 Justice Hogan, in Burch, et al, supra at page 4, enunciated a test for determining if the conduct should be found to be criminal: … Were the actions of the demonstrators within the limits of tolerance in a democratic society, or did they cross into the realm of criminal wrongdoing? 20 In each of the aforesaid cases of mischief, the judges found the demonstrators not guilty, based upon findings that the demonstrators were attempting to communicate an idea.

In the case before Justice Fontana, the demonstrators were attempting to draw public attention to the plight of the homeless and the lack of government response to the issue. The learned justices found that the actions of the demonstrators were “within the limits of tolerance in a democratic society” and did not cross into the realm of criminal wrongdoing. 21 In the case at bar, the trial judge found while the demonstration was peaceful and was clearly political, the objective was not simply to express displeasure.

Specifically, the trial judge found that the demonstrators and the appellants in particular wanted to stop the Frontenac Institution from removing their cattle from the institution. [ 60 ] Drawing from this, counsel for Mr. Breen and Ms. Murray states as follows in his written submissions: There is a tolerance for expressive activities that have a limited impact on other uses of public space, so long as the expressive activities are expression qua expression and do not have an ulterior motive unrelated to the expression.

Canadian Society tolerates this form of expression at parks and on public streets on a regular basis, so long as the expression is limited and temporary in its interference. [ 61 ] In its written argument, the Crown states: The defendants appear to rely on McCann because of the unreported cases referenced in the reasons for judgment. However, the unreported cases cited in McCann do not appear to reflect later developments in the Charter jurisprudence eg. Montreal (City ).

In British Columbia, the jurisprudence is clear that Courts must determine whether the Charter applies to expressive activities before considering whether the state has infringed a Charter right. [ 62 ] The applicants refer to R. v. Whatcott , 2014 SKPC 215 as another protest case that considers s. 2 (b). In that case, Mr. Whatcott and his co-accused were charged with committing mischief by wilfully interfering with the lawful use, enjoyment or operation of property at the University of Regina contrary to s. 430(1) (

c) of the Criminal Code . They described themselves as Christian activists and engaged in protests against homosexuality and abortion. [ 63 ] Mr. Whatcott and the other protestors did not physically interfere with anyone’s access to the space or the buildings. The physical interference was limited to making individuals walk around the space they were occupying. [ 64 ] The judge referred to a number of other mischief cases and held that the Crown had not proven the actus reus of the offence of mischief. The judge then went on to consider mens rea , in the event that his finding that the accused did not commit the actus reus was

not correct. In doing so, the Court noted s. 430(7) of the Criminal Code which reads: “No person commits mischief within the meaningof this

section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining orcommunicating information.” [65] The judge cited the decision of the Ontario Court of Appeal in R. v. Tremblay, 2010 ONCA 469 which held that the purpose ofthe s. 430(7) defence was consistent with the preservation of the s. 2(

b) Charter right to freedom of thought and expression and that thereis an interplay between the two sections. [66] The judge concluded that s. 430(7) could be used by Mr. Whatcott and his co-accused as a defence to a finding of mischief byinterfering with university property as they had the right to communicate in a peaceful manner on university property. [67] In its written submissions, the Crown says that several courts have rejected s. 2 (

b) claims that involve disruptive forms of protestor civil disobedience. As examples, it cites the cases of R. v. Osborne, 2007 NBPC 3; R. v. Pratt and Stevenson, (SKPC); and, R. v. Penashue, [1991] N.J. No. 356. [68] In Osborne, the accused was charged with mischief by wilfully obstructing, interrupting or interfering with lawful use,enjoyment or operation of public property. On a Federal election day, he held a sign and had secured himself to a chain link cage whichcovered an overhead pedestrian crossing.

The overpass spanned a busy four lane arterial highway. [69] Police officers who arrived at the scene noted that traffic approaching the overpass was slowing for drivers to look at theaccused. The officers were concerned for the safety of the travelling public and the risk of a major accident caused by the distraction.Accordingly, they closed the traffic lanes over which the accused was standing and rerouted traffic. It took a considerable time before theaccused came down. [70] Throughout his trial, the accused argued that his actions were protected by s. 2(

b) of the Charter. [71] The judge states: 36 In this case there was endangerment not only to the public using the highway but also to the accused. Further, his refusal to leavewhen requested to do so by the police in the circumstances cannot be viewed as consistent with public order. 37 In my opinion the form of expression, that is the manner and the place chosen by the accused, cannot be afforded the protectionsought. Further, even if the guarantee of freedom of expression could be extended to the activities of the accused, in my opinion s.430(1)(

c) is a reasonable limit in applying the proportionally test in R. v. Oakes (1986), (SCC), 24 C.C.C. (3d) 321 (S.C.C.) and R. v. Big M Drug Mart Ltd (1985), (SCC), 18 D.L.R. (4th) 321 S.C.C.). The accused was not restricted fromexpressing himself as to his dissatisfaction with the justice system and members thereof in other lawful methods. [72] In Pratt and Stevenson, the accused were part of a group of approximately 25 protestors who occupied the inner office area of theDepartment of Indian Affairs in Saskatoon. Like the accused in Osborne, they were charged with mischief under s. 430(1) (c). Theyargued, among other things, that their demonstration was protected under s. 2(

b) of the Charter. [73] The trial judge referred to a decision of a brother judge in a case involving Greenpeace and stated: 25 While the present case deals with public property, as opposed to private property, I agree with his analysis of the law, andspecifically, that the method and place of the expression are important factors to be considered in deciding whether the protection of theCharter extends to this case. In the present case, I find that the manner and method of expressing their concerns after closing hours andafter being repeatedly and properly asked to leave the premises was not protected by

section 2 (

b) of the Charter and that even if theguarantee of ‘freedom of expression’ could be extended to the activities of the accused persons, I further hold that section 430(1)(

c) is areasonable limit on that freedom in applying the proportionality test. [74] In Penashue, the accused was charged with interfering with the lawful use and operation of property at a Canadian Forces base inGoose Bay, Newfoundland and Labrador. The accused and a large group of other individuals went past a security guard and ‘Do NotEnter’ signs and went onto the property of the airbase. [75] The judge rejected the accused’s arguments that the interference was de minimus and that it was protected by s. 2(

b) of theCharter. The judge held as follows: 21 I find that the actions of the accused, and others in the group, are not protected by s. 2(

b) of the Charter. This was more than apeaceful protest and in fact the acts that occurred involved a prima facie breach of the Criminal Code. Had the protest taken placeoutside of the fenced ramp, in a lawful and peaceful way, then freedom of expression would apply. Here the acts involved a less thancompletely peaceful protest as I stated earlier and an unauthorized entry onto an airbase which at the time was active. It involvedinterference with the operation of an airbase and possible danger to the safety of human beings. These actions were not protected underfreedom of expression, even giving a liberal

interpretation to the ambit of expression protected by the Charter. The fact that the accusedfelt oppressed over the years, as was argued by defence counsel, cannot assist the accused in pleading freedom of expression. [76] In its written submissions, the Crown notes that courts have held that s. 2(

b) may not protect methods of expression that involveholding an audience captive to receive a message. [77] In R. v. Spratt, 2008 BCCA 340, the appellants were jointly charged under the Access to Abortion Services Act, R.S.B.C. 1996,c.1 (the “Act”) with engaging in sidewalk interference. They were found guilty at trial in Provincial Court. Their appeals to the SupremeCourt of British Columbia were dismissed. They were granted leave to appeal to the Court of Appeal on one ground. That is, whether thesections of the Act under which they were convicted were unconstitutional as an infringement of the right to freedom of expressionprotected by s. 2(

b) of the Charter.

[78] Counsel for the Crown conceded that the provisions of the Act under which the appellants were charged violated s. 2(b).Accordingly, the only issue on appeal was whether the provisions could be justified under s. 1 of the Charter. [79] Like Mr. Breen and Ms. Murray, the appellants argued that the place where they made their protests was very important to them.They submitted that they should be able to make their message in a place where it would have the most practical impact.

In the contextof the question of minimal impairment, the respondent noted that the unwilling viewer or listener could not avoid exposure to the protestoutside the abortion clinic because they must enter the clinic from the area in which the protests occurred. [80] In considering the application of s. 1 of the Charter, our Court of Appeal agreed with the finding of Justice Adams in the case of Ontario (Attorney General) v. Dieleman (1994), (ON SC), 117 D.L.R. (4th) 449 that the right of freedom ofexpression does not include the right to a captive audience.

At paragraph 82 Madam Justice Ryan writing for the Court quoted fromDieleman as follows: It has also been held that freedom of expression assumes an ability in the listener not to listen but to turn away if that is her wish.

TheCharter does not guarantee an audience and, thus, a constitutional right to listen must embrace a correlative right not to listen … Ryan J.A. reached the following conclusion: 84 The appellants argue that the clinic doors are where they find those whom they wish to give their message, and that this is thelast opportunity that they might have to persuade pregnant women that their choice to abort is wrong. That may be so, but I agree withJustices Adams and Stevens - the protesters are not entitled to a captive audience.

Those receiving the message should be free to avoidthe message if they so choose. [81] In R. v. Breeden, 2009 BCCA 463 our Court of Appeal once again considered the concern of having a captive audience. Writingfor the Court, Mr. Justice Hall quoted Ryan J.A.’s conclusion in Spratt and stated that while these comments were made within thecontext of a s. 1 analysis, he is of the view that they are relevant is a s. 2 analysis as well. [82] The applicants make reference to international law as part of their argument.

They say that international law forms part ofCanadian law by way of binding treaties and customary international law, which are informed by judicial or quasi-judicial

interpretationsof the treaties and law. [83] They say that international law recognizes the right to free expression in a number of treaties binding on Canada, as well asnorms of customary international law. They submit further that “Notably, international law holds that the right to free expression isabsolute and should be curtailed only in the clearest of cases, not simply because such expression causes inconvenience to another party.” [84] The applicants speak of international law broadly and do not clearly explain how the principles of international law apply directlyin this case.

That is, how it may make a difference in the conclusions I am to reach. International law was no doubt influential at the timethe Charter was being drafted and has been helpful in interpreting it. However, I must consider and apply the principles set out inapplicable decisions of the Supreme Court of Canada and of other higher Canadian courts. [85] In his written submissions, counsel for the applicants summarizes his understanding of the applicable jurisprudence as follows: As with nearly all Charter rights,

section 2(

b) requires courts to engage in a balancing process. To the extent that the method andlocation of expressive activity interferes with the rights of other members of society, the Court must make a qualitative and quantitativeanalysis: what is/are the right(

s) that the expressive activity interfere(

s) with? To what extent does the expressive activity interfere withsuch right(s)? For how long? Freedom of expression is a fundamental right to a democratic society, both in Canada and internationally, forming the “foundation stone”upon which rests the debates and discussions essential to a free and functioning democratic process. Such a fundamental right cannot bedispensed with simply because it causes some interference with the ability of other persons to use a roadway. The Court must engage in asubstantive analysis of the balance of these rights to reach a conclusion that gives effect to the fundamental purpose of

section 2(

b) of theCharter. [86] The applicants submit that their activities were expressive and that neither the method nor location of the expression renders theactivity unworthy of Charter protection. They say that their expression furthered the values underlying

section 2(

b) and did so in a waythat is within the types of inconvenience tolerated in a democratic society. They say further that international law, both freestanding andas influencing the Charter, requires an explicit overriding right – such as physical safety - for curtailing the right to free expression. Theysubmit that such justification is not present in their case. [87] The applicants ask the Court to draw a parallel with the cases of Vancouver (City) and Batty in that their form of expression wasintricately tied to the expression itself.

They say that their intention was explicitly to raise public awareness by causing inconvenienceand, accordingly, that their expression necessitated blocking the roadway as a tactic. [88] Mr. Breen and Ms.

Murray submit that unlike in the McCann case, there was no purpose to their blockading roads other thancommunicating their discontent with government policy and to raise awareness of the issue of Old Growth logging. [89] They argue that their case is similar to the Burch et al case cited in McCann in that the blockades were known to the police inadvance, and involved a temporary and minor stoppage or diversion of traffic. [90] I will now consider the applicants’

section 2(

b) submissions in the context of the circumstances of this case and the case lawprovided. The onus is on the applicants to satisfy the Court on a balance of probabilities that their actions are Charter protected. [91] The first question is whether the applicants’ activities constitute expression which falls within the sphere of s. 2(

b) of theCharter. The applicants say that they did. The Crown agrees.

[ 92 ] I find that it does. Their activities certainly conveyed meaning. As the applicants submit, their activities were political protests intended to express their discontent over the government’s environmental policy. Their intention in holding banners and blockading public roads was to draw public attention to the logging of Old Growth forests in British Columbia, and ultimately, to influence government policy to bring about the cessation of Old Growth logging.

The expression did not involve violence or threats of violence. [ 93 ] On the face of it, the applicants’ expression is consistent with the values of democratic discourse, truth-finding and self- fulfilment which s. 2 of the Charter is intended to promote. [ 94 ] The next question is whether the method and/or location of the activities engaged in by the applicants removes them from s. 2(

b) protection. [ 95 ] The applicants’ expression occurred on government-owned property. The question is whether it occurred in places where one would expect constitutional protection for free expression on the basis that expression in those places does not conflict with the values that s. 2(

b) is meant to promote. To answer this question, I must consider: the historical or actual function of the place; and, whether other aspects of the place suggest that expression within it would undermine the values underlying free expression. [ 96 ] The applicants submit that neither the method nor the location of their expression render it unworthy of Charter protection. [ 97 ] The Crown disagrees and says that the method and location of the applicants’ expression makes it problematic. It says that by creating a human blockade to stop traffic, the applicants’ conduct may have created a captive audience.

The Crown says further that the key reason why the Court should find that the applicants’ expressive activities should not be not afforded Charter protection is because, having regard to their methods, the activities were incompatible with the historic and actual functions of the highways. It says that s. 2 (

b) protection does not extend to expression in all places. [ 98 ] The Crown acknowledges that public streets have indeed served as public forums for certain forms of expression depending on the method used. It says, however, that the applicants have not pointed to historical examples where roadways have been used as locations where freedom of speech has been tolerated or encouraged. [ 99 ] I believe that of the cases provided by counsel, the only cases in which a Court has found that s. 2(

b) of the Charter provides a defence to a charge of mischief in which protesters blocked traffic on a roadway are the unreported Ontario cases referred to by the trial judge in McCann . The basis for those decisions seems to be a recognition of the importance of freedom of expression and assembly as protected by s. 2 of the Charter and a determination on the facts of each case that actions of the demonstrators in communicating ideas fell within the limits of tolerance to be expected in a democratic society. [ 100 ] As I noted earlier, in McCann the appellate judge upheld the trial judge’s decision that s. 2 (

b) did not apply because the protestors admitted that their demonstration was not for the sole purpose of communicating an idea but to prevent cattle from leaving the institution indefinitely, until the government changed its policy. [ 101 ] In the case before me, the intention of the applicants was to express their unhappiness with government policy and to raise awareness of the issue of Old Growth logging.

The method used by the applicants to convey their message was to block traffic and refuse to leave unless and until arrested. [ 102 ] As I stated earlier, the unreported Ontario cases cited in McCann predate the Supreme Court’s decision in Montreal (City) which sets out the test that courts in Canada must now apply when considering the application of s. 2(

b) of the Charter to activities on publicly owned property. [ 103 ] The facts in the significant cases of Montreal (City) , Vancouver (City) , and Committee for the Commonwealth of Canada are quite different from the facts in this case.

However, as I have already noted, judges in all of those cases indicated in obiter dicta that the decisions may well be different if the consequences of the activities in question were different. [ 104 ] In Committee for the Commonwealth of Canada , Chief Justice Lamer stated “… if a person tried to picket in the middle of a busy highway or to set up barricades on a bridge, it might well be concluded that such form of expression in such a place is incompatible with the principle function of the place, which is to provide for the smooth flow of automobile traffic.” [ 105 ] In Montreal (City) , Justices McLachlin and Deschamps stated: “If the sound equipment were being used in a way that prevented people from using the street for passage or communication, the answer might be different.” [ 106 ] In Vancouver (City) , Justice Huddart writing for the Court stated: “… it cannot be said that any and all structures encroaching on City streets without obstructing either pedestrian or vehicular traffic per se subvert democratic discourse.” [ 107 ] It is clear then that judges of both the Supreme Court of Canada and the British Columbia Court of Appeal have expressed the view that whether or not expressive activity has the effect of impeding people’s movement is a significant factor when considering the application of s. 2 of the Charter to activity on publicly owned property. [ 108 ] In this case, the actions of the applicants clearly impeded traffic and, for a time at least, prevented many people from travelling to where they wished to go. [ 109 ] We do not know the circumstances of those who were blocked or the gravity of the disruption caused by the applicants.

It may well be that on one or more of the days in question the applicants’ actions prevented emergency vehicles such as ambulances, fire trucks and police cars from assisting people in urgent and dangerous circumstances. [ 110 ] Road blockages such as the ones in this case are also potentially dangerous because of the real possibility of motor vehicle

collisions and harm caused by frustrated drivers. [ 111 ] Although the applicants submit that their conduct caused only temporary blockages, I find that the blockages were only “temporary” because the police arrested them. But for the applicants being arrested, the blockages would have gone on for an indefinite period of time. [ 112 ] I also find that, to some extent at least, the activities of the applicants resulted in them having a captive audience.

People blocked from travelling on the roadway did not have the choice of avoiding the message if they wished to do so. [ 113 ] On the four days in question, the applicants expressed a political message that they and many others believe to be of significant importance. As stated by Chief Justice Dickson in Irwin Toy , freedom of expression was entrenched in our Constitution to ensure that everyone can manifest their thoughts, opinions and beliefs because in a free, pluralistic and democratic society such as ours we prize a diversity of ideas for their inherent value both to the community and to the individual.

Representative democracy depends upon it. [ 114 ] Counsel for the applicants submits that the Court must balance the rights of his clients to express themselves and assemble peacefully with the rights of other members of the community using the roadway. [ 115 ] Decisions which provide the most support to the applicants’ position are the unreported cases cited in McCann and the decision in Whatcott . [ 116 ] Given that it was not possible for counsel to obtain the unreported decisions in full, that they are from another province and that they were all decided before the Supreme Court set out the applicable test in Montreal (City) , I am unable to attach much weight to them. [ 117 ] I find that the Whatcott case is distinguishable from the applicants’ case in that the accused in Whatcott did not physically interfere in a significant way with the ability of other people to get to where they were going. [ 118 ] Applying the test in Montreal (City) , I find that the actual and historical function of the roadways blocked by one or both of the applicants on the 10 th , 17 th , 27 th and 31 st days of January 2022 was and is to allow for the efficient movement of vehicles.

The actions of the applicants had the clear and intentional effect of preventing the movement of traffic on the roadways. This is incompatible with the actual and historical function of the places. I find that the together the method and location of the conveyance of the applicants’ message conflicts with the values protected by s. 2(

b) of the Charter . [ 119 ] Upon considering the case law provided by counsel and applying it to the facts of this case, I find that while the activities of the applicants had expressive content, thereby bringing it within the sphere of

section 2 (

b) protection, the method and location of the activity removes it from that protection. [ 120 ] I have also done as counsel for the applicants suggests the Court should do and engaged in a balancing of the rights of his clients to express themselves and to assemble peacefully as against the rights of other members of the community using the roadway. In doing so, I have considered the relevant circumstances including the method, location and effect of the expression. In accordance with what the Supreme Court of Canada stated in Canadian Broadcasting Corp. v.

Canada (Attorney General) , 2011 SCC 2 , at para. 43 , I recognize that I must not focus uniquely on any excesses that may result from the expressive activities in question. I have not done so. [ 121 ] After due consideration, I find that the balance favours a determination that the applicants’ activities are not protected by s. 2 (

b) and/ or 2(

c) of the Charter . [ 122 ] In reaching my conclusion, I am mindful of the fact that the applicants could have expressed, and still could express, their desired message in other effective ways. That is, expressed themselves in a way which would clearly convey their message but not cause such difficulty and potential harm to others. [ 123 ] While the applicants believe that the chosen method and location of their expression was necessary for their message to have the greatest impact, the right to freedom of expression does not guarantee being able to express a message by any method in any location.

I note that had the applicants’ protest activities not blocked traffic to the extent that they did, they could likely have relied upon s. 430(7) as a defence. [ 124 ] In the event that my conclusion that the activities engaged in by the applicants is not protected by s. 2 of the Charter is wrong, I will consider the next question. If the enforcement action taken by the police and/or the Crown infringed the applicants’ rights to freedom of expression and/or peaceful assembly, is that enforcement action justified under s. 1 of the Charter ? [ 125 ]

Section 1 of the Charter reads: 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. [ 126 ] In their written reply submissions, the applicants submit that

section 1 does not neatly apply to this case, particularly because they are seeking a remedy under s. 24(1) of the Charter . The applicants say further that assuming that s. 1 does apply in this case the infringement of their rights to freedom of expression and assembly are not justified by

section 1 . [ 127 ] The Crown submits that the applicants framing of their claim as a challenge to state action, as opposed to the Criminal Code provisions under which they are charged, produces analytical problems for s. 1 . It goes on to say, however, that the Crown is entitled to rely on s.1 if the applicants’ challenge is indeed a challenge of state action. The Crown notes that s.1 of the Charter is not only applicable to laws, but also to discretionary decisions made by state officials under constitutionally valid laws.

[128] The analysis which judges must apply when deciding whether a law which otherwise violates a Charter right is justified under s.1 was established by the Supreme Court of Canada in R. v. Oakes, (SCC), [1986] 1 S.C.R. 103. [129] The onus of proving, on a balance of probabilities, that a limit on a right or freedom guaranteed by the Charter is reasonable anddemonstrably justified in a free and democratic society rests with the party seeking to uphold the limitation. In this case, it rests on theCrown. [130] As set out by the Crown in its submissions, in order to be saved by s.1 the Oakes analysis requires the following:

a) The impugned law (or state action) must be prescribed by law;

b) The impugned law (or state action) must have a pressing and substantial objective;

c) The impugned law (or state action) must be proportional in terms of its objectives and its effects in that: i. the measure chosen must be rationally connected to its objective; ii. the measure must impair the guaranteed right or freedom as little as reasonably possible; and iii. there must be overall proportionality between the deleterious and salutary effects of the measure. [131] The Crown says that if the Charter limitation flows from enforcement discretion exercised by the police and/or by the Crownthen it was prescribed by law, it had a pressing and substantial objective and it was proportional in terms of its objective and effects. [132] The applicants do not take issue with the Crown’s assertion that the exercise of enforcement discretion was prescribed by law andhad a pressing and substantial objective, or that there was a rational connection between the exercise of discretion and its objective. [133] The applicants do say, however, that the particular enforcement action taken did not minimally impair their 2(

b) and s. 2(

c) rights.They submit that the police should have tolerated and allowed them to express themselves for a longer period of time. [134] The Oakes test requires the Court to ask whether the limit on rights under the Charter are minimally impairing. In RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199, para. 160 the Supreme Court of Canadaaddressed that requirement as follows: As the second step in the proportionality analysis, the government must show that the measures at issue impair the right of freeexpression as little as reasonably possible in order to achieve their legislative objective. The impairment must be “minimal”, that is, thelaw must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection andthe courts must accord some leeway to the legislator.

If the law falls within a range of reasonable alternatives, the courts will not find itoverbroad merely because they can conceive of an alternative which might better tailor objective to infringement. On the other hand, ifthe government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail. [135] In this case, it is not argued that the laws which guided the police’s decision to arrest and the Crown’s decision to approvecharges and engage in a prosecution violate the applicants’ Charter rights.

Rather, what is argued is that it is the decision to arrest,approve charges and prosecute the applicants which infringed their s. 2(

b) and s. 2(

c) Charter rights.

The applicants do not argue thattheir arrests were unlawful or that the Crown’s decision to prosecute them involved an abuse of process. [136] So, in considering the issue of minimal impairment in this case, the question becomes whether, after deciding correctly that theapplicants were committing criminal offences and that they could lawfully arrest them under s. 495 of the Criminal Code, the policecould or should have done anything other than arrest them when they did, which would have been equally effective and less intrusive. [137] The applicants suggest that the police could have held off arresting them so as to allow them to convey their message for a longerperiod of time.

On the facts of this case, I do not find that to be a reasonable suggestion. At no time did either of the applicantsthemselves indicate to the police that they would cease their activity if they were given some more time. To the contrary, they made itclear to the police that the blockage of traffic would continue unless and until the police arrested them. [138] The applicants also say that the police could have dealt with the blockage caused by the applicants by diverting traffic.

Given thefour locations of the intersections which were blocked I cannot see this as being feasible in an effective way. [139] The objective of the police in arresting the applicants was almost certainly to put an end to the traffic blockades so that peoplecould continue to travel where they were going.

I cannot think of anything else which the police could have reasonably done to giveeffect to their lawful objective and which would have reduced the impairment to the applicants’ rights to freedom of expression andassembly. [140] Similarly, I cannot think of anything else the Crown could have done to effectively enforce constitutional criminal laws which theapplicants violated which would have less impact on their s. 2(

b) and s. 2(

c) Charter rights. [141] Even if there are other enforcement actions which the police and/or the Crown could have taken, I find that the actions taken fell“within the range of reasonable alternatives” as is required by RJR-MacDonald Inc. [142] It follows that I have decided that even if the actions of the police and/or the Crown breached the applicants’ rights to freedom ofexpression and/or assembly their actions were demonstrably justified in a free and democratic society and are therefore constitutional. [143] In the event that my conclusion that the enforcement action taken by the police and/or the Crown is protected by s. 1 of theCharter is wrong, I will consider the question of remedies.

If the enforcement action of the police and/or the Crown is not justified under s. 1 of the Charter what are the appropriateremedies? [144] The applicants seek an order pursuant to section 24(1) of the Charter for judicial stays of proceedings and, in the alternative, anacquittal on all charges. [145] A court can grant a judicial stay of proceedings under s. 24(1) of the Charter. The law is clear, however, that the remedy of ajudicial stay is rarely granted and is reserved for the clearest of cases. [146] The test used to determine whether a stay of proceedings is warranted is set out in R. v. Babos, 2014 SCC 16 , [2014] 1S.C.R. 309 at para 32 as follows:

(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested,perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance theinterests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "theinterest that society has in having a final decision on the merits" (ibid., at para. 57). [147] For a stay of proceedings to be appropriate, it must appear that the state misconduct is likely to continue in the future or that thecarrying forward of the prosecution will offend society’s sense of justice; Babos at para. 36. [148] In my view, this case does not meet the threshold necessary for the extraordinary remedy of a stay of proceedings to beappropriate. [149] I am not aware of any cases in which an acquittal has been found to be an available remedy under s. 24(1). [150] I believe that of the remedies which are possible under s. 24(1), the most appropriate would likely be a reduction in sentence. [151] The one question I have not yet addressed is: Can the applicants challenge the enforcement actions of the police and the Crown under s. 2(

b) and/or s. 2(

c) of the Charterrather than challenging the constitutionality of the Criminal Code provisions under which they are charged? [152] I have answered the earlier questions posed based upon the assumption that the answer to the question above is “yes”. [153] The Crown’s submission is that the applicants’ Charter challenge is misconceived because it is framed as a challenge toenforcement action taken by the police and the Crown when the root of the alleged Charter infringements are sections of the CriminalCode. [154] The Crown submits that the applicants’ alleged infractions of their rights to freedom of expression and of assembly stem from theCriminal Code offences with which they are charged and not from the decisions to enforce the commission of those offences. [155] The Crown argues that if the applicants wish to challenge the enforcement actions of the police and/or the Crown (as opposed tothe underlying criminal laws), then they must directly challenge those decisions under the applicable analytical framework. [156] It submits that if the applicants wish to challenge the decision of the police to arrest, the question is whether they violated theirright under s. 9 of the Charter not to be arbitrarily detained or imprisoned.

It says further that if they wish to challenge the Crown’sdecision to approve charges and prosecute them, the question is was there an abuse of process in violation of s. 7 of the Charter. [157] The applicants reply by saying that at issue is whether their Charter rights were breached - either as a result of legislation or a‘government act.’ They say that the specific form of process does not change the Court’s ultimate analysis of the issue. [158] The Crown submits that the applicants have not cited any authority for the proposition that decisions to arrest, charge orprosecute individuals for constitutionally valid laws violates freedom of expression or assembly. [159] The applicants acknowledge that their choice of process is “rather unique” but say that the Crown has not provided any authorityfor the proposition that this process is not permissible.

The applicants say further that McCann and the unreported cases cited in it“tacitly endorse the Appellants’ application under

section 2(

b) without a procedural objection.” [160] Earlier, I decided that, if indeed the applicants can challenge the enforcement action of the police and/or the Crown under s.2(b)and/or 2(

c) of the Charter, the protest activities in which they engaged is not Charter protected expression and/or peaceful assemblybecause of its method and location. [161] I then decided that, if I am wrong and the activities of the applican

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