APEC – Commission Interim Report

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7. Preliminary Issues

7.1. "Appropriate" Conduct

My Terms of Reference include an assignment to report on whether RCMP conduct was "appropriate to the circumstances." The benchmarks for "appropriate" conduct are found in section 37 of the RCMP Act and sections 38 to 58.7 of the Royal Canadian Mounted Police Regulations, 1988. These sections of the regulations are known as the "Code of Conduct."

Section 37 of the RCMP Act says that it is incumbent on every member of the RCMP:

1. to respect the rights of all persons;
2. to maintain the integrity of the law, law enforcement and the administration of justice;
3. to perform the member's duties promptly, impartially and diligently, in accordance with the law and without abusing the member's authority;
4. to avoid any actual, apparent or potential conflict of interests;
5. to ensure that any improper or unlawful conduct of any member is not concealed or permitted to continue;
6. to be incorruptible, never accepting or seeking special privilege in the performance of the member's duties or otherwise placing the member under any obligation that may prejudice the proper performance of the member's duties;
7. to act at all times in a courteous, respectful and honourable manner; and
8. to maintain the honour of the Force and its principles and purposes.

The Code of Conduct requires, among other things, that an RCMP member must "respect the rights of every person" and must not "engage in any disgraceful or disorderly act or conduct that could bring discredit on the Force."

Inappropriate conduct could constitute a breach of the RCMP Act or the Code of Conduct or the common law. If so, the member could be held to account before a court or administrative tribunal.

However, conduct that does not amount to a breach of statute or common law could still constitute a failure to meet reasonable standards that ought to apply to an effective and efficient security operation, whether the conduct results from incompetence, poor planning, a lack of ordinary judgment, or an absence of common sense. For the purposes of my Terms of Reference, such conduct could be inappropriate to the circumstances in which it occurred.

7.2. Charter Rights

My Terms of Reference also include an assignment to report on whether the RCMP conduct in question was "consistent with respect for the Fundamental Freedoms guaranteed by section 2 of the Canadian Charter of Rights and Freedoms." The Charter sections that are relevant to this report are set out in Appendix VI.

This raises the question: Do I have the jurisdiction to interpret and apply the Charter and determine whether the RCMP committed Charter violations? I have considered the parties' extensive submissions on this issue and have concluded:

1. It is not necessary to determine whether this Commission is a "court of competent jurisdiction" for the purposes of granting Charter remedies as I will not be granting such remedies nor will I be striking down legislation or making decisions which will affect any person's legal rights.
2. I am entitled to consider the complainants' Charter Rights in deciding whether the RCMP conduct was appropriate to the circumstances because the Commission has jurisdiction over the police officers whose conduct has been brought into question and the complaints that have been made.
3. Although the Terms of Reference direct the Commission to assess RCMP conduct against section 2 of the Charter, section 37(a) of the RCMP Act says that it is "incumbent on every member . . . to respect the rights of all persons." Clearly this includes the obligation to respect all Charter rights.
4. As this Commission cannot determine civil or criminal liability, it cannot make legal determinations as to whether RCMP members violated the Charter. In my view, the Terms of Reference have been carefully crafted to ensure that I make only "findings of fact" and evaluate whether RCMP conduct was "consistent with respect for" the complainants' Charter rights. Although this may seem like a distinction without a difference, it is in accord with the following passage from Krever:

...Similarly, commissioners should endeavour to avoid making evaluations of their findings of fact in terms that are the same as those used by courts to express findings of civil liability. Despite these words of caution, however, commissioners should not be expected to perform linguistic contortions to avoid language that might conceivably be interpreted as importing a legal finding.

7.3. Freedom of Expression on Government Property

Freedom of expression on government property and the right of the government to limit that freedom are issues that arise throughout this report. The UBC campus is not government property, but under the licence agreement described in Chapter 6, parts of the campus effectively became government property for a period of time during the APEC conference.

Section 2(b) of the Charter of Rights and Freedoms guarantees everyone freedom of expression in Canada. However, some limitations on that freedom are permitted and clearly, during the events at issue here, free speech was curtailed in some instances. The question is whether those limits on free speech were permissible under the Charter. Section 1 of the Charter says that the Charter 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." The extent of these justifiable limits in various situations has been considered in many judicial decisions.

The Supreme Court of Canada considered the government's ability to limit expressive behaviour on government property in The Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R 139. In that case some people who had been prohibited from promoting a political cause at an airport asked the court to declare that their freedom of expression had been denied.

The Supreme Court stated that the government, as owner of public property, does not have the same right that an owner of private property has, to restrict expressive behaviour on that property. Section 2(b) might not apply to all expression on all government property, but generally, government property must be available as a forum for public expression unless there are reasons that justify denying access for that purpose.

The court agreed that the plaintiffs' freedom of expression had been infringed without justification but gave six separate sets of reasons describing different analytical approaches to the issue. The central judgments were delivered by Lamer C.J., L'Heureux-Dubé and McLachlin JJ.

• Lamer C.J. (Sopinka and Cory JJ. concurring) held that section 2(b) protects only expression that is compatible with the "principal function or intended purpose" of the government property. For example, no one would suggest that an individual could, under the aegis of freedom of expression, shout political messages in a library. Only if it is established that the expression in question is compatible with that function does it become necessary to consider whether the infringement on the right of expression was justified.
• At the other end of the spectrum, L'Heureux-Dubé J. noted that the "distinctive nature of government property whittles away at the application of trespass law." She held that all non-violent expression on government property is protected by section 2(b) of the Charter. Restrictions are lawful only if they can be justified under section 1 of the Charter. L'Heureux-Dubé J. did concede that section 2(b) does not provide a right of access to all public property, such as internal government offices, air traffic control towers, prison cells and judges' chambers.
• Lastly, McLachlin J. (La Forest and Gonthier JJ. concurring) took an intermediate approach. She held that the protection afforded by section 2(b) of the Charter lies somewhere between two extremes: absolute government control of expression on government property on the one hand, and presumed protection for all expression on government property on the other. She agreed with Lamer C.J. that compatibility with function is a relevant factor, but said that it should only be taken into account in deciding whether the restriction on the right is justifiable under section 1, and not in first determining whether the expression is protected under section 2(b).
• McLachlin J. concluded that, in determining whether the expression is protected under section 2(b), the first step is to consider whether the government's purpose in imposing the restriction is aimed at the content of the expression. If so, section 2(b) is violated. If the restriction is aimed not at content, but at the avoidance of undesirable consequences of the expression, the plaintiff may establish a violation of section 2(b) by demonstrating a link between the expression on government property and one of the purposes underlying the guarantee of freedom of expression:
  • the pursuit of truth;
  • participation in social and political decision-making; and
  • the encouragement of diversity in forms of individual self-fulfilment by cultivating a tolerant, welcoming environment for the conveyance and reception of ideas.

In Weisfeld v. The Queen (1994), 116 D.L.R. (4th) 232, a case prompted by the erection of a peace camp on Parliament Hill, the Federal Court of Appeal concluded that the erection of the peace camp did constitute "expression." In determining whether that expression was protected under section 2(b) of the Charter, Linden J.A. considered the three tests set out by the Supreme Court of Canada in Commonwealth and said that, under any of those tests, the plaintiff's conduct amounted to constitutionally protected expression: the erection of the tent was not incompatible with the "function" of Parliament Hill and there was "clearly a link between the principle of participation in social and political decision-making which underlies our constitutional protection of freedom of expression and the use of the grounds in front of parliament to effect such participation." Therefore, the erection of the shelter was constitutionally protected expression.

Linden J.A. found that the government's actions were "prescribed by law" for the purposes of section 1 – the law being both the regulations under which the protester had been arrested and also the common law property right to prevent nuisance and trespass.

7.3.1. The Proportionality Test

What remained for determination in Weisfeld was whether the government's actions constituted a "reasonable limit" on the plaintiff's constitutional rights. To answer that question, the court applied the test developed by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103, commonly known as the Oakes test, or the "proportionality" test. Under the proportionality test, the following criteria must be satisfied if an infringement of a Charter right is to be justified or "saved" under section 1 of the Charter:

1. the objective that the limitation is designed to promote must be sufficiently important to warrant overriding a constitutionally protected right or freedom. At a minimum, the objective must be pressing and substantial in a free and democratic society;
2. the government must satisfy each element of the "proportionality" test; that is
   1. the measure limiting the Charter right must be "rationally connected" to the intended objective (i.e., it must not be arbitrary, unfair or based on irrational considerations);
   2. the measure must "minimally impair" the Charter right. (The court must consider whether the government could "reasonably have chosen an alternative means which would have achieved its objective as effectively as the means actually chosen"); and
   3. the effects of the measures must be "proportional" to the significance of the objective. (Even if an objective is "pressing and substantial," it should not override a Charter right if the effect of the measures used to accomplish that objective severely compromises an individual's rights.)

In addressing whether the infringement was designed to meet a pressing and substantial objective, Linden J.A. noted that the government's objectives were twofold: to allay safety, health, maintenance and security concerns; and to address issues of aesthetics and symbolism. He referred to the grandeur of the Parliament Buildings with their great expanse of lawn and found that keeping Parliament Hill "in a clean and aesthetically pleasing condition" was a legitimate government objective. In the result, Linden J.A. held that the removal of the peace camp was a justifiable limit on the plaintiff's section 2(b) rights.

There is a recent Ontario decision which squarely addresses some of the issues addressed in this report, particularly in Chapter 11. In R. v. Behrens [2001] O.J. No. 245 (Ont. Ct. Just.), some protesters had been banned from Queen's Park in Toronto after defacing the wall of the legislature building with a water soluble liquid. The Speaker of the legislature banned them from the grounds. They returned later and demonstrated peacefully but were charged under the Trespass Act.

The primary issue before the court was whether the defendants' Charter rights to participate in a political demonstration on government property took precedence over the Speaker's common law right under the Trespass Act.

The court reviewed the law of freedom of expression, including the Commonwealth decision, and decided that, under any of the three approaches in that case, the defacing of the wall was not protected expression. Rather, it was a form of vandalism or violent expression, incompatible with the function of the building. Therefore, the Speaker was justified in banning the protesters.

However, with respect to the peaceful demonstration, the court held that the Speaker's ban unjustifiably infringed the protesters' rights to engage in peaceful protest. Because the defendants' activities on that occasion were constitutionally protected, the Trespass Act had to yield to the Charter and, as a result, the charges against the defendants could not stand.

In my view, this decision makes it clear that police authority to remove and arrest trespassers on government property pursuant to the Criminal Code must, unless an interference with individual liberties is justified in the circumstances, yield to the Charter rights of protesters who are peaceably demonstrating on government property in a manner that is consistent with the ordinary use of that property.

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