I. Location of the Expression

• Author: Robert J. Sharpe - Kent Roach
• Profession: Court of Appeal for Ontario - Faculty of Law, University of Toronto
• Pages: 187-190

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Individuals who wish to express themselves often seek to do so in a well-travelled public place. For those who lack the resources to place their message in newspapers or broadcast media, expressing oneself in a public place may be essential if the message is to find an audience. An audience may be found at public places such as roads, squares, parks, and airports. Yet each of these places has a public purpose. How should the individual’s right to freedom of expression be reconciled with the rights of others to use these places for their intended purpose? Does the state have the right to control access to such places for the purposes of disseminating a message?

In Committee for the Commonwealth of Canada v Canada,¹¹⁷the Supreme Court of Canada considered this issue in relation to the claim of a group that sought to distribute pamphlets at a major Canadian airport. The Court rejected the contention that the government could preclude the pamphleteers from distributing their materials at the airport. As Lamer CJC noted, government property is held for the benefit

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of the community at large and ownership does not, by itself, justify refusal of access for expressive purposes. By the same token, however, the right of the individual asserting freedom of expression must be assessed with reference to the public purpose of the place in question. Six of the seven judges sitting on the case found it necessary to write reasons, and hence it is not possible to identify a single rationale for the decision. In the end, however, all the judges agreed that the exercise of the right to freedom of expression did, in the circumstances, include the right to express oneself at the airport.

While the members of the Court found that the pamphleteers’ freedom of expression extended to their activities in the airport, they generally accepted that not all types of public property would attract section 2(b) protection. Two different tests were suggested by the Court to determine whether the freedom of expression was protected in a particular public space. The first was based on an analysis of the primary function of the space, and whether that function was compatible with free expression. The second was based on whether protecting expression in the space would serve the underlying values of the freedom. Given the split in the Court in this case, neither of these tests was definitively adopted.

A subsequent case¹¹⁸dealt with posters and came to a...