R. v. Breeden (J.L.), (2009) 277 B.C.A.C. 164 (CA)

• Judge: Hall, Kirkpatrick and Bauman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 27, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 277 B.C.A.C. 164 (CA);2009 BCCA 463

R. v. Breeden (J.L.) (2009), 277 B.C.A.C. 164 (CA);

    469 W.A.C. 164

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. NO.027

Regina (respondent) v. Jack Lloyd Breeden (appellant) and Canadian Civil Liberties Association (intervenor)

(CA035706; 2009 BCCA 463)

Indexed As: R. v. Breeden (J.L.)

British Columbia Court of Appeal

Hall, Kirkpatrick and Bauman, JJ.A.

October 27, 2009.

Summary:

The accused entered a provincial courthouse, a fire station and a municipal hall. In the public areas (foyers or lobbies) of the buildings, the accused passively displayed large signs protesting corruption and/or misconduct by unions and government entities. In each case he was told to leave, but advised that he could protest outside the buildings. When the accused refused, he was removed from the buildings and charged with three counts of trespass under the Trespass Act. The accused's defence was that his s. 2(b) Charter right to freedom of expression entitled him to protest at the public locations inside of the buildings. The trial judge held that the accused's right to freedom of expression did not extend to the public areas inside the three buildings. The accused appealed.

The British Columbia Supreme Court, in a judgment reported [2007] B.C.T.C. Uned. G56, dismissed the appeal. The accused appealed.

The British Columbia Court of Appeal dismissed the appeal.

Civil Rights - Topic 1803

Freedom of speech or expression - General principles - Freedom of expression - Scope of - [See Civil Rights - Topic 1850.7 ].

Civil Rights - Topic 1850.7

Freedom of speech or expression - Limitations on - Government property - The accused entered a provincial courthouse, a fire station and a municipal hall - In the public areas (foyers or lobbies) of the buildings, the accused passively displayed large signs protesting corruption and/or misconduct by unions and government entities - When the accused refused to leave, he was removed, charged with and convicted of trespassing - The British Columbia Court of Appeal affirmed that the accused's s. 2(b) Charter right to freedom of expression did not extend to the public areas inside the three buildings - The trial judge did not err in finding that the accused's right to express himself was incompatible with the historic use of the three premises and the effective operation of the facilities - There was no evidence of past use of the premises for advertising (commercial speech) or as places of debate (political speech) - The court stated that "the sort of activity sought to be engaged by the [accused] was out of accord with the historic use of the space and that the continuance of such activity would tend to undermine the use of the premises by staff and members of the public for the orderly conduct of public business" - Government had never before afforded access for expressive activities in the three locations - The confined inside spaces of the public buildings were qualitatively different, both in historical use and from a functional perspective, from locations such as a street or airport concourse - The court noted that "it was always open to the [accused] to conduct his activity in public areas outside the respective locations but not within the building envelopes of these premises" - The accused had an alternative method of expressing himself to the same potential audience - The determination of whether expressive activity was inconsistent with the function of any particular location was to be done without regard to the value of the content of the expression - Since s. 2(b) did not extend to the locations at issue, a s. 1 Charter analysis was unnecessary.

Cases Noticed:

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 7].

Canadian Federation of Students (B.C.) et al. v. Greater Vancouver Transportation Authority et al. (2006), 233 B.C.A.C. 81; 386 W.A.C. 81; 275 D.L.R.(4th) 221; 2006 BCCA 529, affd. (2009), 389 N.R. 98; 272 B.C.A.C. 29; 459 W.A.C. 29; 93 B.C.L.R.(4th) 1; 2009 SCC 31, refd to. [para. 10].

Committee for the Commonwealth of Canada et al. v. Canada, [1991] 1 S.C.R. 139; 120 N.R. 241; 77 D.L.R.(4th) 385, refd to. [para. 10].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577, refd to. [para. 11].

Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084; 156 N.R. 2; 66 O.A.C. 10; 106 D.L.R.(4th) 223, refd to. [para. 13].

Vancouver (City) v. Vancouver Municipal and Regional Employees' Union, [1994] B.C.T.C. Uned. C50; 118 D.L.R.(4th) 417; 23 C.R.R.(2d) 139 (S.C.), refd to. [para. 13].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 19].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93; 53 D.L.R.(4th) 1, refd to. [para. 22].

Société Radio-Canada v. Québec (Procurer général) (2008), 62 C.R.(6th) 999; 2008 QCCA 1910, refd to. [para. 22].

R. v. Banks (D.) et al. (2007), 220 O.A.C. 211; 275 D.L.R.(4th) 640; 2007 ONCA 19, refd to. [para. 23].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81; 61 C.C.C.(3d) 1, refd to. [para. 30].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161; 95 D.L.R.(4th) 202, refd to. [para. 30].

R. v. Watson (G.S.) et al. (2008), 258 B.C.A.C. 297; 434 W.A.C. 297; 83 B.C.L.R.(4th) 243; 2008 BCCA 340, refd to. [para. 33].

R. v. Spratt (D.D.) - see R. v. Watson (G.S.) et al.

Ontario (Attorney General) v. Dieleman et al. (1994), 117 D.L.R.(4th) 449; 20 O.R.(3d) 229 (Gen. Div.), refd to. [para. 33].

Counsel:

M. Feder and M. Bussanich, for the appellant;

M. Ainslie, for the respondent;

C. Boies Parker, for the intervenor.

This appeal was heard on April 28, 2009, at Vancouver, B.C., before Hall, Kirkpatrick and Bauman, JJ.A., of the British Columbia Court of Appeal.

On October 27, 2009, Hall, J.A., delivered the following judgment for the Court of Appeal.