R. v. Watson (G.S.) et al., (2008) 258 B.C.A.C. 297 (CA)

• Judge: Rowles, Ryan and Low, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 04, 2008
• Jurisdiction: British Columbia
• Citations: (2008), 258 B.C.A.C. 297 (CA);2008 BCCA 340

R. v. Watson (G.S.) (2008), 258 B.C.A.C. 297 (CA);

    434 W.A.C. 297

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. SE.009

Regina (respondent) v. Donald David Spratt (appellant)

(CA029830)

Regina (respondent) v. Gordon Stephen Watson (appellant)

(CA029841)

(2008 BCCA 340)

Indexed As: R. v. Watson (G.S.) et al.

British Columbia Court of Appeal

Rowles, Ryan and Low, JJ.A.

September 4, 2008.

Summary:

The two accused were jointly charged under the Access to Abortion Services Act (B.C.) with sidewalk interference while in an access zone, and with protesting while in an access zone, contrary to ss. 2(1)(a) and 2(1)(b), respectively.

The British Columbia Provincial Court found the accused guilty. They appealed.

The British Columbia Supreme Court dismissed the appeals. The accused sought leave to appeal.

The British Columbia Court of Appeal, per Hall, J.A., granted leave to appeal on one ground, being whether ss. 2(1)(a) and 2(1)(b) of the Act infringed the right to freedom of expression protected by s. 2(b) of the Canadian Charter of Rights and Freedoms. See [2004] B.C.A.C. Uned. 126. On appeal, the Crown conceded that the provisions violated freedom of expression under s. 2(b) of the Charter. At issue was whether they were saved by s. 1 of the Charter.

The British Columbia Court of Appeal dismissed the appeal, holding that the provisions were saved by s. 1.

Civil Rights - Topic 1842.5

Freedom of speech or expression - Limitations on - Regulation of anti-abortion activities - The two accused were found guilty under the Access to Abortion Services Act (B.C.) with sidewalk interference while in an access zone, and with protesting while in an access zone, contrary to ss. 2(1)(a) and 2(1)(b) of the Act, respectively - On appeal to the Court of Appeal, the Crown conceded that the provisions violated freedom of expression under s. 2(b) of the Charter - The British Columbia Court of Appeal held that the provisions were saved by s. 1 of the Charter - The limits were prescribed by law and met the criteria established by the Oakes test (1986, SCC) - The objective of equal access to abortion services, enhanced privacy and dignity for women making use of the services and improved climate and security for service providers, was a sufficiently important objective; the measures were not arbitrary, unfair, or based on irrational considerations; and there was minimal interference with the constitutionally protected right - See paragraphs 29 to 91.

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Void for vagueness doctrine - The two accused were found guilty under the Access to Abortion Services Act (B.C.) with sidewalk interference while in an access zone, and with protesting while in an access zone, contrary to ss. 2(1)(a) and 2(1)(b) of the Act, respectively - On appeal to the Court of Appeal, the Crown conceded that the provisions violated freedom of expression under s. 2(b) of the Charter - At issue was whether they were saved by s. 1 of the Charter - One intervenor argued that the Act was so lacking in an intelligible standard for deciding when and whether to establish an access zone, that it failed to provide the guidance necessary to enable legal debate as to its justification (i.e., "vagueness" argument) - The British Columbia Court of Appeal questioned whether the Act's empowering section could be challenged on the basis that it was vague, given the historic common law principles that limited the exercise of governmental discretion - In any event, the Act gave the Lieutenant Governor in Council the authority to establish access zones by regulation and vary their size - However, the Lieutenant Governor in Council was not given an arbitrary and unlimited power to do so - The discretion was quite limited, controlled by the Act's purpose (found in the preamble) and those sections limiting the zones' size and location - See paragraphs 34 to 40.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 1842.5 and Civil Rights - Topic 3107 ].

Cases Noticed:

R. v. Lewis (M.) et al., [1996] B.C.T.C. Uned. F26; 24 B.C.L.R.(3d) 247 (S.C.), refd to. [para. 14].

Irwin Toy Ltd. v. Quebec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 24].

R. v. Guignard (R.), [2002] 1 S.C.R. 472; 282 N.R. 365, refd to. [para. 25].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, appld. [para. 29].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 35].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 38].

Ontario (Minister of Transportation) v. Miracle et al. (2005), 194 O.A.C. 133; 74 O.R.(3d) 161 (C.A.), refd to. [para. 39].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 45].

R. v. Lewis (M.) et al. (1996), 18 B.C.L.R.(3d) 218 (Prov. Ct.), refd to. [para. 58].

R. v. Morgentaler, [1993] 3 S.C.R. 463; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, refd to. [para. 67].

Hill v. Colorado (2000), 530 U.S. 703 (S.C.), agreed with [para. 80].

Ontario (Attorney General) v. Dielemen (1994), 117 D.L.R.(4th) 449 (Ont. Gen. Div.), refd to. [para. 82].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 87].

Statutes Noticed:

Access to Abortion Services Act, R.S.B.C. 1996, c. 1, sect. 2(1)(a), sect. 2(1)(b) [para. 8].

Authors and Works Noticed:

British Columbia, Hansard, Debates of the Legislative Assembly (June 2, 1995), pp. 15977, 15978 [para. 68].

Counsel:

R. McDonald and S. Stenbeck, for the appellant, Donald David Spratt;

G.R. Watson, acting on his own behalf;

R.F. Cutler and L.J. Mrozinski, for the respondent, Her Majesty the Queen, Ministry of the Attorney General of British Columbia;

P.A. Fleming, for the intervenors, Canadian Nurses for Life;

J. Owen, for the intervenors, Canadian Religious Freedom Alliance;

N. Iyer, for the intervenors, Access Coalition;

M.D. Andrews, Q.C., and J. Francis, for the intervenors, B.C. Civil Liberties Association.

These appeals were heard on September 13 and 14, 2007, by Rowles, Ryan and Low, JJ.A., of the British Columbia Court of Appeal. Ryan, J.A., delivered the following reasons for the court on September 4, 2008.