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T-1120-84
Comité pour la République du Canada—Commit- tee for the Commonwealth of Canada, François Lépine, Christiane Deland and Parti de la Répu- blique du Canada (Plaintiffs)
v.
Her Majesty in Right of Canada (Defendant)
Trial Division, Dubé J.—Montreal, December 10, 1985; Ottawa, January 6, 1986.
Constitutional law — Charter of Rights — Fundamental freedoms — Freedom of expression — Action for declaration public areas at Montreal International Airport constituting public forum where fundamental freedoms exercised — Air port management preventing plaintiffs from distributing political pamphlets and carrying placards — Airport policy prohibiting public activities whether political, religious or otherwise — Sale of poppies by veterans only exception — Plaintiffs relying on freedom of opinion and expression guar anteed by Charter — Declaration granted — No Canadian case law on point — American courts applying First and Fourteenth Amendments to airport terminals and protecting right of free expression therein — Public terminal concourses in Canadian airports contemporary extensions of streets and public places of yesterday — Absolute prohibition contrary to Charter — Freedom of expression in public forum not unli mited — Airport security and efficiency could be maintained by appropriate regulations — Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 2 — U.S. Const., Amends I, XIV.
Transportation — Airports — Montreal International Air port authorities prohibiting all public activities, whether political, religious or otherwise, except sale of poppies by veterans, in public areas — Government Airport Concession Operations Regulations, prohibiting unauthorized advertising or soliciting, applying to operation of taxis and like activities — Absolute prohibition contravening Charter guarantee of freedom of expression — Freedom not unlimited and airport security and efficiency maintainable by appropriate regula tions — Department of Transport Act, R.S.C. 1970, c. T-15 Government Airport Concession Operations Regulations, SOR/79-373, s. 7.
This is an action for a declaration that the public areas at Montreal International Airport constitute a public forum where fundamental freedoms can be exercised. The plaintiffs, Lépine and Deland, were prevented from disseminating their political ideas by carrying placards and distributing pamphlets at the airport. Management has prohibited all public activities,
whether political, religious or otherwise, with the exception of the sale of poppies by veterans. The defendant alleges that the airport, which is the property of the Crown, is subject to the Government Airport Concession Operations Regulations, which prohibit unauthorized advertising or soliciting at an airport. The plaintiffs rely on section 1 of the Charter, which guarantees certain rights and freedoms subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Section 2 guarantees freedom of opinion and expression.
Held, the declaration is granted.
The Regulations deal with control over the operation of concessions at airports and apply to that type of activity, not to the right of persons to express their philosophies through direct communication with other persons who may be on the premises.
There is no Canadian case law dealing with the exercise of freedom of expression in such public places as airports. Ameri- can courts have, however, applied the First and Fourteenth Amendments to airport terminals and acted to protect the exercise of the right of free expression thereat. Although American cases are not binding; it would be preposterous to disregard the thoughtful considerations of American jurists who have applied the constitution of the United States of America to situations similar to ours. Public terminal con courses in Canadian airports have become extensions of the streets and public places of yesterday. They are "modern crossroads" for the intercourse of the travelling public. In principle, freedom of expression and communication ought not to be abridged in those public forums. The absolute prohibition imposed by the authorities upon the benign and innocuous activities of the plaintiffs flies in the face of the Charter.
Freedom of expression in a public forum is not unlimited. It may be circumscribed within reasonable limits for the general comfort and convenience of the travelling public. The authori ties may draw regulations so as to safeguard the well-being and security of the passengers as well as the efficiency of the transportation functions of an airport.
CASES JUDICIALLY CONSIDERED
APPLIED:
Hague v. Committee for Industrial Organization, 59 S.Ct. 954 (1939); Murdock v. Commonwealth of Penn- sylvania, 63 S.Ct. 870 (1943); Kuszynski v. City of Oakland By and Through Bd. of Port Com'rs, 479 F.2d 1130 (9th Cir. 1973); Chicago Area Military Project v. City of Chicago, 508 F.2d 921 (7th Cir. 1975); Interna tional Soc. for Krishna Consciousness of Western Penn- sylvania, Inc. v. Griffin, 437 F.Supp. 666 (W.D. Penn. 1977); International Society for Krishna Consciousness, Inc. v. Wolke, 453 F.Supp. 869 (E.D. Wisc. 1978); Rosen v. Port of Portland, 641 F.2d 1243 (9th Cir. 1981); Fernandes v. Limmer, 663 F.2d 619 (5th Cir. 1981); U.S. Southwest Africa/Namibra Trade & Cultural Council v. U.S., 708 F.2d 760 (D.C. Cir. 1983).
COUNSEL:
Gérard Guay for plaintiffs. Marie Nichols for defendant.
SOLICITORS:
Gérard Guay, Hull, Quebec, for plaintiffs.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
DuBÉ J.: By this action the Court is asked to declare that the areas open to the public at Mon- treal International Airport (Dorval) constitute a public forum where fundamental freedoms can be exercised.
The first plaintiff, the Committee for the Com monwealth of Canada, is a non-profit corporation established pursuant to the Canada Corporations Act.' The other two plaintiffs are leading members of the Committee. The last plaintiff, the Parti de la République du Canada, was duly registered in August 1984 (after the action at bar was filed) as a political party pursuant to the provisions of section 13 of the Canada Elections Act, 2 having nominated at least fifty candidates in the last federal election. At the request of counsel for the plaintiffs, the Parti pour la République du Canada was added as a plaintiff when the hearing of this matter began in Montreal on December 10, 1985.
The facts alleged in the statement of claim are not in dispute and can be very briefly stated. On March 22, 1984 the plaintiffs François Lépine and Christiane Deland went to the Dorval airport ter minal "to communicate to members of the public at that place, and discuss with them, the aims and objectives of the Committee". After being ques tioned by a constable on duty, the two plaintiffs subsequently met with the assistant-manager of the airport, who told them they had no right to engage in politics in the airport.
R.S.C. 1970, c. C-32.
2 R.S.C. 1970 (1st Supp.), c. 14.
The defendant, for her part, alleges that the airport in question is the property of Her Majesty the Queen in right of Canada, represented by the Minister of Transport, which is admitted. In par ticular, she refers to the Department of Transport Act,' which authorizes the Governor in Council to enact the regulations necessary to administer the airport, specifically the Government Airport Concession Operations Regulations, 4 and more precisely section 7, which prohibits anyone, with out written authorization from the Minister, from "advertis[ing] or solicit[ing] at an airport on his own behalf or on behalf of any person".
In my view these Regulations deal with the control over the operation of concessions at air ports and apply to that type of activity, not to the right of persons to express their philosophies or beliefs or their political ideas through direct com munication with other persons who may be on the premises.
In the case at bar, the two plaintiffs were not carrying on a business in the airport. They were trying to disseminate their political ideas. They were carrying placards and distributing pamphlets in the open area on the first floor of the airport, the level open to the public for the purchase of tickets and for awaiting departures. Their purpose was not to hold public meetings on the premises or to make speeches from a podium or with a loud-speaker.
It was established at the hearing that the Dorval airport management have always uniformly and impartially prohibited all public activities of the kind, whether political, religious or otherwise. The only exception to this prohibition, as mentioned at the hearing, is the sale of poppies by veterans each November.
In his testimony, the Dorval operations manager explained that about 20,000 passengers use the airport daily, often accompanied by other persons. There may be some 2,000 arrivals an hour. There are about 3,800 employees in the building. The total area of the first floor is 170,000 square feet and the public has access to some 63,000 square
3 R.S.C. 1970, c. T-15.
4 SOR/79-373.
feet. This floor also offers booths operated by airlines, shops, news-stands, drug stores, restau rants, hairdressing parlours, and so on, for the convenience and comfort of the travelling public. Space is distributed so as to expedite the move ment of air traffic. The public areas are thronged with people in peak periods. Passengers waiting to depart are already sufficiently nervous. It is not in their interests to allow solicitation, the manager said.
On the other hand, the plaintiff François Lépine has travelled by air to the U.S. and testified that political activities are allowed in major U.S. air ports. In particular, he recalled seeing there per sons sitting at a table located in the public area of an airport distributing leaflets with political post ers up on the wall.
Section 1 of the Canadian Charter of Rights and Freedoms 5 guarantees certain rights and free doms, subject only to such reasonable limits pre scribed by law as can be demonstrably justified in a free and democratic society. One of the funda mental freedoms guaranteed in section 2 is the freedom of opinion and expression, including free dom of the press and other media of communica tion.
I was quoted no Canadian jurisprudence (and I was not able to find any) either under the Charter or the Canadian Bill of Rights [R.S.C. 1970, Appendix III] dealing with the exercise of the freedom of expression in such public places as airports. American courts, however, have on sever al occasions applied the First and Fourteenth Amendments to U.S. airport terminals and acted to protect the exercise of the right of free expres sion therein.
In Hague v. Committee for Industrial Organization, 6 the U.S. Supreme Court held that the right peaceably to assemble and to discuss
'Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.).
6 59 S.Ct. 954 (1939).
national legislation and to communicate respecting it, whether orally or in writing, is a privilege inherent in citizenship which the Fourteenth Amendment protects. It was pointed out, however, that the privilege is but relative and must be exercised in subordination to the general comfort and convenience and in consonance with peace and good order, but it must not, in the guise of regula tion, be abridged or denied. The Court found that an ordinance requiring a permit for use of streets or parks for public assembly and enabling the director of safety to refuse such a permit on his mere opinion that such refusal will prevent riots, disturbances or disorderly assemblage, is unconsti tutional. It further stated [at page 964] that streets and parks "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and dis cussing public questions".
In Murdock v. Commonwealth of Pennsylvania,' the U.S. Supreme Court held that a state can prohibit the use of a street for the distribution of purely commercial leaflets but may not prohibit the distribution of handbills in pursuit of a clearly religious activity merely because the religious literature is sold by itinerant preachers rather than donated. It remarked [at page 874] that "the pamphlets of Thomas Paine were not distributed free of charge".
In Kuszynski v. City of Oakland By and Through Bd. of Port Com'rs, 8 the U.S. Court of Appeals (Ninth Circuit), held that an ordinance which provided that the use of an airport for the purpose of exercising the right of free expression and communication, including the distribution of literature, should not be allowed to interfere with the transportation function of the airport, placed undue limitations upon the dissemination of ideas in a public place and was invalid in the absence of evidence indicating the need for the restrictive provisions of the ordinance or the reasonableness
' 63 S.Ct. 870 (1943).
8 479 F.2d 1130 (9th Cir. 1973).
of them. The Court said that free speech in a public airport may be abridged only by regulations narrowly drawn to serve legitimate interests of the general public who use the airport. It held that, on its face, the instant ordinance was a violation of the First Amendment, unless the limitations are justified by the needs of the public place.
In Chicago Area Military Project v. City of Chicago, 9 the U.S. Court of Appeals (Seventh Circuit), held that the First and the Fourteenth Amendments were applicable to airports which are government-owned and that the public does not receive a limited invitation, (which would prohibit leafletting) to use a government-owned airport only for travel purposes. It noted that not all publicly owned facilities are available for every expression of free speech, but that an individual is not to have the exercise of his liberty of expression abridged in one place on the plea that it may be exercised in some other place. The Court granted an injunction against interference with the leafletting.
In International Soc. for Krishna Consciousness of Western Pennylvania, Inc. v. Griffin, 10 the U.S. District Court of W.D. Pennsylvania held that a non-profit religious organization has the right to distribute literature and solicit funds at an airport. It found that the prohibition of solicitation on holidays and during rush hours is patently unreasonable.
In International Society for Krishna Conscious ness, Inc. v. Wolke," a U.S. District Court, (E.D. Wisconsin), held that those areas of an airport terminal building at the county airport which were generally open to the public were, as a matter of law, a "public forum" for First Amendment pur poses. That did not mean that free speech activities there were protected absolutely. Reasonable time, place and manner may be regulated as necessary to further a significant governmental interest. The Court recognized [at page 874] that "Crowded
9 508 F.2d 921 (7th Cir. 1975).
10 437 F.Supp. 666 (W.D. Penn. 1977).
11 453 F.Supp. 869 (E.D. Wisc. 1978).
conditions may require restrictions to ensure the efficient operation of the airport. But these condi tions cannot support the sweeping prohibition of free speech implicit in finding that the airport is not a public forum."
In Rosen v. Port of Portland, 1 Z the U.S. Court of Appeals (Ninth Circuit) held that the distribu tion of literature is a form of communication protected by the First Amendment which is to be given full effect in the public areas of an airport terminal building. It found that any law which imposes a prior restraint upon the exercise of First Amendment rights comes to the Court with a heavy presumption against its constitutional validi ty. [At page 1243:1 "Any law that regulates or infringes upon the exercise of First Amendment rights must survive the most exacting scrutiny."
In Fernandes v. Limmer, 13 the U.S. Court of Appeals (Fifth Circuit), recognized [at page 626] that "It is now generally well established that airport terminals owned and administered by gov ernmental entities are public forums in which efforts to regulate speech or religious activity must comport with First Amendment guarantees". It applied several criteria to determine whether a particular place is a public forum and found that the interior of the terminals contains areas which are public forums. It pointed out [at page 626] that the fact "That the passageways are crowded and narrow does not defeat this conclusion; rather, such factors go [to] the reasonableness of the time, place, and manner [of the] restrictions imposed on persons exercising First Amendment rights in the forum". It concluded that in view of the lack of restrictions on entry by the general public, and the commercial street-like character of the terminal concourses, that the terminal buildings must be treated as public forums.
12 641 F.2d 1243 (9th Cir. 1981).
13 663 F.2d 619 (5th Cir. 1981).
In U.S. Southwest Africa/Namibra Trade & Cultural Council v. U.S., 14 the U.S. Court of Appeals (District of Columbia Circuit), said [at page 774] that in fact the public areas at National and Dulles Airports have become "contemporary crossroads in which millions of people each year engage in a considerable amount of commercial, social, and political interchange". It held [at page 774] that "In the absence of demonstrably com pelling, countervailing reasons, the government may not ban political advertisements from the display advertising areas" of those two airports. It noted [at page 774] that many people pass through these airport terminals with the hopes of soon witnessing the workings of the national capital and the symbols of this nation's principles: "It is only fitting that these people are presented with tan gible proof that the first amendment is operative and not simply on display in a glass case at the National Archives."
Obviously, I am not bound by those American decisions. But in the absence of any precedents in this area in Canada—as the Canadian Charter is still in its early infancy—it would be preposterous on my part to disregard the thoughtful consider ations of American jurists who, after all, have for years applied the U.S. Constitution to situations which are quite often very similar to ours.
Freedom of speech in Canada was imported along with the common law from the United King dom and so enshrined in the Confederation Act [Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1)]. The prov inces expressed therein their desire to be federally united into a Dominion "with a constitution simi lar in principle to that of the United Kingdom". A Dominion with a "government resting ultimately on public opinion reached by discussion and the interplay of ideas. If that discussion is placed
14 708 F.2d 760 (D.C. Cir. 1983).
under license, its basic condition is destroyed." 15
It seems plain and obvious to me that the public terminal concourses in our Canadian airports, as well as in American airports, have become contem porary extensions of the streets and public places of yesterday. They are indeed "modern cross roads" for the intercourse of the travelling public. In principle, freedom of expression and communi cation ought not to be abridged in those public forums. The absolute prohibition imposed by the Dorval authorities upon the rather benign and innocuous activities of the plaintiffs flies in the face of the Canadian Charter of Rights and Freedoms.
Of course, freedom of expression in a public forum is not unlimited. It may be circumscribed within reasonable limits for the general comfort and convenience of the travelling public. The proper authorities may draw regulations so as to safeguard the well-being and security of the pas sengers as well as the efficiency of the transporta tion functions of an airport. But the airport authorities may not impose a categorical interdic tion so as to smother the fundamental freedom of persons to peacefully disseminate their political, religious, or other beliefs in a public place.
For those reasons, the declaration sought by the plaintiffs is granted with costs.
15 See Rand J. in Saumur v. City of Quebec, [1953] 2 S.C.R. 299, at p. 330.
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