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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