In January 2014, we reported on a decision of the Alberta Provincial Court acquitting on criminal charges of trespass eight members of an anti-abortion organization engaged in demonstrations in the Calgary Airport in 2011. The protesters had reasonably believed they were permitted to demonstrate on Airport premises given a 1991 decision of the Supreme Court of Canada (Committee for the Commonwealth of Canada v. Canada) which concluded that prohibiting the distribution of political pamphlets at an airport violated freedom of expression under the Canadian Charter of Rights and Freedoms.
It had been argued that the circumstances were distinguishable from the Committee case, as major Canadian airports at the time were run by the federal government, while they are presently run by private, non-profit corporations on leased federal land. However, the court concluded that given the “substantial” government control exercised over the Authority, it was “part of government” for the purposes of the Charter, and the issuance of trespass notices to protesters had therefore infringed their freedom of expression.
This did not end the issue. The Authority filed a civil action against the protesters seeking damages and an injunction against further demonstrations. The Authority argued that as a private landholder, the Charter does not apply to it, and it can rely on the law of trespass to remove protesters without infringing their freedom of expression. It alleged that the protesters were impeding the flow of pedestrian traffic in the Airport; exhibiting graphic photographs that were disturbing and upsetting; and engaging passersby in an unwanted fashion. The protesters denied these allegations, and indicated that they stood in wide open, public areas, and acted in a polite and respectful manner.
The Authority applied for an interim injunction against further demonstrations pending the outcome of the litigation. On the injunction application, the court was required to consider: (1) whether there was a serious question to be tried; (2) whether the Airport Authority would suffer irreparable harm if the injunction were not granted; and (3) which of the parties was favoured by a balance of convenience test.
The court accepted that irreparable harm will be presumed where property rights are violated. Thus, the primary issue was whether the first prong of the test was met, which is a low threshold. The court concluded that the serious question to be tried in the case was whether the protesters were trespassing at the Airport, or whether they had a right to be there to exercise their freedom of expression protected by the Charter, and if so, the nature and extent of that right. Although the issue of whether the protesters had trespassed had been addressed at criminal trial, the court found that it was not prohibited from considering this issue in the context of a civil action. There were sufficient differences between the two, including that there were three demonstrations at issue in the civil action compared with only one in the criminal proceeding, the civil action also sought injunctive relief against future protests, and the Airport Authority had not been a party to the criminal proceedings.
On the issue of irreparable harm under the second prong of the test, the Authority submitted evidence from its Director of Operations that the protesters were disturbing and hindering persons in the terminal, their demonstrations elicited an emotional response, which created a risk of confrontation, and members of the public had commented that they believed the Airport was responsible for the protests. In contrast, the protesters argued that the ability of the Authority to operate the Airport and provide services had not been harmed or affected by their peaceful expression in public areas. The court was not convinced, however, that simply because the core functions of the airport were being maintained, there was no irreparable harm. It accepted the evidence of the Authority that there was interference with passenger flow, a safety risk, and damage to the Authority’s reputation.
On the third prong, the balance of convenience, the court favored the Airport Authority. The judge’s finding in this regard was reinforced by his view that the protesters had the ability to demonstrate their views through other means, albeit not with the same “arguably captive” audience. The court therefore granted an injunction prohibiting the protesters from demonstrating on the Airport premises, to remain in effect until a further order of the court.
As with the criminal proceedings, this does not end the issue. The court has yet to finally determine the matter, which will be done following further argument at a later date. Stay tuned for further updates.
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