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By Meghan Maddigan
IN OUR society, the expression ‘living in a
bubble’ is usually applied to people who live oblivious to the world
around them, or are protected from outside influences. This notion has
taken on new meaning in light of a new ruling from the British Columbia
Court of Appeal (BCCA).
On September 4, the BCCA released its decision in the
case of R. v. Spratt, 2008 BCCA 340, known commonly as the ‘Bubble
Zone Case.’ Two gentlemen, Mr. Spratt and Mr. Watson, had been
convicted in December of 1998 of violating the B.C. Access to Abortion
Services Act by protesting within the ‘access zone.’
God’s forgiveness
Specifically, Mr. Spratt was carrying a large cross
with a sign saying ‘You Shall Not Murder,’ and speaking to
people about God’s forgiveness. Mr. Watson claims he was
presenting political and health issues, and was speaking to women and
nurses about the link between abortion and breast cancer.
The access zone in question, often called the
‘bubble zone,’ extends up to 50 metres from the boundary of the
property on which the clinic is located, and includes the public street and
sidewalk.
The BCCA acknowledged that the right to express
opposition to abortion is a constitutionally protected right, and the
legislation constituted an infringement upon that right – but
ultimately concluded that this violation was justified under Section 1 of
the Charter.
A number of groups were granted intervenor status in
this case, including: the Canadian Religious Freedom Alliance, a group
composed of – and supported by – a number of differing
religious groups; and a group called Canadian Nurses for Life. Both
these groups argued the legislation was not justified and that, at minimum,
peaceful sidewalk counselling and prayer vigils should be permitted.
The Canadian Nurses for Life argued:
“The right to freedom of expression must not be
relegated to times and places where it is of the least possible relevance
to those who have the greatest need for the information expressed.
“It is neither useful nor democratic to allow
freedom of speech ‘textbook’ discussion of alternatives to
abortion that do not have a practical impact on the users of abortion
services: i.e. those who are in crisis pregnancies and seeking assistance
at hospitals and clinics.
“This information must be available and freely
given at the times and places where those in need of such information to
make fully informed decisions are found.”
No one was arguing that violent or physical
interference during protests are in any way appropriate either inside or
outside of the bubble zone. The problem is that the Act goes further
by prohibiting sidewalk interference and protest.
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‘Disapproval’
Protest includes “any act of disapproval or
attempted act of disapproval,” including “verbal or written
means.” Further, “sidewalk interference” is defined
as:
(a) advising or persuading, or attempting to advise or
persuade, a person to refrain from making use of abortion services; or
(b) informing or attempting to inform a person
concerning issues related to abortion services by any means –
including, without limitation, graphic, verbal or written means.
This is the essence: it is illegal to peacefully
“disapprove,” “inform” or “persuade.”
This challenges everything we understand to be necessary to true
freedom of expression.
The Supreme Court of Canada has recognized the
importance of informed and rational discourse for one group of citizens;
and yet the BCCA has not extended that same importance to the case of those
against abortions. As a free and democratic country, those issues
which are the most difficult are those that merit the most informed and
open discussion. It is meaningless to give a group a voice, and then
place them outside the sphere of being heard.
And what does it mean for those inside the bubble?
It means society has constructed a zone around them where they are
not deemed capable of dealing with contrary information. There is a
principle in law which says consent is only valid if it is informed.
The same can be said for choice.
Have the courts eroded the rights of both those making
a choice and those seeking to provide information to them? If so,
how informed or free can that choice be?
Meghan Maddigan is an Abbotsford lawyer.
October 2008
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