 
June 28, 1993
The Honourable Marion Boyd Dear Madam: This is to express the concerns of the Canadian Civil Liberties Association over the government's attempt to secure an injunction against some of the "pro-life" picketing in this province. We are very sympathetic with much of what the government is attempting to achieve with this injunction. According to media reports, many of the pickets have engaged in a level of physical obstruction, threats, and harassment that is clearly unacceptable. An exacerbating factor is that the targets of this abusive behaviour have often been pregnant women seeking medical services. In our view, such behaviour ought to be curbed. It is questionable, however, whether the government should be taking the unusual step of applying for civil remedies in a dispute among citizens. Such remedies are normally sought by those who feel aggrieved, not by government on their behalf. If crimes are being committed, the traditional role of government is to prosecute. Significantly, the allegations against the defendants include a host of criminal offences. Among other things, a number of the defendants are accused of having "persistently counselled or committed acts of assault, mischief, intimidation, vandalism, or unlawful interference with persons or property". Offences of such a nature committed against those seeking medical services deserve to be vigorously prosecuted. It appears from our inquiries that this has not happened. Yet, if the government had adopted such a policy, perhaps the objectionable behaviour at issue might have been brought under more effective control. Injunctions, however, are particularly contentious instruments. The virtue of prosecution is the panoply of safeguards available to those who are accused, including statutory defences and Charter protections. Unfortunately, such safeguards are not as available in injunction proceedings. Affidavits generally displace oral testimony; statutory defences may not necessarily apply; and, since the courts have ruled that such judicial decisions are not acts of "government" and are therefore immune from the Charter, important rights of free speech and assembly can more readily be infringed. Furthermore, the injunction tends to cast too wide a net. It operates not simply against people who have committed wrongs in the past, but against those who might do so in the future; not simply against those who are named in the injunction who can come to court and defend themselves, but against those who may act merely with knowledge of the injunction's existence. Defendants are not simply subject to a fixed penalty, as in criminal cases, or a calculable amount of damages, as in most civil cases. Rather, they are subject to the vastly enhanced contempt powers of the court to fine and jail them. Such excesses have materialized often during our century of unhappy experience with labour injunctions. As a consequence of that experience, Ontario law now provides that, before an injunction may be obtained in a labour dispute, there must be convincing evidence that, without it, the police will not be able to protect the public peace and the rights of the parties. In our view, there is no reason why the standard should be any different in other picketing disputes. Accordingly, the Canadian Civil Liberties Association urges the Attorney General to curb the improprieties at issue here primarily by way of criminal prosecutions rather than by way of civil injunction. Only in those circumstances where law enforcement proves inadequate to the task, should there be any consideration of injunctive relief. Indeed, as a matter of policy, the government should undertake to make such proof a prerequisite of any injunction application. Even at that, it would be important to ensure that the terms of any such injunction did not exceed what was necessary to achieve the government's legitimate objectives. For such purposes, there can be no objection, from the standpoint of civil liberties, to the imposition of restrictions on activity that is clearly unlawful such as assaulting, impeding, obstructing, blocking, and threatening. Unfortunately, the terms of the proposed injunction in this case are so broad that they could arguably prohibit even silent, peaceful, informational picketing within easy view of the impugned abortion clinics. A restriction against physical obstruction is one thing; a ban on informational picketing is another thing entirely. In this regard, it is significant to note that the government's proposed prohibition against "watching and besetting" does not even explicitly include the safeguards for informational picketing contained in the Criminal Code. Nor are we consoled by the possibility that such informational picketing could arguably be conducted beyond 500 feet from the targeted premises. To keep the pickets that far away is effectively to require binoculars for the receipt of their messages. Moreover, while such a re-location of the pickets may indeed protect clinic staff and patients, it may also have the undesired effect of embroiling neutral neighbours in the dispute. In any event, a viable freedom of expression deserves greater solicitude than this. Another contentious provision of this injunction would prohibit "insulting, abusive or defamatory language or gestures .... within 500 feet" of the targeted premises. So long as "insulting" and "abusive" language falls short of threatening physical violence, it is not necessarily unlawful. Moreover, this provision also suffers from vagueness and incomprehensibility. At what point do unkind words become "insulting" or "abusive"? Imagine the impact of such a precedent on the picket lines of environmentalists, consumer boycotters, and aboriginal activists. The proposed prohibition against "defamatory" language is also defective. By and large, defamatory words are unlawful only in a civil sense. The problem with enjoining such language by injunction is the chilling effect that is created for the kind of polemics that the abortion conflict inevitably produces. To what extent, for example, are epithets such as "sinner" or "baby killer" defamatory? Such a measure might have posed less difficulty if the government had sought to curb a repetition of some particular expression that the pickets had already used. But to invoke the contempt power of the courts against allegedly defamatory language that has not yet been used, is to threaten people with jail for what they may say in the heat of controversy - a situation hardly compatible with a viable freedom of speech. Another term of the proposed injunction that requires examination is the one that would prohibit picketing the homes of clinic doctors and other staff members. In the interests of personal privacy, there is a compelling argument for immunizing residences from the kind of conflicts that must be allowed elsewhere in society. But, even if such an immunity could be justified, it is not clear how far it should extend. To what extent, for example, should intransigent employers, slum landlords, and racist proprietors be able to claim such a haven? What difference, if any, would it make if a residence were used, even partially, as a base of operations? Suppose a residence were the only practical place at which non-violent pressure could be exerted against some contentious behaviour? It is obvious that the balance to be struck is difficult to discern. In any event, it is our view that the courts are not the appropriate institution for making decisions of such magnitude. If there is to be an official sanctuary against freedom of expression in our society, the elected legislators, not the appointed judges, should be the ones who attempt to strike the appropriate balance. Accordingly, the Canadian Civil Liberties Association recommends that the Attorney General adopt the following course of action: (1) Curb the misconduct of the anti-abortion pickets primarily by way of criminal prosecutions rather than by way of civil injunction. (2) Only in those circumstances where law enforcement proves inadequate to the task, should there be any question of injunctive relief. (3) To whatever extent injunctive relief is sought, ensure that peaceful, non-obstructive picketing can be conducted within easy view - i.e. within 500 feet - of the impugned abortion clinics and delete the prohibition against "insulting, abusive or defamatory language or gestures". (4) Unless legislation is enacted authorizing restrictions on the picketing of homes, there should be no injunctions against all peaceful, non-obstructive picketing at such places. Finally, it is worth re-stating our commitment to ensuring that clinic staff and patients are fully protected in the exercise of their lawful rights. But those rights were won, in the very recent past, largely because the "pro-choice" movement was able to exercise a vigorous right of free speech and assembly. These freedoms remain the best hope there is that fairness will prevail. That is why, in the first instance at least, we urge the adoption of the foregoing recommendations. To whatever extent it appeared evident that such an approach could not secure the peace of the community and the medical rights at issue, nothing would preclude the government from seeking a wider remedy at a later date. But the combination of the government's prosecutorial power and, if necessary, a narrow injunction of the kind indicated is very likely to achieve a fair balance of all the legitimate interests involved - those of patients, staff, pickets, and the community at large. For all of the foregoing reasons, we believe this approach should at least be tried in the current circumstances.
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