Sunday, 22 February 2009

Closing our borders to free speech

Closing our borders to free speech

Is the gov’t banning picketing on public property?

Bill 43 was introduced in the fall session by the Saskatchewan Party government. ‘The Trespass to Property Act’ will make trespassing an offence in the province of Saskatchewan. Saskatchewan currently has no anti-trespassing law.

Those found guilty of trespassing under the Act could be arrested by the police and fined up to $2000.

If Bill 43 passes, it will be an offense to be on any “premises” without the consent of the owner. Not only that, the onus will be on the accused to prove that he or she has the consent of the owner to be there.

So why did the government introduce this bill? Justice critic Frank Quennel has asked in the legislature for the rationale behind the bill, but so far no answers have been given.

Some people have suggested that trespassing in farmers’ fields is a problem, for example snowmobilers who cause damage to private property.

Others suggest that owners of strip malls are tired of non-customers loitering in their parking lots.

For these reasons, one might conclude that a ban on trespassing on private property is sensible.

But what about public property?

Bill 43 defines “premises” as “any land or water in the province”. The Act does not apply to vacant Crown agricultural land, Crown resource land, or provincial parks. But what about public space like sidewalks, roadways, highways, and all other publicly owned land? They are not mentioned as exceptions.

Typically union members use public sidewalks, highways, and other common areas such as the steps of the legislature to hold rallies and demonstrations. Could workers be found in violation of bill 43 and subject to stiff fines?

Of course it’s not just the labour movement who hold protests. Farmers’ organizations hold public rallies. And how about anti-poverty organizations and gay pride marches?

People from the left and the right hold pickets on public property. And while not everyone agrees with every political statement, in a democracy, we support one another’s freedom to express ourselves.

Every citizen is guaranteed the freedom of expression under the Charter of Rights and Freedoms. Did the Saskatchewan Party government intend to create a law that violates a fundamental Charter right?

If there really is a need for the province to ban trespassing on private property, it would be simple to fix the wording of bill 43. Exempt public property from the definition of “premises”. This amendment would reassure citizens that the right to peacefully picket, rally, protest or demonstrate will remain intact.

Bill 43 has passed second reading and expected to come back to the legislature in March.

Source article in PDF format here....


Greg Fingas said...

One point of clarification: the bill makes it an offence to be on any premises without the consent of the owner only if those premises are "enclosed lands", or if the owner posts or gives a notice stating that trespassing in general (or for the purposes of a particular activity) is prohibited.

Which means that for the most part, protests would still be entirely legal on public sidewalks or highways. That is, at least until somebody posted a "no picketing" sign - and there's certainly a serious issue about the ease with which the government would be able to do that in response to a protest.

Larry Hubich said...

Hi Jurist,

Thank you for your perspective on this piece of legislation.

The act describes "trespass" as to enter in or on a premises. Premises is defined as follows:

“premises” means lands or structures and includes the following:
(i) water;
(ii) ships and vessels;
(iii) trailers and portable structures designed or used for a residence, business or shelter;
(iv) trains, railway cars, vehicles and aircraft, except while in operation.

It then exempts certain types of Crown land, but not sidewalks, streets, or for that matter the grounds of the legislature. The exempted land is very narrow in scope:

Crown land
15 This Act does not apply to the following:
(a) vacant Crown agricultural land;
(b) Crown resource land;
(c) park land as defined in The Parks Act;
(d) any other Crown land or any category of other Crown land that is prescribed in the regulations.

You will also notice that certain individuals are exempt while in the act of carrying out duties primarily associated with their specialized occupations.

There is no provision to acknowledge Charter Rights to Freedom of Expression and Freedom of Assembly.

I have had this Bill examined by no less than 6 separate lawyers, and all of them share the concerns raised in the article posted here.

Again, thank you for participating in this blog.

Greg Fingas said...

Larry: Agreed that the geographic scope is extremely broad. But what's missing from that analysis is the scope of a trespass under s. 3.

Sections 3(1)(a) and 3(1)(b) refer only to activites prohibited by the Act, while the balance of the subsections refer to activities after the person has received notice from the occupier. In turn, the scope of activities prohibited under the Act is defined by section 4:

4(1) For the purposes of clause 3(1)(a), entry in or on premises is prohibited if any person:

(a) enters in or in premises that are the property of another person when a notice respecting the premises is goven in accordance with section 11; or

(b) enters in or on enclosed lands that are the property of another person.

(2) For the purposes of clause 3(1)(b), an activity is prohibited if it is an activity for which notice respecting the premises is given in accordance with section 11.

So all of the prohibitions do ultimately come down to either notice from the occupier or the existence of "enclosed lands".

Which isn't to say there aren't serious concerns about the bill - and it may be that there's a need to both limit the geographic scope and deal with the notice provisions in greater detail.

Larry Hubich said...

Hi Jurist,

Thank you for those additional points and comments. I do believe that the legislation can be corrected to remove any "unintended consequences". I just find it difficult to accept that the provincial government is "innocently" so sloppy as to continually construct legislation that clearly assaults the Charter Rights of the province's citizens.

You point out the following (my emphasis):

"So all of the prohibitions do ultimately come down to either notice from the occupier or the existence of "enclosed lands".

Section 11 is the "notice" provision. Which says, in part:

"11(1) A notice pursuant to this Act may be given:
(a) orally or in writing;......."

I would suggest that "orally" is the operative word.

This legislation gives sweeping power and authority to police, rent-a-cops, bosses. The definition of occupier is extremely broad, and police are given extraordinary authority under Sections 5 and 6.

Have you ever been on a picket line, or at a rally or demonstration? I have attended these types of events numerous times. Inevitably, someone attached to the organization, or a cop, or some security guard will say, "I want you to leave the property", or "Get off my sidewalk", or "Your picket line is obstructing this entrance". You name it.

To refuse would violate the Act.

Further, Section 3(2) assumes the the alleged trespasser is guilty until proven innocent:

".......the onus rests on the defendant to prove, on a balance of probabilities, that he or she had the consent of the occupier to enter in or on the premises or to engage in the activity in or on the premises."

Under this legislation a whole series of serious questions arise. I'm 54 years old, and I have lived in this province all of my life. I have never seen such actions by a government that are so blatantly aimed at systematically destroying the constitutional rights of certain of it's citizens.

I don't believe this is accidental nor an innocent oversight. It's deliberate.

Thanks again.

Greg Fingas said...

Agreed that those are major issues with the bill, and also ones which likely reflect the Wall government's intentions. Which is exactly why I'd think it's the nature and effect of notice which are the points most in need of discussion, rather than focusing on carving out certain types of property while allowing draconian principles to apply everywhere else. (Designated protest zones, anybody?)

myworld said...

I read it as part of something that has been done before in other parts of the world, in different times of history.
I read it as a slow dismantling of democracy.
The blueprint is predictive.
There are 10 classic steps.