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
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
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
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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guide to the subject matter. Specialist advice should be sought
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