Free expression in Canada.
We need to apply the test outlined by McLachlin C.J.C. in Montréal (City) to determine whether the activites of Mr Bracken were compatible with the function of the Niagara Region Council Meetings or fell outside of the protective scope of section 2(b). The test set out by McLachlin C.J.C. asks “whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) is intended to serve, namely (1) democratic discourse, (2) truth finding and (3) self-fulfillment. To answer this question, the following factors should be considered: (a) the historical or actual function of the place; and (b) whether other aspects of the place suggest that expression within it would undermine the values underlying free expression (Montreal (City) at para 74).
The Niagara Region is public or government-owned property. Montreal states that the Charter will protect public property where the historical or actual function of the place is compatible with free expression. Based on Committee, the Niagara Region Council Meetings attracts Charter protection, because it is the type of place that has traditionally served as a public forum. Niagara Region Council Meetings allow members of the community to meet, congregate, and to talk politics and ask quesitons to their elected representatives.
1. Irwin Toy Ltd. v. Quebec
The leading case on freedom of expression is Irwin Toy Ltd. v. Quebec (Attorney General) in which the Supreme Court of Canada outlined the steps to be undertaken in analysing an allegation that Government's conduct infringed freedom of expression.
a.) The first step was to determine whether the appellant's activity fell within the protected sphere of expression. Expression is not restricted to words, oral or written, but encompasses myriad forms of communication as long as the activity conveys or attempts to convey a meaning. The Charter guarantees freedom of expression, not merely freedom of speech.
It is the conveying or the attempted conveying of the meaning, not its receipt, that triggers the guarantee under paragraph 2(b).
b.) The next step in the analysis under Irwin Toy was to determine whether there are any special circumstances which would warrant removing that expression from the protected sphere under paragraph 2(b).
One of the circumstances in which freedom of expression may be limited is when that expression takes place in the "public forum." The "public forum" doctrine, which has been developed by the American courts in addressing the issue of freedom of expression on government-owned property, recognizes that there must be a balancing of competing interests: the interests of the Government in the effective operation of the property it owns and the interests of the individual wishing to express himself. The freedom of the individual to communicate in a public place must be compatible with the principal purpose of that place.
The purposes underlying our constitutional protection of free expression were defined in Irwin Toy as: the seeking and obtaining of truth; participation in social and political decision-making; and the encouragement of diversity in forms of individual self-fulfilment and human flourishing by cultivating a tolerant, welcoming environment for the conveyance and reception of ideas.
On the other hand, where the Government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression but the effect may be to do so. In showing that the effect of the Government's action was to restrict freedom of expression so as to amount to an infringement of that freedom, the claimant must show his or her activity promotes at least one of the three principles underlying freedom of expression, outlined above.
In order to claim protection of 2(b) and prove an infringement, a claimant must establish a link between his use of the forum in question and at least one of these three purposes listed above.
2. 2(b) Violation
According to Irwin Toy, once the claimant has established that the activity in question is expressive, the next step in determining whether there has been an infringement of paragraph 2(b) is to determine whether the purpose or effect of the impugned governmental conduct was to control the claimant's attempt to convey meaning. If the Government's purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, that would necessarily infringe freedom of expression. On the other hand, where the Government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression but the effect may be to do so. In showing that the effect of the Government's action was to restrict freedom of expression so as to amount to an infringement of that freedom, the claimant must show his or her activity promotes at least one of the three
principles underlying freedom of expression, outlined above.(The purposes underlying our constitutional protection of free expression were defined in Irwin Toy as: (1) the seeking and obtaining of truth; (2) participation in social and political decision-making; and (3) the encouragement of diversity in forms of individual self-fulfilment and human flourishing by cultivating a tolerant, welcoming environment for the conveyance and reception of ideas)
3. Section 1 - Canadian Charter
To rely on s. 1, the Crown must demonstrate that the limitation is (1.) prescribed by law; (2.) reasonable; and (3). demonstrably justified in a free and democratic society.
a) (a) Prescribed by Law
In R. VS. Dersch , Mr. Justice Major wrote:
Since the respondent has failed to demonstrate that there is any basis under statute or the common law for the conduct of the police in this appeal, that conduct cannot be said to be "prescribed by law" within the meaning of s. 1.
b) Reasonable Limit
The basic framework for the section 1 analysis remains that set out by the Supreme Court of Canada in R. v. Oakes.
To demonstrate that a limit on a Charter freedom is reasonable and demonstrably justified in a free and democratic society, the party seeking to uphold the limitation must satisfy two requirements.
First, it must be established that the objective which the limitation is designed to promote is "of sufficient importance to warrant overriding a constitutionally protected right or freedom."
If this requirement is met, the second requirement involves a proportionality test. The proportionality test includes three components.
a.) First, the measure limiting the Charter right must be rationally connected to the intended objective. In other words, the measure must be carefully designed to achieve its objective without being arbitrary, unfair, or based on irrational considerations.
b.) Second, the limiting measures must impair the Charter right as little as possible. This condition has been modified by decisions subsequent to Oakes R. v. Edwards Books and Art Ltd.,  2 S.C.R. 713; Irwin Toy, supra; McKinney v. University of Guelph,  3 S.C.R. 229; R. v. Chaulk,  3 S.C.R. 1303; Commonwealth of Canada, supra; and R. v. Wholesale Travel Group Inc.,  3 S.C.R. 154. wherein the Court has looked, instead, at whether Parliament could "reasonably have chosen an alternative means which would have achieved the identified objective as effectively" as the means actually chosen.
The issue of when the modified version of the minimal impairment branch of the proportionality test is applicable and when, or if, the conventional Oakes version should be relied upon has not yet been settled3, See McKinney, supra, at pp. 398-405; Chaulk, supra, at pp. 1388-1393; Wholesale Travel Group Inc., supra, at p. 257. although it appears from the two recent Supreme Court decisions that in a "public forum" case, the modified approach can be used, Commonwealth of Canada, supra, at pp. 219-222 and 246-249; and Ramsden, supra, at p. 1105.
c.) Third, the effects of the measures must be proportional to the significance of the objective which is to be achieved.
Even if an objective is pressing and substantial, it should not override a Charter right if the effect of the means used to accomplish that objective severely compromises an individual's rights. A provision limiting a Charter right that fails to satisfy any one of these criteria will not be justified under section 1.
Certain cases hold that limitations on rights cannot be left to the unfettered discretion of administrative bodies. Vagueness is often a fatal feature of such legislative schemes.