R. v. Breeden: Just How Much Can Someone Complain At City Hall?

By
James Yardley
Barrister & Solicitor
jgy@murdymcallister.com
November 9, 2009

In R v. Breeden (2009 BCCA 463), the B.C. Court of Appeal provided further guidance on the extent to which members of the public may express their opinions and beliefs while protesting on local government property.  Mr. Breeden had been terminated in 2000 as a municipal firefighter after which he became involved in several disputes which, the Court suggested, led him to believe there was corruption among unions and governments.  Mr. Breeden then attended at a courthouse, the foyer of a municipal hall, and the reception area of a fire station while wearing signboards suggesting corruption or misconduct by unions and governments.  He was convicted under the Trespass Act, which provides that a person commits an offence if he fails to leave premises after being asked to do so, or re-enters premises after being asked to leave.

There was evidence that employees at the premises felt threatened by Mr. Breeden’s activities, and that he was told he could protest outside the premises but did not do so.  Mr. Breeden argued that the requests to leave the premises infringed his rights under section 2(b) of the Charter of Rights and Freedoms (the “Charter”), which provides that everyone has freedom of expression, and that this was a defence to the charges.  At trial it was held that Mr. Breeden’s activities were not protected by section 2(b) because the locations of the protests were not “public forums”.  While the courthouse and municipal hall had areas set aside for public activities (the courtrooms and Council chambers), they were only available for defined purposes during specific times.  The trial judge concluded that it would be “anathema to the orderly conduct of the public business” to “require them to submit to indiscriminate use of their public areas for free expression of political or personal views”.  The trial judge also concluded that the locations did not have “a historical, or actual, function as a forum for public expression”.

The Court of Appeal found that a “key feature” of the case was a lack of evidence that the locations where Mr. Breeden protested were “forums for advertising . . . or places of debate”, and concluded that what Mr. Breeden was seeking was “wholly at odds” with the functions of the spaces.  The Court also concluded that the protests by Mr. Breeden in the relatively confined locations in issue produced a “captive audience” of staff members and the public who were forced to listen to his message, and that this undermined and was inconsistent with the rights protected by the Charter. 

The decision in Breeden is noteworthy for the restrictive approach taken by the Court when considering the historical and functional use of government property to determine the extent of expression permitted in it by the public.  It does not support a conclusion that expression by the public within government premises is not protected by the Charter in every instance; instead, permissible expression will be determined in large measure by the nature and historical use of the specific space in question, and the manner in which the expression occurs.  The decision is also interesting for being a relatively rare instance where an alleged infringement of freedom of expression rights under the Charter was resolved without requiring justification by government under section 1 of the Charter, which permits reasonable limits on Charter rights if they “are demonstrably justified in a free and democratic society”.