This case concerned the constitutionality of “bubble zones” – areas around the homes and offices of doctors who provide abortion services where anti-abortion protest activity is not allowed.
LEAF intervened before the British Columbia Court of Appeal, in coalition with:
- The Elizabeth Bagshaw Society
- Everywoman’s Health Centre Society
- The B.C. Pro-Choice Action Network Society
- The C.A.R.E. Program
Facts
In 1995, the British Columbia Legislature enacted the Access to Abortion Services Act (the Act). This created “bubble zones” around the homes and offices of doctors who provided abortion services in which anti-abortion protest activity was not permitted.
James Demers was charged for protesting and engaging in sidewalk interference in a bubble zone. He was convicted, and his summary conviction appeal was dismissed. He appealed to the British Columbia Court of Appeal, arguing that the Act violated his right to freedom of expression s. 2(b) of the Charter. He also argued that fetuses had rights under s. 7 of the Charter and that, because his protest was to protect the right to life of fetuses, the Act was unconstitutional.
Arguments
The Coalition argued that the Court did not need to consider the constitutional status of fetuses, as there was no connection between the Act – which prohibited expressing disapproval of abortion in certain zones – and any s. 7 rights held by fetuses.
The Coalition also argued that, if the Court found any rights violations, they were justified under s. 1 of the Charter. In a society which respected women’s reproductive choices, and in which abortion was a lawful medical service, the Act recognized that these choices could not be real and meaningful without ensuring reasonably secure access to related medical and health services. Overall, the provisions were a measured response to a pressing social issue, promoting underlying constitutional values and protecting a vulnerable group.
Outcome
The British Columbia Court of Appeal dismissed Mr. Demers’ appeal. The Court noted that any preference of the rights of fetuses over the rights of pregnant women was best left to the legislature to decide. The violation of Mr. Demers’ freedom of expression was justified under s. 1 of the Charter.
LEAF’s advocacy in this area did not end with this case. LEAF continued to defend the constitutionality of bubble zone legislation before the courts. For more information, see our intervention in R. v. Watson and R. v. Spratt.
LEAF is grateful to Nitya Iyer and Andrea Zwack, counsel in this case.
Download the factum here.
Read the British Columbia Court of Appeal’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].
