In 1995, the British Columbia Legislature enacted the Access to Abortion Services Act (“Act”). The Act, in general terms, creates access zones, colloquially called “bubble zones”, around the homes and offices of doctors who provide abortion services and permits the establishment of access zones around facilities at which abortions are performed and the residences of persons who facilitate the provision of abortion services. Such an access zone was created, by Regulation, around the Everywoman’s Health Centre in Vancouver, British Columbia. Under the Act, all protest activity within an access zone is prohibited. In September 1995, charges were laid against Maurice Lewis for protesting against abortion and engaging in sidewalk interference within the Everywoman’s Health Centre access zone contrary to the Act. In January 1996, the charges were dismissed by the Provincial Court of British Columbia, Vancouver, on the basis that the two subsections of the Act under which Mr. Lewis was charged, which prohibit protest and sidewalk interference activities, were contrary to section 2 of the Canadian Charter of Rights and Freedoms (“Charter”). The Crown appealed the trial decision.
All of the parties acknowledged that the provisions of the Act infringe upon freedom of expression guaranteed under section 2 of the Charter. Justice Saunders concluded that: “that both freedom of conscience and religion and freedom of expression are infringed by the impugned provisions of the Act”. However, the central issue in the case was whether the infringement of freedom of expression by the Act is reasonably justified in a free and democratic society and therefore, saved by section 1 of the Charter. A coalition including West Coast LEAF, the Elizabeth Bagshaw Society, Every Woman’s Health Centre Society (1988), the B.C. Women’s C.A.R.E. Program, and the B.C. Coalition for Abortion Clinics (“Clinic Coalition”) was granted leave to intervene in the case.
The Clinic Coalition argued that the Act had been carefully tailored to address an issue of profound importance. “In a society which mandates respect for women’s reproductive choices, the Act represents a vital legislative recognition that such choices cannot be real and meaningful without ensuring reasonably secure access to related medical and health services.” The Clinic Coalition also argued that the case required a judicial balancing of the Respondent’s fundamental freedoms as guaranteed by the Charter and the underlying constitutional values of equality, dignity and privacy.
Justice Saunders concluded: “Health care has fundamental value in our society. A woman’s right to access health care without unnecessary loss of privacy and dignity is no more than the right of every Canadian to access health care.” The appeal was allowed “because the objective of the Act outweighed the infringement of section 2 of the Charter and is demonstrably justified in a free and democratic society”.
Please find the Clinic Coalition’s Factum here.