Facilities providing abortion services in Ontario will now be surrounded by a no-protest zone, intended to allow those who use them and those who provide services to enter and exit without interference or harassment.
The Safe Access to Abortion Services Act will come into effect on Feb. 1, banning anti-abortion protests within at least 50 metres of facilities providing abortion services. The buffer zone would begin at the boundaries of the property.
The law, which was passed Oct. 25, 2017, would prohibit advising a person to refrain from accessing abortion services, abortion-related protests and any activities that intimidate or physically interfere with those accessing services. There is an anti-harassment provision in the legislation that allows staff of abortion services providers to have a safe access zone of up to 150 metres around their homes, anywhere in Ontario.
In opposition to similar legislation elsewhere in the country, activists have argued these buffer-zone laws are a violation of a protester’s Charter rights by prohibiting them from expressing their views in a public space.
Those who violate the safe zone would be fined up to $5,000 and could see a six-month prison sentence, with up to $10,000 and a year in prison for multiple offences.
The conflict between the Charter rights of the protester and those seeking abortion services resulted in the BC Civil Liberties Association at first being against this type of legislation and then supporting it, says Micheal Vonn, policy director at the BCCLA.
“Originally, the BC civil liberties position was against the idea that there should be buffer zones and what changed our minds was the evidence,” she says. “We heard from people who had been on the front lines and were prepared to tell us what was happening in relation to barriers to access to those facilities and the evidence was overwhelming that women’s rights to access, their privacy and security was being imperilled.”
Ontario is the fourth province in Canada to enact this type of law. In 2016, Newfoundland and Labrador instituted the Access to Abortion Services Act. Quebec soon followed with a law of its own. B.C. was the first in the country to pass a safe access to abortion law, back in 1995.
The B.C. law came in the wake of the shooting of Vancouver abortion provider Dr. Garson Romalis. Romalis survived the shooting, which came from a sniper while Romalis was inside his home. B.C.’s cabinet decided to act to bolster security for abortion providers and set up a legislative group with representatives from the Ministry of Health, Ministry of Women’s Equality and the Ministry of the Attorney General.
The attorneys general had the police investigate harassment of abortion providers and their patients. Medical professionals from across the country also provided information to the legislative group.
This process produced the Access to Abortion Services Act.
In September of the same year, anti-abortion protestor Maurice Lewis was arrested when he wore an anti-abortion sign into a health clinic in Vancouver. Lewis argued that preventing him from protesting within the safe access zone was an infringement of s. 2(a) of the Charter, his freedom of expression, freedom of association and freedom of conscience and religion.
The trial judge found that the Safe Access to Abortion Services Act did infringe Lewis’ Charter rights. The B.C. government appealed and B.C.’s Supreme Court ruled against Lewis.
In the Supreme Court’s 1988 Morgentaler decision, the court found impediments to accessing abortion infringed a woman’s rights under s. 7 of the Charter: “the right to life liberty and security of the person.” In Lewis’ appeal, Justice Mary Saunders wrote in the decision that the Act in question was meant to uphold B.C. women’s s. 7 rights and “the objective of the legislation outweighs the infringement of s. 2 of the Charter” and that the limit on Lewis’ s. 2 rights were reasonable and proportional, thus overturning the lower court’s decision.
A similar balancing of rights has played out south of the border. In 2014, the United States Supreme Court ruled unanimously against a law from Massachusetts which disallowed protesting within about 10 metres of an abortion provider. The court found the law violated the first amendment. The decision eliminated 10 such laws across the country.
As the Charter affords rights to both sides of this debate, Vonn says that it’s important to establish a situation in which these competing rights are given as much space as possible. Through their expression, both sides’ rights limit the other. Protestors are free to express themselves beyond the boundary imposed by the law. The logic of the B.C. Supreme Court’s and the BCCLA’s position is that without the boundary the right of a woman to access these services would be limited to a greater extent than the boundary limits the free expression of the protester.
“You want to again provide a sort of maximum space for all of these rights to, in the realm that they can, coexist,” Vonn says. “And so, a buffer zone that will allow that access and appropriate and reasonable privacy for the people accessing the facilities and yet does allow some proximity to protesters, so they’re not across town for example, is an important balancing of those rights in our view.”
Originally, Vonn says the BCCCLA was opposed to what they saw as similar to “protest pens,” such as those that have appeared during the Olympics, where protesters are only free to exercise their rights in a space so limited it defeats the purpose of protesting.
When B.C.’s safe access law was enacted, Vonn says they were contacted by people in the community who brought to their attention to the experience of abortion providers and patients, which convinced the BCCLA to change their tune.
“Context counts,” she says. “When those things are considered, it is really obvious the needfulness of creating some kind of boundary.”