In Remembrance: The Legacy of Mr. Justice Henry Nolan

Today, we remember the wars fought, the men and women lost, and the personal sacrifices, which formed Canada. Today we send our appreciation to those presently in service for our country and we are thankful to live in a country that values democracy and liberty. Last Remembrance Day, my posting was entitled “Lest We Forget,” which offered some profound words from poet/soldiers of WWI and WWII, including a moving passage from F.R. Scott, a Canadian lawyer who was an important civil liberties advocate and past Dean of McGill Law School.

This Remembrance Day, I recall Justice Henry Grattan Nolan, a Justice of the Supreme Court of Canada from March 1956 to July 1957, was born in Calgary, Alberta in 1895. His father, Patrick or Paddy Nolan, was one of the greatest criminal trial lawyers of his time. Paddy Nolan was a flamboyant character. A man of the new west, he was involved in all aspects of Calgary society, even appearing in the Gilbert and Sullivan comic opera “Trial By Jury.”

His son, Henry Nolan, was more serious by nature. A Rhodes Scholar, Henry served in the 49^th Canadian Battalion (from Edmonton, Alberta) in France. There he was wounded fighting in the Battle of Cambrai in November 1917. He received the Military Cross in 1918. After completing his studies at Oxford, England, Henry joined R.B. Bennett’s law firm. Bennett had often been opposing counsel to his father, Paddy. It has been said when Bennett was opposing Nolan in the Supreme Court of Canada in 1908, Bennett entered into the courtroom with his junior, issuing orders: “Boy, give me Phipson on Evidence,” “Boy, give me Kenny on Crimes.” To this, Paddy replied “Boy, get me Bennett on Bologney.”  

Henry Nolan re-enlisted at the outbreak of World War II and served with the Canadian Army. Rising through the ranks, Nolan became a Brigadier as the Vice-Judge Advocate General. From the end of the war to 1948, Nolan served in Tokyo as a Prosecutor for Canada before the International Military Tribunal for the Far East (IMTFE). Since then, Canada has taken a strong role in the prosecution of war criminals, most notably with Louise Arbour, who acted as Chief Prosecutor before the Rwanda and Yugoslavia War Crime Tribunals.

Although, Justice Nolan died prematurely, at the age of 64 and only spent one year on the Supreme Court of Canada, he authored a number of the cases. Most notably however was his commitment to his country as a soldier in World War I and II and as a protector of civil liberties and human rights as a military lawyer and war crimes prosecutor. We remember Justice Nolan as we remember all who contributed to our country in this way.

A Message Of Tolerance

Relying upon s.2(b) freedom of expression rights under the Charter, Judge Bascom of the Alberta Provincial Court stayed a trespassing charge against William Whatcott, who received the trespass notice when distributing anti-gay literature at the University of Calgary. An indefinite ban was also lifted. This decision is consistent with other decisions on hate speech: no matter how abhorrent the message may be, there is expressive content in the communication and therefore protected under s.2(b).

Another factor for Judge Bascom was the place of the communication. This too is consistent with expression cases, as discussed in my November 17 blog on the City of Montreal case. According to Judge Bascom, the fact the incident occurred at a University was significant as "the concept of free expression is part of the University of Calgary philosophy." Interesting comment in light of the Pridgen case as discussed in my blog post here.

William Whatcott has not only been the subject of a Provincial Court decision, but also a Supreme Court of Canada case. Whatcott's case, in which he argued the hate speech provision of the Saskatchewan Human Rights Code is unconstitutional, is currently on reserve. Further information can be found in my blog postings here.

The determination of Charter rights are complex when faced with competing rights such as s. 2(b) freedom of expression versus the right not be discriminated against under s.15 of the Charter. In those instances, we, as a society, must look to the Courts to balance both rights meaningfully and fairly, in the context of Charter values, to come to the appropriate decision. 

Sometimes, society can also take some sage advice from those individuals, who we deem wise and worthy. I end this blog with a link to a message from Nobel Prize recipient, Lord Bertrand Russell. The message of tolerance can be heard here.

Music, Noise, And Expression

Yesterday evening I attended Impromptu, a collaborative concert showcasing avant-garde or experimental musicians sponsored by New Works Calgary. Although, I had heard the music played on the CJSW's Noise radio program, to actually be present when the musicians compose and play in such a contemporaneous fashion, is truly wonderful. But being the lawyer that I am, I began to wonder about the expressive content of music, and particularly, the expressive content of noise.

The City of Calgary's noise bylaw or Community Standards Bylaw which prohibits continuous and non-continuous annoying or disturbing noise, including music. Whether or not the sound is "objectionable" according to the bylaw, is a question of fact for a Court to determine. Yet, what may be music to one person's ears may be noise to another person. What is objectionable to one may not be objectionable to another. Community standards shift and change over time, over place, and over age and temperament of the listener. 

In terms of Charter protection, section 2(b), freedom of expression, protects the expressive content of an individual. Certainly, in some circumstances, sounds can have expressive content and thereby be worthy of protection. In the Supreme Court of Canada decision in City of Montreal, both the majority and dissenting justice found noise can have an expressive content. However, in the majority's view "while all expressive content is worthy of protection, the method or location of the expression may not be". Thus an amplification of music onto a public street may be protected as long as it does not impede the public's use of the area for passage or communication. In the end the final determinant is whether the "free expression in a given place undermines the values underlying" the Charter right of freedom of expression. To determine this the historical function of the public area must be reviewed as well determining whether or not the expression undermines free "democratic discourse, truth finding, and self-fulfilment." The majority upheld the municipal bylaw as a valid justifiable restriction.

Justice Binnie, writing the dissent, disagreed the bylaw was benign and justified. His comments on expressive content is interesting. Based on the Larousse definition of noise or bruit in French, is not intrinsically a nuisance. Binnie's concern over the wide breadth of the bylaw included the scenario of a McGill student listening to Mozart with the window open or Stephen Hawking amplifying his voice through his voice assistance device. He found the legislation unjustifiable. 

Expressive content as a signifier of Charter rights under s.2(b) in the end is not the full expression of what s.2(b) protects. Shifting society values is ultimately what gives our Charter meaning. But values do shift. Once Beethoven's Fifth Symphony was considered "noise" and even, according to Goethe, "a threat to civilisation." So what is noise today may very well be the music of the future.

Part Two: Occupying Public Space

Yesterday, I outlined the tension between the City and the Occupy movement over the tent city erected in the City's public spaces. Although, municipal legislation prohibts the camp, it has, to this date, not been enforced. Why? Initially, no doubt, the thought was occupy Calgary would make their point and move on. No "strong arm of the law," means no trouble. Unfortunately, that tactic has proven to be wrong. The Occupy movement has no plans to move their campsite, even in the face of declining public support (petitions) and despite alternative offers of living space. It appears a Western style show-down is inevitable and the only question is how soon before the matter is before the Courts. 

What would happen if the matter did go before the Courts? Two cases, involving protest in two very different Canadian Cities, may help answer this question.

First we go to Ottawa. It is 1994 and a Peace Camp, to protest cruise missile testing, is erected on the lawn of the Parliament building. Indeed, the protesters had a presence, in one form or another, in front of Parliament since 1983. An attempt to dismantle the camp led to various court actions. At the heart of the debate was the expressive quality of the protest: if the Peace Camp attempted to convey or did convey a meaning, then, Weisfeld the leader of the protest, could argue an infringement of s. 2(b) of the Charter, freedom of expression.

The Federal Court of Appeal agreed with Weisfeld: the structure, and the presence of other accouterments of the protest (brochures, pamphlets, signs, and the like), indicated there was a meaning conveyed by the Peace Camp itself. However, as discussed yesterday, the decision does not rest on a violation. An infringement of a right still requires a further analysis based on s. 1 of the Charter. Is this violation justified in a free and democratic society? Enter, the government to establish that indeed, it is, or the legislation restricting the right is invalid. The end result in Ottawa was a save by the government. On the s.1 analysis the removal of Weisfeld was justified. Exit the Peace Camp.

Fast forward fifteen years to Vancouver where the Falun Gong erected banners and a "make-shift shelter" in front of the Chinese Consulate, contrary to a City By-law. The City sought an injunction to remove the protest, which was granted. The Falun Gong appealed to the British Columbia Court of Appeal.

Following Weisfeld, the Court agreed there was a violation of s.2(b) as the structures had expressive content being "part and parcel" of the Falun Gong protest. That is where the similarities end. The BCCA did not find the bylaw saved under the s.1 analysis. In the Court's view, the prohibition did not minimally impair the legitimate right to engage in political protest; a cherished Charter value residing at the very core of our democracy. In a word, the by-law was over broad and captured legitimate forms of expression.

After that Canada-wide tour, we are now back in Calgary. What conclusions can we draw based on these other cases? Clearly, the occupy protest has an expressive quality which is protected by s.2(b) of the Charter. However, whether the City ordinance will be a justifiable intrusion on that right is questionable and dependent on a number of factors, including the type of evidence the municipality will proffer to justify the legislation.

Whatever the outcome, this much is clear, the protesters are here to stay for the near future. Indeed, no Canadian City has successfully evicted the movement. In the end, when the dust is settled and the shoot-out is over, this gun-fight might just be a draw.

Freedom of Expression: Occupying Public Space Part One

For weeks now, we have been inundated with the details of the Occupy movement. We know where they are, what they are protesting about, and in this age of technology, we can watch them on our computers. We can also watch the City authorities walk in circles as they try to avoid clashing with the protesters. Some cities have not avoided harm: Occupy Oakland is a good example. But other cities, like Calgary, have tried to give the Occupy movement a wide berth. Unfortunately, patience is now wearing thin with the municipal authorities, the press, and the public, as Occupy Calgary refuse to leave the public space provided to them. This has all the ingredients of a classic Western show-down. 

On the one hand, we have the Charter right of s. 2(b) freedom of expression and on the other, municipal by-laws prohibiting camping in public parks. Up to now, the City has not enforced the by-law and allowed the Occupy movement to inhabit the public space (Canada Olympic Plaza in downtown Calgary). But as the authorities begin to consider ending the occupation, the show-down between the Charter and the City looms. 

This conundrum is, of course, typical Charter fodder: a fundamental freedom is violated and the government must establish the intrusion is justifiable in a free and democratic society under s. 1 of the Charter. In this, our Charter differs dramatically form the American Constitution as our rights are guaranteed yet limited under the Charter : no rights are absolute, yet the s.1 analysis is rigorous. The analysis requires the right to be minimally impaired by the legislation, to be proportionately restrained, and the limit must have a rational connection to the valid legislative purpose of the law. It is a balancing act, which may lead to legislative death but it can also lead to legislative discourse between the Courts and the government. This dialogue can assist in re-framing legislation, which fulfills its objective, but in a Charter friendly manner.

Thankfully, we Canadians are not protest-shy and there are legal precedents to help guide the Occupiers and the Municipal landlords. Join me in tomorrow's post, as I navigate us through the legal side of the issue by looking at Ottawa and Vancouver.