Executive Summary: Key Legal and Evidentiary Issues

• Campaign Life Coalition and Maeve Roche challenged the Parliamentary Protective Service's decision to prohibit the display of graphic anti-abortion signs on Parliament Hill on May 10, 2023.
• Central to the dispute was whether the Rules for the Use of Parliament Hill imposed a reasonable and justifiable restriction on freedom of expression under s. 2(b) and s. 1 of the Canadian Charter of Rights and Freedoms.
• At the time of the incident, the 2023 amended rule specifically prohibiting graphic or bloody images had not yet been published, meaning the Applicants could not have known of that specific prohibition.
• Enforcement by the PPS relied on the 2018 Rules' prohibitions against "obscene messages" and "messages that promote hatred or violence," which the court found were applied in a vague, arbitrary, and disproportionate manner.
• Accuracy of the protest images was found to be legally irrelevant to whether the expression was protected under s. 2(b), as the Charter protects expression regardless of its truthfulness.
• No order as to costs was made, as the parties had agreed there should be none, and the court found such an order appropriate given the nature of the issues.

Facts of the case

Campaign Life Coalition (CLC), a not-for-profit pro-life organization, has for decades organized an annual demonstration called the "National March for Life," which begins on Parliament Hill and proceeds through the streets of Ottawa before returning to Parliament Hill. The march is sponsored by the Roman Catholic Church and various Catholic organizations, as well as businesses and community organizations committed to opposing abortion in Canada. On May 10, 2023 — the day before the March itself — CLC organized a press conference on Parliament Hill. The individual applicant, Maeve Roche, serving as Youth Coordinator, was present with other participants who planned to display posters depicting what the Applicants described as "victims of abortion at various stages of development" — photographs of what appeared to be bloody and dismembered fetuses. Officers from the Parliamentary Protective Service (PPS) advised the participants that they could not display the signs because they "were too graphic" and were in breach of the Rules for the Use of Parliament Hill. The Applicants complied with the direction but subsequently launched this application seeking remedies for what they characterized as an unconstitutional interference with freedom of expression.

Policy rules at issue

The General Rules for the Use of Parliament Hill are created and published under the authority of Parliament's Committee for the Use of Parliament Hill — a body chaired by representatives of the Senate and House of Commons, with additional membership drawn from the PPS, RCMP, National Capital Commission, Privy Council Office, and the departments of Canadian Heritage and Public Works and Government Services. The Rules are not set out in a statute or regulation but are posted on the parliamentary website. Organizations seeking to hold events on Parliament Hill must sign an application and undertake to abide by the Rules; compliance is then enforced by the PPS. The Rules permit peaceful demonstrations but prohibit signs displaying "obscene messages," "messages that promote hatred or violence," or — since a 2023 amendment — those that "display explicit graphic violence or blood." The court noted that while the 2023 amendment prohibiting graphic bloody images was technically in effect on the day of the incident, it had not yet been published; the Applicants could not have known of it. Accordingly, the PPS conceded this and instead relied on the pre-existing 2018 prohibitions on obscenity and messages promoting hatred or violence.

Reasoning and analysis

Justice MacLeod began by affirming that the Applicants' expression was protected under s. 2(b) of the Charter, noting that the right to promote beliefs and points of view is protected regardless of whether the expression is truthful or accurate. Citing R v Zundel, [1992] 2 SCR 731, the court confirmed that even deliberate falsehoods are not automatically excluded from Charter protection, and that the accuracy or inaccuracy of the images was therefore not germane to the s. 2(b) analysis. The Respondent's extensive expert evidence on the alleged misleading nature of the images was consequently set aside as irrelevant to the legal questions at hand.

Turning to the s. 1 justification analysis, the court applied the framework from R v Oakes, [1986] 1 SCR 103. The court found that enforcing the prohibition at a time when the amended 2023 rule had not been published would have been unjustified. As for reliance on the 2018 Rules, the court found the "obscenity" prohibition problematic: the Respondent conceded the images would not meet the Criminal Code definition of obscenity, and relying on an individual officer's subjective assessment — applying the dictionary meaning of "strongly repulsive to the sense of decency and propriety" — rendered the restriction vague and arbitrary. Relying on the prohibition against messages promoting hatred or violence was equally problematic, as the court found it would be too great a leap to characterize the images as promoting hatred or violence on that basis alone, cautioning against inferring intent merely from the fact that a message is found hateful or shocking, as advised by Dickson CJ in R v Keegstra, [1990] 3 SCR 697. Expert evidence was led suggesting the images posed a risk of trauma to children and women who had undergone abortions, but no specific evidence was presented that any such individuals were present on the day, or that measures could have been taken to reduce that risk. The court concluded it would be very difficult, if not impossible, to show that prohibiting the display of the images constituted a reasonable and proportionate infringement of freedom of expression under the existing 2018 Rules.

The court also addressed the Applicants' broader request for an order striking down the Rules themselves, including the new 2023 prohibition on graphic bloody images. Justice MacLeod declined to entertain that relief on the basis that the maker of the Rules — the Committee for the Use of Parliament Hill — was not a party to the proceedings. The Applicants had also not applied to the Committee for specific approval to display the images as part of the event application process, which would have been the appropriate avenue to challenge the Rules or the decision-making process. Without the Committee, the Speakers of both houses, or the Attorney General actively participating, the court lacked the evidence and submissions needed to address such significant constitutional questions with broad implications.

Ruling and overall outcome

The court found in favour of the Applicants, Campaign Life Coalition and Maeve Roche, declaring that the PPS's operational decision on May 10, 2023, constituted a breach of the Applicants' right to freedom of expression under s. 2(b) of the Charter, and that the breach was not saved by s. 1. Justice MacLeod noted that while the infringement was geographically limited, fleeting, and largely devoid of lasting consequences — the signs were not confiscated, no charges were laid, and the protest otherwise proceeded as planned — the declaration sought by the Applicants was the appropriate remedy. The Applicants did not seek damages or injunctive relief, and the court confirmed such remedies would not have been appropriate against the PPS in any event. No monetary award was made. As the parties had agreed there should be no costs, the court made no order as to costs.