Bill 9 would ban peace­ful per­sua­sion

GUEST COL­UMN

Lethbridge Herald - - READER'S FORUM - John Sikkema

Dur­ing Tues­day’s leg­isla­tive de­bate on the NDP’s Bill 9, the term “ha­rass” or “ha­rass­ment” was used 14 times, “in­tim­i­date” 13 times, “threat” or “threaten” five times, and “block” (as in block a door­way) four times. Such is the al­leged rep­re­hen­si­ble con­duct com­mit­ted by pro-life ac­tivists near abortion clin­ics, which the NDP gov­ern­ment boasts it will now stop with Bill 9.

Yet five key terms in Bill 9 that de­fine the kind of be­hav­iour it pro­hibits were never used in the April 10 de­bate: ad­vise, per­suade, in­form, dis­ap­prove and re­quest. Bill 9 would pun­ish, by fines and prison, “at­tempt­ing to ad­vise or per­suade” some­one not to have an abortion, “at­tempt­ing to in­form an­other per­son con­cern­ing is­sues re­lated to abortion ser­vices”, com­mu­ni­cat­ing “dis­ap­proval [of abortion]” by any means, writ­ten, ver­bal, or vis­ual, and “per­sis­tently re­quest[ing] that an­other per­son re­frain from pro­vid­ing” abortion. What’s new about Bill 9, its essence, is that it pro­hibits peace­ful at­tempts to change a fel­low cit­i­zen’s mind in that most ba­sic and tra­di­tional of pub­lic fo­rums, our city streets and side­walks.

True, the bill also makes it an of­fence to “phys­i­cally im­pede” a pa­tient or abortion provider, to “in­tim­i­date or at­tempt to in­tim­i­date” the same, or to “en­gage in threat­en­ing con­duct” — but this is com­pletely re­dun­dant in view of crim­i­nal law. Canada’s Crim­i­nal Code pro­hibits ha­rass­ment and in­tim­i­da­tion (which can in­clude stalk­ing a per­son or im­ped­ing their free move­ment); as­sault, in­clud­ing ut­ter­ing threats; mis­chief (in­ter­fer­ence with law­ful use of prop­erty); nui­sance en­dan­ger­ing safety or health; and caus­ing a pub­lic dis­tur­bance by scream­ing, shout­ing, swear­ing or by im­ped­ing other per­sons in a pub­lic place. If this is go­ing on, you would think the po­lice would lay a crim­i­nal charge or two.

In 2014, the United States Supreme Court, in its unan­i­mous McCullen de­ci­sion, struck down a Mas­sachusetts “buffer zone” that was much nar­rower, at 10 me­tres, than the 50-me­tre-plus ra­dius that Bill 9 would cre­ate. All nine judges re­jected the state’s ar­gu­ments that a buffer zone was needed be­cause en­forc­ing crim­i­nal laws was too dif­fi­cult. The court noted that the state had not pros­e­cuted any­one in 17 years. If the state claims there is a record of ob­struc­tion and ha­rass­ment jus­ti­fy­ing a cen­sor­ship law, the court pointed out, then surely it could com­pile ev­i­dence sup­port pros­e­cu­tions — but it hadn’t done so. The same goes for Al­berta.

The way to stop ha­rass­ment and threat­en­ing con­duct is to mon­i­tor it, col­lect ev­i­dence (say, from clinic se­cu­rity cam­eras), lay charges and pros­e­cute. That’s not hap­pen­ing in Al­berta, ei­ther, be­cause clin­ics and po­lice are in­com­pe­tent or, more likely, be­cause ha­rass­ment and in­tim­i­da­tion are not hap­pen­ing. So don’t buy the rhetoric.

What Bill 9 is de­signed to do is quash dis­sent. It would si­lence even those who ask women on their way to an abortion clinic to con­sider al­ter­na­tives and of­fer them help. The bill pro­hibits per­suad­ing, ad­vis­ing, in­form­ing and the like. Those are in­nocu­ous terms, so the NDP doesn’t use them in de­bate. They use crim­i­nal law terms like threaten, ha­rass and in­tim­i­date, thus equat­ing peace­ful pro­life protest with crim­i­nal con­duct. That’s a dan­ger­ous game.

MLA Karen McPher­son con­trib­uted this com­mon pro-cen­sor­ship talk­ing point to last Tues­day’s de­bate: “I can’t imag­ine any other cir­cum­stance where peo­ple would think it was OK to protest some­body seek­ing health care. If I was go­ing to go for a by­pass… I don’t think any­one would think it was OK to have pro­tes­tors out­side of the hos­pi­tal…” The Edi­to­rial Board of the Ed­mon­ton Jour­nal made this point as well.

Nev­er­mind, for ar­gu­ment’s sake, the equat­ing of by­pass to abortion. Can some­one tell me why peo­ple shouldn’t be free to do ex­press their op­po­si­tion to by­pass surgery? Why shouldn’t I re­spect that free­dom, even if I need by­pass surgery? Pre­vent­ing me from get­ting by­pass surgery by ob­struc­tion or threats would be crim­i­nal. But protest? I might think it odd. I might think such peo­ple are con­fused. I might find them an­noy­ing. But they should be free to ex­press their anti-by­pass surgery views. The fact that my fel­low tax­pay­ers pay for such a pro­ce­dure can surely only bol­ster the strength of their claim to be free to ex­press op­po­si­tion to it.

In an­other low­light from last Tues­day’s de­bate, MLA Maria Fitz­patrick ar­gues that this law is needed be­cause there is a dou­ble stan­dard, by which women face protest for their choices, but not men. “I might stand out­side an adult en­ter­tain­ment busi­ness with a sign that be­rates men for their choices in­side this es­tab­lish­ment,” Fitz­patrick says. But the re­al­ity is men don’t face such protest. But when women try to ac­cess the “med­i­cal pro­ce­dure” of abortion, they have to face down “threats” (a crim­i­nal act) and peo­ple “try­ing to im­pose their value sys­tem on them.”

Her ob­ser­va­tion about the lack of protest of “adult en­ter­tain­ment busi­ness” es­tab­lish­ments is a good one. There are plenty of good rea­sons to protest such places; maybe some­one should. For Fitz­patrick, the so­lu­tion to this dou­ble stan­dard is to cen­sor any dis­ap­proval of abortion or pro-life out­reach near abortion cen­tres, just to make it fair. You would think, in a free so­ci­ety, the so­lu­tion to what Ms. Fitz­patrick con­sid­ers such in­equal­ity would be to ei­ther protest the shady es­tab­lish­ments fre­quented by men, or per­suade the pro-life de­mon­stra­tors to go home.

Could it be, just maybe, that the rea­son peo­ple want to si­lence pro-life dis­sent is be­cause they know abortion is wrong and hate be­ing re­minded of it?

John Sikkema serves as Le­gal Coun­sel for the As­so­ci­a­tion for Re­formed Po­lit­i­cal Ac­tion in Ot­tawa.

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