Examining the legal rights of the protesters and the Morgentaler Clinic

What rights do protesters outside Ottawa’s only publicly funded abortion clinic have? What can the Morgentaler Clinic do in response? And what role do police play? Here are some of the issues,

Q What is a protester not allowed to do?

A Protesters cannot assault, threaten or impede people. They can’t do anything that could be deemed a criminal offence. In any place where there’s a protest, demonstration or labour issue, protesters entering the premises in question may be charged with trespassing.

Q If a protester touches, spits on or blocks a clinic patient or staff member, are those chargeable offences?

A If someone spat on another person, that would be assault. Supt. Mark Ford said if someone perceives they’ve been assaulted — either in the way someone has touched them or applied force — they should phone police. If a protester is blocking someone from entering the clinic, Ford said they could be charged with public mischief.

Q The special events bylaw states that demonstrations with fewer than 150 people must be restricted to the sidewalk on the opposite side of the street. There is no minimum number stated in that bylaw. Why does that not apply to an individual protester?

A Ford said we should consider the spirit in which the bylaw was created. “That’s where you’re going to get very divergent perspectives on the interpretation of that bylaw. From a police standpoint, when we talk about law enforcement, you have to go back to what is that bylaw intended for? It’s intended really to work with protest and special events organizers: How can we help you plan your event and do it safely?” This is why the city and police say enforcing it against individual protesters is a “legal grey area.”

Q How do you get an injunction against protesters if you’re the clinic?

A If the clinic feels the city and police are not effectively restricting protesters, one of its only recourses would be to apply to the courts for an injunction for a “bubble zone” that would stop protesters from being within a particular distance of the clinic. A bubble zone was established at the Morgentaler clinic in Toronto, which was firebombed in 1992, so that no protester can come within 500 feet of the building. Clinics in B.C., Quebec, Alberta and Newfoundland also have bubble zones. According to Ottawa lawyer Lawrence Greenspon: “I would imagine (the clinic would argue) on the basis that the women attending there are intimidated, that they’re being harassed, that it’s going beyond freedom of speech and freedom of assembly and it’s getting to the point where women’s security and their right to do what they feel they are entitled to do for their own selves is being infringed upon.”

Q How expensive could an injunction be?

A “You’re talking about thousands of dollars in legal fees and disbursements to try and get this matter to a court to decide,” said Greenspon. “It would be considerable expense, for sure.” In an email on Friday, the clinic’s director of operations, Shayna Hodson, said Dr. Henry Morgentaler’s widow, Arlene Leibovitch, owns the clinics in Toronto and Ottawa, and would be the one paying, were the clinic to pursue an injunction.

Q What are the clinic’s chances of obtaining an injunction?

A Greenspon said it’s a clear confrontation between two Charter-entrenched rights. The court would have to weigh both a person’s fundamental rights to freedom of expression and assembly against the right to life, liberty and security of a person. “It makes for, legally, a very challenging weighing that’s going to have to take place before the court if and when (the clinic) decides to go there to get their injunction,” Greenspon said. “The test on an injunction would be, are there damages ... which can’t be dealt with by way of monetary or money (payout)? I think the clear answer is yes. Because what price could you possibly put on women who are intimidated going into the clinic and perhaps in some cases avoiding going to the clinic and having a safe abortion, perhaps an unsafe abortion or no abortion at all? It’s not something you can quantify in dollars and cents.”

Q Would the city help fund the cost of an injunction, if a clinic asks?

A In an emailed response Friday, the city’s deputy solicitor, David White, said: “Given that no such request has been received, it can only be noted that any request for funding from a private organization would need to be considered in accordance with the City’s Grants and Contributions Policy.” White also said the city’s legal staff are precluded from providing legal advice or assistance to people or organizations other than the city.

Q Would the city consider a bylaw for individual protesters?

A Bylaw chief Roger Chapman said under the Charter, people are allowed to peacefully protest on public property, but police may take action should an individual “cause a significant disturbance.” Were the City to enact a bylaw that served to restrict peaceful protests, any such bylaw would be subject to challenge under the Charter.