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Charter - s.2(b) Freedom of Expression (7). Katerberg v. Ontario (Ministry of Transportation)
In Katerberg v. Ontario (Ministry of Transportation) (Ont Div Ct, 2026) the Ontario Divisional Court allowed a JR, this brought against the Ministry's "decision refusing him permission to put up his sign and seeks a declaration that the Ministry policy infringes his right to freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms", this regarding the applicant's views about COVID vaccines:[1] George Katerberg believes that COVID-19 vaccines are ineffective and dangerous and that the government knowingly misled the public by suggesting that they were not. Mr. Katerberg decided to communicate his beliefs to others, so he created a large sign identifying a number of political figures with a message stating that they lied about the vaccines. He placed the sign on a billboard he had rented on the side of Highway 17, near Thessalon, Ontario, which has been designated by the Ministry of Transportation (“the Ministry”) as a “bush country highway.”
[2] Ministry officials contacted Mr. Katerberg and told him that he had to remove his sign because it failed to comply with Ministry policy. Mr. Katerberg removed the sign, made revisions to it, and then sought permission to put it back up. The Ministry refused to allow him to do so. While the Ministry offered various explanations for its decision, it ultimately relied on a policy manual which states that billboards on bush country highways “shall only promote goods and services or authorized local events offered by, or related to, businesses, municipalities, charities, not for profit organizations, or Indigenous communities.” Political speech is excluded from the list of permissible messaging.
[3] Mr. Katerberg applies to this court for judicial review of the decision refusing him permission to put up his sign and seeks a declaration that the Ministry policy infringes his right to freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The Ministry opposes the application. It submits that the type of expression Mr. Katerberg wishes to engage in is not protected by s. 2(b) in the circumstances of this case because the Ministry has not historically permitted political expression on bush country highway billboards. In the alternative, the Ministry submits that any infringement of Mr. Katerberg’s rights is justified by s. 1 of the Charter.
[4] I would grant the application and issue a declaration that the Ministry policy at issue infringes s. 2(b) of the Charter, is not justified pursuant to s. 1, and is of no force or effect. Regardless of what the Ministry has historically permitted, it has decided to permit some types of expression on bush country highways and prohibit others and this type of attempt to regulate the content of expression engages and infringes s. 2(b). The infringement is not justified by s. 1. While the Ministry’s identified objective of maintaining the integrity of bush country highways is pressing and substantial, there is no rational connection between the objective and the infringing measure. . Katerberg v. Ontario (Ministry of Transportation) [government property/billboards]
In Katerberg v. Ontario (Ministry of Transportation) (Ont Div Ct, 2026) the Ontario Divisional Court allowed a JR, this brought against the Ministry's "decision refusing him permission to put up his sign and seeks a declaration that the Ministry policy infringes his right to freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms", this regarding the applicant's views about COVID vaccines.
The court considers the application of s.2(b) [freedom of expression] of the Charter to government property, here billboards:[22] Section 2(b) of the Charter provides:2. Everyone has the following fundamental freedoms:
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(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. [23] The analytic framework to apply in determining whether there is a violation of s. 2(b) is well-established. To resolve such claims, the court must answer four questions:(1) Does the communication in question have expressive content, thereby bringing it within s. 2(b)’s scope of protection?
(2) If so, does the method or location of the expression remove that protection?
(3) If the expression is protected by s. 2(b), is there government action which infringes that protection, either in purpose or effect?
(4) If s. 2(b) is infringed, is the infringement justified under s. 1 of the Charter? See Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 37; Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at paras. 56, 86; Irwin Toy Ltd. v. Québec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at pp. 978-979.
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C. Is the Applicant’s Sign Protected by Section 2(b) of the Charter?
(i) The Scope of Section 2(b) of the Charter
[26] Not all expression is protected by s. 2(b) of the Charter. For example, since the Charter only applies to government action, restrictions on expression imposed by private actors on private property do not engage s. 2(b). However, the fact that expression occurs on government-owned property is not, by itself, sufficient to engage s. 2(b). Rather, whether s. 2(b) is engaged will depend on the circumstances outlined in Montréal (City), at para. 74:The basic question with respect to expression on government-owned property is whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) is intended to serve, namely (1) democratic discourse, (2) truth finding and (3) self-fulfillment. To answer this question, the following factors should be considered:(a) the historical or actual function of the place; and
(b) whether other aspects of the place suggest that expression within it would undermine the values underlying free expression. [27] Examples of government-owned places that are beyond the scope of s. 2(b) protection as a result of the application of the Montréal (City) test include courthouses and municipal halls (R. v. Breeden, 2009 BCCA 463, 277 B.C.A.C. 164, at paras. 21-22), a flagpole at city hall (Vietnamese Association of Toronto v. Toronto (2007), 2007 CanLII 13371 (ON SCDC), 85 O.R. (3d) 656 (Div. Ct.), at para. 19), and provincially-issued licence plates (Grabher v. Nova Scotia (Registrar of Motor Vehicles), 2021 NSCA 63, 461 D.L.R. (4th) 710, at para. 58).
[28] The respondent submits that s. 2(b) protection does not apply in this case for several reasons which can be distilled into three main categories:(1) The Ministry has historically limited expression on bush country highway rights of way to communications intended to support local communities and businesses;
(2) The actual function of the highway right of way, which is to safely and efficiently convey motorists to their destinations, would be undermined by unregulated expression;
(3) The applicant could have expressed himself by putting his sign on private property adjacent to the right of way. (ii) Historical and Actual Use
[29] The historical function of a place for public discourse can be established by evidence: Montréal (City), at para. 79. In this case, it is difficult to make findings about the historical function of bush country highways as places for public discourse as the record is somewhat sparse. Mr. DeVos stated in his affidavit that he had been informed by “Ministry staff” that the Ministry “intended for Bush Country Billboards to support local communities and businesses near these highways,” but said nothing about whether the historical use of the highways reflected that intention.
[30] The Decision itself stated that the Ministry “did not historically permit billboards along bush country highways,” but began to do so at some unspecified time. The Decision confirmed Mr. DeVos’s evidence that the Ministry intended for the billboards to support local communities, but also acknowledged that “there may have been some past inconsistency in the application of the Ministry’s intention with bush country billboards.”
[31] It should be noted that although Mr. DeVos and the Decision suggest that the Ministry’s policy is intended to support local communities, s. 5.8.2.1 of the 2025 Manual is broadly worded and permits only signs that “promote goods and services or authorized local events.” On its face, the goods and services being promoted need not be related to a local community. During the hearing, counsel for the respondent acknowledged that the policy permits commercial advertising by any business, not only those in local communities.
[32] Evidence of historical use is only relevant insofar as it answers the “basic question” in Montréal (City), which is whether the public place in question is somewhere “one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) is intended to serve.” In this case, that question can be answered by evidence that the Ministry currently permits bush country highways to be used for public expression. This was also the case in Greater Vancouver, at para. 41:The fact that the historical function of a place included public expression or that its current function includes such expression is a good indication that expression in that place is constitutionally protected.
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While it is true that buses have not been used as spaces for this type of expressive activity for as long as city streets, utility poles and town squares, there is some history of their being so used, and they are in fact being used for it at present. As a result, not only is there some history of use of this property as a space for public expression, but there is actual use -- both of which indicate that the expressive activity in question neither impedes the primary function of the bus as a vehicle for public transportation nor, more importantly, undermines the values underlying freedom of expression. [Emphasis added]. [33] The fact that billboards on bush country highways may have historically been used for expression for the purpose of supporting local businesses and communities rather than political expression is not relevant to the s. 2(b) analysis. This too follows from Greater Vancouver, at para. 40:The trial judge found that there was no history of political advertising on the sides of buses …. For him, this finding was pivotal. However, content is not relevant to the determination of the function of a place. [Emphasis added]. This is consistent with the doctrine of content-neutrality, one of the central tenets of the s. 2(b) jurisprudence for over three decades, which was recognized in Irwin Toy and described in R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697, at p. 729:Apart from rare cases where expression is communicated in a physically violent form, the Court [in Irwin Toy] thus viewed the fundamental nature of the freedom of expression as ensuring that “if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee” (p. 969). In other words, the term “expression” as used in s. 2 (b) of the Charter embraces all content of expression irrespective of the particular meaning or message sought to be conveyed (Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123], at p. 1181, per Lamer J.). See also Canada (Human Rights Commission) v. Taylor, 1990 CanLII 26 (SCC), [1990] 3 S.C.R. 892, at p. 914; R. v. Zundel, 1992 CanLII 75 (SCC), [1992] 2 S.C.R. 731, at p. 753; Libman v. Québec, 1997 CanLII 326 (SCC), [1997] 3 S.C.R. 569, at para. 31; R. v. Lucas, 1998 CanLII 815 (SCC), [1998] 1 S.C.R. 439, at para. 25; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 145; Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 60.
[34] In para. 36 of its factum, the respondent has attempted to distinguish Greater Vancouver on the basis that in that case, “there was both historical and actual use of buses as a space for unregulated public expression,” whereas in this case, there is purportedly no history of “unregulated” public expression on bush country billboards.
[35] With respect, this submission is based on an erroneous understanding of the facts in Greater Vancouver, resulting in a misinterpretation of the court’s analysis. There was no history of “unregulated” public expression in Greater Vancouver. To the contrary, as in this case, the evidence was that the sides of buses had never been used for political expression, as was explained in the trial decision, Canadian Federation of Students (British Columbia Component) v. British Columbia (Greater Vancouver Transportation Authority), 2006 BCSC 455, 266 D.L.R. (4th) 403, at para. 77:There is some additional evidence of significance relating to this issue. There is the undisputed evidence that the outsides of the defendants’ transit buses have never been used to display political advertisements, advocacy advertising, or matters of public controversy. (It appears that on one or two occasions, Translink made inadvertent mistakes in this regard, in the implementation of their policy.) The evidence shows that the defendants have, for years, displayed commercial and public service advertisements, both inside and outside their buses. See also Greater Vancouver (S.C.C.), at paras. 6, 40.
[36] For these reasons, as in Greater Vancouver, there is nothing in the historical or actual function of billboards on bush country highways that would suggest that they are outside the scope of s. 2(b) protection. To the contrary, the evidence in the record demonstrates that one would expect constitutional protection for free expression on bush country highway billboards.
(iii) Other Aspects of the Place
[37] The second factor in the Montréal (City) test is to consider whether other aspects of the place suggest that expression within it would undermine the values underlying free expression. The respondent submits that such aspects exist because highways are subject to numerous regulations on a variety of matters, including with respect to billboards, which are subject to a number of rules about size, placement and content and which require a permit from the Ministry. All of these regulations are put in place to ensure that the primary purpose of the highways, to safely and efficiently transport the people of Ontario, can be achieved.
[38] It is easy to see how regulations about the size and placement of billboards are necessary to ensure the efficient and safe operation of highways. Billboards that are too large, likely to distract drivers, or too close to the road can pose a risk to the safety of highway users. However, it is difficult to understand how allowing commercial expression but not political expression on bush country highways is related to their efficient and safe operation. Indeed, the evidence in the record suggests the opposite conclusion.
[39] For example, there is no restriction on highways other than bush highways except with respect to the promotion of violence or hatred against identifiable groups. According to Mr. DeVos, the only difference between bush country and other highways is that the former do not allow for the normal setback of a sign because of the presence of bush, a distinction which is entirely unrelated to the distinction between commercial and political expression. Furthermore, s. 5.8.2.1(a) of the 2025 Manual appears to allow some types of non-commercial expression if it is related to certain local events, charities or not-for-profit organizations.
[40] The respondent places particular reliance on the fact that the applicant could have put his sign on a billboard on property adjacent to the highway right of way. According to s. 5.8.2 of the 2025 Manual, signs on private property adjacent to a bush country highway are subject to the rule against promoting violence or hatred against identifiable groups, but not the other restrictions in s. 5.8.2.1.
[41] The respondent relies on Breeden, where in upholding a restriction on political protest signs inside a courthouse, the court noted that the signs could have been displayed in the public area immediately outside the building. However, the court upheld the restriction primarily on the basis that the courthouse had not historically been used for expressive activities and such activities impeded its intended function and not because the signs could have been displayed elsewhere. This was explained in Breeden, at para. 28:The availability of an adjacent location where a party can engage in expression does not necessarily mean that nearby government owned locations without historical use for expression could not also fall under s. 2(b)’s protection. However, this does provide context for the analysis, and tends to indicate that extending protection into a new area of a public building will not be necessary in order for the purposes of s. 2(b) to be fulfilled at such a location. Expressive activity can thus continue in a mode that does not impede the proper functioning of the facility. (iv) Conclusion on the Applicability of s. 2(b) of the Charter
[42] There is nothing in the record before this court that suggests that expression on bush country highways would undermine the values underlying free expression. The conclusions in Greater Vancouver, at paras. 46-47, are apposite to the facts of this case:I do not see any aspect of the location that suggests that expression within it would undermine the values underlying free expression. On the contrary, the space allows for expression by a broad range of speakers to a large public audience and expression there could actually further the values underlying s. 2(b) of the Charter. I therefore conclude that the side of a bus is a location where expressive activity is protected by s. 2(b) of the Charter.
Consequently, I conclude that since the transit authorities’ policies limit the respondents’ right to freedom of expression under s. 2(b), the government must justify that limit under s. 1 of the Charter. . Animal Justice v. Ontario (Attorney General)
In Animal Justice v. Ontario (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown appeal, this brought against Superior Court findings that "invalidated several sections of the Act [SS: the 'Security from Trespass and Protecting Food Safety Act, 2020' (STPFSA)] and associated Regulation on the basis that these provisions intentionally limited the respondents’ freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms, and that the limits are not justified".
The court considers Charter s.2(b) ['freedom of expression'], here particularly it's interaction with property rights:[57] Section 2(b) of the Charter, often referred to in shorthand as “freedom of expression”, provides that everyone has “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. It is understood broadly, such that very little action that can be characterized as communicative has been found to fall outside of its scope. In practice, this has meant that comparatively little analytical work is done at the s. 2(b) stage, with the heavy lifting done in ascertaining what constitutes reasonable limits to this freedom under s. 1: see Bracken v. Fort Erie (Town), 2017 ONCA 668, 137 O.R. (3d) 161, at paras. 25-34.
[58] That said, s. 2(b) has internal limits and some scholars, such as Professor Dwight Newman have documented a trend towards greater juristic attention to developing those limits: Halsbury’s Laws of Canada, “Constitutional Law – Charter of Rights,” (Toronto: LexisNexis Canada, 2023 Reissue) at HCHR-16 and 39; see also Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, 2 S.C.R. 845 (“Toronto (City) (SCC)”), at paras. 14-15. Thus the scope of s. 2(b) protection does not extend to acts of violence or threats of violence: R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697; R. v. Khawaja, 2012 SCC 69, 3 S.C.R. 555. Additionally, in R. v. National Post, 2010 SCC 16, 1 S.C.R. 477, the Supreme Court rejected the argument that techniques of news gathering, being acts that are instrumental to the exercise of freedom of expression, would necessarily come within the scope of s. 2(b) themselves, simply because they facilitated the ultimate expression: at para. 38.
[59] The analytical framework of s. 2(b) also distinguishes between legislation whose purpose is to limit expression, and legislation that restricts expression as a side-effect of achieving some other purpose. Where the legislation fits into the latter category, there is an additional obligation on Charter claimants. Claimants must establish that the expression in question promotes one of three purposes of expression: enabling democratic discourse, facilitating truth seeking, and contributing to personal fulfillment: Montréal (City), at para. 83.
[60] Significantly for this appeal, s. 2(b) doctrine also distinguishes between positive and negative rights claims. As explained in Baier v. Alberta, 2007 SCC 31, 2 S.C.R. 673, a negative rights claim is one where the claimant seeks “freedom from government legislation or action suppressing an expressive activity in which people would be otherwise free to engage”: at para. 35; see also Toronto (City) (SCC), at para. 16. Conversely, a positive rights claim is one that requires government to legislate or otherwise act so as to support or facilitate freedom of expression: Toronto (City) (SCC), at para. 18. Positive rights claims, which impose obligations on government to act in some way, face an elevated threshold. The claimant must satisfy the inquiry: “is the claim grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government has either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression?”: Toronto (City) (SCC), at para. 25 (emphasis added). Substantial interference is key to the claimant’s burden. The applicant must establish “a lack of access to a statutory platform [that] has the effect of radically frustrating expression to such an extent that meaningful expression is ‘effectively preclude[d]’:” Toronto (City) (SCC), at para. 27.
[61] “Substantially interfered” is a much higher bar than that set by the Irwin Toy/Montréal (City) test for negative rights claims: “[w]hile meaningful expression need not be rendered absolutely impossible, we stress that effective preclusion represents an exceedingly high bar that would be met only in extreme and rare cases”: Toronto (City) (SCC), at para. 27.
[62] Much turns, then, on whether the claim is more appropriately characterized as a positive or negative rights claim. The application judge concluded that it is properly characterized as a negative rights claim because, but for the Act and Regulation, persons would be “otherwise free to gain entry to other premises by using false pretence without punishment by the state … it is the penalization of the false pretences that the applicants object to.”
[63] The problem with this framing is that it entirely loses sight of the rights of the property owner/occupier and corresponding obligations of excluded persons. People are not free to do things – in the sense used in the jurisprudence – that others have a legal right that they not do, regardless of whether the source of that duty sounds in public or private law, and regardless of whether the breach attracts a state-imposed sanction or a private law remedy such as damages, injunctive relief or a declaration. Trespass is tortious wrongdoing, regardless of whether the tort is committed via fraud or otherwise. The respondents either misunderstand the law of trespass or the nature of legal obligation: they either believe that it is not trespass to obtain admission by fraud if one nevertheless leaves promptly when found out, or they simply do not accept the law of trespass provides a reason to do or not do anything. With respect to the former – that it is not a trespass if one leaves when directed – this is not an accurate account of the law of trespass in Ontario. Consent to enter premises must be obtained freely and without fraud, and consent that is obtained by misrepresentation cannot shield a person from liability for trespass: Andrew Botterell et al., Fridman’s The Law of Torts in Canada, 4th ed. (Toronto: Carswell, 2020), at p. 30; see also R. v. Gibson, 1976 CanLII 953 (SK QB), [1976] 6 W.W.R. 484 (Sask. Dist. Ct.), at para. 9; Lee v. Hersh, [1993] B.C.W.L.D. 1138 (S.C.), at para. 142.
[64] The existence of a legal right and corresponding duty (in this case, the farmer’s right to exclude a person from a farm and that person’s corresponding duty not to enter) is one thing; remedy for breach is another. Where consent to enter premises is necessary and it is obtained by deception, such that had the truth been known consent would not have been given, there is no valid consent and there never was. The wrongdoing is not negated by the trespasser’s conditional willingness to leave the premises quietly if found out. People are simply not free, in the sense used by Baier and Toronto (City) (SCC), to observe only those legal duties that are immediately enforceable by fine or imprisonment.
[65] The latter alternative – that the respondents do not accept they have an obligation to comply with the law of trespass, and only comply because of the penalty imposed by the Act and Regulation – cannot affect the analysis. The respondents not only have no right to enter the premises, but have an obligation not to. What they are opposing is a sanction – the imposition of a fine – in order to reduce the cost of non-compliance. The complaint, so framed, is once again not that the government has limited expression, but that it is enforcing or supplementing the law of trespass. What the respondents frame as an objection to a penalty is in fact a wider objection to the entire edifice of trespass law. It is an assertion of entitlement to access the property of others for one’s own purpose. This constitutes a positive rights claim.
[66] Furthermore, the focus on the Act’s supposed penalization of false pretences is, in any event, misguided.
[67] It is true that there is an expression that is part of the substrata of the act proscribed by the operation of s. 9. But the expression itself is not a proscribed act, and the application judge erred in finding that it was. Notwithstanding s. 9, the respondents – like everyone else – are free to tell lies. What s. 9 does is assert the rights of the property owner against the trespasser. It deprives the deceiver of the practical benefit obtained by the deception – the permission to enter land from which they would otherwise have been lawfully excluded by the landowner. So far forth, the Act merely concretizes existing common law obligations. And because there are also public goods at stake, the Act creates a new set of rights and duties as between the trespasser and the Crown and therefore imposes public law sanctions for non-compliance. But lying simpliciter attracts no sanction of any kind. The public sanction – the fine – is only imposed on those who use deception to obtain consent to enter a farm and then also carry out some further prohibited act such as entering the animal protection zone or interfering with an animal.
[68] In any event, the purpose of the Charter claim advanced by the respondents is not to safeguard a practice of lying to farmers. Lying to farmers is simply a modality to access a property in order to record how animals are treated. Its only value to the respondents is that it is a means to achieve the end of gathering information to be used in an exposé to further a political cause. As in Toronto (City), it is not the expression that is of value to the respondents but the success of the enterprise: Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732, 146 O.R. (3d) 705 (“Toronto (City) (ONCA)”), at para. 41, aff’d Toronto (City) (SCC), at paras. 38-39.
[69] The respondents must also confront the holding in National Post. As important as news reporting is, and as fundamental as it is to the health of a free society, its constitutional protection does not entail that any means used to gather information will also be constitutionally protected, or that any law that creates an impediment to news gathering is constitutionally suspect.
[70] The respondents’ claim has to stand or fall on the basis of the ultimate expression. Telling a lie for the sole purpose of gaining access to property is no more a matter of self-constitution, or any of the other core aspects of freedom of expression, than swiping a pilfered access card. It would be unreasonably technical and artificial to assess the s. 2(b) claim in any other way.
[71] To sum up, the respondents’ claim must be understood as a positive rights claim. The “platform” the respondents seek – and what they are denied by common law as well as the Act and Regulation – is access to the property of others on their own terms and for their own purposes. The respondents remain unrestricted in how they choose to communicate their messages about farm practices to the public. They can say what they like to whomever they like. What they are restricted from doing is entering farms without informed consent.
[72] This may impair their ability to gather the type of evidence they believe would be especially persuasive to the intended audience, in order to create a maximally impactful visual presentation. But the impact on the expression, which is a matter of degree, is simply too remote from the limit imposed; freedom of expression does not guarantee conditions most optimal for the successful reception of one’s message: Toronto (City) (SCC), at paras. 38-39; Toronto (City) (ONCA), at para. 41. Although information gathering from private sources can be an important precursor to some expression, it is not expression, and the good of expression cannot be reverse-engineered into constitutional protection of everything that precedes it.
[73] The respondents’ claim is not a modest one. Indeed, it would be difficult to articulate a principled limit on what the respondents propose. The argument advanced, were it accepted, would similarly support a finding that legislative prohibitions on hacking phones and other electronic communications, or on other means of electronic surveillance, would also substantially burden the expression of other activists and journalists who need to find and disseminate compromising material from private platforms for their public campaigns.
[74] These conclusions follow without regard to the exceptions established in the Regulation for journalists and whistleblowers. When these exceptions are considered, the unsuccessful s. 2(b) argument is weakened further.
[75] For the purposes of the s. 2(b) analysis, s. 5(6) of the Act cannot be assessed independently of s. 9 of the Regulation, and the effect of s. 9 cannot be assessed in isolation from the exceptions set out in ss. 11 and 12. They constitute a single, though complex, proposition of law, and considering them piecemeal risks misconceiving them.
2. The journalist exception – s. 11
[76] The s. 11 exception for journalists must be understood as a qualification, or further specification, of the s. 5(6) prohibition, to be read together with s. 9. It allows for journalists to obtain access to a farm under false pretences if: (i) the false statement used does not express or imply that the journalist has qualifications to do a job safely that the journalist does not have, (ii) the journalist does not cause harm to a person or animal, (iii) the journalist complies with biosecurity protocols, and (iv) the journalist is not asked to leave.
[77] A journalist is defined in the Regulation as someone who works for “news media”. “News media” itself is defined expansively to include “corporations or entities whose primary function is to disseminate information to the general public on a regular basis, whether in writing or by radio, television or similar electronic means.” The definition of news media, and thus of journalist, is not restricted to traditional legacy media. The essential restriction, then, is that the entity on whose behalf the individual is working must have as its primary function the dissemination of information to the general public on a regular basis. Effectively, this establishes a measure of accountability: the journalist is traceable to an ongoing entity whose reputation will be damaged if its journalists conduct themselves in an irresponsible manner. Nothing in the definition disqualifies niche online publications or newsletters. The audience must be general, but the media’s range of interest need not be.
[78] The effect of this provision is to lessen the burden on the respondents’ expression imposed by the Act. It would not seem to be a significant burden on an entity such as Animal Justice to establish a subsidiary whose sole or main purpose was, for example, making regular podcasts or disseminating visual or written content in some other medium. Neither would it be a significant burden on an individual to contract with such an entity for the purpose of producing an undercover exposé. The journalist exception is not particularly exacting.
3. The whistleblower exception – s. 12(1)(d)
[79] Having found a s. 2(b) infringement by the combined operation of ss. 5(6) and 9, the application judge addressed the whistleblower exception, together with the journalist exception, as part of the s. 1 justification analysis, and found that the justification fell short. But the application judge also found that s. 12(1)(d) constitutes an additional, free-standing, infringement of s. 2(b). Ontario appeals the finding that s. 12(1)(d) violates s. 2(b).
[80] The whistleblower exception in ss. 12(1)(a)-(c) provides that a false statement shall not be considered to have been obtained under false pretences if, essentially, the person who gave the false statement is an employee of the farm or facility, the false statement does not lead to harm to the animals or others, and as a result of the false statement and the consent obtained, the person “was able to obtain information or evidence of harm to a farm animal” or harm with respect to food safety or some other individual or some other illegal activity. Additionally, s. 12(1)(d) must be satisfied, which provides:
The person who gave the false statement discloses the information or evidence described in clause (c) to a police officer or other authority as soon as practicable after obtaining the information or evidence.
[81] The application judge found that the reporting requirement in s. 12(1)(d) was itself an instance of compelled speech and a violation of s. 2(b). The application judge reasoned that the provision not only compelled a statement to an authority, but also dictated the timing of the expression: “as soon as practicable”. The application judge accepted the respondents’ argument that by having to disclose more or less immediately, a person collecting the information would have to prematurely end an investigation and forego collecting evidence of a broad pattern of behaviour or of systemic abuse over time. This would weaken the force of the exposé and make it easier for a farm to counter the allegation with a denial or explanation that the recorded behaviour was only an isolated act of a rogue employee.
[82] Section 12(1)(d) does not constitute compelled speech. At its core, compelled speech entails forced expression of opinions one does not hold, or adherence to beliefs one rejects. It does not preclude regulatory reporting requirements such as this. It is not an infringement of s. 2(b).
[83] Following the test set out in McAteer v. Canada (Attorney General), 2014 ONCA 578, 121 O.R. (3d) 1, at para. 70, leave to appeal refused, [2014] S.C.C.A. No. 444, the respondent is required to establish that the provision has an adverse effect on expression and that the effect is worthy of constitutional disapprobation. In concluding that there is an adverse effect on expression and the compelled speech test is met, the application judge made several assumptions about the operation of s. 12(1)(d) which are questionable. Nothing in the text of s. 12(1)(d) states that the person making the report cannot do so anonymously, notwithstanding that non-anonymous reporting may, as a practical matter, better secure the protection of the section. Nothing – other than the cessation of the activity complained of – prevents a whistleblower from reporting multiple incidents sequentially. The effect of the Regulation is that where abuse has been discovered, it must be reported to an authority so the authority can intervene to address the immediate harm: the suffering of animals or the threat to food safety. The public good that is served by the immediate disclosure of this information justifies the reporting requirement. The requirement does not merit disapprobation.
[84] A further concern of the respondents is that the whistleblower exception is not broad enough. Specifically, s. 12(1)(c) provides immunity to a person who obtained consent through a false statement and “was able to obtain information or evidence of harm to a farm animal, harm with respect to food safety or harm to an individual, or another illegal activity, being carried out”. The respondents interpret “another illegal activity” to mean that immunity is only provided to whistleblowers who have documented illegal activities. But, the argument goes, if the whistleblower believes a practice to be harmful to a farm animal, yet the practice is nevertheless legal, the whistleblower is not sheltered by this provision. This is significant because many of the practices that the respondents object to and wish to document are, we are told, common farm practices that are completely lawful. The respondents hope that by confronting the public with images of lawful mistreatment, the public will forswear the consumption of animal products, or demand better regulation, or both.
[85] For good reason, courts are reluctant to offer definitive interpretations of statutory provisions in the absence of a factual matrix. We do not have the necessary factual matrix to answer the interpretive question definitively. Nevertheless, even if the respondents’ interpretation is correct and the exception is as narrow as they claim, the documentation of lawful practices would be protected under the journalistic exception. This makes sense as whistleblowing and journalism, though they may be complementary, serve different functions. Whistleblowing, at least as conceived in the legislation, is primarily a matter of reporting abuses to authorities that are empowered to remedy them. Journalism is a matter of communicating to the public. Whistleblowers may work together with journalists, but the fundamental difference in the two missions makes sense of the different treatment in the Regulation. The concept of a whistleblower requires there to be a misdeed that is capable of remedy by an authority, and it requires that the whistle actually be blown. Neither requirement would necessarily apply, conceptually, to a journalist. Taken together, the two exceptions provide a broad range for gathering the type of images that the respondents say are essential to the production of exposés.
[86] None of this may be ideal from the perspective of a person who hopes to provoke greater reform by assembling the maximally complete dossier and to do so without any personal risk. But conditions for communicating a message – and communicating it through the chosen means of disseminating images – are made available. It cannot be said that there has been substantial interference with the respondents’ chosen expression as required by Baier.
4. Conclusion on s. 2(b)
[87] To sum up, the application judge erred in assessing the constitutionality of the impugned provisions using the negative rights framework of Irwin Toy/Montréal (City). What the respondents claim is access to the property of others in circumstances where others are not willing to give it to them. The impugned provisions supplement existing common law rights and remedies, both to enforce private property rights and to advance the public interest in protecting the integrity of the food supply chain. The respondents complain that the sanctions they now face make the cost of disregarding the law higher than what they are willing to pay. But there is no entitlement to a legal framework that permits one to trespass on terms one finds acceptable. A fine issued to secure compliance with a law is not to be understood as a licensing fee. What the respondents seek is a different legal platform.
[88] The purpose of the impugned legislation is not to prevent expression, although it imposes limits on activities that bear on expression. The effect of the legislation, when read as a whole, including the exceptions created for journalists and whistleblowers, does not substantially interfere with the respondents’ intended expression, as would be required by Baier to establish a positive rights claim.
[89] That is sufficient to dispose of the appeal. A section 1 analysis is therefore not required. However, the following provides guidance on how a s. 1 analysis is to be conducted.
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