Popping the Bubble

05 Sep 2017 Popping the Bubble

Feature: ARPA lawyer John Sikkema talks about the need for and possibility of a court challenge to Ontario’s proposed “Safe Access Zones Legislation”.


Supreme Court appearances: ARPA is preparing for two Supreme Court appearances between now and the end of the year, TWU and Wall. More below.

Fall Tour: Plans are coming together for ARPA’s annual fall tour. This week, we unveil the theme for the tour, and talk about some changes to where the tour will be going. More below.

Education Funding: We received a question on the Lighthouse News answering machine this week, about the wisdom of Christian schools taking government money. ARPA responds.

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Supreme Court Appearances

ARPA's Director of Law and Policy, André Schutten

ARPA has two appearances coming before the Supreme Court of Canada between now and the end of the year. Late last month, we were granted formal “intervenor status” in what is known as the “Wall case”. This case involves a Jehovah’s Witness congregation in Alberta that dis-fellowshipped – essentially excommunicated – one of its members. ARPA’s Director of Law and Policy, André Schutten, says the case sets boundaries around the authority of the state when it comes to church matters. André says the court will discuss “whether or not the state, particularly our secular courts, have the right and the authority and the jurisdiction to review and possibly overturn church membership and church discipline matters.” This case has implications for the church generally because the church has authority to church discipline and excommunication, and the state has no right to question their decisions. André points out, “Those keys were given directly by Jesus to Peter and his disciples, which is the church. That key was not given to the state. The state was given authority…to make sure that justice is done in the land, but church membership is not part of it.”

ARPA will be submitting written documents by October 5th and the actual court date for oral arguments will be November 2nd.

Secondly, just last week, ARPA’s team wrapped up its written arguments in the Trinity Western Law School case. André Schutten points out ARPA’s unique position, “ARPA is the only intervenor that’s arguing exclusively Section 15, which is the guarantee in the Charter that every individual in Canada has the right to equal treatment in law.” When a government body such as a Law Society gets in the way of Christians to be licensed as a lawyer, that would be “an infringement of the equality right” that’s guaranteed in Section 15, according to Schutten.

That case is due in court over two days on November 30th and December 1st.

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ARPA Fall Tour

Plans have now been finalized for the annual ARPA fall tour. This year’s tour starts September 25th, and wraps up on October 20th. Hannah Sikkema is coordinating the events, and she says the focus this year is on the question of authority. “We all know that we’re all under an ultimate authority, and the question that we’re posing to our audience(s) is: ‘Is that authority Christ or the state?’ And we would obviously say it’s Christ.”

The tour this year is being split into two sections, with two different sets of presenters, says Sikkema. “We’re going to have our Executive Director, Mark Penninga, and our Legal Counsel John Sikkema cover the western provinces: BC, Alberta, and Saskatchewan. And our Director of Law and Policy, André Schutten and Grassroots Manager Colin Postma will be covering Manitoba and Ontario.”

Also, past tours have featured some long lineups at a number of the events. This year advance tickets are being made available online through the Eventbrite website to reduce those lineups. You can see the full tour schedule and reserve your tickets here.

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Education Funding

ARPA's Executive Director, Mark Penninga

Also on the program, an answer to a question that was posted on our answering machine last week. The question came from Tanya Bouwman, a listener who lives in the Hamilton area. She wanted to know about education funding; specifically, whether it was wise for Christian and independent schools to accept government money if there might be strings attached to that funding. “In Ontario, we fund our own schools. And in spite of over a decade of a Liberal government and lots of problems in the public schools, our schools are exempt for now. But in Alberta, where there is funding, a similar government has immediately intruded into private schools. Would it be safer to not have the government money, and also not have the regulations that come with it?”

ARPA Executive Director Mark Penninga provided an answer to the question. He says the answer, essentially, is “yes – but.”

“Yes”, he says, “we do need to be aware of the strings that come from any government handouts. The more the state is involved, the more it’s going to expect to be able to control what it is involved with. (And) we’d be foolish to not realize that the state has very different objectives when it comes to education than we do as parents.” However, Penninga says, there is more to the issue than just money. He says the reality is that “funding actually plays a very, very minor role in this question about government interference.” He says he doesn’t believe that many provincial governments actually care very much whether independent schools get funding.

“The far bigger issue”, he says, “is ideology. If a province is being ruled by a premier or an education minister (who is) a secular humanist, you can expect them to use whatever tools are at their disposal to push their ideology on the children of that province,” including into the Christian schools. He says irrespective of funding issues, governments have other means of authority, including accreditation. “We’d be remiss if we thought that by not having government funding, we would be protecting ourselves.” Penninga adds that “funding or not, in the cultural climate we live in, we all need to take an active role in protecting our fundamental freedoms, especially when it comes to educating our covenant children.”

You can leave a question, just like Tanya did. Just go to the answering machine button on the Lighthouse News home page, and we’ll try to deal with it on a subsequent program.

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Feature Transcript: Popping the Bubble

ARPA Canada lawyer, John Sikkema

The Ontario government is set to introduce legislation this fall that would ban protests outside the province’s abortion clinics. The government is justifying the need for the law by citing several protests that happened outside a clinic in Ottawa earlier this year, but ARPA’s legal counsel, John Sikkema, has done some research on this situation. On the feature this week, he talks about the notion that the proposed law would not withstand a court challenge, based on several considerations.

LN: “Safe Access Zones Legislation”. It’s kind of like BC’s so-called “bubble zone” law. The idea is to prevent protests within a certain distance of abortion clinics specifically. You appeared before a panel of Ontario government regulators last week to talk about this. ARPA had actually written a submission on the issue. Fundamentally, that submission starts with the notion that this proposed law is beyond the jurisdiction of a province to enact. Can you expand on that a little bit?

JS: Sure. So what the law in BC does is basically say “if you are caught doing certain things in certain places, you can be subject to a major fine or actually go to jail.” Obviously that limits freedom of expression, and there’s a Charter of Rights and Freedoms argument to be made there. There’s also a division of powers argument. If this law basically condemns certain actions that the government considers a public evil or a threat to people’s safety and so on, that is essentially criminal law. To prohibit something – penalize it, have prison as a penalty – is criminal law. And the province isn’t allowed to do that. Only the federal government is.

LN: But BC’s “bubble zone” legislation has gone to court, and it was upheld. Was that just a weak court ruling that didn’t go all the way through the process? Because I sense the Ontario government is kind of hanging its’ hat on the fact that this has already been challenged and found to be OK in British Columbia.

JS: That’s right. So the BC history is quite interesting. BC introduced its law in the mid-nineties, shortly after new abortion clinics had opened following the Morgentaler ruling. Those clinics actually were subject to large protests that actually obstructed people from entering; locks were glued and that kind of thing. Now, court injunctions generally took care of most of that, and yet kind of in that moment or responding to that tension the government introduced its bill. You might say it took advantage of the tension at that time. And the people who challenged that law in the early stages were self-represented. And one self-represented litigant did raise the division of powers issue.

It’s hard to know how it was argued; I don’t have the record of the transcript of that case. But it seemed to be dismissed kind of out-of-hand, with (no) great explanation from the lowest court, (and) it was never given substantial treatment by the higher court. In fact the BC Court of Appeal doesn’t even give leave to appeal on that issue, and I suspect that’s because there was no one really making good submissions on that at the time.

LN: One of the other cases you make – and as I was reading through the brief, this is sort of where my eyes glazed over a little bit, frankly, and maybe I don’t “get it” – but the bullet headline says “Ontario’s proposed law would attempt to tailor criminal offences to particular settings.” I get that in a sense, because the law says you can’t protest outside “abortion clinics” specifically. But what’s wrong with that?

JS: The way the province would try to defend this law is to say: “We’re not sending people to jail for a general act that we disapprove of and so on” (which would be criminal law). “We’re basically just ensuring access to health care.” This is the kind of language that they use: “People need to enter clinics, the Ontario government is responsible for providing health care. Abortion we consider to be health care, and so if you’re getting in the way of that, we just need to make sure that people can access Ontario government services. This isn’t about punishing people for something we consider bad. It’s just necessary at these particular locations to make sure people can get in the door without being harassed, intimidated, and so on.”

Now the fact that the law is applying specifically to activity outside of abortion clinics – although it does have another provision that applies generally to communications with abortion providers anywhere – but the fact that it applies to certain locations; that would be used to argue that the province is allowed to do that. Provinces and towns can regulate activity in the streets.  They can prohibit you from holding large signs that might be unsafe for the sidewalk and in the street and things like that. So they would argue that it’s “regulation of local matters”, “conduct in the street” for the purpose of these “services being accessible”, “the streets being safe”, and so on.

But if we look at the Criminal Code, we have offences like harassment and intimidation and mischief, the Criminal Code already is tailored for certain situations and certain people. So towards certain geographical settings; certain offences have higher penalties if they’re committed near a school; the offence of mischief – damaging property – has specific provisions relating to religious property, cultural property, war memorials, things like that. You can have a higher penalty for damaging that kind of property. Likely because certain offences committed in certain contexts and with relation to certain kinds of property are considered a bigger threat to public peace and that kind of thing.

So if Parliament thought it were necessary to say “look, given that abortion is a sensitive issue, if harassment occurs outside of a hospital or a clinic,that can be factored into your sentence.” Parliament can do that. If Parliament wanted to say “look, if you’re harassing a doctor, that’ll factor into your sentencing.”

LN: So the point is that it’s Parliament that has to enact this, it can’t be a province that does it.

JS: That’s right.

LN: The report concludes with what I consider to be a fairly powerful statement, and I’m just going to read it here. “If this government enacts (this law), it can expect robust legal challenges. The precedents upholding B.C.’s law are not binding here.” Is ARPA already looking at a legal challenge, should this pass?

JS: We are. I can’t make any promises, of course, but we are definitely exploring all the possible legal arguments; this division of powers argument being part of that. You know, the situation in BC – which the courts there thought justified that law – they really don’t apply here. I mean, the review of every law is going to be fact-specific, and in our recent FIPPA victory, the court there looked and said, “Where is your evidence that this law is necessary; censoring abortion data?” And they pointed to a story from over 15 years ago about a violent attack on an abortion doctor, which seemed to have no connection to abortion data. And similarly, certain threats and things that may have no connection to peaceful protestors or people just trying to provide information on pregnancy care – that kind of thing – near abortion clinics.

The question would be: “If you’re blanket-prohibiting all kinds of talking to people outside of abortion clinics about abortion, what is the connection between some kind of threat and that kind of a law?” And if there’s no evidence there, then that makes for a pretty good case on our side.

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