'Bubble zone' law constitutionally challenged

Lawyers for Fr. Tony Van Hee say they’ll press forward with a constitutional challenge to Ontario’s abortion clinic “bubble zone” law despite charges being dropped against the 87-year-old Jesuit priest.

The Crown abruptly withdrew two criminal counts against Van Hee on Oct. 28 on the grounds that it was not in the “public interest” to continue the prosecution begun four years ago. Van Hee was arrested on Oct. 24, 2018 outside the Morgentaler abortion clinic in downtown Ottawa for holding up signs protesting attacks on freedom of speech. 

The priest’s legal representatives, Phil Horgan, of Toronto, and Albertos Polizogopoulos, based in Ottawa, say the public interest now demands Ontario’s “Safe Access to Abortion Services” law be challenged for violating Canada’s Charter of Rights and Freedoms. The legislation was passed by the former Liberal government of Kathleen Wynne in 2017. It has been used only twice in the past five years, once against a protester who died before his case was heard, and again against Van Hee.

Horgan said the very basics of the law offend the Charter.

“The structure of this law is that it affords law enforcement the ability to lay charges against a peaceful, non-obstructive protester, based on where he or she may be located, so as to intimidate any such protest activity,” he said. 

“The Crown, perhaps several years later, can then withdraw the charges rather than face an obvious constitutional challenge on the merits. While the charges are pending, the citizen is restrained and muzzled. Without (a legal verdict) the process can be repeated (with) someone else.”  

Polizogopoulos compared the wording and intention of the act to laws commonly invoked by oppressive religious regimes for stamping out dissenting belief.

“Our position is the legislation is such a serious Charter breach that it should never have been available to prosecute a man in his 80s peacefully carrying out his priestly duties, and protesting legislation that effectively amounts to anti-blasphemy laws,” Polizogopoulos said. “Just its attempt to outlaw ‘discouraging language’ on a public street in the nation’s capital — or anywhere in Canada — seems to exemplify what the courts have defined as legal overreach.” 

Van Hee, who held peaceful anti-abortion vigils on Parliament Hill for almost three decades before his arrest, said he would not be returning to protest duty but was looking forward to the constitutional case.

“I owe (the) victory to God, and His intervention on my behalf, and on behalf of victims of the abortion industry,” he said after the Crown advised the Ontario Court of Justice in Ottawa that the case wouldn’t proceed. “I am obviously pleased with the Crown’s acknowledgment that its prosecution was not in the public interest. It has been my position from the start that this legislation is unacceptable. We will now move on to the next round where, God willing, we will also see justice.”

On the day he was arrested four years ago, Van Hee was deemed to be within the 50 metre legal “bubble zone” around the Morgentaler clinic on Bank Street.He held signs that read: “The Primacy of Free Speech: Cornerstone of Western Civilization” and “Without Free Speech the State is a Corpse.” 

He was subsequently charged with intimidation or attempted intimidation. The single initial charge was later dropped and replaced by two charges of “inform(ing) or attempt(ing) to inform a person concerning issues related to abortion services, by any means, including oral, written or graphic means,” and “perform(ing) or attempt(ing) to perform an act of disapproval concerning issues related to abortion services, by any means.”

While the criminal charges worked their way through the courts, Polizogopoulos, later joined by Horgan, launched the constitutional challenge to the law itself. The challenge was stalled by COVID and by the need to examine 14 Crown witnesses supportive of the legislation, but will now resume.