Anti-abortion protest 'bubble zone' law on the right side of Charter: lawyer

One St. John's lawyer says the Newfoundland and Labrador government would be making the right choice if it decided to enact a bubble zone law preventing protesters to gather outside abortion clinics.
Anti-abortion protesters stand outside the Athena Health Centre on LeMarchant Road several days a week brandishing signs. (Laura Howells/CBC)

One St. John's lawyer says the Newfoundland and Labrador government would be making the right choice if it decided to enact a "bubble zone" law preventing protesters from gathering outside abortion clinics.

Last week, CBC News reported that Justice Minister Andrew Parsons is looking into bringing in a law that would make it illegal to protest outside a clinic that offers abortion procedures.

"We have competing rights here and while there's no hierarchy of rights, I do think this is a situation where one right is going to need to be protected more so than the other," said Jonathan McDonald, a lawyer with Bob Buckingham Law in St. John's.

I think the legislation that's being talked about by Minister Parsons is appropriate, I do think it is constitutional.- Lawyer Jonathan McDonald

According to McDonald, protesters do indeed have the right to free speech under the Charter of Rights and Freedoms within Canada.

However, those protests may violate the rights of women accessing legal health care — including at clinics that offer abortions.

"Our Supreme Court has ruled in fact that it's OK for the government to violate Charter rights — in this case protesting — as long as there's a proportionate reaction, and it's for a justifiable cause. And I think that's what we have here."

McDonald points to the example in British Columbia, where protests are banned within a 30-metre radius of abortion clinics.

'It will pass the muster'

Lawyer Jonathan McDonald says law creating a barrier preventing anti-abortion protesters from demonstrating outside clinics that offer the service would not be unconstitutional. (CBC)

Challenges of that law have been dismissed by B.C.'s top court, and McDonald said the same would apply here in Newfoundland and Labrador.

"I think it is in example of, albeit a controversial, right to protest, right to freedom of expression. I think the legislation that's being talked about by Minister Parsons is appropriate, I do think it is constitutional and personally I am in favour of it as well," said McDonald.

"I do think it will pass the muster if it's ever challenged for being unconstitutional."

McDonald said because anyone who wants to protest abortions would be able to do so elsewhere — not directly outside a clinic where women access that health care — their Charter rights can remain intact.

I do think it will pass the muster if it's ever challenged for being unconstitutional.- Lawyer Jonathan McDonald

"You're still allowed to protest abortion, you're still allowed to be pro-life. You can do it on the radio, you can do it in the privacy of your own home, as long as it's not within a certain radius of these clinics," he said.

"You are still allowed to promote that idea, you're just not allowed to promote that idea to the point that it might interfere with the safety of these women entering these clinics."

As for the issue of protesters allegedly taking photos of women going inside the clinics to get an abortion, McDonald said this "bubble zone" legislation would help put an end to that, as well.

"That makes another reason why this legislation should be introduced. Unfortunately, these people are allowed to have their smartphones and take photos when they're out in the public realm," said McDonald.

"By introducing this legislation, that's something — besides the safety — that will be doing as well: protecting the identities of those availing of the clinics."

With files from the St. John's Morning Show