Sarah E Hamill, “Location Matters: How Nuisance Governs Access to Property for Free Expression”

Working Abstract

This paper examines the relationship between the right to free expression and property in Canada. I argue that Canadian courts use the logic of nuisance to govern rights of access to and use of property for the purposes of free expression. By ‘logic of nuisance’ I mean that courts are more willing to uphold free expression when it is quiet, unobtrusive, and does not interfere with the primary function of the property on which it takes place Two recent lower court cases, Batty v City of Toronto and R v Whatcott are, I argue, paradigmatic of the Canadian jurisprudence on free expression and access to property. Reading these cases together highlights, with particular clarity, the often implicit judicial references to nuisance. I argue that this ‘logic of nuisance’ is much too restrictive and call for a jurisprudence which defers to the right of free expression rather than to property.

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