October 17th, 2017
Municipalities and other public bodies are charged with making decisions which have wide-reaching impacts across broad swaths of society. They are often mandated to do so, explicitly or implicitly, in the public interest, and in a free, open, and democratic manner. Frequently, such decisions involve matters of some controversy among the constituents who will be affected by or interested in the outcome. As a result, Council and Board deliberations, debates, and decisions are subject to considerable public scrutiny and, often, criticism. Concerned citizens might lobby councillors or board members by letter or email; they might attend open meetings to make representations or pose difficult questions; they might even take to protest. Councillors, board members, or staff might find these actions by citizens to be disruptive or even intimidating. While some individuals and their actions may be viewed as a nuisance, others can come across as threatening. When the actions give rise to concerns about safety or disruption of the process, the question arises what public bodies should and should not do to manage perceived "troublemakers" or threats.
In a decision released on August 25, 2017, Bracken v. Fort Erie (Town), 2017 ONCA 668, the province's top court, the Court of Appeal for Ontario, explained how issuing a “Trespass Notice” under the Trespass to Property Act, R.S.O. 1990, c. T.21 may not be an appropriate solution. The issue, the Court held, is that such a drastic action by the public body may be an unconstitutional breach of an individual's freedom of expression.
In Bracken, the appellant, a self-described citizen journalist, challenged a Trespass Notice issued by the municipality in response to his protest of a proposed municipal by-law. The appellant’s protest was peaceful, but loud and apparently disturbing to some municipal staff who observed the appellant marching back and forth in front of town hall, expressing his views regarding the proposed by-law with the use of a megaphone. The municipality’s Chief Administrative Officer called the police, had the appellant arrested, and issued a Trespass Notice preventing the appellant from entering certain municipal properties for one year, which included preventing him from attending council and other committee meetings that are open to the public and he would otherwise have been entitled to attend.
The Court of Appeal reversed the lower court decision, which had dismissed the appellant’s challenge to the Trespass Notice.
Justice Miller, writing for the Court of Appeal, concluded:
- The appellant’s protest was a form of expression protected by section 2(b) of the Canadian Charter of Rights and Freedoms;
- The appellant’s protest was not violent, nor did it threaten violence, noting – “A person’s subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of s. 2(b)” (para. 49);
- The location of the appellant’s protest in front of town hall “is a place where free expression not only has traditionally occurred, but can be expected to occur in a free and democratic society” (para. 54);
- The Trespass Notice had the effect of limiting the appellant’s section 2(b) rights to freedom of expression by preventing him from conveying his message to his intended audience; and
- The limit on the appellant’s section 2(b) freedom of expression could not be justified in a free and democratic society under section 1 of the Charter, as it failed to meet the proportionality branch of the Oakes analysis.
The Court of Appeal cautioned against this type of blanket prohibition approach and the one year ban employed by the municipality in Bracken as being overbroad and arbitrary. The Court suggested alternative approaches that would have had less impact on the appellant’s freedom of expression such as: talking with the appellant and cautioning him not to use the megaphone in the building; asking him to lower the volume if it was disruptive to those working inside; and, asking him to keep a respectful distance from people entering Town Hall (para. 79).
Ultimately, the Court of Appeal quashed the Trespass Notice and made a declaration that the Trespass Notice issued by the municipality violated the appellant’s rights under section 2(b) of the Charter.
For a more thorough review of the issues in this case, please see my full article Bracken v. Fort Erie: How Municipalities Ought Not to Trample Citizens' Freedom of Expression.
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