Law Times

Law Times • sepTember 4, 2017 Page 5 www.lawtimesnews.com Legal battle over trespass notice Municipalities should proceed cautiously with protesters BY SHANNON KARI For Law Times M unicipalities may have to proceed cautiously before banning individu- als from public property, even if they behave in an agitated man- ner, as a result of a recent ruling issued by the Ontario Court of Appeal. A three-judge panel ruled on Aug. 25 that the town of Fort Erie violated the Charter rights of Fred Bracken when he was is- sued a trespass notice before a council meeting where he was allegedly acting erratically in protesting against a local bylaw. "Violence is not the mere ab- sence of civility," wrote Justice Bradley Miller, in explaining when freedom of expression rights may be curtailed. "The consequences of char- acterizing an act as violence or a threat of violence are extreme: it conclusively defeats the Char- ter claim without consideration of any other factor. Accordingly, courts must be vigilant in deter- mining whether the evidence supports the characterization," stated Miller, with Justices Peter Lauwers and Kathryn Feldman concurring. Nader Hasan, a partner at Stockwoods LLP in Toronto, says there is a "carve out" against the presumption of freedom of expression for violent acts but not for impolite or disruptive protests. "Freedom of speech protects not only the polite and articu- late. It also protects the loud and vituperative," says Hasan, who specializes in criminal and con- stitutional law. The decision is a reminder for municipalities when deal- ing with disruptive protesters in public spaces, says Christopher Williams, a partner at Aird & Berlis LLP in Toronto. "You have to be careful when limiting access," notes Wil- liams, who specializes in mu- nicipal law. Section 10 of the Munici- pal Act might permit bylaws with some protest restrictions for "protection of persons and property," he observes. "It would be subject to Char- ter limits," says Williams and could not single out any indi- vidual or group. Bracken is known in his community as someone who protests on a variety of issues and videotapes his interactions with people. Earlier this year, a justice of the peace upheld a Niagara Parks Act ticket issued to Brack- en for disturbing persons in a tourist area while protesting in favour of Donald Trump. In its decision, the Court of Appeal noted that Bracken can be confrontational and excit- able. "He is a large man and some people find him intimidating," the court said. The trespass notice and one- year ban from town property in Fort Erie stemmed from a pro- test by Bracken before a council meeting in June 2014. An hour before it was to be- gin, he placed a note on each council member's desk, criticiz- ing a bylaw to permit a medical marijuana business to operate near his home. Bracken then went outside and shouted "kill the bill" into a megaphone equipped with a siren. He frequently paced from the parking lot to the front doors, stepping on the sensor so they would open and close. Inside the town hall, city staff drafted a trespass notice and gave it to a police officer who arrested and brief ly detained Bracken when he refused to ac- cept it. Bracken brought a Charter application in Superior Court. The trespass notice had expired, but Justice Theresa Maddalena stated that because "there may be incidents of a re- curring nature," she would hear the application even though it was moot. The judge ultimately found that Bracken's conduct that day was not protected by the Charter. "Bracken crossed the line of peaceful protest to a protest that was not peaceful but became violent, harassing, loud, erratic and disruptive, which behav- iour created a safety concern for staff and the public at the Town. The Town has a duty to protect staff and workers from such antagonistic behaviours," wrote the Superior Court judge in her February 2016 decision. The Court of Appeal con- cluded that lower court was wrong in its interpretation of the facts. "Political protesters can be subject to restrictions to pre- vent them from disrupting oth- ers, but they are not required to limit their upset in order to en- gage their constitutional right to engage in protest," Miller wrote. Where a protest takes place is also significant, Hasan ex- plains. "Protest about Canada's for- eign policy is legitimate speech. It does not mean you get to hold your protest in the Prime Min- ster's private office." Bracken though was pro- testing at Fort Erie's town hall, which was entirely appropriate, says Hasan. "There were many options that the Town could have cho- sen short of expulsion that could have achieved the same purpose. . .," said the Court of Appeal ruling. Cindy Yi, an associate at Loopstra Nixon LLP in To- ronto, and a member of the ex- ecutive of the Ontario Bar Asso- ciation's municipal law section, says there is helpful guidance in the ruling. "Municipalities have to deal with disruptive people all the time. But they need to be care- ful about interfering with lawful protest," she adds. The first contact with Brack- en was the police officer hand- ing over the one-year trespass notice, which she says is why the Court of Appeal found the re- striction to be too broad. "The town should have first tried to engage with the pro- tester in a calm, respectful way," Yi says. The Court of Appeal deci- sion comes at a time when the province is planning to intro- duce legislation this fall to en- act "safe zones" around abor- tion clinics. What is unclear is whether this ruling will impact restrictions on anti-abortion protests that are demonstrative but not violent. LT NEWS Nader Hasan says there is a 'carve out' against the presumption of freedom of expression for violent acts but not for impolite or disruptive protests. JUDICIAL VACANCY ONTARIO COURT OF JUSTICE NORFOLK COUNTY (SIMCOE) The Judicial Appointments Advisory Committee advises the Attorney General of Ontario on the appointment of Judges to the Ontario Court of Justice, and invites applications for a judicial position in Norfolk County (Simcoe). This appointment involves presiding over criminal and family law matters (approximately 50% criminal and 50% family). The minimum requirement to apply to be a Judge in the Ontario Court of Justice is ten years completed membership as a barrister and solicitor at the Bar of one of the Provinces or Territories of Canada. All candidates must apply either by submitting 14 copies of the current (July 2017) completed Judicial Candidate Information Form in the first instance or by a short letter (14 copies) if the form has been submitted within the previous 12 months. Should you wish to change any information in your application, you must send in 14 copies of a fully revised Judicial Candidate Information Form. If you wish to apply and need a current Judicial Candidate Information Form, or if you would like further information, please contact: Judicial Appointments Advisory Committee Tel: (416) 326-4060 Fax: (416) 212-7316 Website: www.ontariocourts.ca/ocj/jaac/ All applications, either sent by courier, mail or hand delivery, must be sent to: Judicial Appointments Advisory Committee c/o Ministry of Government Services Mail Delivery 77 Wellesley Street West, Room M2B-88 Macdonald Block, Queen's Park Toronto, Ontario, M7A 1N3 Applications must be on the current prescribed form and must be TYPEWRITTEN or COMPUTER GENERATED and RECEIVED BY 4:30 p.m. on Friday, September 22, 2017. CANDIDATES ARE REQUIRED TO PROVIDE 14 COPIES OF THEIR APPLICATION FORM OR LETTER. A Fax copy will be accepted only if 14 copies of the application or letter are sent concurrently by overnight courier. Applications received after this date WILL NOT be considered. The Judiciary of the Ontario Court of Justice should reasonably reflect the diversity of the population it serves. Applications from members of equality-seeking groups are encouraged. Untitled-3 1 2017-08-29 1:19 PM www.twitter.com/lawtimes Follow on

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