Law Times

Law Times • December 5, 2016 Page 5 www.lawtimesnews.com Constitutionality of police bylaw use questioned BY ALEX ROBINSON Law Times L egal scholars are ques- tioning the constitution- ality of the Toronto Po- lice Service's use of bylaw infractions in Project Marie. The operation saw the police issue 89 charges to people in Eto- bicoke's Marie Curtis Park. Only one of the charges was criminal. The others were all municipal bylaw and Provincial Offences Act infractions. A "fact sheet" police handed out at the park detailed that 78 people were investigated and that 71 charges were issued for "lewd behaviour," which police later said was a bylaw infraction for engaging in sexual behav- iour in a park. Other charges on the fact sheet include "being in park after hours" and "tres- passing." Human rights lawyers and activists have decried the opera- tion, saying it targeted the LGBT community. While the police have said they did not target gay men, those investigated were pre- dominantly men and the park is a known area where gay men congregate. According to the police's fact sheet, 76 of the people investi- gated were men and two were women. The police said that not all people investigated were charged, but they did not re- spond to questions concerning the actual number of those fac- ing charges. Toronto lawyer Douglas El- liott, who has worked on land- mark constitutional cases, says the bylaw charges could be sub- ject to constitutional challenges in two ways. Elliott says that if a bylaw was applied to one group selectively because of their sexual orienta- tion, it would be a violation of s. 15 of the Charter, even if the by- law itself was on its face a valid exercise in municipal authority. "I don't recall any massive bylaw enforcements against straight people at any of the various festivals that have taken place where people may be hav- ing romantic encounters with members of the opposite sex," Elliott says. Legal scholars say there could also be a line drawn between the Project Marie charges and a 1983 Supreme Court of Canada deci- sion, Westendorp v. the Queen, which concerned a woman who was charged with a municipal bylaw infraction in Calgary for being on the street for the pur- pose of prostitution. In that decision, the Supreme Court determined the City of Calgary bylaw was unconsti- tutional because it invaded the federal government's jurisdic- tion over criminal law. Kyle Kirkup, an assistant pro- fessor with the University of Ot- tawa Faculty of Law, says the ar- gument could be made that the police's use of bylaws to enforce what is in essence a criminal prohibition is unconstitutional. "To use an indecency bylaw to target people in parks could be vulnerable to a constitutional challenge because the criminal law power is the exclusive juris- diction of the federal govern- ment," he says. "I think that would be an in- teresting argument to pursue, that really the City of Toronto has dressed up a criminal pro- hibition in a municipal bylaw, which could be subject to a constitutional challenge," he added. Dennis Baker, assistant professor at the University of Guelph, says using provincial laws and municipal bylaws to "supplement" the Criminal Code is perilous. "In my view, that is a danger- ous proposition since those laws don't have the same degree of procedural protections that we'd expect with a criminal prosecu- tion," he said in an email. A spokesman for the Toronto Police Service declined to com- ment on questions concerning the constitutionality of the use of municipal bylaws in this op- eration. Critics say the operation was reminiscent of the bathhouse raids in 1981, for which the po- lice recently issued an apology. Kirkup says Project Marie is just the most recent example of a long history of police targeting the LGBT community and that the operation is evidence that the most vulnerable members of the community are still be- ing targeted by the criminal law even after human rights protec- tions have been introduced. "You've seen over the past de- cade or so some attempts on the part of the Toronto Police Ser- vice to build better community relationships. I think it is a fraught relation- ship because of this long his- tory," he says. "For many, when you see things like Project Marie and the targeting of LGBT folks, you think well maybe this rela- tionship of trust you're trying to build has disappeared through a single act." Elliott says he expects the bylaw charges will be thrown out, as they have been in the past when the police have used "another legal procedure to criminalize gay people when their behaviour is not otherwise criminal." "I think we're used to, in the gay community, these kinds of inf lated allegations being trot- ted out by neighbours and police and all kinds of vague allega- tions of immoral and unseemly conduct being used as a cover for what is essentially a targeted at- tack on gay men," he says. "And I would have thought those days were long behind us, but apparently not." LT NEWS Kyle Kirkup says the argument could be made that the Toronto Police Service's use of bylaws to charge people in Etobicoke's Marie Curtis Park is unconstitutional. 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