Law Times

Page 6 September 4, 2017 • Law timeS www.lawtimesnews.com COMMENT u EDITORIAL OBITER By Gabrielle Giroday Protest protested L ately, the act of public protest — particularly on public grounds — is getting more scrutiny than ever before. Therefore, the legal elements of the recent ruling in Bracken v. Fort Erie (Town), 2017 ONCA 668 may have important implications for municipalities across Ontario. In the ruling, a three-judge panel from the Ontario Court of Appeal quashed a trespass notice against Fred Bracken after he started protesting a civic bylaw near the town hall in Fort Erie and said his Charter rights had been violated. Why is this ruling important for lawyers to note? "The consequences of characterizing an act as violence or a threat of violence are extreme . . .," said the ruling. "Accordingly, courts must be vigilant in determining whether the evidence supports the charac- terization, and in not inadvertently expanding the category of what constitutes violence or threats of violence." Lawyers are often consulted as thought leaders by many organiz- ations on how to navigate human resources issues and human rela- tions issues. Protest — as a way of articulating dissent — is not going underground any time soon. Nervousness around how protests take shape is abundant. However, restricting protest can have legal results. In this case, the town was rapped for the "punitive nature" of the tres- pass notice, which banned Bracken from town property for a year. "In a free and democratic society, it is no small matter to exclude a person from public property," said the ruling. "To do so for a full year is extraordinary and must be amply justified. Here it was not." The fastest way to stem a protest may not be a legal remedy at all. The oxygen that protesters feed off is attention — so ignoring a protest is the fastest way to watch it wither. LT ©2017 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reli- ance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. 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Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Staff Writer . . . . . . . . . . . . . . . . . . . . .Alex Robinson Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . Leah Craven Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . . . . .Catherine Giles Electronic Production Specialist . . . Derek Welford Liberals look for a northern lifeline BY IAN HARVEY A s the Liberal's popularity in their stronghold of Toronto wanes, Ontario Premier Kath- leen Wynne is looking north — way north. The government is poised to approve two new northern ridings as proposed by the Far North Electoral Boundar- ies Commission to add to 15 other new ridings driven by population growth in the south, bringing the total seats in the legislature to 124 by next June's general election. However, there are some questions around the motivation for the two new northern provincial electoral districts as they are officially titled. There are 11 seats in the north, five held by the NDP, three by the Liberals and three by the PC. Two will be split into four: Kenora-Rainy River, currently NDP (25 per cent indigenous, two per cent francophone), Kiiwetinoog (68 per cent indigenous), Mushkegowuk (27 per cent indigenous, 60 per cent franco- phone) and Timmins, currently Liberal (12 per cent indigenous, 36 per cent fran- cophone). So what's the big deal? As National Post columnist Josh De- haas cleverly points out, the new ridings are so sparsely populated — just 53,000 in Timmins down to 29,000 in Mushkegowuk — that, in effect, splitting two ridings into four dispropor- tionally weights those votes "four times as much as votes cast in big southern districts." In other words, fewer vot- ers in those ridings can de- termine who wins the seat compared to the south where the average riding popula- tion is about 108,000. It's a stunning piece of gerrymander- ing by the Liberals. Clearly, the commission also saw controversy looming and anticipated a Charter pushback: "What we have pro- posed is the result of a careful reading of the Supreme Court decision in Carter (Prov. Electoral Boundaries (Sask.), [1991] 2 SCR 158, 1991 CanLII 61 (SCC) and the Nova Scotia Reference [Final Report of the Electoral Boundaries Commission, 2017 NSCA 10 (CanLII)]." The Saskatchewan case hinged on whether creating a wide variance in population within ridings by redistribu- tion was a Charter violation. The Sas- katchewan Court of Appeal said yes; the Supreme Court, however, allowed it as justified. Justice Beverly McLachlin wrote for the majority: "The purpose of the right to vote enshrined in s.3 of the Char- ter is not equality of voting power per se but the right to 'effective representation.'" The three dissenters felt otherwise: "Each vote must be relatively equal to ev- ery other vote; there can- not be wide variations in population size among the 64 southern constituencies. Deviations from equality will be permitted where they can be justified as contributing to the better government of the people as a whole, giving due weight to regional is- sues involving demographics and geog- raphy." While the majority held deviation was justified, McLaughlin also raised a cau- tion: "What are the conditions of effec- tive representation? The first is relative parity of voting power. A system which dilutes one citizen's vote unduly as com- pared with another citizen's vote runs the risk of providing inadequate representa- tion to the citizen whose vote is diluted." Against these pending legal argu- ments is the reality the North wants a bigger voice at the table. First Nations or otherwise, they've long felt alienated from the south where urban values are often imposed with little or no consulta- tion and their unique needs left unmet. Now, with the approval to start a $550-million road project to access the $60 billion in minerals and ore deep in the Far North's Ring of Fire, the North knows it has the attention of Bay Street's key players and with it political leverage. Is it enough to curry favour for the Liber- als? Maybe; maybe not. The North is bristling and hungry for its due. It occupies 87 per cent of Ontario's land mass and is rich with resources even though it comprises only 5 per cent of the population and more and more residents are moving away because of the lack of jobs and opportunities. The Wynne government finally has woken up to this and has nowhere to go but up in the polls. And while every vote counts, some may count more than oth- ers. LT uIan Harvey has been a journalist for more than 40 years writing about a diverse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. Queen's Park Ian Harvey

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