Canada: Bracken v. Fort Erie: How Municipalities Ought Not To Trample Citizens' Freedom Of Expression

Last Updated: November 24 2017
Article by Jacob R.W. Damstra

Introduction

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 sometimes lobby councillors or board members by letter or email; attend open meetings to make representations or pose difficult questions; even take to protest. Councillors, board members, or staff sometimes 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 decision making process the public body must complete, 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 ("Bracken"), the Court of Appeal for Ontario, the province's top court, 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 difficulty, 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. Using the Bracken decision as a reference point, this article considers the constitutional and administrative law issues that arise when a municipality or public body considers removing or banning an individual from public spaces, including open council or board meetings. This article also discusses alternatives suggested in Bracken and in other court decisions on dealing with these challenges posed by vocal constituents, as well as precautionary measures that municipalities and other public entities might consider in the interests of transparency and free, open, democratic governance.

Background – The Legal Landscape

In order to understand the decision in the Bracken case and its implications, it is important to set out the legal landscape within which the case unfolded.

The Trespass to Property Act

In Ontario, the Trespass to Property Act, like similar legislation in other provinces, sets out the governing laws regarding trespassing. The purposes of this legislation is to provide greater control over entry and use of an occupier's premises (i.e. lands or structures), to set out penalties and remedies for violations of the legislation, and to establish clear terms for recreational use of private lands.

An "occupier" is defined in the Trespass to Property Act as: "(a) a person who is in physical possession of premises, or (b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, even if there is more than one occupier of the same premises."

Section 2(1) of the Trespass to Property Act makes it an offence for any person, not acting under a right or authority conferred by law, who

(a) without the express permission of the occupier, the proof of which rests on the defendant,

(i) enters on premises when entry is prohibited under this Act, or

(ii) engages in an activity on premises when the activity is prohibited under this Act; or

(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier.

An occupier may issue a notice prohibiting entry on premises pursuant to section 3(1), and, according to section 5(1), such notice may be given orally or in writing, by means of clearly visible signs, or by a marking system described in section 7 of the Trespass to Property Act.

The Canadian Charter of Rights and Freedoms

Whenever a premises in Ontario is public land or when the occupier is a government body, any action taken by that public entity is subject to compliance with the Canadian Charter of Rights and Freedoms (the "Charter"). The Charter guarantees certain rights and freedoms, which cannot be infringed unless it is by some "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" (section 1).

For example, and specifically relevant to the issue of prohibitions against trespass under the Trespass to Property Act, everyone has fundamental freedoms under section 2 of the Charter to freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication, and freedom of peaceful assembly. Additionally, every citizen has the right to vote in federal and provincial elections protected by section 3 of the Charter. And, everyone has certain legal rights including: to life, liberty and security of the person (section 7); to be secure against unreasonable search and seizure (section 8); not to be arbitrarily detained or imprisoned (section 9). The Charter also provides, in section 24(1), the ability of citizens to seek a remedy from the courts for any violation of their rights or freedoms.

The interplay between a public body's ability to make use of the Trespass to Property Act and the protections afforded to individuals by the Charter was squarely at issue in the Bracken case.

The Open Meetings Principle

Before moving on to the specifics of the Bracken decision, it is important to understand one more important element of the legal landscape: the "open meetings principle".

In Ontario, the Municipal Act, 2001, S.O. 2001, c. 25, enshrines the open meetings principle at section 239, which states: "Except as provided in this section, all meetings shall be open to the public."

The open meeting principle ensures that citizens have the right to a transparent, open decision-making process of local governments, committees and boards. A corollary of this principle is that concerned citizens will be free to observe the meetings of municipalities and other public entities and participate in the manner prescribed by the applicable rules, regulations, and by-laws.

Fredrick Bracken and the Town of Fort Erie

With this legal landscape in mind, it is now appropriate to turn to the Bracken case and the lessons that it holds regarding the use of trespass notices by municipalities or other public bodies.

Facts

Fredrick Bracken is a self-described citizen journalist. He challenges and protests government decisions with which he does not agree through various means, including marching with a megaphone, loudly exclaiming his concerns and demands. He also video records his protests and interactions with members of the public and government officials.

On June 16, 2014, Town Council for the Town of Fort Erie was scheduled to discuss a by-law which would permit a medical marijuana facility to be built across the street from Mr. Bracken's house. Mr. Bracken opposed the by-law, and decided, on the evening of the scheduled Council meeting, to protest the proposed by-law.

Mr. Bracken attended at Town Hall about an hour before the Council meeting began to set up his protest. He entered the unlocked Council chamber and left a note on each councillor's desk expressing displeasure with the proposed by-law. He also ensured that his megaphone siren could not be heard inside of the Council chamber so as to not disrupt the meeting. Mr. Bracken returned to the Town Square outside Town Hall and began marching back and forth, shouting into his megaphone "kill the bill" and other things, including demands that a senior Town staff was a liar and should be fired.

Mr. Bracken's protest was peaceful, but loud and apparently disturbing to some municipal staff who observed his marching and chanting. The municipality's interim 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, which are open to the public and he otherwise would have been entitled to attend.

Charter Application Dismissed

Mr. Bracken brought an application in the Superior Court of Justice, challenging the constitutionality of the Trespass Notice under sections 2(b) (freedom of expression) and 7 (right to life, liberty and security of the person) of the Charter.

In a decision released as Bracken v. Fort Erie (Town), 2016 ONSC 1122, the application judge dismissed Mr. Bracken's application, stating at paragraph 98 that Mr. Bracken "crossed the line of peaceful assembly and protest" and was engaged in acts of violence such that his expression was not protected under section 2(b) of the Charter. The application judge also commented at paragraphs 95 and 101 that Mr. Bracken's language was incomprehensible shouting and his behaviour was erratic and intimidating, and therefore the use of a Trespass Notice was a legitimate effort to protect the public and Town staff and not a violation of Mr. Bracken's freedom of expression.

The application judge declined to rule on Mr. Bracken's challenge to the Trespass Notice under section 7 of the Charter.

Appeal to the Court of Appeal Allowed

Mr. Bracken appealed the dismissal of his application to the Court of Appeal for Ontario. In a unanimous decision by Justices Feldman, Lauwers, and Miller, the Court of Appeal allowed Mr. Bracken's appeal, found that the Town's Trespass Notice violated Mr. Bracken's freedom of expression under section 2(b) of the Charter, and quashed the Trespass Notice. Given the result under section 2(b), the Court of Appeal found it unnecessary to consider section 7.

As an aside, the Court of Appeal also noted that the application ought to have been framed not as a Charter application, but as an application for judicial review under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, to determine: "whether the Town's expulsion of Mr. Bracken from the premises and the issuance of the trespass notice was lawful in the circumstances." This would have "brought to the fore the issue of the implied limits on the common law authority of government actors to exclude persons from public property." Since the application was not framed in that manner, that issue remains to be determined another day.

The Court of Appeal decision provides some helpful guidance regarding the protections of freedom of expression provided by section 2(b) and the interplay between the Charter and the Trespass to Property Act. A full discussion of the Court's analysis is beyond the scope of this article, but certain highlights are worth noting. Justice Miller, writing for the Court of Appeal, concluded that:

  1. Mr. Bracken's protest was a form of expression protected by section 2(b) of the Charter;
  2. Mr. Bracken's protest was not violent, nor did it threaten violence - "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)" (paragraph 49);
  3. The location of Mr. Bracken's protest in front of Town Hall, in the literal "town square", "is a place where free expression not only has traditionally occurred, but can be expected to occur in a free and democratic society" (paragraph 54);
  4. The Trespass Notice had the effect of limiting Mr. Bracken's section 2(b) rights to freedom of expression by preventing him from conveying his message to his intended audience, both on that day and for one entire year thereafter;
  5. The "statutory obligation to promote workplace safety, and the "safe space" policies enacted pursuant to them, cannot be used to swallow whole Charter rights. In a free and democratic society, citizens are not to be handcuffed and removed from public space traditionally used for the expression of dissent because of the discomfort their protest causes" (paragraph 82); and
  6. The limit on Mr. Bracken's section 2(b) freedom of expression was not a reasonable one that could be demonstrably justified in a free and democratic society under section 1 of the Charter, as it failed to meet the proportionality analysis set out in R. v. Oakes, [1986] 1 S.C.R. 103. Specifically, the Town could not establish it was acting for a sufficiently important public purpose, nor could the Town demonstrate that the Trespass Notice was minimally impairing of Mr. Bracken's Charter rights or that the benefits of expelling Mr. Bracken were proportionate to the deleterious effects on his rights.

In quashing the Trespass Notice, the Court of Appeal cautioned against the type of blanket prohibition and commented that the one year ban employed by the municipality in Bracken as being overbroad and arbitrary.

In light of the decision in Bracken, municipalities and other public bodies would be prudent to consider taking precautionary measures to ensure the validity of any prohibitions against attendance on public lands issued to a concerned citizen, and to canvass alternatives to the type of outright ban implemented by the Trespass Notice issued to Mr. Bracken.

Precautionary Measures

The Court of Appeal's judgment in Bracken provides examples of precautionary measures a government body might take to ensure the validity of any notices of prohibition against trespass issued. At paragraph 72, Justice Miller comments: "Unlike other municipalities, the Town has no by-law regulating its use of trespass notices, or even a trespass policy. I observe that the risk of arbitrary action is higher in the absence of a well-crafted by-law, and there are greater opportunities for uncertainty as to what sorts of actions will be permitted." A first step, therefore, might be for municipalities and other public bodies to ensure that they have such a by-law or policy, or review existing by-laws or policies with reference to Bracken.

Justice Miller also observed, at paragraph 75 of the Bracken decision, a government actor's exercise of the common law power to expel persons from public property is "subject to implied limits." Such limits include that the trespass notice "cannot be issued capriciously, that is, it cannot be issued, in the circumstances of a public protest in the town square, without a valid public purpose." Some examples of valid public purposes would include: "the prevention of unlawful activity, securing the safety of persons, preventing the appropriation of public space for private use, and preventing the obstructing of the operation of government and the provision of government services." Additionally, in a separate case involving Mr. Bracken, Bracken v. Regional Municipality of Niagara Corporation, 2015 ONSC 6934, Justice Nightingale noted at paragraph 65, that another valid public purpose could be "to preserve order at Regional Council meetings". Municipalities and public bodies might want to take the precautionary second step of considering the validity and importance of the purpose for prohibiting an individual from entry on public premises prior to issuing a trespass notice.

Alternatives to Trespass Prohibitions

Finally, in Bracken, the Court of Appeal suggested alternative approaches that would have had less impact on Mr. Bracken's freedom of expression.

To justify any limit imposed on an individual's rights or freedoms under the Charter, a government entity must show that its actions impair the right or freedom as little as possible, and only to the extent necessary to promote the valid public purpose. Justice Miller explained at paragraph 79 that the Town had a number of more minimally impairing options available to it in dealing with Mr. Bracken. Examples suggested include "actually talking with Mr. Bracken 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."

In the Bracken v. Regional Municipality of Niagara Corporation case, Justice Nightingale similarly suggested, at paragraphs 67-70, more minimally impairing alternatives to an outright ban such as trespass notices that would:

  • restrict the citizen's ability to ask questions and make presentations during future Council meetings regarding Council business in accordance with the rules and procedural bylaws;
  • restrict the citizen's communication in a non-disruptive manner with Council members to the confines of Council chambers before Council meetings;
  • restrict the citizen's communication with Council members or staff by email or written correspondence;
  • make the citizen's attendance at Council meetings conditional on not disrupting or attempting to disrupt the proceedings;
  • make it clear to the citizen that his or her right to attend future meetings would be in jeopardy and potentially taken away because of any improper conduct that would warrant expulsion from the meeting by the Chair under the Municipal Act, 2001;
  • be for a much shorter period of time (than one full year) at which point, the government body could then determine if the citizen's alleged disruptive behaviour was no longer an issue; or
  • confirm that staff except the CAO would not be required to communicate or interact with the citizen thereby restricting his or her communication and contact with staff altogether and requiring the citizen to deal directly with the CAO including at Council meetings.

The Court of Appeal made similar observations in Bracken, especially about the length and geographic scope of the prohibition. At paragraph 80, Justice Miller observed: "the trespass notice took on a punitive nature, banning Mr. Bracken from all town property for a full year, terms which were far in excess of whatever immediate threat, real or imagined, the notice was intended to ameliorate." Justice Miller also commented, that the geographic scope of the notice was overbroad as there was no evidence or suggestion that Mr. Bracken ever set foot in two of the three properties from which he was banned, let alone caused problems there. Accordingly, even when use of a prohibition against trespass might be warranted, its terms should be carefully circumscribed to what is necessary in the circumstances including time frame, portions of the occupier's lands, and conduct on those lands.

Conclusion

Municipalities and other public, decision-making bodies are charged with a difficult task and a number of competing obligations. First and foremost, these government entities are mandated to govern, in the public interest, for the best interest of the public. In carrying out this mandate, some decisions will inevitably stir up controversy and dissent amongst constituents with diverse and diverging views. In some cases, those with dissenting voices may decide to take steps to have their voices heard in any number of ways – which will run the spectrum from passive and docile to loud, angry, and violent. In those circumstances, government actors will need to find a balance between preserving order and ensuring the safety and security of staff, other constituents and members of Committees or Councils on one hand, and respecting individual rights and freedoms enshrined in the Charter on the other hand.

The balancing of rights as between two groups of individuals is not an easy one as reflected by 35 years of disputes under the Canadian Charter of Rights and Freedoms since its inception in 1982. However, the Court of Appeal for Ontario's recent decision in Bracken v. Fort Erie (Town), provides some useful guidance to municipalities, other public bodies, and individuals alike regarding the delicate interplay between the Trespass to Property Act, the Charter, and the principles of free, open, and democratic debate on which our society is founded.

This article was originally published by the Public Sector Digest in its November 2017 issue

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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