Bracken v. The Town of Fort Erie
[Indexed as: Bracken v. Fort Erie (Town)]
2017 ONCA 668
Court of Appeal for Ontario, K.N. Feldman, Lauwers and B. W. Miller JJ.A.
August 25, 2017
Charter of Rights and Freedoms — Freedom of expression — Applicant protesting in public space outside town hall by walking back and
forth with megaphone — Some municipal employees fearing for their
safety — Applicant not obstructing access to town hall or interfering
with anyone’s movements — Trespass notice which barred applicant
from town property for one year issued — Application judge erring in
finding that applicant’s acts were violent and therefore fell outside
ambit of s. 2(b) of Charter — Effect of trespass notice being to limit
applicant’s s. 2(b) rights — Limitation not justified under s. 1 of Charter
— Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
The applicant was angered by the respondent town’s decision to introduce a
by-law permitting a medical marijuana facility to be built across the street from
his home. He attended several town council meetings and made a video recording
on at least one occasion. He had an angry confrontation with a town hall
employee when he demanded to speak to the chief administrative officer. Finally, he
held a protest at the town hall by walking back and forth with a megaphone
in the public space in front of the building, shouting “kill the bill”. Several municipal employees who witnessed the protest feared for their safety. A trespass notice
banning the applicant from all town property for one year was issued. The applicant was arrested when he refused to leave. He subsequently brought an application for a declaration that the trespass notice unjustifiably violated his right to
freedom of expression contrary to s. 2(b) of the Canadian Charter of Rights and
Freedoms. The application judge found that the applicant’s actions during the
protest were violent and therefore did not fall within the ambit of s. 2(b). The
application was dismissed. The applicant appealed.
Held, the appeal should be allowed.
The application judge erred in finding that the applicant’s protest was violent
and that his actions therefore did not come within the protection of s. 2(b). The
applicant did not physically obstruct anyone or prevent anyone from entering the
building. There was no reasonable basis for the employees’ fear. Violence is not
the mere absence of civility. An observer’s subjective feelings of disquiet, unease,
or even fear are not in themselves capable of ousting expression categorically
from the protection of s. 2(b). Moreover, the protest did not take place in a location where s. 2(b) protection does not exist. The literal public square is paradigmatically the place for expression of public dissent. The trespass notice had the
effect of limiting the applicant’s s. 2(b) rights.
The limitation of the applicant’s freedom of expression was not justified under
s. 1 of the Charter. The respondent could not establish that it was acting for a
sufficiently important purpose. Even if it were to succeed on that basis, it would
nevertheless fail as its actions did not minimally impair the applicant’s freedom
of expression and there was no proportionality between the deleterious and salutary effects of the expulsion and trespass notice.