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POWERS OF MUNICIPALITY - Constitutional issues - Canadian Charter of Rights and Freedoms - Freedom of expression - Demonstrations and protests - Use of public property - Municipal property

Thursday, September 28, 2017 @ 8:35 AM  


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Appeal by Bracken from the dismissal of his application to challenge a trespass notice issued to him by the Town of Fort Erie. Bracken was a town resident who at times engaged in public protests. Prior to having a meeting with Brady, a town official, to discuss the proposed location of a marijuana dispensary across the street from his home, Bracken had pounded his fists on the front desk of Town Hall and frightened an employee. He returned to Town Hall to protest on the date scheduled for the introduction of a bylaw to permit the facility. He ran into Town Hall before the meeting to place a note on each councillor’s desk, expressing his objection to Council's expected decision regarding the marijuana facility. He testified that he ran inside one more time to see if his megaphone could be heard from inside. After satisfying himself that he would not be disrupting the meeting, he started using his megaphone to protest. Town employees were scared by his actions. The interim CAO of the Town, Kuchyt, was informed of the situation by distressed employees. He consulted with Brady and the employees before directing his assistant to draw up a Trespass notice and call the police. The police arrived and instructed Bracken to leave because the trespass notice had been issued. Bracken refused to leave, so he was arrested, placed in handcuffs and seated in the back of a police car for 15 minutes. Brady then went outside and provided the police with the trespass notice. Bracken was provided with the trespass notice, a letter outlining the reasons for its issuance, as well as a provincial offences ticket. The provincial offences ticket was later withdrawn. The trespass notice prohibited Bracken from attending Town Hall, the Municipal Campus and the Public Works Yard for one year, because Town employees worked there. Certain exceptions were made in the trespass notice, including an exception which allowed Bracken to make an appointment in advance with the CAO to attend at Town Hall on Town business. Bracken’s application to quash the trespass notice was dismissed, the application judge finding that he had crossed the line of peaceful assembly and protest and engaged in acts of violence, and that his expression therefore could not be protected under s. 2(b) of the Canadian Charter of Rights and Freedoms (Charter). She concluded that the trespass notice had been legitimately issued to protect the public and Town staff, therefore there had been no Charter violation.

HELD: Appeal allowed. The trespass notice was quashed and Bracken was awarded costs for the appeal and the application. None of the Town employees who witnessed Bracken’s behaviour on the date the trespass notice was issued identified any threats he made or violent actions he performed towards them. No evidence supported Brady’s claim that Bracken obstructed people from entering Town Hall, a claim that Bracken vehemently denied. The judge erred in finding that Bracken’s conduct was violent on the basis of the evidence, and in thereby denying him the protection of the Charter. The feelings of unease that Bracken’s protest gave did not oust his freedom of expression. His protest did not cease to be peaceful because it was loud and angry. The Town Hall square was a place where free expression traditionally occurred in a free and democratic society. The trespass notice prevented Bracken from exercising his right to convey his message to others for an entire year, a term which was far in excess of whatever immediate threat, real or imagined, the notice was intended to ameliorate. The factual basis for the trespass notice, Bracken’s escalating pattern of abuse of Town staff, was largely erroneous. Bracken’s behaviour was neither intimidating nor erratic.

Bracken v. Fort Erie (Town), [2017] O.J. No. 4655, Ontario Court of Appeal, K.N. Feldman, P.D. Lauwers and B. Miller JJ.A., August 25, 2017. Digest No. TLD-Sept252017010