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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Fundamental freedoms - Freedom of thought, belief, opinion and expression - Freedom of expression

Tuesday, April 17, 2018 @ 8:44 AM  


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Appeal by Bracken from a decision of an application judge finding that his right to freedom of expression had not been infringed when he was prohibited from carrying an offensive sign in Niagara Parks and declining to determine whether an oral trespass notice issued against him by the Niagara Parks Police (NPP) infringed his rights under s. 2(b) of the Canadian Charter of Rights and Freedoms (Charter). The appellant had stood in Grandview Plaza in Niagara Parks holding a sign reading “Trump is right. Fuck China. Fuck Mexico.” The NPP concluded that the sign was offensive and disturbing to visitors. They informed the appellant that he was not permitted to display the sign and asked him to leave. The appellant refused and was charged with disturbing other persons and using abusive or insulting language contrary to s. 2(9)(a) of the Niagara Parks Act Regulations. The appellant was later told by the NPP that if he were to return with the sign, he would be removed from the Parks pursuant to the Trespass to Property Act. The appellant argued that s. 2(9)(a) of the Regulations violated s. 2(b) of the Charter and that the oral trespass notice served on him also violated s. 2(b). The application judge held that s. 2(9)(a) of the Regulations did not limit Bracken's s. 2(b) Charter rights because the constitutional guarantee of freedom of expression did not apply to shouting insulting or abusive language in the Parks. He declined to determine whether the oral trespass notice infringed s. 2(b), as he was not satisfied that a trespass notice had in fact been issued.

HELD: Appeal allowed in part. The trespass notice was quashed, but the appeal with respect to the constitutional challenge to s. 2(9)(a) was dismissed. The application judge erred in concluding that s. 2(9)(a) did not limit rights under s. 2(b) of the Charter, but the limits were justified under s. 1 of the Charter. The prohibition on the use of abusive or insulting language limited expressive content. The evidence did not establish that the function of either the Parks as a whole or Grandview Plaza specifically would be impaired by constitutional protection of expression within the Parks, thereby disentitling the expression to the s. 2(b) protection. Nothing that happened there required quiet or an absence of distraction. There was nothing about the Parks that suggested that the exercise of freedom of expression within it would undermine the purposes for constitutional protection of that freedom. Section 2(9)(a) had a sufficiently important purpose to safeguard the reasonable use of the Parks by the public by prohibiting others from unreasonably interfering with that use. The specific means adopted by s. 2(9)(a), a prohibition on abusive and insulting language or other conduct that unnecessarily interfered with the use of the Parks by other persons, clearly advanced its objective of maintaining the public character of the Parks. Section 2(9)(a) did not curtail expression that society expected a reasonable person to be able to tolerate. It did not restrict expression that was annoying, or even infuriating. Section 2(9)(a) was minimally impairing of s. 2(b). The narrow limit on expression placed on all users of the Parks was proportionate to the benefit to be achieved in maintaining the character of the Parks as a place of public resort. The application judge erred in finding that a trespass notice had not been issued and in not granting a declaration quashing the notice. There was no basis in law to issue the trespass notice enjoining the display of the appellant’s sign. Based on the scope and constitutionality of s. 2(9)(a), the trespass notice constituted an unconstitutional curtailment of freedom of expression in an open public venue. There were no circumstances that would justify the removal of a single protester with a sign from a busy plaza, and the display of the sign, despite its profanity, did not constitute the use of insulting or abusive language within the meaning of s. 2(9)(a).

Bracken v. Niagara Parks Police, [2018] O.J. No. 1457, Ontario Court of Appeal, D.H. Doherty, H.S. LaForme and B. Miller JJ.A., March 19, 2018. Digest No. TLD-April162008003