Freedom of Expression and Subjective Feelings of Fear at a Town Hall Protest
Political protest is undeniably an essential right in a free and democratic society, but constitutional protection of that right is not absolute; acts and threats of violence, which serve to stymie rather than foster political debate, are not protected under s. 2(b) of the Canadian Charter of Rights and Freedoms. In its August 2017 decision, Bracken v Fort Erie (Town), 2017 ONCA 668, the Ontario Court of Appeal (ONCA) dealt with the Town of Fort Erie’s (Town) issuance of a trespass order to Mr. Bracken for a protest that frightened Town employees, and examined the scope of the “threats to violence” exception to freedom of expression. The court found that the fear of violence, when formed without actual acts or threats of violence, does not preclude s. 2(b) protection, and that Mr. Bracken’s protest was a valid and protected form of expression.
On June 16, 2014, Mr. Bracken protested outside the Town Hall before a council meeting against a proposed bylaw to allow the construction of a medical marijuana facility across the street from his home (para 6). Beforehand, Mr. Bracken entered Council Chambers to put a note on every councillor’s desk, and then commenced his protest by pacing back and forth from the parking lot to the front of Town Hall using a siren and megaphone, shouting “kill the bill” and calling the Town’s Chief Administrative Officer (CAO), a “liar” and a “communist” (para 10).
As a self-proclaimed “citizen journalist,” Mr. Bracken was known for protesting and “aggressively questioning people at a proximity they find uncomfortable.” He has been described as loud, agitated, large, and intimidating (para 1). Weeks before the meeting of June 16, Mr. Bracken frightened a Town employee, Ms. Schultz, at the front counter by pounding his fists on the desk and angrily demanding to speak with the CAO. This incident, as well as YouTube videos Mr. Bracken had posted of himself running up to people and questioning them, were discussed among Town employees before the protest.
Ms. Schultz and several other Town employees witnessed Mr. Bracken’s protest and what they described as his “erratic behaviour.” They “expressed fear for their safety” and Ms. Hansen, Manager of Parks and Open Space Development, became concerned that Mr. Bracken’s behaviour would intimidate people from attending the council meeting. Ms. Hansen was so alarmed that she interrupted a closed meeting of councillors and the mayor to ask the CAO how to proceed. They decided to call the police and ask Mr. Bracken to leave. When Mr. Bracken refused the police officer’s request to leave, he was arrested and presented with a trespass notice issued by the Town. The trespass notice was accompanied by a letter stating: “this extraordinary action has been taken as a result of your persistent and escalating confrontational behaviour with Town staff” and prohibited Mr. Bracken from entering Town properties for one year, with exceptions made to allow him to attend meetings on Town business (paras 11-16).
Mr. Bracken, representing himself, brought an application to the Ontario Superior Court (ONSC) challenging the constitutionality of the trespass notice, claiming that it violates his rights under sections 2(b) and 7 of the Charter. Justice Maddalena of the ONSC dismissed Mr. Bracken’s application, finding that his language was “incomprehensible,” and his behaviour was “erratic and intimidating” and “crossed the line of peaceful assembly and protest.” Justice Maddalena ruled that Mr. Bracken was engaged in acts of violence which “cannot be protected under section 2(b) of the Charter” and that the trespass notice was valid. Because Justice Maddalena found that Mr. Bracken’s actions were not protected under 2(b), she determined that it was not necessary to proceed to a section 1 analysis nor to consider Mr. Bracken’s claim under section 7 (paras 18-19).
On appeal, Justices Feldman, Lauwers, and Miller found that Justice Maddalena made an error of law in finding that Mr. Bracken’s protest was not protected under section 2(b) and that the ONSC decision contained “palpable and overriding factual errors concerning Mr. Bracken’s conduct on June 16, 2014” (para 21). Justice Miller, writing for the court, after conducting the s. 2(b) and s. 1 analyses not performed at the ONSC, quashed the trespass notice as a violation of Mr. Bracken’s constitutional right to freedom of expression.
Freedom of Expression
Justice Miller began his analysis by discussing the jurisprudential history of freedom of expression and its advancement of the human values of “self-fulfilment, participation in social and political decision-making, and the communal exchange of ideas” (quoting RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd, 2002 SCC 8 at para 32). As such, he asserted that the right is fundamental not only to “the self-constituting person” but also to “the functioning of a healthy political community,” placing particular emphasis on how the right facilitates democratic discourse by allowing “the open criticism of government” (para 26).
The Supreme Court of Canada (SCC) has long established that acts or threats of violence are not protected under s. 2(b) because violence “prevents dialogue rather than fostering it” (para 28 quoting Montréal (City) v 2592-1366 Québec Inc, 2005 SCC 62 at para 72). Initially, in R v Keegstra,  3 SCR 697, the SCC limited the scope of the 2(b) exception to only acts of violence, finding that threats could be dealt with under s. 1. However, in R v Khawaja, 2012 SCC 69 (Khawaja), Chief Justice McLachlin broadened the scope to include threats of violence because they remove from those threatened the freedom of action and choice in the same way as if the violence were committed (para 31).
This limit on freedom of expression is exceptional in that it categorically excludes s. 2(b) analysis and negates the need for s. 1 justification—the process which Justice Maddalena followed (paras 29-30, 35). The ONCA, however, found that her process was erroneous because the facts do not demonstrate violence or threats of violence on the part of Mr. Bracken. Justice Miller notes that Justice Maddalena’s decision was based on the fears expressed by the Town employees, but rejects this conclusion because most of the employees only observed the protest “from a safe distance” (para 37). At trial, Ms. Schultz admitted that Mr. Bracken had never threatened or acted violently towards her but it was his demeanour and body language that she found intimidating (para 40). In Ms. Hansen’s affidavit, she stated that on the day of the protest she feared for the safety of herself and others around Mr. Bracken, and that she continues to have such concerns (para 41). Neither Ms. Schultz nor Ms. Hansen observed Mr. Bracken physically obstructing people from attending the council meeting.
Justice Miller accepted that the Town employees were frightened, but insisted that the evidence does not support “any reasonable basis for their fear” (para 46). Justice Miller went on to clarify that violence for the purpose of the s. 2(b) exception “is not the mere absence of civility” and that “[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)” (para 49). While I agree that the limitation on a right as fundamental as freedom of expression requires more than “subjective feelings,” it was unnecessary for Justice Miller to dismiss the employees’ fear of Mr. Bracken as unreasonable. As the court accepted, Mr. Bracken’s presence and manner has the tendency to intimidate people and intimidation, which creates the fear of violence even when not articulated, can cause similar chilling effects on freedom of action and choice to those described by Chief Justice McLachlin in Khawaja.
Canadian jurisprudence has recognized another exclusion to s. 2(b), relating to the physical location of where the expression takes place. Justice L’Heureux-Dubé in Committee for the Commonwealth of Canada v Canada,  1 SCR 139 noted that the protection does not extend to all publicly owned spaces such as employee offices (para 32). Because Justice Maddalena found that Mr. Bracken’s expression was violent, she did not conduct this stage of the analysis. Justice Miller, however, noted that the space in front of a town hall does not fall under the exemption, and in fact:
the area in front of a Town Hall is a place where free expression not only has traditionally occurred, but can be expected to occur in a free and democratic society. The literal town square is paradigmatically the place for expression of public dissent. (para 54)
Justice Miller also found Justice Maddalena’s conclusion that Mr. Bracken “interfered with the public’s use of the space of the Town” unsupported by the evidence because he did not physically obstruct or otherwise hinder anyone from using the space. Moreover, Justice Miller notes that Mr. Bracken’s excited behaviour is consistent with “the long tradition of civic protest” and that “[o]ne person, alone in front of Town Hall with a megaphone and a camcorder, is not, of itself, an interference with public space that displaces the protection of s. 2(b)” (para 53).
Since the ONCA established that Mr. Bracken’s s. 2(b) claim did not fall under the violence or space exceptions, the analysis proceeded to determine whether the trespass notice limited his freedom of expression. Although the purpose of the notice may have only been to protect the safety of employees and not to restrict Mr. Bracken’s speech, the court found that even if the limit on his expression was simply a side-effect of the government action, the nature of his expression fell under the three values—self-fulfillment, political participation, and exchange of ideas—underlying the protection (para 56). Justice Miller further found that whatever the purpose of the trespass notice, its effect was to prevent Mr. Bracken “from conveying his message to his intended audience, not only on June 16, but for an entire year thereafter” and that this was clearly a limit on his s. 2(b) rights.
In order to show that the limit on Mr. Bracken’s right to expression was justified, the Town had to show that it was “prescribed by law.” It was the Town’s position that the CAO issued the trespass notice under the authority provided by s. 72 of the Municipal Act, 2001, SO 2001, c. 25 (MA), which provides that a municipality’s CAO “shall have such general control and management of the administration of the government and affairs of the municipal corporation,” as well as s. 25(2)(h) of the Occupational Health and Safety Act, RSO 1990, c. O.1 (OHSA) requiring an employer to “take every precaution reasonable in the circumstances for the protection of a worker” (para 68). However, the court rejected that the OHSA confers such authority as it does not give the Town powers over the conduct of someone who is not a co-worker. The court also dismissed that the MA conveys such authority, stating “although s. 229 of the Municipal Act grants authority to the CAO to exercise certain powers of the Town, it does not resolve the question of what powers the Town has” (para 69). It is unclear what Justice Miller means by this statement, but it suggests that the MA does not grant the authority to issue trespass notices. Instead, Justice Miller concludes that the common law provides the Town, as property owner, the authority to exclude Mr. Bracken under the Trespass to Property Act, RSO 1990, c. T.21, which thereby satisfies the “prescribed by law” stage of the s. 1 analysis (paras 71-73). Justice Miller also observed that the Town, unlike other municipalities, does not have a trespass policy or a bylaw regulating the issuance of trespass notices, warning 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” (para 72).
On the proportionality test, the court found that the trespass notice was not minimally impairing because the Town had other options for dealing with Mr. Bracken’s disturbance, and that the exclusion from Town property for a year was overbroad (para 79-80). Moreover, Justice Miller found that the salutary effects of the limit on Mr. Bracken’s right did not outweigh the deleterious effects as the promotion of workplace safety does not outweigh a person’s Charter rights, stating:
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. (para 82)
Therefore, the court held that the limits placed on Mr. Bracken’s s. 2(b) rights were not justified under s. 1, and so quashed the trespass notice, which by that time had expired, awarded $4,000 in costs to Mr. Bracken, and ordered the Town to issue a declaration that the notice was a violation of Mr. Bracken’s s. 2(b) rights (paras 85-86). Not only was Mr. Bracken’s appeal successful and his constitutional rights validated, but his protest has received far more attention than he could have garnered from pacing back and forth before the Fort Erie Town Hall.
This case highlights the difficult nature of freedom of expression and the complex balance of interests often involved in Charter analysis. Political protest is one of the most important forms of expression in a free and democratic society, but so too is participation in the democratic process. Although the court rejected the argument that Mr. Bracken’s behaviour prohibited others from attending the council meeting, the employees’ concerns that his aggressive manner may have intimidated people to not attend, may have merit. This demonstrates how s. 2(b) sometimes means privileging one type of political expression over another. The ONCA’s decision also suggests that municipalities will have to proceed with caution when dealing with council disruptions and intimidation of employees. It also serves as a precautionary tale to always have a trespass bylaw; it may not have protected Fort Erie in this case, but it would have provided the Town guidance in how to proceed.