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

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...

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