article was originally published by the Public Sector Digest in its November 2017 issue 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 guarantees certain rights and freedoms, which cannot be infringed unless it is by some “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (section 1). For example, and specifically relevant to the issue of prohibitions against trespass under the Trespass to Property Act, everyone has fundamental freedoms under section 2 of the Charter to freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication, and freedom of peaceful assembly. Additionally, every citizen has the right to vote in federal and provincial elections protected by section 3 of the Charter. And, everyone has certain legal rights including: to life, liberty and security of the person (section 7); to be secure against unreasonable search and seizure (section 8); not to be arbitrarily detained or imprisoned (section 9). The Charter also provides, in section 24(1), the ability of citizens to seek a remedy from the courts for any violation of their rights or freedoms. The interplay between a public body’s ability to make use of the Trespass to Property Act and the protections afforded to individuals by the Charter was squarely at issue in the Bracken case. The Open Meetings Principle Before moving on to the specifics of the Bracken decision, it is important to understand one more important element of the legal landscape: the “open meetings principle”. In Ontario, the Municipal Act, 2001, S.O. 2001, c. 25, enshrines the open meetings principle at section 239, which states: “Except as provided in this section, all meetings shall be open to the public.” The open meeting principle ensures that citizens have the right to a transparent, open decision-making process of local governments, committees and boards. A corollary of this principle is that concerned citizens will be free to observe the meetings of municipalities and other public entities and participate in the manner prescribed by the applicable rules, regulations, and by-laws. Fredrick Bracken and the Town of Fort Erie With this legal landscape in mind, it is now appropriate to turn to the Bracken case and the lessons that it holds regarding the use of trespass notices by municipalities or other public bodies. Facts Fredrick Bracken is a self-described citizen journalist. He challenges and protests government decisions with which he does not agree through various means, including marching with a megaphone, loudly exclaiming his concerns and demands. He also video records his protests and interactions with members of the public and government officials. On June 16, 2014, Town Council for the Town of Fort Erie was scheduled to discuss a by-law which would permit a medical marijuana facility to be built across the street from Mr. Bracken’s house. Mr. Bracken opposed the by-law, and decided, on the evening of the scheduled Council meeting, to protest the proposed by-law. Mr. Bracken attended at Town Hall about an hour before the Council meeting began to set up his protest. He entered the unlocked Council chamber and left a note on each councillor’s desk expressing displeasure with the proposed by-law. He also ensured that his megaphone siren could not be heard inside of the Council chamber so as to not disrupt the meeting. Mr. Bracken returned to the Town Square outside Town Hall and began marching back and forth, shouting into his megaphone “kill the bill” and other things, including demands that a senior Town staff was a liar and should be fired. Mr. Bracken’s protest was peaceful, but loud and apparently disturbing to some municipal staff who observed his marching and chanting
well done professor I am a rambinic student where 3334 years ago Sivan5782 the Sanhedrin has 71 judges who spoke all 70 languages of the nations so there was little chances of deception ....at the time Mose 3334 years ago was hard pressed to find ETHICAL people at the bar I sent your name to COUNTER SIGNAL KEEAN and Ezra at Rebel News so we can set you up for DEMOCRACY FUND and fundraise...we need you as an advisor to get many cases to the SCC
article was originally published by the Public Sector Digest in its November 2017 issue
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 guarantees certain rights and freedoms, which cannot be infringed unless it is by some “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (section 1).
For example, and specifically relevant to the issue of prohibitions against trespass under the Trespass to Property Act, everyone has fundamental freedoms under section 2 of the Charter to freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication, and freedom of peaceful assembly. Additionally, every citizen has the right to vote in federal and provincial elections protected by section 3 of the Charter. And, everyone has certain legal rights including: to life, liberty and security of the person (section 7); to be secure against unreasonable search and seizure (section 8); not to be arbitrarily detained or imprisoned (section 9). The Charter also provides, in section 24(1), the ability of citizens to seek a remedy from the courts for any violation of their rights or freedoms.
The interplay between a public body’s ability to make use of the Trespass to Property Act and the protections afforded to individuals by the Charter was squarely at issue in the Bracken case.
The Open Meetings Principle
Before moving on to the specifics of the Bracken decision, it is important to understand one more important element of the legal landscape: the “open meetings principle”.
In Ontario, the Municipal Act, 2001, S.O. 2001, c. 25, enshrines the open meetings principle at section 239, which states: “Except as provided in this section, all meetings shall be open to the public.”
The open meeting principle ensures that citizens have the right to a transparent, open decision-making process of local governments, committees and boards. A corollary of this principle is that concerned citizens will be free to observe the meetings of municipalities and other public entities and participate in the manner prescribed by the applicable rules, regulations, and by-laws.
Fredrick Bracken and the Town of Fort Erie
With this legal landscape in mind, it is now appropriate to turn to the Bracken case and the lessons that it holds regarding the use of trespass notices by municipalities or other public bodies.
Facts
Fredrick Bracken is a self-described citizen journalist. He challenges and protests government decisions with which he does not agree through various means, including marching with a megaphone, loudly exclaiming his concerns and demands. He also video records his protests and interactions with members of the public and government officials.
On June 16, 2014, Town Council for the Town of Fort Erie was scheduled to discuss a by-law which would permit a medical marijuana facility to be built across the street from Mr. Bracken’s house. Mr. Bracken opposed the by-law, and decided, on the evening of the scheduled Council meeting, to protest the proposed by-law.
Mr. Bracken attended at Town Hall about an hour before the Council meeting began to set up his protest. He entered the unlocked Council chamber and left a note on each councillor’s desk expressing displeasure with the proposed by-law. He also ensured that his megaphone siren could not be heard inside of the Council chamber so as to not disrupt the meeting. Mr. Bracken returned to the Town Square outside Town Hall and began marching back and forth, shouting into his megaphone “kill the bill” and other things, including demands that a senior Town staff was a liar and should be fired.
Mr. Bracken’s protest was peaceful, but loud and apparently disturbing to some municipal staff who observed his marching and chanting
well done professor I am a rambinic student where 3334 years ago Sivan5782 the Sanhedrin has 71 judges who spoke all 70 languages of the nations so there was little chances of deception ....at the time Mose 3334 years ago was hard pressed to find ETHICAL people at the bar
I sent your name to COUNTER SIGNAL KEEAN and Ezra at Rebel News so we can set you up for DEMOCRACY FUND and fundraise...we need you as an advisor to get many cases to the SCC
Bracken v. Fort Erie: How Municipalities Ought Not to Trample Citizens' Freedom of Expression