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OCA highlights the importance of free speech: Handlarski

The Ontario Court of Appeal (OCA) recently emphasized the right to free speech in a ruling that reversed a trespassing charge against a man who protested on town property, Toronto criminal lawyer Ryan Handlarski tells The Lawyer’s Daily.

Handlarski, principal of RH Criminal Defence, says there’s a “problem” in society with people claiming they have the right to restrict free speech because they feel unsafe.

“I feel that the Ontario Court of Appeal really delivered a message that this will not be tolerated in this jurisdiction,” he says.

“In many of the attacks on freedom of speech, there are often these conclusory kinds of arguments. But feeling unsafe is not an argument. Feeling offended is not an argument.”

The ruling, released Aug. 25, explains the man was charged in 2014 after an incident in June that year when he protested at Fort Erie Town Hall against a proposal to locate a medical marijuana dispensary across the street from his home.

Police were called after an employee of the municipality became alarmed and placed the building under lockdown. The woman informed its chief administrative officer that she feared for her safety and the safety of others. 

When police were called, the man refused to leave; he was arrested and issued a trespass notice that banned him from all town property for a year, and he was issued a provincial offences ticket for failing to leave, the appeal notes. 

The OCA says in its unanimous decision that the town’s response to the man’s protest was against his Charter rights. 

“Whether the issuance of the trespass notice is viewed as a means to silencing (him) or simply as a means of protecting others, it had the effect of preventing him from conveying his message to his intended audience, not only on June 16, but for an entire year thereafter,” the court said. “This was unquestionably a limit on his s. 2(b) rights.”

The OCA also said the lower court judge in the matter made errors in her reason to deny the man’s request to have the trespass notice against him dismissed on the grounds that it violated his rights under s. 2(b) of the Canadian Charter of Rights and Freedoms.

The appellate court said that the judge’s extension of the concept of violence to include actions and words associated with a traditional form of political protest on the basis that some town employees felt unsafe “goes much too far.”

Handlarski says the OCA’s fundamental finding is the man did not do anything that was threatening or violent. 

“This fundamentally underpins their decision,” he says. “What did he do that was threatening and violent? When that question was asked, the case broke down.”

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