Michael Ford

OCA ruling helps outline scope of the Charter's s. 2(b)

The Ontario Court of Appeal’s (OCA) decision to quash a trespassing charge against a man who protested outside a town building helps to outline the scope of protection under s. 2(b) of the Charter, Toronto criminal lawyer Annamaria Enenajor tells The Lawyer’s Daily.

“It really pulled out of the jurisprudence the issue of what does violent protest entail,” she says. 

Enenajor, a lawyer with Ruby & Shiller Barristers, says the ruling “challenged the notion that uncivil protest is necessarily violent protest.”

The man was charged in 2014 after he protested outside a town hall in June of that year, says the Court of Appeal. During the protest, a municipal employee became alarmed and placed the building under lockdown. She also told the town chief administrative officer that she feared for her safety and that of others, say court files. 

Police were called and when the man refused to leave, he was arrested and issued a trespass notice, banning him from all municipal property for a year. He was also issued a provincial offences ticket for failing to leave, it says. 

In its unanimous decision, the OCA ruled that the town’s response to the man’s protest violated his rights under the Charter.

“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 made errors in her reason, which led her to mistakenly conclude that the man's acts of protest were not protected by s. 2(b), which deals with freedom of thought, belief, opinion and expression.

The appellate court said the 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.”

“Violence is not the mere absence of civility,” the OCA said. “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).”

“I think that’s really important because it shows the flaws in the logic that can result from preconceived notions about what is violent," Enenajor says.

She notes the objective of political protest is often to make people feel uncomfortable.

“The point is to challenge the status quo, to challenge power,” Enenajor says. “If you’re going to equate the kind of discomfort that’s often associated with those kinds of style of protest, you’re really shutting out a huge portion of the kind of protected speech I believe the Charter is trying to protect.”

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