Criminal Law

OCA provides clear direction on dissent, free expression

By Staff

A recent Ontario Court of Appeal (OCA) decision that quashed a trespassing charge against a self-described citizen journalist is "instructive" for future cases, Toronto criminal lawyer Christopher Hicks tells The Lawyer’s Daily.

Hicks, a partner with Hicks Adams LLP, says the man who was charged with trespassing for protesting on town property was “well within the parameters of s. 2(b) of the Charter.

”You would know by reading this decision how you could express yourself,” he says. “There was no violence. There was no threat of violence, and the location is important.

"There is a platform for dissent, and if you follow those rules you can express yourself. It was an exemplary decision by the Court of Appeal and they should be applauded."

The appeal ruling, released Aug. 25, arises from an incident in 2014 involving a man who was protesting at Fort Erie Town Hall against a proposed marijuana dispensary that was to be located across the street from his home.

During his protest, a municipal employee became alarmed and placed the building on lockdown, the OCA decision explains. The woman told the town’s chief administrative officer that she feared for her safety and that of others, the file says.

When police were called, the man was asked to leave the property. When he refused, the man was handed a trespass notice that banned him from all town property for one year. He was also issued a provincial offences ticket for failing to leave, reports The Lawyer’s Daily.

The lower court judge denied the man’s request to have the trespass notice dismissed on the grounds that it violated his rights under s. 2(b) of the Canadian Charter of Rights and Freedoms, says the article. She dismissed his application on the basis that he “crossed the line of peaceful assembly and protest,” was engaged in acts of violence, and therefore his expression “cannot be protected under section 2(b) of the Charter.”

The man appealed.

The OCA, in a unanimous decision, ruled the town’s response to the protest violated the man's 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 says. “This was unquestionably a limit on his s. 2(b) rights.”

The appellate court says the lower court 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 claimed they felt 'unsafe' goes much too far."

“Violence is not the mere absence of civility,” the OCA’s Justice Bradley Miller writes. “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).”

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