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Gabrielle Giroday

Protest protested

Editorial Obiter

Lately, the act of public protest — particularly on public grounds — is getting more scrutiny than ever before. Therefore, the legal elements of the recent ruling in Bracken v. Fort Erie (Town), 2017 ONCA 668 may have important implications for municipalities across Ontario. In the ruling, a three-judge panel from the Ontario Court of Appeal quashed a trespass notice against Fred Bracken after he started protesting a civic bylaw near the town hall in Fort Erie and said his Charter rights had been violated.

Why is this ruling important for lawyers to note?

“The consequences of characterizing an act as violence or a threat of violence are extreme . . .,” said the ruling. “Accordingly, courts must be vigilant in determining whether the evidence supports the characterization, and in not inadvertently expanding the category of what constitutes violence or threats of violence.”

Lawyers are often consulted as thought leaders by many organizations on how to navigate human resources issues and human relations issues. Protest — as a way of articulating dissent — is not going underground any time soon. Nervousness around how protests take shape is abundant. However, restricting protest can have legal results. In this case, the town was rapped for the “punitive nature” of the trespass notice, which banned Bracken from town property for a year.

“In a free and democratic society, it is no small matter to exclude a person from public property,” said the ruling.

“To do so for a full year is extraordinary and must be amply justified. Here it was not.”

The fastest way to stem a protest may not be a legal remedy at all. The oxygen that protesters feed off is attention — so ignoring a protest is the fastest way to watch it wither.        


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