Ontario Civil

Constitutional Law

“No trespass” notice violated applicant’s right to freedom of expression

As result of applicant’s videotaping of respondent regional municipality’s council meeting in December 2013, initially objected to but later permitted, and applicant’s questioning of certain council member about her legal action against him prior to meeting in June 2014, chief administrative officer (CAO) of municipality issued no trespass notice prohibiting applicant from attending further meetings for period of one year. CAO advised members of council that notice issued on basis of obligation to ensure everyone felt free and safe from harassment in municipal facilities and numerous concerns expressed by members of council, staff and public about applicant’s confrontational behaviour. Notice issued with support of chairman of council, but never considered or authorized by council as whole. Applicant applied for declaration notice violated his rights under ss. 2 and 7 of Canadian Charter of Rights and Freedoms and therefore, unconstitutional. Applicant objected to characterization of his behaviour as confrontational. Application allowed. Applicant’s right to freedom of expression gave him right to enter council chambers unless his exercise of that right interfered with other’s use of property. On evidence, applicant had not engaged in violence or any threat of violence that would exclude him from protection of s. 2(b). While some found applicant’s conduct disrespectful or uncomfortable, there was nothing to support CAO’s claim he had been disruptive or made members of council or staff concerned for their safety. Evidence did not establish applicant’s attendance at council meetings would serious interfere with other’s use of public property. No trespass notice violated applicant’s right to freedom of expression. In absence of evidence more limited prohibition had even been considered, violation could not be justified under s. 1 of Charter. No trespass notice invalid and of no force and effect.

Bracken v. Niagara Corp. (Regional Municipality) (Nov. 12, 2015, Ont. S.C.J., R.J. Nightingale J., File No. 10408/15) 260 A.C.W.S. (3d) 745.

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