Bracken v. Niagara Parks Police

[Indexed as: Bracken v. Niagara Parks Police]

Ontario Reports

Court of Appeal for Ontario

Doherty, LaForme and B.W. Miller JJ.A.

March 19, 2018

141 O.R. (3d) 168 | 2018 ONCA 261

Case Summary

Charter of Rights and Freedoms — Freedom of expression — Reasonable limits

Section 2(9)(a) of Regulation under Niagara Parks Act providing that no person in park shall "use abusive or insulting language, or conduct himself or herself . . . in a manner that unnecessarily interferes with the use and enjoyment of the Parks by other persons" — Section 2(9)(a) capturing only personal invective which interferes with patron's use of park — Section 2(9)(a) violating s. 2(b) of Charter but violation justified under s. 1 of Charter — Applicant's conduct in displaying sign with profane political message in semi-commercial plaza within public park not being captured by s. 2(9)(a) — Canadian Charter of Rights and Freedoms, ss. 1, 2(b) — Niagara Parks Act, R.S.O. 1990, c. N.3 — O. Reg. 829, s. 2(9)(a).

Facts

While standing in a semi-commercial plaza within a public park, the applicant held a sign that read: "Trump is right. Fuck China. Fuck Mexico". The Niagara Parks Police ("NPP") were called, and told the applicant that he could not display the sign and would have to leave. The applicant refused to do so and became agitated. One of the officers issued him a summons for two offences contrary to s. 2(9)(a) of O. Reg. 829 under the Niagara Parks Act, R.S.O. 1990, c. N.3. Section 2(9)(a) provides that no person within a park shall "use abusive or insulting language, or conduct himself or herself . . . in a manner that unnecessarily interferes with the use and enjoyment of the parks by other persons".

Two days later, the applicant went to the NPP's headquarters to discuss the summons and clarify whether he could display his sign in the Parks. He was told that if he were to return with his sign he would be removed pursuant to the Trespass to Property Act, R.S.O. 1990, c. T.21. He brought an application for a declaration that s. 2(9)(a) violates s. 2(b) of the Canadian Charter of Rights and Freedoms. He sought a similar declaration with respect to the oral trespass notice. The application judge dismissed the application. He held that s. 2(9)(a) did not limit the applicant's s. 2(b) Charter rights because the guarantee of freedom of expression does not apply to shouting insulting or abusive language in the parks. He declined to determine whether the oral trespass notice infringed s. 2(b), as he was not satisfied that a trespass notice had in fact been issued. The applicant appealed.

Held

The appeal should be allowed in part.

On a proper interpretation of the provision, the prohibition of the use of "abusive or insulting language" in s. 2(9)(a) extends no further than to proscribe the use of personal invective which interferes with a patron's use of the parks.

The application judge erred in finding that s. 2(9)(a) does not infringe s. 2(b) of the Charter. "Abusive or insulting language" has expressive content. The categorical exclusion of violence and threats of violence from the scope of s. 2(b) does not extend to "emotionally violent" expression. The evidence did not establish that the function of either the parks as a whole or the plaza in particular would be impaired by constitutional protection of expression within the parks. Section 2(9)(a) has as its purpose the limiting of freedom of expression.

Section 2(9)(a) is not unconstitutionally vague. The objective of s. 2(9)(a) -- safeguarding the reasonable use of the parks by the public by prohibiting others from unreasonably interfering with that use -- is pressing and substantial, and there is a rational connection between that objective and the means chosen to achieve it. Section 2(9)(a) does not cast a wide net over expressive activity in the parks. It does not curtail expression that society expects a reasonable person to be able to tolerate. It does not restrict expression that is annoying, or even infuriating. The record disclosed no alternative scheme to s. 2(9)(a) that would be less impairing of freedom of expression and capable of substantially achieving the provisions' objectives. Section 2(9)(a) is minimally impairing of s. 2(b). There is proportionality between the provision's negative effects on freedom of expression and the benefit to be achieved in maintaining the character of the parks as a place of public resort. The infringement of s. 2(b) is justified under s. 1 of the Charter.

The application judge erred in finding that a trespass notice had not been issued. The applicant's conduct in displaying a political sign in a public, semi-commercial plaza within a park did not constitute the use of insulting or abusive language within the meaning of s. 2(9)(a). The trespass notice violated the applicant's rights under s. 2(b) of the Charter.

Background and Procedural History

[1] On August 2, 2016, in the run-up to the U.S. presidential election, the appellant, Mr. Bracken, stood in Grand View Plaza in Niagara Parks, holding a sign reading, "Trump is right. Fuck China. Fuck Mexico".

[2] Parks staff informed the Niagara Parks Police (the "NPP") that they had received a complaint about a man standing on the sidewalk holding a sign. The NPP attended and concluded the sign was offensive and disturbing to visitors. They informed Mr. Bracken that he was not permitted to display the sign, and asked him to leave. Mr. Bracken refused. He argued that he had a constitutionally protected right to display the sign, which he characterized as a statement about economic and trade policy. The NPP officers did not see things the same way. Mr. Bracken became increasingly animated, calling one of the officers "a fucking piece of shit" and "a power tripping fucking idiot", among other things. Eventually, one of the officers issued Mr. Bracken a summons under the Provincial Offences Act, R.S.O. 1990, c. P.33 for two offences contrary to s. 2(9)(a) of R.R.O. 1990, Reg. 829 made under the Niagara Parks Act, R.S.O. 1990, c. N.3 (the "Regulations"): (1) disturbing other persons, and (2) using abusive or insulting language.

[3] On August 4, Mr. Bracken went to the NPP's headquarters to discuss the summonses and clarify whether he could display his sign in the parks. Mr. Bracken was told that he could not, and if he were to return with the sign he would be removed pursuant to the Trespass to Property Act, R.S.O. 1990, c. T.21.

[4] Mr. Bracken sought relief before the Superior Court on multiple grounds. The only grounds relevant to this appeal are declarations that (1) s. 2(9)(a) of the Regulations violates s. 2(b) of the Canadian Charter of Rights and Freedoms; and (2) the oral trespass notice served on him at the NPP headquarters similarly violates s. 2(b).

[5] The application judge dismissed the application. He held that s. 2(9)(a) did not limit Mr. Bracken's s. 2(b) Charter rights, because the constitutional guarantee of freedom of expression does not apply to shouting insulting or abusive language in the parks. He declined to determine whether the oral trespass notice infringed s. 2(b), as he was not satisfied that a trespass notice had in fact been issued.

[6] Mr. Bracken appeals both aspects of the judgment.

[7] For the reasons that follow, I would allow the appeal in part. The application judge made a palpable and overriding error in finding that a trespass notice had not been issued, and further erred in not granting a declaration quashing the notice. Although the application judge erred in concluding that s. 2(9)(a) does not limit rights under s. 2(b) of the Charter, I would hold that the limits are justified under s. 1 of the Charter. I would therefore dismiss the constitutional challenge to s. 2(9)(a).

[8] As explained further below, the two offences with which Mr. Bracken was charged were adjudicated before the Ontario Court of Justice ("OCJ") and are not before this court. Nor do we have before us the evidential record from those proceedings describing Mr. Bracken's interactions with other users of the parks that day. Although the interpretation of s. 2(9)(a) set out below may be relevant for the adjudication of Mr. Bracken's offence conviction appeal, nothing in these reasons addresses the question of whether the trial judge erred, on the facts before him, in finding that Mr. Bracken committed the offence of using abusive or insulting language contrary to s. 2(9)(a).

[9] The commission is a provincial Crown agency created in 1887 and given jurisdiction over the parks by the Niagara Parks Act. Section 22(1)(a) of the Act gives the commission the power to make regulations "regulating and governing the use by the public of the Parks", under which authority it passed s. 2(9)(a).

[10] This appeal has an irregular history. Mr. Bracken's application began as a motion for an interlocutory injunction prohibiting the commission and NPP from enforcing the oral trespass notice, and was subsequently expanded to include constitutional remedies. It does not appear that an originating process was ever issued. Nevertheless, the matter was argued as an application before Ramsay J., on the basis of a thin evidentiary record that included a brief affidavit from Mr. Bracken (appending a DVD recording of his protest and some of his interactions with the NPP) and a responding affidavit by Paul Forcier of the NPP, partially comprised of hearsay of what he was told by the officers who engaged with Mr. Bracken on August 2, 2016. There was no cross-examination on the affidavits.

[11] Subsequent to the application before Ramsay J., Mr. Bracken was convicted of one of the charges under s. 2(9)(a) by Justice of the Peace Lancaster in separate proceedings in the OCJ. As noted above, Mr. Bracken's appeal of that conviction is not presently before this court. We denied Mr. Bracken's oral motion to file fresh evidence from those proceedings on the basis that the motion was brought late -- on the morning of the hearing before us -- and granting it would have been unfair to the respondent, which had prepared the appeal on a different record. This appeal is therefore to be determined on the record as it stood before Ramsay J.

Issues

[12] Although there are numerous grounds of appeal set down in the notice of appeal, at oral argument they reduced to two main issues. These are whether the application judge erred:

(1) in not finding that s. 2(9)(a) of the Regulations infringes s. 2(b) of the Charter;

(2) in not granting a declaration quashing the oral trespass notice.

[13] Mr. Bracken also claimed an infringement of his rights under s. 7 of the Charter. As this argument was raised for the first time on appeal and at best bears tangentially on the matters in dispute, it would not be in the interests of justice, in my view, to consider it at this stage in the proceedings.

Analysis

[14] I will first consider the constitutional challenge to s. 2(9)(a) before addressing the constitutionality of the oral trespass notice.

A. The Constitutional Protection of Freedom of Expression

[15] A defining feature of a free society is the right to speak openly and publicly without fear of government censure. Freedom of expression is deeply ingrained in democratic, egalitarian cultures, and reinforces all of the other fundamental freedoms. In Canada, it receives legal protection through common law, statute and s. 2(b) of the Charter. Its counter-majoritarian nature was stressed by the Supreme Court in Irwin Toy Ltd. v. Québec (Attorney General), [1989] 1 S.C.R. 927, at pp. 968-69 S.C.R.:

Freedom of expression was entrenched in our Constitution and is guaranteed . . . so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream.

The Supreme Court cautioned against restricting protection to only those ideas that are warmly received by the public, citing the European Court of Human Rights:

[freedom of expression] is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society".¹

[16] Freedom of expression is not boundless, however, and a properly functioning society must limit many types of expression for the common good. Discerning the line between reasonable and unreasonable limits on expression is, however, a perpetual challenge, taken up initially by legislators, and secondarily by courts on judicial review.

[17] In this appeal, this court is required to assess the constitutionality of one such limit established by the commission to govern conduct at the Niagara Parks: s. 2(9)(a).

B. The Constitutional Challenge to s. 2(9)(a)

(1) Statutory Interpretation

[18] The first step in assessing the constitutionality of a regulation is interpretation.

[19] Section 2(9)(a) provides:

2(9) . . . no person shall, within the Parks,

(a) use abusive or insulting language, or conduct himself or herself in the Parks in a manner that unnecessarily interferes with the use and enjoyment of the Parks by other persons[.]

[20] This is a regulation, drafted by the commission and approved by order in council. It is not a statute and therefore there was no legislative debate and no legislative record to aid in its interpretation. And although the respondent provided several written histories surrounding the creation of the commission and the parks, none of these address issues that would assist in the interpretation of s. 2(9)(a).

[21] The general context of the Regulations is provided by s. 22(1)(a) of the Niagara Parks Act, which authorizes the commission to make regulations "regulating and governing the use by the public of the parks". The Regulations impose significant restrictions on the types of recreational and commercial activities that may be carried out in the parks, as well as on the more general behaviour of the parks' users. The Regulations further provide, at s. 2(11) and 2(13), that anyone who contravenes s. 2(9)(a) may be removed from the parks by an officer, and shall not re-enter the parks within 72 hours without permission from the commission.

[22] Whether a user of the parks has contravened s. 2(9)(a) is determined in the first instance by the NPP, whose decision can result not only in immediate expulsion, but also prohibition on re-entry for up to three days, reviewable by the commission.

[23] In reading s. 2(9)(a), the application judge concluded [at para. 9] that the provision captures only "language that is so extremely offensive or insulting that it could interfere with the peaceful use and enjoyment of the parks by other persons". On this reading, the class of speech the commission intended to capture with the term "abusive or insulting language" is significantly narrower than the ordinary meaning of that phrase.

[24] Mr. Bracken objects to this interpretation which, he submits, fails grammatically and amounts to a legal error. In oral argument, he argued that the application judge ignored the disjunctive "or" in s. 2(9)(a) and effectively read it as stating:

. . . no person shall, within the Parks, use abusive or insulting language . . . in a manner that unnecessarily interferes with the use and enjoyment of the Parks by other persons.

[25] On Mr. Bracken's reading, "abusive or insulting language" is not restricted to language that unnecessarily interferes with the use and enjoyment of the parks by others, but encompasses the widest meaning of the words. He objects that the application judge "read down" s. 2(9)(a), choosing an artificially narrow meaning in order to uphold the constitutionality of the provision. I disagree. As I explain below, the application judge appropriately interpreted the provision by ascertaining the intentions of the commission as expressed through the words it used.

[26] The thrust of Mr. Bracken's argument is that s. 2(9)(a) consists of two independent prohibitions: (1) of the use of "abusive and insulting language" in the parks; and (2) of conduct "that unnecessarily interferes with the use and enjoyment of the Parks by other persons", and these must be kept analytically separate. Mr. Bracken's grammatical argument is that the phrase, "in a manner that unnecessarily interferes with the use and enjoyment of the Parks by other persons", directly applies only to the preceding words, that is, "conduct himself or herself in the Parks", and does not apply to the prohibition on using "abusive or insulting language". I agree, but this argument does not assist him.

[27] In statutory interpretation, context is critically important. Even though the restriction "in a manner that unnecessarily interferes with the use and enjoyment of the Parks by other persons" does not apply directly to the prohibition on using "abusive or insulting language", its inclusion in the same provision sheds light on the meaning of that phrase. It suggests that, as a whole, s. 2(9)(a) addresses restrictions thought necessary in order for a member of the public to use the parks without interfering with other patrons.

[28] Further (confirmatory) context is provided by use of the phrase "abusive or insulting language" in criminal law, reaching back in English law at least to the Metropolitan Police Act 1839, c. 47, s. 54(13). Although statutory prohibitions against abusive or insulting language take different forms in different jurisdictions, Commonwealth courts have consistently held that such prohibitions do not capture all abusive or insulting language. Rather, they are typically limited to those instances likely to interfere with public order in some way: see Coleman v. Power, [2004] HCA 39, at paras. 193, 257-58; Harvey v. Director of Public Prosecutions, [2011] EWHC 3992 (Admin), 2011 W.L. 5105637, at paras. 12-15.

[29] In domestic criminal law, shouting "insulting or obscene" language is insufficient to constitute a disturbance under s. 175(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, which requires "an interference with the ordinary and customary use by the public of the place in question": R. v. Lohnes, [1992] 1 S.C.R. 167, at p. 177 S.C.R. (emphasis added); R. v. Swinkels (2010), 103 O.R. (3d) 736, 2010 ONCA 742, at para. 32.

[30] It is therefore unsurprising that in the context of regulating the use of a public park, a prohibition on "insulting or abusive language" would require something akin to a restriction on interference with the "ordinary and customary use of the place in question".

[31] Whether conduct interferes with the peaceful use and enjoyment of the parks must be established on an objective basis. A court should assess the type and intensity of the language and behaviour in question against the conditions that ought to prevail in the specific location of the parks at the specific time, as is the case in the criminal context of causing a disturbance by using insulting or obscene language: Lohnes, at p. 180 S.C.R.; Swinkels, at para. 19. The inquiry presumes that members of the public have some resilience, particularly concerning political speech, and are required to tolerate public expression of a wide range of views on matters of public life, including those views that are inconsistent with their own beliefs, choices and commitments. Mere offence at a message, particularly a message advocating for some vision for the better advancement of the public good, is not enough. The public is not required to endure personalized invective, but nothing in the sign's message could be characterized in this way. As the application judge below noted, the contents of Mr. Bracken's sign, even with its profanity, came nowhere near close to the line. The officer's concern that citizens of Mexico or China who happened upon the sign might be offended by it, was well wide of the mark. The sign, which effectively stated that the national interests of other countries should be subordinate to domestic interests, disparaged no one. Even if Mexican or Chinese nationals took offence, or others took offence on their behalf, such offence could not bring the sign within the meaning of "abusive or insulting language".

[32] In summary, on my interpretation of s. 2(9)(a), the prohibition of the use of "abusive or insulting language" extends no further than to proscribe the use of personal invective, interfering with a patron's use of the parks.

(2) Section 2(b) Charter Analysis

[33] It remains to be determined whether s. 2(9)(a) violates s. 2(b) of the Charter. It is necessary to bear in mind the two-stage structure of Charter adjudication. The inquiry at the first stage focuses on whether a person's purported exercise of a Charter right has been limited by state action. The second stage is concerned with whether the limit is justified in a society that is free and democratic. A positive determination at the first stage -- a conclusion that a claimant's exercise of right has been limited -- is not a determination that the claimant's Charter rights have been violated. Although it was once common to describe s. 1 analysis as a matter of "saving" violations of Charter rights, this language is misleading -- s. 1 analysis is not a matter of excusing rights violations, but of establishing the reasonable limits on rights: Guy Régimbald and Dwight Newman, The Law of the Canadian Constitution, 2nd ed. (Markham, Ont.: LexisNexis Canada, 2017), at p. 546-47; see, also, Grégoire Webber, The Negotiable Constitution: On the Limitation Of Rights (Cambridge: Cambridge University Press, 2009), at p. 122.

[34] The first stage inquiry into whether s. 2(b) rights have been limited proceeds by way of three questions: (1) does the activity in question have expressive content; (2) if so, does either the method or location of the expression disentitle it to s. 2(b) protection; and (3) if the expression is protected, does the impugned government action limit the expression either in purpose or effect? (Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, 2005 SCC 62, at para. 56.)

Question 1: Expressive Content

[35] Does "abusive or insulting language", as interpreted by the application judge and earlier in these reasons, have expressive content? I conclude that it does. Expression has been given wide meaning by the Supreme Court. Expression is never excluded from s. 2(b) because of the content of the message it conveys: Irwin Toy, at p. 969 S.C.R.; R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 729 S.C.R.; Montréal (City), at para. 58. Subject only to certain exclusionary rules described below, s. 2(b) extends protection to any activity that "conveys or attempts to convey a meaning": Irwin Toy, at p. 969 S.C.R. This includes abusive or insulting language captured by s. 2(9)(a), as such language can convey or attempt to convey meaning -- albeit in an "extremely offensive" manner. That such expression potentially "interfere[s] with the peaceful use and enjoyment of the parks by other persons" does not preclude the intermediate conclusion that the prohibition of the use of such language limits expressive content.

Question 2: Excluded Expression

[36] Some methods of expression are categorically excluded from the scope of s. 2(b) -- specifically, violence and threats of violence. This limit is internal to s. 2(b); once it is established that the method of expression is, for example, an act of violence, the constitutional inquiry is at an end and the state is not required to justify any limit on the expression.

[37] State actors are not required to justify limits on expression that is violent or threatens violence because, according to long-standing doctrine, there are no competing interests capable of justifying it. As this court explained in Fort Erie [Bracken v. Fort Erie (Town) (2017), 2017 ONCA 668, 137 O.R. (3d) 161], at para. 30: "to give acts of violence even defeasible protection under s. 2(b) would give them an unacceptable legitimacy . . . [I]t would be tantamount to declaring . . . that an individual's self-expression through acts of violence could, in some conceivable circumstances, take priority over the public good of protecting persons by restraining acts of violence". That said, because the consequences of characterizing expression as violent are extreme -- the characterization conclusively defeats the Charter claim without canvassing whether there are any competing considerations -- this court cautioned, at para. 50, against expanding the category of what constitutes violence or threats of violence. The violence exception to the scope of freedom of expression remains sharply limited.

[38] In its written submissions, the respondent proposed an expansion to the violence exception to encompass "emotionally violent" expression. This submission was expressly rejected by this court in Fort Erie, at para. 49. Put simply, the emotional impact of expression on a third party has no bearing on the question of whether that expression was conveyed through a violent act. Thus, the Supreme Court has held that even hate speech is not inherently violent, despite the risk that such expression will have an emotionally damaging impact on its targets: Keegstra, at pp. 731-32 S.C.R.

[39] A second exclusionary rule relates to the physical location where the expression takes place. Freedom of expression does not encompass the right to non-interference with expression in every locale, public or private. It does not even extend to all government-owned property: Montréal (City), at paras. 60-61; Régimbald and Newman, at pp. 631ff.

[40] In Montréal (City), at para. 74, the Supreme Court articulated a test for the determining whether s. 2(b) protection applied in any given public location: "whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) is intended to serve, namely (1) democratic discourse, (2) truth finding, and (3) self-fulfilment". The court specified two factors that should be considered in answering that question: "(a) the historical or actual function of the place; and (b) whether other aspects of the place suggest that expression within it would undermine the values underlying free expression".

[41] With respect to the first factor, the court drew a subtle but important distinction between historical use and actual function of a place. Historical use, as developed in that judgment, is determined by a factual inquiry into community practices. What use has the community made of the place, apart from whatever governmental function it may also serve? An established community practice of free expression in a location is some evidence of a social convention that the location ought to be available for free expression. The case law identifies examples such as sidewalks (Montréal (City), at paras. 67-68), airports (Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, at pp. 158-59 S.C.R.), parks (Commonwealth, at pp. 152-53 S.C.R.; Batty v. Toronto (City) (2011), 108 O.R. (3d) 571, 2011 ONSC 6862, at paras. 70-72), utility poles (Ramsden v. Peterborough (City) (1993), 15 O.R. (3d) 548, [1993] 2 S.C.R. 1084, at pp. 1100-1102 S.C.R.), and the town square (Fort Erie, at para. 54).

[42] The inquiry into the actual function of a place has a different focus. Actual function concerns the primary, governmental function of the place, rather than the community's secondary use of it as a public forum: Montréal (City), at para. 76. The question is whether the governmental activity that goes on at the place is compatible with the use of the place as a public forum; in other words,"[w]ould an open right to intrude and present one's message by word or action be consistent with what is done in the space? Or would it hamper the activity?": Montréal (City), at para 76. The exercise of freedom of expression would hamper governmental functions, including the provision of public services, if a right of access were allowed in essentially private places that require privacy. Section 2(b) does not extend protection to expression in such locations.

[43] Ultimately, Montréal (City) characterizes historical use and actual function as "markers" of constitutionality, ongoing patterns of property use that reflect both formal governmental choices and informal social conventions. These practices, the Supreme Court says, are a ready guide to what is likely reasonable in a free and democratic society. But historical use and actual function must still be critically evaluated to determine whether they in fact align with what is reasonable. The underlying question is "whether a practice of free expression in the place in question would undermine the purposes of the [s. 2(b)] guarantee", which includes the practices of democracy and efficient governance: Montréal (City), at paras. 76-77; R. v. Banks (2007), 84 O.R. (3d) 1, 2007 ONCA 19, at para. 119.

[44] The respondent argues that the history of the parks does not reveal any use of it as a public forum, and that the actual function is incompatible with the exercise of freedom of expression. I disagree with both submissions. Although the record does not provide any compelling evidence of the historical use or non-use of the parks as a public forum for expression, as in Greater Vancouver Transportation Authority v. Canadian Federation of Students -- British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 43, the "very fact that the general public has access" to the parks "is an indication that members of the public would expect constitutional protection of their expression" in that space. An aspect of freedom of expression is the ability to address people in places where crowds are known to congregate.

[45] With respect to the actual, governmental, function of the parks, the respondent seeks to distinguish the function of the parks from that of a municipal park or town square or other outdoor public location. The reason for the establishment of the parks, on the respondent's evidence, was to remedy commercial exploitation that impaired the ability of visitors to experience the natural landscape, and to preserve the Niagara Falls as a global asset. Grandview Plaza is a place of public recreation: it serves as a venue to view Niagara Falls and facilitates the various commercial enterprises sanctioned by the parks.

[46] The respondent further argues that the parks are intended to function as a haven or refuge from public debate, assembly, or protest, and a place to experience natural beauty without the distraction of potentially divisive expression. In the respondent's view, some forms of expression, such as abusive or insulting speech, are incompatible with this function of the parks and therefore do not come within the scope of s. 2(b) protection.

[47] Here the respondent miscasts the nature of the location-based exclusion under s. 2(b), and strays into considerations properly addressed in the reasonable limits analysis under s. 1 of the Charter. The location-based analysis is a preliminary screen only, to weed out claims of entitlement to platforms that are clearly unsuitable for public address given their governmental function. The question is not whether insulting or abusive language is compatible with the parks' function, but whether public expression in general is compatible with it.

[48] Additionally, given the sheer size of the parks, the location-based analysis must be more finely grained than what the respondent suggests, and must focus on the part of the parks where the events occurred. Grandview Plaza is a large, open space where parks-sanctioned commercial enterprises are located. Indeed, the initial complaint about Mr. Bracken did not come from a visitor whose experience of the parks was frustrated by either his sign or his behaviour, but from a vendor who objected to Mr. Bracken occupying the space where the vendor wanted to set up his ice-cream cart. It is capable of accommodating hundreds if not thousands of people. According to the evidence of Officer Forcier, it is one of the busiest places in the parks, and nearly 17,000 people passed through it on August 2. At the time of Mr. Bracken's demonstration, hundreds of people had just disembarked from tour buses and were queuing to buy tickets for the Wildplay Zipline attraction and Hornblower boat tours.

[49] In my view, the evidence does not establish that the function of either the parks as a whole or Grandview Plaza specifically would be impaired by constitutional protection of expression within the parks. Grandview Plaza is a place where people congregate and must expect to interact with others. That is precisely what made it an attractive destination for Mr. Bracken. Nothing that happens there requires quiet or an absence of distraction. Indeed, neither quiet nor the absence of distraction is even possible there. As in Greater Vancouver, at para. 43:

[u]nlike the activities which occur in certain government buildings or offices, those which occur [in the Parks] do not require privacy and limited access . . . Like a city street, [the Parks are] a public place where individuals can openly interact with each other and their surroundings.

(Emphasis added)

[50] Nor am I persuaded that there is anything else about the parks that suggests that the exercise of freedom of expression within it would undermine the purposes for constitutional protection of that freedom. Although there could be places within the parks where the constitutional protection of freedom of expression does not extend (private offices, for example), Grandview Plaza is not one of them.

[51] Of course, the mere fact that freedom of expression is protected within a particular location does not mean that no limits on expression in that location are permissible. But any such limits fall to be considered under s. 1 analysis.

Question 3: Does s. 2(9)(a) of the Regulations Limit s. 2(b) of the Charter in Purpose or Effect?

[52] The third step of the s. 2(b) inquiry is to ask whether the limits imposed by s. 2(9)(a) on free expression flow from the provision's purpose, or whether they are better understood as incidental effects.

[53] If it is determined that s. 2(9)(a) has as its purpose the limitation of expression, that is sufficient to establish a s. 2(b) limit on expression and the government must defend the limit under s. 1 of the Charter. But if the provision limits expression as a side-effect of the pursuit of some other purpose, then the claimant faces the additional hurdle of establishing that the expression subject to the limitation furthers one of the underlying goods advanced by the protection of expression: (1) enabling democratic discourse; (2) facilitating truth seeking; or (3) contributing to integral self-fulfillment: Irwin Toy, at p. 976 S.C.R.

[54] The respondent argues that s. 2(9)(a) does not have as its purpose the limitation of expression: any message whatsoever can be delivered as long as the form of expression does not "attack the physical or psychological integrity of the audience". The provision is said not to target the communication of any particular set of ideas, only the method used to convey ideas.

[55] I do not accept this submission for two reasons.

[56] First, insofar as it applies to "psychological integrity", the argument is simply an iteration of the argument rejected above, urging an expansion of the violence exception to include "emotional violence".

[57] Second, just because some means of expression (predominantly physical violence) can be readily identified and excluded from the ambit of freedom of expression, does not mean that such a neat division between content of expression and the means of communication is always possible: Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 748-50 S.C.R. Over some range of cases at least, the medium is the message. Tone of voice, volume, facial expressions and body language all convey meaning that cannot necessarily be conveyed effectively in words. The exercise of free expression is diminished by restrictions on the means that make it effective. So, it is no answer for the respondent to say there is no limit on one's exercise of freedom of expression -- that everyone is free to convey whatever ideas they want -- provided they use appropriately temperate language. To take a familiar example from U.S. First Amendment case law, the meaning conveyed by shouting "fuck the draft" does not translate, without significant loss of meaning, to the quiet declaration, "I am implacably opposed to the draft": Cohen v. California, 403 U.S. 15 (1971).

[58] For these reasons, I conclude that the application judge erred in determining that s. 2(9)(a) did not limit freedom of expression under s. 2(b). The commission is required to demonstrate, in s. 1 analysis, that the limit placed on expression can be justified.

(3) Section 1

[59] Where the exercise of a Charter right has been limited by a statute or regulation, the party seeking to uphold the statute or regulation may justify the limitation. This is because the scope of non-absolute rights such as freedom of expression cannot be determined without an assessment of the reasonable limits necessary for maintaining the conditions conducive to a healthy society, including those limits needed "to protect public safety, order, health, or morals or the fundamental rights and freedoms of others": R. v. Big M Drug Mart, [1985] 1 S.C.R. 295, at p. 337 S.C.R.

[60] The framework for determining whether a legislative limit on rights is reasonable and justified was set out in R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 138-39 S.C.R. Although aspects of the Oakes test, set out below, are expressed in technical terms such as "balancing" and "minimal impairment", the test is at root an evaluation of the extent to which limits are reasonable in a free and democratic society: R. v. J. (K.R.), [2016] 1 S.C.R. 906, 2016 SCC 31, at para. 58; see, also, Francisco J. Urbina, A Critique of Proportionality and Balancing (Cambridge: Cambridge University Press, 2017), at pp. 4-9.

(a) Prescribed by Law

[61] Section 1 of the Charter authorizes only such limits as are "prescribed by law". This requirement is satisfied by a regulation promulgated by the commission pursuant to the exercise of its statutory power.

[62] Mr. Bracken, however, objects to s. 2(9)(a) on the basis of its vagueness. He argues that the uncertain boundaries of the words "abusive or insulting" mean the provision provides no guidance either to a person like himself who wants to know what he can and cannot lawfully do in the parks, or to a police constable tasked with enforcing it. The result, he argues, is the antithesis of the rule of law: instead of being subject to a clear rule capable of guiding behaviour, he is subject to a vague standard whose meaning depends on the whims of the NPP officer applying it.

[63] In support of his argument, Mr. Bracken points to the history of his engagement with the NPP. On August 2, 2016, he was told that he was not permitted to display his sign in the parks. Two days later, when he attended at the station and sought clarification, he was told again, by a different officer, that the sign was not permitted, and that if he attended again with the sign he would be removed from the premises. Significantly, the respondent now concedes that the display of the sign in the parks does not infringe s. 2(9)(a) and that the oral trespass notice cannot be maintained. This series of events, Mr. Bracken argues, demonstrates that s. 2(9)(a) is unconstitutionally vague.

[64] I would reject this submission.

[65] The concern about vagueness in legal standards, the discretion it gives to those who interpret and implement them, and the challenge it poses to the Rule of Law has long been a preoccupation of jurists: see Timothy A.O. Endicott, Vagueness in Law (Oxford: Oxford University Press, 2001). In Canadian law, the leading treatment of vagueness remains R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, which holds that it is an impossible demand that the legislature, and those exercising delegated rule-making powers like the commission, address in advance every conceivable contingency in a law's application. Although the law can identify clear areas of permissible and impermissible behaviour where there is no room for doubt about one's obligations, "it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk": Nova Scotia Pharmaceutical Society, at p. 639 S.C.R.

[66] An appropriately specific law gives fair notice of the type of behaviour that enters the "risk zone" of non-permissible conduct. That requirement of fair notice is satisfied where the law "sufficiently delineate(s) an area of risk" and provides the criteria to be used by those applying the law to particular circumstances. It is unrealistic to demand that the law do more: Nova Scotia Pharmaceutical Society, at pp. 638-39 S.C.R. The fair notice requirement can also be satisfied in part where the prohibited conduct coincides with the "substratum" of common morality in society; that is, when independent of the law, everyone knows that the proscribed act is wrongful: Nova Scotia Pharmaceutical Society, at pp. 634-35 S.C.R.

[67] Section 2(9)(a) is sufficiently detailed to provide an adequate basis for reasoned analysis applying legal criteria, as demonstrated in the discussion above about the provision's interpretation. It provides fair notice to the public and appropriately limits enforcement discretion. Furthermore, even members of the public who are unaware of s. 2(9)(a) would know that it is wrong to interfere with other persons in their use of public recreational space. That s. 2(9)(a) is, like any law, capable of being misinterpreted (and was misinterpreted by the NPP with respect to the display of the sign) is beside the point. The remedy for unreasonable exercise of enforcement discretion is, in the ordinary course, an appeal (if provided) or judicial review; it is not the invalidation of the relevant law.

(b) Proportionality Test

[68] To establish that the limit s. 2(9)(a) places on freedom of expression is reasonable and demonstrably justified, the respondent must show that the provision has a sufficiently important objective to warrant limiting the right and that the means chosen are proportionate to that achieving that objective.

[69] The test for proportionality adopted in Oakes has three components. As summarized recently in J. (K.R.), at para. 58:

A law is proportionate if (1) there is a rational connection between the means adopted and the objective; (2) it is minimally impairing in that there are no alternative means that may achieve the same objective with a lesser degree of rights limitation; and (3) there is proportionality between the deleterious and salutary effects of the law. . . . The proportionality inquiry is a normative and contextual one, which requires courts to examine the broader picture by "balanc[ing] the interests of society with those of individuals and groups".

[Citation omitted]

Does s. 2(9)(a) Have a Sufficiently Important Purpose?

[70] This step of the analysis is not onerous. Its most frequent analytical function is not so much to screen out unimportant legislative purposes (of which we can assume there will be few) as it is to provide a preliminary assessment of the impugned provision for use in the minimal impairment and overall proportionality steps that follow.

[71] The importance of s. 2(9)(a) is obvious. Communities have an interest in maintaining the public character of shared spaces, which requires the use of legislation and regulation to prevent individuals and groups from using public space in a way that renders it unfit for the reasonable use of others. The guidance provided by regulations such as s. 2(9)(a), helps to preserve the parks as a place of public recreation and a global tourist attraction. As Brown J. (as he then was) observed in Batty, at para. 91, without rules governing what people can and cannot do in parks, they would be at risk of descending into "battlegrounds of competing uses . . . [o]r . . . places where the stronger, by use of occupation and intimidation, could exclude the weaker or those who are not prepared to resort to confrontation".

[72] I conclude that s. 2(9)(a) has a sufficiently important purpose: safeguarding the reasonable use of the parks by the public, by prohibiting others from unreasonably interfering with that use.

Rational Connection

[73] The rational connection branch of the test is satisfied if the impugned provision contributes in some way to advancing its objective. Again, the requirement is easily satisfied here. The specific means adopted by s. 2(9)(a) -- a prohibition on abusive and insulting language or other conduct that unnecessarily interferes with the use of the parks by other persons -- clearly advances its objective of maintaining the public character of the parks.

Minimal Impairment

[74] Section 2(9)(a) will fail the minimal impairment test only if there are alternative schemes, less restrictive of freedom of expression, that achieve the provision's objective "in a real and substantial manner": J. (K.R.), at para. 70; Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567, 2009 SCC 37, at para. 55. The commission, which promulgated the regulation, is owed a "measure of latitude" in this inquiry; the question is whether the means it chose is within an acceptable range of alternatives, not whether it is the least restrictive means imaginable: Montréal (City), at para. 94; R. v. Edwards Books and Arts Ltd., [1986] 2 S.C.R. 713, at p. 772 S.C.R.; Gordon v. Canada (Attorney General), [2016] O.J. No. 4330, 2016 ONCA 625, 404 D.L.R. (4th) 590, at paras. 258-261.

[75] Section 2(9)(a) does not cast a wide net over expressive activity in the parks. As noted above, the provision does not curtail expression that society expects a reasonable person to be able to tolerate. It does not restrict expression that is annoying, or even infuriating. People using public spaces are required to tolerate exposure to ideas with which they intensely disagree -- ideas that may be inimical to their own deeply cherished commitments and choices.

[76] The record before us discloses no alternative scheme to s. 2(9)(a) that would be less impairing of freedom of expression and capable of substantially achieving the provision's objectives. I conclude that s. 2(9)(a) is minimally impairing of s. 2(b).

Overall Proportionality

[77] The final question is whether there is proportionality between the salutary effects of s. 2(9)(a) and its deleterious effects on the right to freedom of expression.

[78] Unfortunately, the court does not have the benefit of submissions from Mr. Bracken on the deleterious effects of s. 2(9)(a). He objects to what he calls the "reading down" of the provision and insists that it be interpreted as proscribing all speech that is merely insulting or abusive, without more. I have rejected this submission as an unsupportable interpretation of s. 2(9)(a).

[79] I will therefore proceed under the assumption that s. 2(9)(a) has two negative effects on freedom of expression. First, persons who wish to express themselves in a manner that infringes the provision will be unable to do so. This is an undeniable loss of freedom. Second, is the "chilling effect"; some persons may unnecessarily self-censor, either because they wrongly conclude their expression contravenes s. 2(9)(a) and keep silent, or because they are concerned that officials tasked with enforcing s. 2(9)(a) will misapply it and curtail lawful expression. As McLachlin J. (as she then was) noted in dissent in Keegstra, at p. 850 S.C.R., "in weighing the intrusiveness of a limitation on freedom of expression our consideration cannot be confined to those who may ultimately be convicted under the limit, but must extend to those who may be deterred from legitimate expression by uncertainty as to whether they might be convicted".

[80] Neither concern, in my view, is significant in this appeal.

[81] First, although s. 2(9)(a) undoubtedly restricts freedom of expression within the parks, the type of expression it prohibits carries little weight in the s. 1 analysis, as it does not meaningfully advance any of the genuine human goods associated with freedom of expression: Saskatchewan (Human Rights Commission) v. Whatcott, [2013] 1 S.C.R. 467, 2013 SCC 11, at para. 112. As described above, s. 2(9)(a) does not prohibit the expression of contentious or controversial ideas. It does not prohibit or curtail robust contributions to public debate. It does not prohibit incivility, profanity or vulgarity. In proscribing the use of abusive or insulting language, it merely prohibits personal invective.

[82] Turning to the second concern, I make two observations about the possible "chilling effect" created by s. 2(9)(a).

[83] First, one aspect of a chilling effect presupposes over-enforcement of s. 2(9)(a) by the NPP. This is a reasonable concern. This concern, however, does not provide grounds for finding the provision unconstitutional. Enforcement problems, should they occur, are to be addressed through the oversight of administrative law. The commission is entitled to promulgate regulations under the assumption that they will be applied constitutionally by the NPP: Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs & Revenue Agency), [2007] 1 S.C.R. 38, 2007 SCC 2, at para. 71. As this court held in R. v. Khawaja (2010), 103 O.R. (3d) 321, 2010 ONCA 862, at para. 134:

Nor can improper conduct by the state actors charged with enforcing legislation render what is otherwise constitutional legislation unconstitutional. Where the problem lies with the enforcement of a constitutionally valid statute, the solution is to remedy that improper enforcement, not to declare the statute unconstitutional.

[Citation omitted]

[84] Second, these proceedings mark the first time that s. 2(9)(a) has been judicially interpreted. Following this decision, and any future decisions that apply s. 2(9)(a) to individual cases, "greater certainty may be expected, further reducing the law's chilling effect": R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 104. This increased certainty will benefit both members of the public and NPP officers tasked with enforcing the Regulations.

[85] Set against these concerns are significant benefits for users of the parks in knowing their reasonable use of the parks will not be frustrated by abuse directed towards them. The narrow limit on expression placed on all users of the parks is, in my view, proportionate to the benefit to be achieved in maintaining the character of the parks as a place of public resort.

[86] On the basis of the foregoing analysis, I conclude that the limits on freedom of expression established by s. 2(9)(a) are fully justified. The regulation does not violate the Charter. I would dismiss this ground of appeal.

C. The Challenge to the Oral Trespass Notice

[87] There remains the Charter challenge to the oral trespass notice.

[88] Both parties take the position that when Mr. Bracken attended at NPP headquarters on August 4, an NPP officer, Mr. Forcier, delivered an oral trespass notice to Mr. Bracken: he was not to return to the parks with his sign. If he did, he would be arrested and removed from the premises. Mr. Bracken sought a declaration that he was lawfully permitted to attend with his sign on the sidewalk. The application judge declined to grant the declaration, noting [at para. 20] that he had already "expressed the opinion that doing no more than returning with the sign in question would not breach s. 2(9)(a)", and stating that he did not know "just what the police would do if [Mr. Bracken] returned to the park with the sign". It appears that the application judge thought it would be sufficient to draw the NPP's misapplication of s. 2(9)(a) to the parties' attention, and that would be sufficient to resolve the matter of the trespass notice. It was not.

[89] It was only at the hearing of this appeal, more than a year after the decision of the application judge was released, that the respondent conceded that the ongoing trespass notice was invalid. Up to that point, the respondent took the position that the trespass notice was valid and subsisting. The respondent further argued that Mr. Bracken's challenge to the trespass notice was moot because the NPP could have removed Mr. Bracken from the parks pursuant to the Trespass to Property Act, given his violation of s. 2(9)(a) (the constitutionality of which had been upheld), and alternatively, because the notice was authorized by s. 2(11) of the Regulations (which Mr. Bracken has not challenged).

[90] The respondent's conclusion is a non sequitur. The mere fact that provisions of the Trespass to Property Act and s. 2(11) of the Regulations may authorize the NPP to issue trespass notices or otherwise exclude persons from the parks says nothing about whether the exercise of that power in this particular case was lawful or constituted a violation of a Charter right.

[91] Mr. Bracken attended at the station on August 4 specifically to clarify whether, on the NPP's understanding of the law, he was permitted to display his sign. Inspector Forcier told him that he was not and that he would be arrested and removed if he did so. This disagreement about his legal rights was the impetus for Mr. Bracken to bring this proceeding in the first place, challenging the trespass notice as an infringement of his Charter rights. To be fair to the respondent, it was not always clear what remedy Mr. Bracken was seeking or on what grounds. And to be fair to Mr. Bracken, it is not always a simple matter to determine whether the proper course of action is to challenge a decision, the legislation authorizing the decision, or both. In the circumstances of this multi-pronged and ongoing dispute between the parties, it was an error for the application judge not to bring some clarity by issuing a declaration quashing the trespass notice.

[92] In summary, based on the above analysis on the scope and constitutionality of s. 2(9)(a), and in the absence of any submission by the respondent to justify the trespass notice, I conclude that the trespass notice constituted an unconstitutional curtailment of freedom of expression in an open public venue.

[93] Unlike the protesters in Batty, who essentially converted a public park to their exclusive use, this was an instance of a single person, standing on a sidewalk at the edge of a public, semi-commercial plaza within a park, holding a sign displaying a political message. Political messages are always provocative. They imply that others are wrong, perhaps through ignorance, mistake, negligence or even moral failure. They frequently risk offending those with contrary views. But in a free society, individuals are permitted to use open public spaces to address the people assembled there -- to challenge each other and to call government to account. The idea that the parks are somehow different -- that they are categorically a "safe space" where people are to be protected from exposure to political messages -- is antithetical to a free and democratic society and would set a dangerous precedent. Again, this does not mean that there cannot be any limitation on expression in the parks based on time of day, appropriate limits on noise, or the nature of any interference with the specific activities going on in the specific location within the parks. The analysis must always be contextual. But in this instance, it is conceded that there were no circumstances that would justify the removal of a single protester with a sign from a busy plaza, and that the display of the sign, despite its profanity, did not constitute the use of insulting or abusive language within the meaning of s. 2(9)(a).

[94] Although the trespass notice has now been withdrawn and the issue is moot, in my view it is nevertheless in the interests of justice to issue a declaration stating there was no basis in law to issue the trespass notice enjoining the display of the appellant's sign and quashing the trespass notice.

Disposition

[95] I would allow the appeal in part. I would allow the appeal with respect to the trespass notice of August 4, 2016 and issue a declaration quashing the notice as set out above. I would dismiss the appeal with respect to the constitutional challenge to s. 2(9)(a).

[96] As success is divided, there is no order as to costs.

Appeal allowed in part.

Notes

¹ Handyside v. The United Kingdom, Eur. Court H.R., decision of December 7, 1976, Series A No. 24, at para. 49.

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