ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Fredrick Bracken
Self-represented
Applicant
- and -
The Town of Fort Erie
Christine G. Carter, for the Respondent
Respondent
HEARD at Welland, Ontario: November 27, 2015
The Honourable Justice T. Maddalena
REASONS FOR DECISION
The Issues
The Applicant
1The Applicant, Fredrick Bracken (hereinafter referred to as “Bracken”), submits in his application that the trespass notice dated June 16, 2014 issued to him by the Respondent, Town of Fort Erie (hereinafter referred to as “Town”), violates his rights pursuant to s.2(b) and and s.7 of the Canadian Charter of Rights and Freedoms.
2In his application, Bracken further requests a declaration that the trespass notice is unconstitutional, however, both Bracken and the Town agreed this issue is no longer before the court under this specific application.
3Bracken has advised of his intent to further challenge the constitutionality of the Trespass to Property Act, R.S.O. 1990 c.T. 21 (“TPA”) in another proceeding yet to be initiated by him at a later date.
The Respondent
4The Respondent Town submits that the trespass notice dated June 16, 2014 issued by the Town to the Applicant was valid. It requests that Bracken’s application be dismissed.
5The Town further submits that since the trespass notice expired June 16, 2015 and the Provincial Offences ticket has now been withdrawn, the application is now moot.
Background
Position of the Applicant Bracken as Outlined in his Affidavit Sworn April 16, 2015
6The Applicant submits he was protesting peacefully outside the Town of Fort Erie Town Hall on June 16, 2014 at approximately 5:10 p.m.
7He further deposes that no one from the Town said a word to him before two officers from the Niagara Regional Police (“NRP”) arrived.
8The Applicant submits he attended the town hall on June 16, 2014 to protest the Town’s decision to allow a marijuana grow farm 28 metres from his front door.
9According to his affidavit, at approximately 5:00 p.m. on June 16, 2014 he was “threatened” by a by-law officer who stated the Town would call police if he caused a disturbance.
10Further at approximately 5:10 p.m., his affidavit states, he went inside council chambers to put a note on each councillor’s desk, as well as a note on the media’s desk for James Culic.
11He then submits that he left the Town Hall and started his peaceful protest which consisted of walking up from the parking lot to the front of the Town Hall.
12He states he never used the megaphone with attached siren for more than 30 seconds at a time.
13Bracken submits once he started his “patriotic peaceful protest”, no one from the Town asked him to lower the megaphone, move farther away, or discontinue his protest.
14However, shortly thereafter, two officers from the NRP attended and asked him to leave the premises.
15His affidavit states that when he refused to leave the property, he was “arrested, assaulted, and imprisoned by NRP”.
16Bracken refused to leave, and rather than leave, he preferred to be arrested.
17Although Bracken suggests in his affidavit that he was assaulted, there is no evidence of assault and this is not an issue at this hearing.
18In fact, according to the evidence, Bracken was arrested and issued a Provincial Offences notice.
19According to the evidence, which is undisputed, after he was provided with a trespass notice, the Applicant proceeded to tear it up in front of the NRP officers.
20The court notes that in this particular action Bracken has admitted to attending inside the council chambers, whereas in the Small Claims Court action that he has also commenced as a result of the trespass notice issued to him, he states he never entered council chambers. However, it is clear that he did enter council chambers to place notes on councillors’ desks and on the desk of the media person.
21Bracken submits he has never used Town property or council chambers in a violent, unlawful fashion and has at all times respected the governing rules, regulations and the by-laws.
22He submits his use of the megaphone is protected speech under the Charter of Rights and Freedoms. He submits he has never made threats of violence that reasonably would cause Town officials or members of the public to fear for their safety.
23He submits the Town acted unreasonably and arbitrarily in issuing the trespass notice to him. He submits the trespass notice violates his Charter rights, particularly pursuant to s.2(b) and s.7 of the Canadian Charter of Rights and Freedoms.
24The June 16, 2014 trespass notice limited his protected expression and infringed his freedom of expression. Bracken submits peaceful protest is protected by the Charter.
Position of the Respondent
Affidavit of Signe Hansen sworn May 21, 2015
25Signe Hansen is the Manager of Parks and Open Space Development for the Town and swore an affidavit on May 21, 2015 in connection with this matter.
26Paragraphs 2 and 3 of the affidavit of Signe Hansen state as follows:
On June 16, 2014, I was working in my office on the second floor of Town Hall at 1 Municipal Centre Drive, Fort Erie. I knew that a Council Meeting was scheduled for 6:00 p.m. that evening. At approximately 5:00 p.m., I hear an unusual siren from my office. The siren did not sound like an emergency service siren and I came out of my office to have a look. As I was moving from my back office to the front office on the second floor, I also heard someone speaking on a megaphone. A number of my co-workers had gathered on the second floor balcony and were watching who I now know to be Fred Bracken outside the building on the ground floor.
There are 2 automatic doors sliding doors leading into Town Hall and eventually into Council Chambers. These are controlled by sensors. Mr. Bracken was very agitated. He was pacing back and forth in front of the doors, making them open and close. He would then walk down the ramp towards the parking lot, then back up to the doors, all the while shouting into the megaphone and blaring its siren. I watched from a safe distance as Mr. Bracken ran through the inner and outer vestibule doors and towards Council Chambers.
27Ms. Hansen also expressed a concern in her affidavit that the erratic behaviour of the Applicant would intimidate members of the public, particularly seniors, who were trying to get into the Town meeting that evening. She also notes that:
“Some of the staff who were watching with me from the second floor expressed fear for their safety ….”
28In paragraph 5 of her affidavit, she noted that:
“… Mr. Bracken appeared highly agitated, pacing outside the front entrance with a megaphone and bullhorn and had run towards Council Chambers. At that point, staff on the first floor locked the two doors leading from the Council Chambers to the first floor offices to make sure staff on the first floor were safe and secure ….”
29She further noted,
“… the frequency of Mr. Bracken’s offensive comments into his megaphone increased, perhaps because he had an audience. He was yelling: ‘kill the bill’ and something about communists, much of which was hard to understand …”
30The affidavit of Signe Hansen further notes, at paragraph 7, that two of the notes left by Bracken on the councillors’ desks read as follows:
“Congratulations on being the ONLY COUNCIL AND STAFF IN CANADA to go under the 70 m setback recommended by Health Canada and the provincial D-6 guidelines. You crooks must be proud” and another reading This seat is reserved for Karl Marx AKA “redacted”.
31Ms. Hansen deposes that, as a result, she had “serious concerns” about her safety and “that of others around Mr. Bracken”.
32It is important to note that based on the evidence provided, Bracken was provided, by the Town, information with respect to appealing the by-law at issue to the Ontario Municipal Board (“OMB”). It is not clear in the evidence whether he has availed himself of the opportunity to appeal to the OMB.
33Ms. Hansen was cross-examined by Bracken on September 9, 2015. Ms. Hansen described Bracken in the following manner on June 16, 2014:
“behaviour was unusual …”
“you were pacing, you were almost running”
“you were moving quickly back and forth in front of the doors …”
34She was “concerned about his behaviour being a little bit out of control ….” Hansen reported “staff members were concerned about their safety ….” “I was concerned about my safety ....” She described him as “you seemed very aggressive, you seemed very upset about something”. She states she observed his behaviour from two different locations - one was from the second floor balcony in Town Hall, and the second was standing right in the atrium probably about 10 feet away from the front door. His behaviour of pacing was intimidating and with intent to invoke fear in people. She noted he was speaking very loud into the megaphone.
Police Report of Constable Sahs dated June 17, 2014
35Constable Sahs was the first to arrive at the Town once police had been called.
36Constable Sahs described Bracken as “… sweating profusely and speaking very fast. He appeared to be very agitated and loud.”
37Constable Sahs’ report indicates that Bracken was given numerous opportunities to leave the premises. However, he declined and advised police that he wished to be arrested and issued a ticket.
38As a result, Bracken was placed under arrest for trespassing. The officer further indicates in his report as follows:
“I attempted to explain Bracken’s right to counsel and caution, however, he was so heated and verbal, that he kept talking over me and at no point, while inside the vehicle, did he listen to my instruction.”
39The report further indicates that:
“Bracken kept repeating himself and rocking back and forth. He advised that he was so happy that this event happened and repeated this countless times. He advised that he was going to the OIPRD and filing a $25,000 lawsuit against all officers and the Town of Fort Erie. He continued to rant about police and government corruption … Bracken continued to swear and shout at members of Town Counsel [sic], as they were speaking with Sergeant Swan. I observed the rear cage partition (plexiglass) and drivers side rear window to be completely spattered in saliva from Bracken continuously shouting at me and anyone walking past the cruiser …”
Police Report of Constable Feor dated June 17, 2014
40Constable Feor was the second NRP officer who attended on June 16, 2014 at the Town premises as a result of a call from the Town personnel.
41The report of Constable Feor confirms:
“… I could clearly hear the male yelling/speaking overtop of PC. Sahs as he attempted to speak to the male.”
42The report further noted:
“Information received by my partner and I was that Bracken was being disruptive and intimidating staff and local residents attending the Town Hall meeting.”
43Further:
“I could hear and see PC. Sahs repeatedly ask the male to allow him to speak and not interrupt but the male was continually speaking over the officer and it was beyond obvious that the male was refusing to allow PC. Sahs to speak.”
44The report further notes,
“Throughout the entire interaction with the male he was argumentative, speaking overtop of officers, yelling and hurling profanities at town officials and he refused to recognize authorities of police officers and trespass acts. There were numerous elderly residents walking into town hall as well as families watching the incident.”
45The report further notes,
“As the male [Bracken] swore and ranted about government corruption and false arrest, he was sweating to point that sweat dripped from his elbows and chin. The male could not stay still, he was ranting continually appeared extremely excited and he continued to scream and hurl profanities from within the police vehicle.”
Affidavit of Tom Kuchyt sworn May 22, 2015
46Tom Kuchyt (“Kuchyt”) is the Chief Administrative Officer (“CAO”) for the Town and swore an affidavit in connection with this matter on May 22, 2015.
47Kuchyt was in a closed meeting on June 16, 2014 when approximately at 5:15 p.m., Signe Hansen advised that Bracken was “… making the front doors open and close, speaking loudly on a megaphone with an attached siren that was blaring and that he had run into the building towards Council Chambers before a public meeting was scheduled to begin a 6:00 p.m.”
48Kuchyt stated that Hansen and other staff members “were afraid for their safety and that of the public”.
49Kuchyt, as CAO, is responsible for the administration and implementation of the Occupational Health and Safety Act, R.S.O. 1990 c.O.1, especially as it relates to a workplace free of violence and harassment.
50His affidavit deposes that as a result of the information received from Signe Hansen, a decision was made to prepare a trespass notice in an attempt to exclude Bracken from Town property. Kuchyt requested Mr. Richard Brady, the Director of Community Planning and Development for the Town, to speak to Bracken to ask him to leave and then hand him the trespass notice dated June 16, 2014, together with a covering letter dated June 16, 2014.
51The covering letter dated June 16, 2014 noted, in part:
“This extraordinary action has been taken as a result of your persistent and escalating confrontational behaviour with Town staff. …
Staff have been instructed to call the Niagara Regional Police immediately if you engage in any threatening or harassing behaviour toward them.”
52The trespass notice provided that in the event he needed access to the Town for Town business, that he could make arrangements directly with the CAO for any purpose related to Town business. The trespass further provided that he was permitted to use the drop box located in the public parking area for tax or water payments.
Affidavit of Beverley Bradnam sworn May 21, 2015
53Beverley Bradnam is the Executive Assistant to the CAO and Policy Analyst for the Town.
54She deposes in her affidavit, sworn May 21, 2015, that on June 16, 2014 at approximately 5:10 p.m., she was working at her desk on the ground level at Town Hall when she heard a siren go off. She learned from Signe Hansen that Bracken was in the building. She noted that “he had a megaphone with a siren attached and was yelling some incomprehensible things including, ‘kill the bill’.”
55Ms. Bradnam is a member of the Workplace Violence Committee. She noted that another staff member who was working at her desk on the first floor became concerned that Bracken would access the administration offices from inside council chambers. Therefore, she immediately went to retrieve her keys to lock the side doors in council chambers. When the CAO came out, they were instructed to call police immediately.
The Workplace Violence Prevention Policy
56The Workplace Violence Prevention Policy of the Town reads as follows:
The Town of Fort Erie is committed to providing a safe and healthy workplace which includes the personal safety and security of all employees. As such, there are some customer behaviours that we do not tolerate:
Threatening – such as banging on desks or counters, shaking first, property damage, leaning into an employee’s personal space
Verbal abuse – such as swearing, insults, condescending language, shouting or yelling
Crossing physical barriers – such as entering an area that is designated for employees only, unless invited to do so
Physical contact with an employee
Any customer who engages in this conduct may be refused service and/or removed from the premises.
57According to Ms. Bradnam, this policy is displayed throughout the Town for all to see.
Affidavit of Richard Brady sworn May 21, 2015
58Richard Brady (“Brady”) is the Director of Community Planning and Development for the Town of Fort Erie and swore an affidavit for the purposes of this hearing on May 21, 2015.
59He deposes that on June 16, 2014 he was in a closed session meeting when Signe Hansen interrupted to advise that Bracken was “acting erratically and causing a disturbance with a megaphone and siren”.
60Brady noted in his affidavit that in the past he had discussed with Bracken concerns that he had received about Bracken’s “loud, aggressive and entirely inappropriate behaviour on his part when dealing with staff and members of council”. Brady noted, after seeing Bracken, in his affidavit:
“…[O]n this occasion he was so unstable that even I feared what he might do.”
61Brady noted in paragraph 4 of his affidavit:
“I observed Fred Bracken outside with his megaphone and siren. He was very agitated. He can be unstable and unpredictable. He was yelling and swearing and blocking members of the public from entering the building. The interim CAO requested that his executive assistant call police and prepare a notice under the Trespass to Property Act. …”
62It is noted in the affidavit of Brady that he provided the notice and accompanying letter to one of the officers who, in turn, provided it to Bracken. Bracken proceeded to rip up both.
63Brady was cross-examined upon his affidavit by Bracken on the 9th of September 2015.
64Several excerpts from that cross-examination are notable. Firstly, questions 33 to 37:
Q. Has Mr. Bracken ever banged on anybody’s desk?
A. Yes, the front desk of Town Hall.
Q. Okay when? What day – what exact date did Mr. Bracken do that?
A. That was the day that I got called down to – I don’t know the date, it was the day …
Q. Okay.
A. … that I got called down.
Q. So did Mr. Bracken bang on the desk before you were called down or after? And did you …
A. You banged on the desk while I was there.
Q. You witnessed it?
A. I did.
65Continuing at questions 41 through 53:
Q. … desk, did you ever remove him from the property that day?
A. No.
Q. Okay, you never did. Okay. Has Mr. Bracken ever strike the – shake the fist …
A. Yes.
Q. … to anybody? And – and when did he do that?
A. The same day. You were at – at that day you were shaking fists at the ladies in the front staff …
Q. Okay. How was I doing that?
A. … and they were quite agitated.
Q. Okay. How was I doing that? Can you just for – for the record here – was it – was it a closed fist?
A. You had a piece of equipment that you were shaking at people.
Q. A piece of equipment? What was that? A guitar or something?
A. A recorder of some description.
Q. A video recorder?
A. Yes.
Q. Was it on?
A. I don’t know.
Q. You’re not sure if it was on?
A. I have no idea.
Q. Now when you say I was shaking it at somebody …
A. Yes.
Q. What did – I – I – I can’t understand what that means – how – I was shaking a camcorder. Explain what I was doing when I was shaking it.
A. You were taking the camcorder shaking at people’s faces, and ..
Q. Okay.
A. … -- including myself.
Q. Okay.
A. And trying to intimidate them with your …
66Questions 63 to 68:
Q. So it’s your position today that when I had the camera I leaned right over to about one inch from your face? That’s your position today?
A. I believe so, yes.
Q. Oh – well not if you believe so, is that – is that a fact? Or is that something that you believe?
A. You took the camera …
Q. Okay.
A. … and put it into my face …
Q. Okay.
A. … and you were – did it in a very threatening way …
Q. Okay.
A. … to intimidate.
Q. Okay. And how is sticking a camera – like, pretend I was filming you …
A. It’s a heavy object that you looked like you were going to hit somebody with.
67Questions 78 through to 82:
Q. Can you please explain to the – to the – your honour who’s gonna hear this case, why exactly this Trespass Notice was issued?
A. On the day that that Trespass Notice was issued …
Q. Mmhmm.
A. … you were acting in a bizarre affair outside of City Hall and inside City Hall …
Q. Okay.
A. … with both a blow horn and a siren.
Q. Okay.
A. You were describing people in a very belligerent fashion.
Q. That’s right.
68Questions 97 to 99:
Q. … you admit that other people that were hearing that – Signe, Beverly – they were mostly upset from the words I was using?
A. No, they were scared.
Q. Okay. And why were they scared?
A. Because you were bullying them.
Q. Okay. Now are you aware of – have you read any of their affidavits?
A. I’ve read Miss Hansen’s affidavit …
69Questions 106 to 113:
Q. What if I told you in her affidavit there’s not mention of me ever saying anything to her that day? Did I ever say one word to Mrs. Bradnam that day?
A. I don’t know.
Q. Did I ever say one word to you?
A. Yes.
Q. Not through the megaphone , …
A. Yes, you did.
Q. … I’m talking about in person.
A. Yes, you did.
Q. When – when was this?
A. When you were in handcuffs you were …
Q. This is after the arrest.
A. … yelling at me …
Q. Okay. This was …
A. … and swearing.
Q. … after the arrest though.
70Questions 128 to 136:
Q. You came out and you see me outside of the front door. What did I do after I left the front door?
A. You chased up to people, you stick your megaphone in their face.
Q. Okay. I’m happy you mentioned that.
A. Yeah.
Q. You said I stuck – I – I – I chased people?
A. You chase up to people, yes you do.
Q. Okay. That day who did I chase?
A. There were a number of people who were trying to come into Town Hall …
Q. Okay.
A. … because we had that public meeting that evening.
Q. Yeah, okay.
A. And you were intimidating a number of them as they were trying to …
Q. How many …
A. … come in.
Q. … were trying to come in?
A. I can’t remember.
Q. Okay. But you’re saying that people came in. Was it one, two, ten, a hundred (100) – how many people tried to come in?
A. Probably during the time you were there, somewhere between three to five.
Affidavit of Victoria Schultz sworn May 2015 (specific day of month not shown in affidavit)
71Victoria Schultz is the infrastructure services accounting clerk in the engineering department of the Town. Ms. Schultz swore an affidavit deposing that on June 16, 2014 at approximately 5:00 p.m. she was sitting in her office on the second floor lobby of the Town. Her office overlooks the main entrance and lobby doors. She notes in her evidence, in part:
“Suddenly, I heard a siren blasting and some yelling … I then recognized Fred Bracken from my previous dealings with him. He was talking loudly into a megaphone and blasting a siren. He approached the sliding glass front doors of the building which are controlled by a sensor. As a result, the doors kept opening and closing. He then placed his megaphone on the ground outside and came through the main entrance doors … I witnessed Mr. Bracken coming out of the Council Chambers and running through out of the building. He picked up the megaphone again and continued pacing back and forth and shouting. Mr. Bracken is loud, overbearing and very intimidating. I did not approach him on my own and would not do so because I am not sure how he will react. I am very afraid of him ….”
Law and Analysis
Mootness
72The trespass notice had expired as of June 15, 2015, with no current impediments to Bracken’s attendance at the Town.
73Further, the Provincial Offences Act ticket has been withdrawn, and that issue is also moot.
74The case of Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, sets forth a two-stage process for the court to consider on the issue of mootness.
75The first test of the two-step analysis is whether an adversarial relationship exists or a live controversy exists, which should enable the court to continue to hear the dispute.
76With respect to the first part of the test, I am satisfied of the existence of “an adversarial relationship” and note that the matter was argued vigorously as if the notice was still in in effect.
77The second part of the test, as outlined in Borowski, is whether special circumstances exist so that it is worthwhile for the court to apply scarce judicial resources to resolve it.
78With respect to this part of the test, I conclude, based on all the evidence, that it is necessary to all parties to resolve the matters in dispute. I further conclude that the expenditure of resources is warranted in this case since, although the current issue before the court is moot, there may be incidents of a recurring nature. Therefore, this is an important issue and ought to be heard by the court despite its mootness.
Review of Applicable Legislation
The Municipal Act, 2001, S.O. 2001, c. 25
79Section 229 of the Municipal Act, 2001, S.O. 2001, c.25 states as follows:
- A municipality may appoint a chief administrative officer who shall be responsible for,
(a) exercising general control and management of the affairs of the municipality for the purpose of ensuring the efficient and effective operation of the municipality; and
(b) performing such other duties as are assigned by the municipality.
Occupational Health and Safety Act, R.S.O. 1990, c.O.1
80Section 25(2)(h) and (k) of the Occupational Health and Safety Act, R.S.O. 1990, c O.1 states under “Duties of Employers”:
(2) Without limiting the strict duty imposed by subsection (1), an employer shall,
(h) take every precaution reasonable in the circumstances for the protection of a worker;
(k) post at a conspicuous location in the workplace a copy of the occupational health and safety policy;
Occupiers’ Liability Act, R.S.O. 1990, c.O.2
81Section 3(1) of the Occupiers’ Liability Act under “Occupier’s duty” states:
3.(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
Trespass to Property Act, R.S.O. 1990, c.T.21
82Sections 2(1), 3(1) and 5(1) of the Trespass to Property Act read as follows:
Trespass an offence
2.(1) Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,
is guilty of an offence and on conviction is liable to a fine of not more than $2,000.
Prohibition of entry
3.(1) Entry on premises may be prohibited by notice to that effect and entry is prohibited without any notice on premises,
(a) that is a garden, field or other land that is under cultivation, including a lawn, orchard, vineyard and premises on which trees have been planted and have not attained an average height of more than two metres and woodlots on land used primarily for agricultural purposes; or
(b) that is enclosed in a manner that indicates the occupier’s intention to keep persons off the premises or to keep animals on the premises.
Method of giving notice
5.(1) A notice under this Act may be given,
(a) orally or in writing;
(b) by means of signs posted so that a sign is clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises to which it applies; or
(c) by means of the marking system set out in section 7.
Canadian Charter of Rights and Freedoms
83Sections 2 and 7 of the Canadian Charter of Rights and Freedoms read as follows:
Fundamental freedoms
- Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association
Life, liberty and security of person
- Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
84The Town’s position is that its actions were according to statute and, given Bracken’s erratic behaviour, the trespass notice was valid and enforceable. Bracken’s view is that his Charter rights were infringed and the trespass notice ought not to have been issued.
85The Town relies on the case of R. v. Breeden, 2009 BCCA 463, in support of its position that Bracken’s s.2(b) rights were not engaged on June 14, 2014. In the case of R. v. Breeden, Mr. Breeden was convicted of three counts of trespass under ss.4(1) and 4(3) of the Trespass Act of British Columbia.
86These offences occurred between January and July 2006. The three locations where Mr. Breeden was charged and convicted of trespass were the North Vancouver Provincial Courthouse, the foyer of the West Vancouver Municipal Hall, and the reception area of the West Vancouver Fire Station.
87The case notes in para. 2 therein:
“In each instance the accused had with him signs suggestive of corruption or misconduct by unions or government entities. In one instance, the signboard he was displaying invited persons at the scene to witness the police wrongly arresting him for engaging in legitimate activity.”
88Employees at the three locations testified to feeling threatened by the activities of the appellant, “some wondering about his mental state as evidenced by his behaviour”. His failure to vacate the premises when requested to do so by staff resulted in the charges of trespass of which he was convicted.
89Breeden contended that the request to vacate the premises by persons in authority where he was seeking to display his signage infringed his right to freedom of expression under s.2(b) of the Charter of Rights and Freedoms.
90The court held that the activities of Breeden at the locations in which he sought to display his signs were not protected by freedom of expressions guaranteed in s.2(b) of the Charter. In para. 32 of the decision, the court held:
Here the type of expression engaged in was protesting, described in the courts below as expression antagonistic and critical in tone. It was not what he was protesting that was inconsistent with the function of the location; rather the issue was the appellant’s choice to engage at all in polemic and argumentative demonstration in that location. Recognizing location based limits on the scope of s.2(b)’s protection of free speech on government property, far from harming the integrity of the Charter, has been mandated by the Supreme Court of Canada and serves to ensure that s.2(b) protection is not trivialized by requiring the government to justify every limit on expression incompatible with the public function of a place.
91The court held also in para. 34:
… When an audience is forced to observe material at close range, this can be at odds with the interplay and competition between ideas, and as such it could tend to undermine truth seeking and democratic discourse, basic Charter values. Being faced with these signboards inside a relatively confined building envelope such as the foyers of the premises in this case is qualitatively different from the observation of same in a sidewalk setting or concourse area. The discomfiting of staff and members of the public going about necessary business in these places is an unwarranted interference with the proper function of these premises. The usage argued for is without historical foundation.
92Similarly, the Town’s position is that Bracken felt he had the right to express any content, in any manner whatsoever, and was not required to consider the rights of the public or staff. He presumed that he was entitled to a captive audience with no limitations on him. He, therefore, interfered with the public’s use of space at the Town and staff was concerned.
93The Supreme Court of Canada has set out a three-part test for consideration when dealing with s.2(b) of the Canadian Charter of Rights and Freedoms. It requires the court to consider three questions as follows:
(i) Does the applicant’s conduct or statement have expressive content?
(ii) If so, does the method or location of this expression remove that protection?
(iii) If the expression is protected by s.2(b), does the government action or legislation infringe that protection, either in purpose or effect?1
94With respect to the current consideration, Batty v. City of Toronto, 2011 ONSC 6862, noted at para. 63:
Violent expression is not protected by the Charter, not due to any message it conveys, but “because the method by which the message is conveyed is not consonant with Charter protection”; “violence prevents dialogue rather than fostering it”.
95In the instant case, Bracken indicates that he was protesting peacefully. Given the overwhelming evidence to the contrary, which I accept, I am not persuaded that he was, under the circumstances of that day, protesting peacefully. On the contrary, I accept that his language was shouting, incomprehensible, and his behaviour was erratic and intimidating.
96It is noted that the Town Hall is a location where employees work. They are entitled to work in a safe, nonthreatening, non-intimidating environment free from all kinds of harassment. It is also a public place where members of the public attend to deal with issues regarding their municipality.
97To be clear, the content alone of Bracken’s speech is protected speech under 2(b) of the Charter. Further, use of a megaphone with siren may also be protected speech under 2(b) of the Charter. Indeed, the Town officials may not have liked what he was saying, but it is still protected if carried out in a peaceful manner. What is objectionable and not protected by the Charter is the erratic, confrontational behaviour with which Bracken acted on that day, particularly to the detriment of the staff of the Town and members of the public.
98Section 2(b) of the Charter protects lawful means of expression including peaceful assembly and association. The evidence in this case discloses that Bracken crossed the line of peaceful assembly and protest so that the expression cannot be protected under s.2(b) of the Charter.
99The Town did what it could under the circumstances presented that day. It issued a trespass notice to Bracken. It went into lockdown in order to protect employees. The police were called. Bracken refused to leave and preferred to be arrested. The actions of the Town were to protect staff and the public, not to silence Bracken. Thus, the Town’s action does not infringe on any protection afforded to Bracken under the Charter.
100One may argue that this behaviour is reflective of his upset that police were called and was only manifest to police; alternatively, the evidence supports that by the time police arrived, his behaviour was a mere continuation of his prior activities. Based on all the evidence, I conclude the latter occurred on the balance of probabilities.
101Accordingly, Bracken’s 2(b) rights were not engaged and it is not necessary to proceed to an analysis under s.1 or s.7 of the Charter. I find that the evidence supports that this was a legitimate use of a trespass notice to protect public and staff, so there has been no 2(b) violation of the Charter of Rights and Freedoms.
102It is important to review the case of Bracken v. Regional Municipality of Niagara Corporation, 2015 ONSC 6934.
103In that case, the court concluded that the trespass notice issued to Bracken did interfere with his 2(b) Charter rights and could not be justified under the Charter.
104It is of fundamental importance to note that the facts in that case differ significantly from the case at issue before me. In para. 16 of the court’s decision, the court found that videotape evidence presented to the court did not support the version of facts as put forward in an affidavit by Councillor Zimmerman.
105The court specifically found in the Bracken v. Regional Municipality of Niagara case no threat of violence or threatening or intimidating behaviour in the videotape.
106Also, it should be noted, in that particular case, no police were involved or called that evening at the regional council meeting.
107The corroborating evidence of Regional Councillor Petrowski was that Bracken spoke to Councillor Zimmerman in a calm and collected manner. The court found this was confirmed by the videotape evidence.
108Councillor Petrowski indicated in his evidence that he saw no conduct that could justify the issuance of a trespass notice to Bracken in connection with the activities that evening.
109It is also important to note that the meeting continued that evening, as usual, and without interruption. Bracken continued to attend at that meeting. He was not asked to leave. Further, the trespass notice was issued a week after the meeting in question.
110In paras. 52 and 53 of that decision the court noted as follows:
Accordingly, I am also not satisfied on the balance of probabilities that the Applicant was violent or made threats of violence that reasonably caused Regional Councillors or staff or members of the public to fear for their own safety so as to require a complete prohibition on the Applicant’s attending any future Region Council meetings for one year.
The evidence does not establish that the Applicant exercised or attempted to exercise physical force against a Region staff member in the workplace that could cause physical injury to the staff member. Nor does the evidence establish that there was any statement or behaviour of this that was reasonable for a Region staff member to interpret as a threat to exercise physical force against the staff member in the workplace that would cause physical injury to him or her.
[111] The court concluded in that case that the trespass notice issued to Bracken violated his s.2(b) Charter rights.
112I find that those facts differ substantially from the facts before me.
113In the current case, I accept the evidence that Bracken was acting erratically, pacing and speaking in an incomprehensible manner. Town staff feared for their safety. The Town of Fort Erie went into a lockdown procedure. Police were called and Bracken refused to leave, preferring to be arrested.
114I find that from the Town’s perspective, there was a genuine concern for staff safety and public safety. This form of violent expression and antagonistic behaviour is not Charter protected.
115While Bracken maintains that he engaged in “peaceful patriotic protest”, I find this is not corroborated by the evidence on that day. I find the Town was justified in issuing a trespass notice which banned Bracken from the premises for a period of one year.
116According to the evidence presented, this is not the first or only time Bracken’s behaviour has been problematic from the Town’s perspective. The evidence of Kuchyt indicates that even though Bracken was banned from Town property for a year, there have been additional incidents involving Bracken and Town staff in that time period. As an example, on the morning of October 14, 2014, Town staff were repairing a fire hydrant which broke during a fire on Jarvis Street. Bracken came out of the gym on Jarvis Street and confronted staff and called them lazy and swore at them. The next morning, emergency services were on site again and Bracken again confronted staff and swore at them. He attempted to direct how the work they were doing needed to be carried out. Police were called and attended at the site on that day.
117It is the further evidence of Tom Kuchyt that on October 16, 2014 it was necessary to write to Bracken to advise that he not confront staff performing emergency duties. He further advised that staff has been instructed to call Niagara Regional Police immediately if Bracken engaged in any threatening or harassing behaviour towards them.
118There was evidence presented in this proceeding, which was not refuted by Bracken, that Bracken forwarded an email to the prior mayor of the Town using language such as “shove the camera in your face”. In an email dated November 1, 2014 Bracken then sent an apology, but also noted in the email “politics is life or death for the private sector in this town, region and country and I take your decisions very seriously”.
119In his affidavit Kuchyt indicates that “this reference to death made me question Bracken’s stability and I took steps to increase security again”. Additional concerns were raised by Kuchyt when Bracken acknowledged in his cross-examinations on his affidavit for these proceedings that since approximately 2005 he has been in receipt of ODSP and is currently under psychiatric care for mental health issues.
Conclusions
120Mr. Bracken, along with all other citizens, is entitled to peaceful protest. That right is protected under s.2(b) of the Charter of Rights and Freedoms.
121I am persuaded, having considered all the evidence, that on June 16, 2014 Bracken crossed the line of peaceful protest to a protest that was not peaceful but became violent, harassing, loud, erratic and disruptive, which behaviour created a safety concern for staff and the public at the Town. The Town has a duty to protect staff and workers from such antagonistic behaviours.
[122] Bracken’s behaviour and protest is not protected by 2(b) of the Charter of Rights and Freedoms. Thus, the trespass notice was properly issued. A s.7 Charter analysis is not necessary as I do not find the Town deprived Bracken of his s.2(b) rights.
123The application is, therefore, dismissed.
Costs
124Costs submissions are limited to three pages, plus a Bill of Costs. The Town’s submissions are due by March 4, 2106 and Bracken’s submissions are due by March 24, 2016.
Maddalena J.
Released: February 12, 2016
CITATION: Bracken v. Fort Erie (Town), 2016 ONSC 1122
COURT FILE NO.: 10412/15
DATE: 2016/02/12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Fredrick Bracken
Applicant
- and –
The Town of Fort Erie
Respondent
REASONS FOR DECISION
Maddalena J.
Released: February 12, 2016
1 Batty v. City of Toronto, 2011 ONSC 6862, para. 63