Court File and Parties
Citation: Bracken v. Niagara Parks Police, 2016 ONSC 5615 Court File No.: 11192/16 Date: 2016-09-09 Superior Court of Justice – Ontario
Re: Fredrick Bracken, Applicant And: Niagara Parks Police and Niagara Parks Commission, Respondents
Before: Mr Justice Ramsay
Counsel: The Applicant in person Mr Michael VanOostveen and Ms Sara J. Premi for the Respondents
Heard: September 6, 2016 at Welland
Amended Endorsement
[1] The Applicant asks for a declaration that Regulation 829, RRO 1990, made under the Niagara Parks Act infringes his freedom of expression under s.2 of the Charter, an injunction restraining the Niagara Parks Police from acting on an oral notice under the Trespass to Property Act, a declaration that the notice infringes his freedom of expression under s.2 of the Charter of Rights, and an order staying proceedings on two charges under the Provincial Offences Act.
[2] On August 2, 2016 the Applicant was standing on property owned by the Niagara Parks Commission in Queen Victoria Park, near the entrance to the Maid of the Mist and the zip line. Approximately 17,000 people visited the park that day. Many are foreign tourists. The Applicant was standing near the ice cream kiosk with a sign about five feet high and four feet wide that said, “Trump is right. Fuck China. Fuck Mexico.” The Niagara Parks Police received a complaint and investigated.
[3] The following facts are evident from a video/audio recording. An officer of the Niagara Parks Police approached the Applicant and told him that there was a problem with the sign. The officer tried to point out that this was a provincial park, but he made little progress because the Applicant would not let him get a word in. People congregated to watch the vignette. The Applicant insisted that he had a right to do what he was doing and told the officers that if they tried to arrest him, they would be sued and he might resist, as he had that right, as well. When a second officer took him up on his suggestion to look up the law to see whether he was committing any infraction, he called the officer “a fucking piece of shit,” “a power tripping fucking idiot” and a “goof.” A police officer issued a summons under the Provincial Offences Act for two offences against Regulation 829, to wit: using abusive or insulting language and disturbing other persons within the parks. He was also warned about the offence of causing a disturbance by swearing and yelling, contrary to the Criminal Code.
[4] The Applicant left the park. Two days later he went to the Niagara Parks Police headquarters to discuss the charges. Inspector Forcier told him that “should he return with his sign containing profanity, steps would be initiated under the Trespass to Property Act, including arrest and removal from the premises if necessary.”
Does Regulation 829, s. 2(9) (a) infringe freedom of expression?
[5] The Niagara Parks Commission is a corporation continued by the Niagara Parks Act, RSO 1990, c. N.3. It was originally established by Act of the Legislature in 1887. It is a provincial Crown agency that is funded by revenue from its own operations. The Commission owns 1,325 hectares of property along the Niagara River. The statutory mandate of the Commission is to “manage, develop and control” the parks (s.4). The Niagara Parks are a world famous tourist attraction.
[6] O.Reg. 829 provides:
- (9) Subject to subsection (10), 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;
(b) throw stones or other missiles;
(c) solicit patronage to or for any person, business rooming house, restaurant or hotel;
(d) beg, solicit or invite subscriptions or contributions;
(e) sell or offer for sale any article, thing or service unless authorized in writing by the Commission;
(f) offer to any person or place on or in any vehicle, any piece of literature, brochure, handbill, advertisement or other written material;
(g) loiter anywhere from midnight to sunrise;
(h) park a vehicle except in an area designated by the Commission for parking;
(h.1) park a vehicle in a parking space designated for use by the disabled, unless the vehicle is marked for use by the disabled;
(i) park a vehicle in a parking area designated by the Commission during hours other than those posted in the designated area;
(j) park a vehicle between midnight and 6 a.m. in a place other than a camp-site designated by the Commission;
(k) hunt or shoot any game bird as defined in the Game and Fish Act, except in such areas and at such times as the Commission may in writing permit and as may be authorized under the Game and Fish Act and the regulations thereunder or under the Migratory Birds Convention Act (Canada) and the regulations thereunder;
(l) subject to clause (k), hunt, trap or molest any bird or animal;
(m) damage or destroy any notice posted; or
(n) camp in an area other than in designated camp-sites unless permission is granted by the Commission.
(10) Clause (9) (f) does not apply to an officer.
(11) Where an officer believes on reasonable and probable grounds that a person has contravened subsection (9), the officer may remove the person from the Parks and the Commission may cancel any permits of the person pertaining to the Parks in which the contravention occurred.
(12) Where a permit is cancelled in accordance with subsection (11), the permittee is not entitled to reimbursement of fee, toll or admission charge.
[7] Regulation 829, then, strictly limits the uses to which park property may be put by visitors. Historically the Niagara Parks are places for families to visit the natural attractions and the licensed commercial attractions, which are subject to heavy regulation. It has not been a place for hunting, fishing, bad language, unregulated commercial activity or even passing out flyers.
[8] The first attack on the validity s. 2(9) (a) of the Regulation is that it is vague or overbroad, or both. The applicant submits that “abusive or insulting language” is not a well-defined concept. Furthermore, it covers so much conduct that it is not possible to know when one is committing an offence. I do not agree.
[9] I think that like the by-law in City of Montreal v. 2952-1366 Quebec Inc., 2005 SCC 62, the Regulation can be given enough certainty of definition in context. The dictionary meaning of “abusive” is “extremely offensive and insulting.” Given the historical context of the regulation of the Parks by the Commission and the context of the paragraph in which these words are found, I interpret “abusive or insulting language” as language that is so extremely offensive or insulting that it could interfere with the peaceful use and enjoyment of the parks by other persons.
[10] At this point I observe that the Applicant’s sign, obscenity and all, comes nowhere close to meeting that definition. It was a comment on trade policy expressed in strong and vulgar terms. The Regulation does not purport to regulate or limit such political speech.
Does the Regulation infringe the right to freedom of speech?
[11] The rights protected by section 2 of the Charter are engaged because the premises in question are owned by an agency of the government and the restrictions on freedom of speech are prescribed by law: Greater Vancouver Transportation Authority v. Canadian Federation of Students, 2009 SCC 31.
[12] Does the Regulation infringe s.2 of the Charter by prohibiting abusive or insulting language? The basic question is 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 s. 2(b) is intended to serve – namely democratic discourse, truth finding and self-fulfilment. To answer this question, one should consider the historical or actual function of the place and whether other aspects of the place suggest that expression within it would undermine the values underlying free expression: City of Montreal v. 2952-1366 Quebec Inc., 2005 SCC 62.
[13] The place in question is not a police station or a clerk’s office. On the other hand, it is not a city street either. It is a provincial park. One would expect a measure of freedom of expression in such a place, as long as it is not inconsistent with its desired and historic use. Applying the analysis set out in the City of Montreal case, I doubt whether abusive or insulting language is protected speech in the Niagara Parks. It seems to me that the historical and actual function of the park – a natural and tourist attraction – and other aspects of the place – its resort for peaceful enjoyment of nature and commercial attractions – suggest that the expression of abusive and insulting language undermines the values underlying the self-fulfilment to which the Parks are devoted, and does little to further democratic discourse and truth finding. Most people do not go to the Parks with democratic discourse or truth finding in mind and abusive and insulting language is not an effective means to engage them.
[14] If I am wrong, I find the restriction to be justified under s.1 of the Charter. To be so justified, it must meet the test in R. v. Oakes, 1986 46 (SCC), [1986] 1 SCR 103. The restriction must be motivated by a pressing and substantial public objective; there must be a rational connection between the measure chosen and the objective sought; the measure must impair the protected right only to the extent reasonably necessary; and the effect of the measure chosen must be proportionate to the objective.
[15] Preservation of the Niagara Parks is a pressing and substantial objective. Niagara Falls is one of the world’s natural wonders. The Parks as an attraction are very important to the local economy, the quality of life in the province and Canada’s international reputation. People are attracted to the atmosphere of the Parks. They are also attracted to the commercial activities, which are carefully managed so as not to detract from the natural environment.
[16] The extreme language that is prohibited could interfere with the use of the Parks by the public. The public from all over the world take their children to the Parks to get away from the insults and abuse of every day life. The prohibitions in s. 2 (9) (a) of the Regulation are rationally connected to the objective.
[17] The prohibition covers only extreme language. There is no attempt to govern the content of the language, apart from the abusive or insulting. Political content is not prohibited, even if accompanied by a bit of obscenity. I think that the measure chosen restricts freedom of speech within the bounds of reasonableness.
[18] Finally, the effect of the measure is to require patrons of the park to hold their tongue to the extent of refraining from abusive and insulting language, or else to walk a short distance down the street to Clifton Hill, where their tongues are free of all restraint short of the Criminal Code and the law of tort. To express political opinion they do not have to leave the Park at all. They only have to refrain from abusive or insulting language, objectively defined. This is not disproportionate.
The oral notice under the Trespass to Property Act
[19] The Trespass to Property Act provides that entry on premises or activity on premises may be prohibited by notice to that effect and that notice may be given orally. Entry on premises when prohibited is an offence, and gives the occupier the right to remove the trespasser. The validity of the Trespass to Property Act is not challenged. The Applicant challenged the validity of s.2(9) (a) of the Regulation under the Niagara Parks Act that gives the Parks Commission and its agent, the police, the authority to make the prohibition. Section 11 of the Regulation also gives the police the right to remove a person from the park in the defined circumstances, with or without a notice under the Trespass Act.
[20] I have held the Regulation to be valid. I do not know just what the police would do if the Applicant returned to the park with the sign, assuming that he refrained from abusive or insulting language or other misconduct. I have expressed the opinion that doing no more than returning with the sign in question would not breach s.2 (9) (a). That is probably as far as I need or should go. I do not see the need for a quia timet injunction, which is an exceptional remedy in any event: see Halsbury’s Laws of Canada, HIR-9.
The proceedings under the Provincial Offences Act
[21] What the Applicant said to the police officer could fit the definition of abusive and insulting language. He may also actually have interfered with the use and enjoyment of the place by other persons. Whether he committed those offences is best left to the trial court.
[22] For these reasons I dismiss the application in its entirety.
[23] Given the mixed result I doubt whether this is a case for costs.
J.A. Ramsay J.
Date: 2016-09-09
Description of Amendment
Bracken v. Niagara Parks Police, CITATION: 2016 ONSC 5615
COURT FILE NO.: 11192/16
September 9, 2016: In paragraph 9, the first line has been amended as follows:
Original read: I think that like the Montreal by-law, the Regulation can be given enough certainty of definition in context.
Now reads: I think that like the by-law in City of Montreal v. 2952-1366 Quebec Inc., 2005 SCC 62, the Regulation can be given enough certainty of definition in context.