COURT FILE NO.: CV:-22-24 DATE: 2023 02 09

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

JOHN MANN Self-represented Applicant

- and -

THE CORPORATION of the TOWN of SAUGEEN SHORES Tammy-Grove-McClement and Laura Book for the Respondent Respondent

HEARD: October 20, 2022

CONSTITUTIONAL RULING REGARDING RESPONDENT’S PROCEDURAL BY-LAW

Justice Thomas A. Bielby

INTRODUCTION

[1] This application was issued on April 7, 2022, and further to sections 24(1) and 52(1) of the Canadian Charter of Rights and Freedoms, the Applicant seeks a declaration invalidating certain sections of the Respondent municipality’s consolidated procedural by-law (by-laws 49-2020 and 70-2020) (the by-law) on the grounds that the sections breach sections 2, 3, 7, and 15 of the Charter.

[2] In accordance with s. 109 of the Courts of Justice Act, a Notice of a Constitutional Question was served on the Attorneys General for Ontario and Canada. Both have advised, in writing, that they did not intend to intervene in this matter (ex. 1).

[3] For a number of years, the Respondent has had under consideration the refurbishing of the facilities on the Main Beach of Port Elgin (the beach), a community within the Municipality of Saugeen Shores (the Town). The discussion included the refurbishment of buildings already in place and/or the addition of new buildings (The Port Elgin Waterford Design Concept).

[4] Early in 2019 the Town issued a, “Request for a Proposal” which Kara Van Myall, CAO for the Town, in her affidavit, sworn July 13, 2022, described as, “a mechanism to attract a developer to work with the Town and rejuvenate the beach.” Only one proposal was received and it included a 50 year lease and a two storey restaurant with a roof top patio and a two storey event space which was commonly referred to as a banquet hall. The proposal is known as the Cedar Crescent Commercial Development (the Development).

[5] Thereafter a process was initiated by the Town to consider the proposed development. The process included the preparation of staff reports, the solicitation of public input and the input from a number of third parties including the Saugeen Valley Conservation Authority (SVCA).

[6] The Applicant, a lawyer and a long time resident of the Town, took issue with the proposal and/or portions thereof and made and/or attempted to make numerous delegations to the Town staff and Council.

[7] In his affidavit, sworn April 7, 2022, the Applicant alleges that on eleven occasions the Town, relying on sections of its by-law in issue (the sections), prevented him from communicating, on the record, with the Town’s elected officials. By doing so, the Town violated his Charter rights.

[8] It is further alleged by the Applicant that the right to communicate with elected officials includes the right to, “meaningful communication” which would require the elected officials to respond to his questions and inquiries. To put it another way the Applicant’s right to communicate with the Town’s elected officials includes an obligation on the part of the elected officials to respond.

[9] The Applicant, in his material including his factum, submits that his right to communicate is unfettered and subject only to the Criminal Code of Canada. In the alternative the Applicant summits that the Town has failed, on a balance of probabilities, to prove that the by-law sections in issue are a reasonable limitation on his Charter rights, further to s. 1 of the Charter.

[10] The Applicant submits that the appropriate remedy is to terminate the Development and re-initiate the process commencing with a new, Request for Proposal.

[11] The Town agrees that on eleven occasions the Applicant was denied the right to make a delegation and/or communicate with the Town’s elected officials, on the public record and submits the decisions to deny were warranted by the sections of the by-law. The Town denies any section in the by-law violates the Applicant’s Charter rights. Alternatively, if there is a violation, the Town submits that further to s. 1 of the Charter, the sections of the by-law are reasonable limitations as can be justified in a free and democratic society.

[12] Regarding the eleven refusals, the Town submits that three delegations were denied based on the 6-month rule (deleted by by-law 49-2020) or that the Applicant’s proposed delegation did not provide any new information. A further three refusals relied on the fact that the subject matter involved litigation or the threat of litigation. Others were denied because of the language used by the Applicant.

[13] The Town further submits, and it is not contested, that the Applicant, on 13 occasions, was given the right to make a delegation and to communicate with Council and staff regarding the Development.

THE MUNICIPAL ACT

[14] The creation of a procedural by-law is mandated by s. 238 of the Ontario Municipal Act 2001, S.O. 2001 c.25, and every Ontario municipality is obliged to enact a procedural by-law “for governing the calling, place and proceedings of meetings”.

[15] The by-law must have regard for s. 239(1) of the Municipal Act which requires, subject to a number of exceptions, that all Council meetings be open to the public.

[16] Section 239(2) sets out the exceptions which include, where the subject matter being considered is litigation or potential litigation and advice that is the subject to solicitor/client privilege (ss. e and f).

[17] It is to be noted that the Applicant did not challenge the constitutionality of the above sections of the Municipal Act yet requested, as noted below that the Town should waive privilege and discuss litigious matters, in the public forum.

THE BY-LAW & THE CHARTER

[18] The following sections of the bylaw are challenged by the Applicant as a violation of his Charter rights:

3.10 Open Forum Open Forum forms part of regular Committee of Whole agenda and is held immediately prior to Delegations. Open Forum is a maximum of 15 minutes in duration.

Counsel members shall not speak nor debated the information presented; however, Members can consider the comments made during the open forum when deliberating on the issue spoken to on the agenda. The Clerk shall record the name of the speaker and subject matter in the minutes.

Speakers are subject to the following:

a) Individuals may speak to an agenda item on the Council or Committee of the Whole agendas, excluding items under the headings of Delegations, Communications/Petitions for the Committee of the Whole Action and Communications/Petitions for the Committee of the Whole information.

b) Each person wishing to address the Committee is required to sign a register held by the Clerk, indicate the agenda item and nature of the subject matter, prior to being permitted to address the Committee;

c) Individuals addressing Council for subsequent times on the same topic, must only present new information during the subsequent open forums. New information is deemed to be information that Council has not previously heard.

d) Individuals shall be responsible for conducting themselves with decorum and shall treat all meeting participants with respect and courtesy. Individuals shall refrain from using indecent language or insulting language, resorting to name calling, personal attacks, or condemning the motives of others.

e) No candidate in any election (Federal, Provincial or Municipal) shall be permitted to address Council as part of the Open Forum;

f) individuals shall not be permitted to speak to: a. A tender or request for proposal which is either proposed, pending, or actually before Council or a Committee of Council for its consideration; b. Labour Relations. c. Legal issues including litigation and potential litigation, and matters currently before the courts or administrative tribunal; d. Insurance Claims; or e. Contract negotiations. f. A subject that is beyond the jurisdiction of the municipality.

Section 14.5 – Questions - to delegation Members shall be permitted to ask questions of delegate through the Chair but shall not make statement other than congratulatory or appreciative comment, nor enter into, debate with such persons.

14.8 Delegation – deemed – inappropriate for Council When it is deemed inappropriate that a delegation address Council, the Clerk may refuse the request. The refusal by the Clerk of a request to appear as a delegation may be appealed to the Mayor. The ruling of the Mayor shall be final. Council shall be advised by email when such rulings are made.

14.11 Delegation – Previously Heard Individuals addressing Council for subsequent times on the same topic must only present new information during subsequent delegations. New information is deemed to be information that Council has not previously heard. (This section was an amendment to the by-law, effective July 13, 2020, and replaced what was known as the 6 month rule which prohibited persons from speaking before Council on the same topic again for 6 months.)

The Clerk and Mayor shall decide the order of the Delegations, with preference being given to individuals who have not previously presented to Council.

14.12 Delegation – Restrictions The subject matter of a delegation must be relevant to conducting the business of the Town, promoting the work of partners of the Town, work or events being undertaken by individuals or groups which benefit the community or topics of community interest.

Delegations shall be responsible for conducting themselves wit decorum and shall treat all meeting participants with respect and courtesy. Delegations shall refrain from using indecent or insulting language, resorting to name calling, personal attacks, or condemning the motives of others.

Delegations shall not be permitted to appear before Council whose subject relates to: a) A tender or request for proposal which is either proposed, pending, or actually before Council or a Committee of Council for its consideration; b) A tender or request for proposal which is either proposed, pending, or actually before Council or a Committee of Council for its consideration; c) Labour Relations; d) Legal issues including litigation and potential litigation, and matter(s) currently before the courts or administrative tribunals; e) Insurance Claims; f) Contract negotiations; or g) A subject that is beyond the jurisdiction of the municipality.

(6) 17 Communications and Petitions 17.1 Written – legible - signed Every communication, including a petition designed to be presented to the Council, shall be legibly written or printed and shall be signed by at least one person and filed with the Clerk. Correspondence containing obscene or defamatory language shall not be presented to Council.

Canadian Charter of Rights and Freedoms

[19] The Applicant relies on the following Charter rights and guarantees.

Section 2 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 communications. (c) freedom of peaceful assembly; and (d) freedom of association.

Section 3 Every citizen has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

Section 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice.

Section 15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disabilities. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

THE EVIDENCE

The Applicant

[20] A detailed review of the evidence is not necessary because the Applicant relies simply on the fact that, on 11 occasions (admitted by the Town), he was denied his right to meaningfully communicate, on the public record, with his elected officials. He argues the denials themselves violated his Charter rights. Regardless, a summary review of some of the facts or lack thereof, are needed for contextual purposes.

[21] In his affidavit sworn April 7, 2022, Applicant included multiple items of correspondence and records and simply deposes that the facts contained in therein are, to the best of his knowledge and belief, true (para. 3). Much of his affidavit material includes argument and speak to the merits or lack thereof, of the Development.

The Respondent/Town

[22] By way of evidence, the Town relies on the affidavit of Kara Van Myall, sworn July 13, 2022, and the affidavit of Linda White, sworn July 15, 2022.

[23] Ms. Van Myall is a registered urban planner and in December 2020, was appointed the CAO for the town and deposed that she was actively involved in the proposed Development.

[24] Ms. Van Myall’s affidavit goes on to set out the procedure followed as to the advancement of the Development. Included therein were processes to facilitate public input. The concept plan for the development was presented to Council in July 2019. The Applicant’s interest in the proposal goes back to at least July 2019, when he appeared before the Town’s Committee of a Whole and requested the Town waive solicitor/client privilege in order to answers some of his questions.

[25] In January 2020, a 50 year lease was approved, in principle, by Council. Prior to that the draft lease had been circulated and made available to the public.

[26] On March 9, 2020, the Applicant appeared and participated in an Open Forum conducted prior to a meeting of the elected officials. Due to inappropriate conduct, the Applicant was asked to leave the podium but refused to do so. The police were called and attended to escort the Applicant out of the building.

[27] In November 2020, the proposed design proposal was presented to Council by staff. Moving forward, the Covid Pandemic slowed the approval process, as did an issue with the SVCA. Some of the lands in the Development proposal were under the jurisdiction of the SVCA and its approval was required. The Town and the SVCA could not come to an agreement regarding the Dynamic Beach Hazard limit. Ultimately the footprint of the Development was amended to exclude the lands under the jurisdiction of the SVCA.

[28] As matters continued so did the Applicant’s interest in the Development and he continued in his efforts at communication.

[29] Linda White, for 16 years. was the Town Clerk until July 2022. As clerk, her duties were, as set out in s. 4.4 of the By-law, and included responding to delegation requests, preparing agendas for meetings and determining whether matters are to be addressed in a public meeting or behind closed doors.

[30] Ms. White was involved in the drafting and amending of the Bylaw and when doing so reviewed the procedural by-laws of other municipalities. In July 2016, the By-law was amended to include s. 3.10, Open Forum, as set out above. The forums are to be held at 6:30 pm, for 15 minutes, prior to all Committee of the Whole meetings. The purpose of the Open Forum was to give members of the public, who are not members of a delegation on the agenda for that night, an opportunity to speak to such matters. Citizens wishing to speak at the Forum were required to sign a register and their submissions were limited to 3 minutes.

[31] The Forum gave persons the opportunity to speak new matters, meaning matters not previously heard by the Committee of the Whole.

[32] Regarding the purpose and objective of the By-law, Ms. White, commencing at para. 18 of her affidavit, deposed the following:

“Over the years the volume of subject matters that are required to be covered in one meeting has increased dramatically over the years. As a result, there has been a need to limit the amount of time for delegations and for the Open Forum and to avoid “debate” which tends to lengthen matters. It was also imperative to attempt to avoid repetitive discussion or subject matters that should not be discussed. The Town and I recognize the importance of hearing from individuals on issues affecting the Town and we try very hard to find a balance that allows for input from the community but also maintains an efficient and orderly conduct in order for business to be conducted.”

[33] At para. 21 of her affidavit Ms. White deposed that the Applicant repeatedly used language in his communications to her and Council that was derogatory, negative, disrespectful and unprofessional. For example, in correspondence dated February 14, 2022, the applicant used language such as, procedural swamp by-law, ironic fiduciary duty., despicable conduct, atrocious behaviour, and atrocious violations.

[34] Ms. White noted correspondence of the Applicant, dated December 23, 2021, directed to various politicians and others including the MP, the MPP, the Integrity Commissioner, and members of Council. The Applicant, in reference to the process, spoke of the bizarre conduct that defies common decency, an out-of-control system of injustice, racism and hatred and shameful and despicable conduct.

[35] Another example can be found in an email from the Applicant, dated November 25, 2019, which set out the following reference,

“Re: For the public record that exposes a fatally flawed waterfront RFP process, a destruction of democracy and Due Process in Saugeen Shores failed leadership”.

[36] A February 15, 2022, email from the Applicant started with:

RE: unconscionable history of conduct of elected public servants in Bruce County and Saugeen Shores requires the resignation of all those involved and termination of the Cedar Crescent Village.

[37] Ms. White deposed that between July 2019 and March 2022, the Applicant frequently requested delegations (para. 31). The Applicant was granted in person delegations 9 times and on 4 occasions his correspondence was placed on the agenda.

[38] As noted in para. 12 above, Ms. White, in her affidavit, conceded that the Applicant, on 11 occasions, was denied the right of a delegation to Council. Ms. White deposed that 3 of those denials were based on the 6-month rule or the failure to provide new information as set out in the bylaw (July 2020 amendment).

[39] On three other occasions the applicant was denied a delegation because the subject matter to be considered was in regard to litigation or potential litigation.

[40] On five other occasions the denial was based on the applicant’s use of inappropriate and defamatory language.

[41] The Applicant was allowed a delegation as late as, January 2022, in which he argued that the restaurant ought to be reduced to one storey and the proposed market space be deleted or varied to ensure that a banquet hall would not be part of the Development. Further, the Applicant wanted the Town to waive solicitor client privilege regarding advice provided by the Town’s solicitor to Council in a closed meeting, citing a need to repair the system of justice.

ARGUMENT and THE LAW

The Applicant

[42] The Applicant submits that, as a result of the 11 denials, “every citizen (of the Town) were thereby denied the fundamental opportunity to hear the Applicant’s communications and denied the fundamental opportunity to respond in any fashion they may wish, pro or con, or not at all”.

[43] Applicant further submits that on those 11 occasions when he was denied the right to communicate with the Town’s elected officials, he sent each of them with a copy of his material. The Applicant argues that, on each occasion, the Town’s elected officials were, “unanimous in not responding to him regarding his inquiries and questions.”

[44] On these facts the Applicant alleges his Charter rights were violated because he was not allowed “meaningful communication” with the Town’s elected officials.

[45] The Applicant, in his factum, submits that he brought the Application, referring to it as, “public interest litigation”, with respect to the fundamental right of a citizen to communicate meaningfully with their elected officials. Paragraph 1 of his factum states,

“Every Canadian citizen is entitled to have their voice meaningfully heard and meaningfully considered by public officials on important public matters.”.

[46] The Applicant in asserting his Charter rights, relies heavily on the decision of the Ontario Court of Appeal in, R. v. Robbins. Therein, at para. 2, it was said by the Court, regarding the right to communicate with an elected official: “This right is central to democracy.”

[47] At paragraph 19 of his factum, the Applicant states:

“The fundamental right to communicate with elected officials arises from the duty and obligation of every citizen to be unfettered in his or her criticism or challenge of our government, particularly at the local level subject only to limitations justified by the Criminal Code (ie., utter threats).”

[48] At para. 21 of his factum the Applicant states:

“Subject to the Criminal Code, a citizen determines what communication to convey to elected officials – communication that is unqualified, unconditional and unlimited.”

[49] As noted above, Applicant goes a step further and argues that the right to communicate with elected officials includes a right to “meaningful” communication and includes the right to, in effect, oblige elected officials to respond to inquiries and questions. In otherwards, the Applicant submits that not only to the sections of the by-law in issue represent a violation of his Charter rights, the fact that he did not receive a response from the Town’s elected officials to his questions and inquiries was also a breach of a fundamental rights and the sections of the Charter in issue.

[50] The Applicant, in his factum submits that,

“A citizen confronted with silence from his or her elected officials will never know if he or she was meaningfully heard.”

[51] While the Applicant, in his factum, submits his Charter rights are only subject to the Criminal Code, he does address s. 1 of the Charter, which allows for reasonable limitations on Charter rights. The Applicant submits that the Town has the burden, on a balance of probabilities, of proving that the By-law sections represent reasonable limitations and thereby are protected by s. 1 of the Charter. The Applicants submits the Town has failed to meet its burden.

[52] The Applicant also challenges the sections of the By-law that allow for meetings to be closed to the public, especially in regard to matters of litigation and privilege.

[53] The Applicant denies the use of unacceptable language in any of his communications and denies the Town’s right to refuse a communication based upon language.

[54] In his written material the Applicant submits that the sections of the By-law violated his ss. 2, 3, 7, and 15, Charter rights. However, in his submissions, he focused on s. 2(b) of the Charter, the freedom of belief, opinion and expression.

The Respondent

[55] Set out above are the Town’s reasons for denying the 11 requests to communicate with the Town’s elected officials.

[56] The Town further submits that the Applicant was granted delegations and/or was allowed to communicate with Council, in regard to the Development, on 13 occasions (granted a delegation 9 times and on 4 occasions his correspondence as placed on the Council’s agenda), facts not disputed by the Applicant.

[57] Counsel for the Town submits that the issues to be determined are:

a) Is there a right to meaningful communication that is protected under sections 2, 3, 7 and/or 15 of the Charter? b) Are sections 3.10(a), 3.10(b), 3.10(d), 3.10(e), 3.10(g), 14.5, 14.8, 14.11, 14,12 and 17.1 of the Procedural By-law unconstitutional? c) If determined that the sections are unconstitutional, what are the appropriate remedies?

[58] The Town submits that the Applicant’s alleged right to meaningful communication does not engage ss. 2(a) and 2(d) of the Charter which protect freedoms of religion and the right of assembly and association. I agree for the reasons set out in the Town’s factum.

[59] Regarding s. 3 of the Charter, the Town submits it does not support a claim for meaningful communication but rather enshrines the right to vote and to be represented in government (Saskatchewan (Attorney General) v. Carter, [1991] 1 S.C.R. 158 at page 183). The Applicant did not argue otherwise. I agree that s. 3 of the Charter is not engaged.

[60] Regarding s. 7 of the Charter, the Town relies upon the decision in Blencoe v. B.C. (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at pages 309-311) wherein it was said that the reference to liberty in s. 7 protects a person’s personal autonomy and the right to make decisions of fundamental importance, free from state interference. Such autonomy however, is not synonymous with unconstrained freedom.

[61] It is submitted by the Town that s. 7 does not provide a right to meaningful communication because the Applicant has not alleged that the Town has prevented him from making fundamental personal choices. Nor is there an allegation of personal psychological harm. Accordingly, it is submitted that s. 7 has not been triggered. Again, the Applicant has not argued otherwise, and I agree that s. 7 of the Charter is not engaged.

[62] Regarding s. 15 of the Charter, the Town relies on the decision of the Supreme Court of Canada in Auton v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, at page 21 which states,

“A person claiming a violation of s. 15(1) must first establish that because of a distinction drawn between the claimant and others, the claimant has been denied “equal protection” or “equal benefit” of the law. Secondly, the claimant must show that the denial constitutes discrimination on the basis of one of the enumerated grounds in s. 15(1) or one analogous thereto.”

[63] The Town submits that s. 15 does not provide a right to meaningful communication and again the Applicant did not argue otherwise. I agree that s. 15 of the Charter is not engaged.

[64] The remaining Charter section to be addressed is s. 2(b) which protects the freedom of thought, belief, opinion and expression. The Town argues that the section does not protect “meaningful communication” and relies on NWAC v. Canada, [1994] 3 S.C.R. 627 where it is said at page 651:

Traditionally, the cases involving s. 2(b) of the Charter have dealt with situations whereby the government has attempted, in some way, to limit or interfere with one’s own freedom of expression. In the present situation, the respondents are requesting the Court to consider whether there may be a positive duty on governments to facilitate expression in certain circumstances.

It has not yet been decided that the circumstances such as the present ones, a government has a constitutional obligation under s. 2(b) of the Charter to provide a particular platform to facilitate the expression. The traditional view in colloquial terms, is the freedom of expressions contained in the s.2(b) prohibits gags but not compel the distribution of megaphones…

[65] The Town does not challenge an individual’s fundamental right of communication with elected officials. Such a fundamental right I believe, is protected by s. 2(b) of the Charter. What the Town challenges is the Applicant’s claim of the right of “meaningful communication” which. as noted above, would include the right to receive a response from the elected officials.

[66] Alternatively, if the Applicant’s s. 2(b) Charter rights were violated by the sections of the by-law, the Town submits that the sections represent a reasonable limitation of the right as can be demonstrably justified in a free and democratic society, further to s. 1 of the Charter.

[67] It is submitted that the Town has met the s. 1 test criteria as set out in R. v. Oakes, [1986] 1 S.C.R. 103. Therein the Supreme Court of Canada found that two central criteria must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. First, the objective must be served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom.

[68] Second, the party invoking s. 1 must show the means to be reasonable and demonstrably justified which requires consideration of 3 important components.

[69] It is argued that the Town gets its broad powers from the Municipal Act, 2001, S.O. 2001. The powers are exercised by an elected council therefore council meetings must be effective and efficient further to proper procedures which, it is submitted, allows Council to pass by-laws and conduct business in a timely manner. As noted above, section 238 of the Municipal Act requires every municipality to pass a procedural by-law to govern the proceedings of their meetings.

[70] The Town submits that without the type of limitations in issue included in the sections, meetings of its elected officials would be ineffective and delayed by delegations citing the same information repeatedly and adversely affect Council’s ability to conduct business. Parties would not be restricted regarding language and Council and the members of Council could be the subject of personal attacks.

[71] To remove the limitations found in the procedural by-law, would result in matters being dealt with in public, which should have been heard, outside of the public forum further to s. 239 of the Municipal Act.

[72] It is submitted by the Town that the sections were carefully designed and minimally infringe of the right of freedom of expression. Further, the limitations are rationally connected to the objective.

[73] The Town submits that the “anything goes” approach to Council meetings proposed by the Applicant would be, to say the least, counter-productive.

[74] The Town submits that the Applicant, in his written materials, used language which was derogatory, negative, disrespectful and unprofessional and referenced specific examples, commencing at para. 88 in the factum.

ANALYSIS

[75] In NWAC, it was said that governments’ have a constitutional obligation to provide a platform to facilitate the exercise of freedom of expression certain circumstances (para. 64, above). The Town meets that obligation by holding open forums and by allowing delegations before Council. However, it is clear from his written material that the Applicant believes that it is the right of Town’s residents, including himself, to decide what matters are to put before Council, without restriction. Otherwise, Charter rights are violated.

[76] I accept that the right of to communicate with elected officials is a right that is central to democracy. I find the Applicant’s right to communicate with his elected officials is protected by Charter s. 2(b) which guarantees the right of freedom of expression.

[77] I find that the sections of the by-law, by their nature, place limits on any resident of the Town who wishes to communicate with the Town’s elected officials.

[78] Bracken v. Niagara Corp. (Regional Municipality), 2015 ONSC 1326, is a decision of R.J. Nightingale J. in which the Respondent had issued a Notice of Trespass to the Applicant, preventing him from attending at the Respondent’s municipal offices, which included the council chambers, for 1 year period. The objective of the Trespass Notice was to prevent the Respondent from attending and disrupting council meetings.

[79] Nightingale J. ruled that by denying the Applicant’s right to attend at council meetings violated the applicant’s right of freedom of expression (para. 60).

[80] Galganov v. Russell (Township), 2012 ONSC 2577, involved a by-law that required signs to be bilingual. Mr. Galganov’s sign was unilingual and the requirement that signs must be bilingual violated his Charter rights. It was determined that if the sign breached a Charter right, it was the right to freedom of expression guaranteed by s. 2(b) of the Charter. However, it was also said that the by-law would be a reasonable limitation which could be demonstrably justified in a free and democratic society.

[81] While, in the matter before me, I recognize that the Applicant was given 13 opportunities to make a delegation to Council, and thereby exercised his freedom of expression, the sections in issue include limitations, that strictly speaking, breached the Applicant’s s. 2(b) Charter rights. By these sections and the balance of the by-law, the Town established a procedure for communicating with Council.

[82] I also find however, that the right infringed is the right to communicate with elected officials and does not include the right to “meaningful communications” as defined by the Applicant. The elected officials have no Charter-based, obligation to respond to such communications. The freedom of expression, as it is noted in the NWAC decision, is meant to “prohibit gags”. The Applicant has not provided any authority supporting the right of the Applicant to meaningful communication as he has defined it.

[83] Returning to the decision in NWCA, it was said, at pg. 651,

“It is beyond dispute that freedom of expression is a guaranteed right and value of fundamental importance to our society. The essential nature of freedom of expression in a democratic society has been discussed by this court in numerous decisions. As stated by McLachlin J. in R. v. Zundel, [1992] 3 S.C.R. 731, at p. 752, the purpose of s. 2(b) “is to permit the free expression to the end of promoting truth, political or social participation, and self-fulfillment.” As such, it has been held that the freedoms contained therein, should only be restricted in the clearest of cases, where urgent and compelling reasons exist.

Traditionally, the cases involving s. 2(b) of the Charter have dealt with situations whereby the government has attempted, in some way, to limit or interfere with one’s freedom of expression.”

[84] In the case, R. v. Zundel, [1992] 3 S.C.R. 731. it was said that section 2(b) of the Charter is to be given a broad purposive interpretation (para. 21).

[85] In Edmonton Journal v. Alberta (A.G.), [1989] 2 S.C.R. 1326, it was said at page 1336,

“It is difficult to imagen a guaranteed right more important to a democratic society than freedom of expression. Indeed, a democracy cannot exist without the freedom to express new ideas and put forward opinion about the functions of public institutions.”

[86] In Irwin Toy Ltd. v. Quebec (Attorney General), [1989 1 S.C.R. 927, at pages 931-931 it is said that in determining whether activity that does not convey or attempt to convey a meaning and thus no content of expression or which conveys a meaningful but through a violent form of expression is not within the protected sphere of conduct. In the matter before me, there is no issue that the activity in issue, that is the creation of by-laws, is within the protected sphere of conduct.

[87] The objective of the by-law is to comply with sections 238 and 239 of the Municipal Act and to establish a procedure and protocols regarding Council and Committee meetings. By the very nature of the sections, the right to communicate, the right to freedom of expression is limited and/or controlled.

[88] For all of the above reasons, I find, as stated above, that the sections of the procedural by-law, strictly speaking, violated the Applicant’s s. 2(b) Charter rights as they were relied upon by the Town to limit the Applicant’s right to communicate with elected officials and thereby limited his freedom of expression.

CHARTER S. 1 REASONABLE LIMITATIONS

[89] From his material and his submissions, the Applicant, submits that it his right to communicate with his elected officials, and that the right includes the right, in effect to determine the how, when and for how long he wishes to communicate and without limitation in the subject matter and language. He argues that it his decision regarding the subject of his communications, regardless of how many times in his communications he has referenced the same information. Shortly stated, the Applicant believes the right is absolute and without limitation.

[90] I disagree for the following reasons.

[91] The right of freedom of expression, which includes the right to communicate with elected officials, is not an absolute right and can be subject to reasonable limitations. In fact, the need to establish a procedural by-law that contains the sections in issue, can be said to be a “clearest of case” for limitations.

[92] All level of governments are subject to procedural rules enacted to establish procedures for conducting government business. The need for procedural by-law, including limitations as in issue here, is to a large degree, self-evident.

[93] The limitations included in such by-laws however need to be reasonable and comply with principals set by the Supreme Court of Canada as discussed below.

[94] As noted above, The Applicant, in his materials and in his submissions, relied on the Court of Appeals decision in R. v Robbins. To property interpret the decision, further context is required. At trial, Mr. Robbins was convicted of mischief for repeatedly faxing to his MPP’s office, voluminous material, in an effort to disrupt the operations of the MPP’s office. The Appellant, at two levels of appeal, argued that the conviction ought to overturned because he was exercising his freedom of expression and that his right to do so was absolute. It was submitted that the MPP was obligated to receive any and all facsimile transmissions without limitation. It was even submitted that if the MPP’s fax machine could not handle the volume of material the office should have gotten another fax machine.

[95] The trial ruling was first appealed to the Summary Conviction Appeals Court (R. v. Robbins, 2003 CarswellOnt 2891 (ONSC)) and the appeal was dismissed by Dawson J. The Appellant argued that constituents have the right to communicate with their MPP’s and that no communication with an MPP could ever constitute a crime (para. 12). The MPP, as an elected official, was obliged to receive all of the material which was a form of communication even if the result was the disruption of the MPP’s office. While Robbins matter was a criminal proceeding, the arguments in Robbins are similar to the Applicant’s submissions before me.

[96] Dawson J. dismissed the appeal and in doing so determined that the Appellant’s argument ran contrary to cases which have balanced the freedom to communicate information with reasonable and justifiable limits set by a section of the Criminal Code as well as in the law of tort and by criminal law generally (paras. 14 & 15).

[97] Dawson J. went on to note that elected officials do not give up the protection of the law when elected and that the Appellant’s argument would remove such protection.

[98] On further appeal, the Ontario Court of Appeal, in dismissing the appeal, and while confirming the right to communicate, disagreed with the Appellant’s characterization of the case as involving such a fundamental right of every citizen to communicate with their elected officials. Rather it was an effort to disrupt the MPP’s lawful use of his office. Regarding the right to communicate with an elected official, at para. 2, it was said that the appellant had, “crossed the line’. The appeal was dismissed.

[99] It is clear that both levels of appeal courts were of the opinion that the freedom of expression can be subject to limitations. While a citizen or resident have the right to communicate with their elected officials, reasonable limitations can be imposed to establish a process and protocol to control the when, how, and on what subject, as long as the limitations are reasonable and a resident is given an opportunity to exercise his or her freedom of expression. The right of expression is not unqualified, unconditional or unlimited, as alleged by the Applicant.

[100] Pepsi Cola Canada Beverages (West) Ltd. v. R.W.D.S.V., 2002 SCC 8, is a labour case in which it was said picketing is the exercise of freedom of expression. The Court stated,

“This said, freedom of expression is not absolute. When the harm of expression outweighs its benefit, the expression may legitimately curtailed. Thus s. 2(b) of the Charter is subjective to justificative limits under s. 1” (para. 36).

[101] In R. v. Oakes, [1986] 1 S.C.R. 103, the Supreme Court of Canada established the test to be applied in determining whether a limitation on the right of freedom of expression is justified (pgs. 931-932). Two criteria are to be satisfied and I will deal with them in order.

[102] First: Is the objective of the limiting measure of sufficient importance to -protected right or freedom?

[103] The sections in issue are part of a procedural by-law, the creation of which is mandatory further to s. 238 of the Municipal Act. Act and subject to section 239 of the Act.

[104] The powers of a municipality must be exercised through the passage of by-laws at Council meetings. Such meetings must be properly called and organized, with proper procedures and dealt with in a timely manner. Meetings must be conducted in an efficient and effective manner. If residents had the right to communicate before Council repeatedly, on the same subject, without any new material, it would be contrary to the objective of such by-laws.

[105] Municipal government is a level of government that is most accessible to the residents of Ontario who have the right to communicate with Council. The subjects discussed are often emotional and can result in heated exchanges. To suggest that the Town cannot place limits a citizen’s right to communicate and thereby limit the citizen’s right to freedom of expression, would severely hinder Council’s ability to conduct the business of the Town. The sections in issue along with the by-law in general, reflect an effort to balance a resident’s right to communicate with his or her elected officials and the Town’s right to conduct its business in an effective and efficient manner.

[106] The business of the Town includes subjects which raise societal concerns and are matters which are pressing and substantial. The sections of the by-law in issue are of sufficient importance as they create a procedure for the Town Council to conduct the Town’s business.

[107] I accept the evidence of Linda White commencing at para. 18 of her affidavit and find that the objective served by the sections in issue are of sufficient importance.

[108] The second criteria states that a party relying on s. 1 must show that the means to be reasonable and demonstrably justified and involves a form of proportionality test which involves 3 components. First, The measure must be fair and not arbitrary, designed to achieve the objective in question. Second, the means should impair the right in question as little as possible. Finally, there must be proportionality between the effects of a limiting measure and the objective. The more the sever the deleterious effects of a measure, the more important the objective must be. I will deal with the components in order.

1. Are the sections of the by-law fair and not arbitrary, designed to achieve the objective in question?

[109] The by-law sections in issue are set out above. The by-law and the sections therein are modelled after the procedural by-laws of other municipalities. The by-law is the subject of ongoing review and amendment. I find that the sections of the by-law are fair and not arbitrary and are designed to achieve the objective in question, that is to provide a procedure for the public to address the business of the Town yet creating an efficient procedure for conducting the Town’s business and to allow the business of the Town to move forward. The sections are rationally connected to the that objective.

2. Do the sections impair the right to freedom of expression as little as possible?

[110] While the sections are a limitation of the Applicant’s right to freedom of expression, they do so in a manner that impairs the freedom as little as possible. The impairment does not prevent a Town resident from ultimately exercising their freedom of expression.

[111] In this matter, the Applicant was allowed 13 occasions by which he exercised his freedom of expression and communicated with his elected officials, regarding the Development.

[112] The Town created the Open Forum to allow the residents of the Town to have a vehicle by which they can address Town issues. The Town was not obliged to create such a forum and the forum does not replace other manners by which for the public can communicate with the elected officials. it represents an effort on the part of the elected officials to provide an additional manner by which residents can communicate with Council.

[113] I find that the sections impaired the Applicant’s right to freedom of expression, as little as possible.

3. Is there proportionality between the effects of the limiting measure and the objective?

[114] I find that there is proportionality between the effects of the limiting measures (the sections) and the objective. Certainly, the sections are part of a by-law that represents a balance between the needs and rights of the residents of the Town and the need for the Town to conduct is business efficiently and effectively, in a manner which allows the Town to more forward in conducting its business.

[115] S. 3.10 of the bylaw establishes the open forum and the procedure by which it will operate. While the form is limited to 15 minutes, and the speakers to 3 minutes each, it is held just before the Committee of the Whole meeting, a meeting which conducts the business of the Town.

[116] The Open Forum and the holding of Committee and Council meetings prevent delegations and communications in subsequent meetings unless the subject is based on new information. Further, persons appearing before the Committee of the Whole and Council are subject to limitations regarding language and are required to act in a profession manner. Motive cannot be challenged and person attacks are prohibited.

[117] The need to limit delegates on subsequent meetings concerning the same subject, to new information is self-evident. Repetitive submissions on the same subject and base on the same information do not make the submissions any more true or believable.

[118] If limitations were not in place Council and Committee meetings could turn into a “free for all” and impair Council in moving forward with the business of the Town.

[119] In paragraphs 34-37 above, I have set out some examples of the Applicant’s language. It certainly falls short of professional conduct and can be said to be defamatory. The Applicant described Council’s conduct as being out of control conduct, racism, hatred, shameful and despicable conduct.

[120] While it could be said that on some occasions the Town might grow a “thicker skin”, when one person makes such comments repeatedly, such comments become more personal and hurtful.

[121] I find it reasonable and proportional that the by-law includes sections which prohibit such language and establish, in effect, a code of conduct for persons appearing before Council. Neither staff nor Council need to be the subject of such language and limitations as to language and decorum, are reasonable and minimally, if at all, encroach on the Applicant’s right to freedom of expression. The business of the Town should be conducted in a civil manner and the restriction of language is certainly proportional.

[122] The Applicant challenges the ability of Council to deal with matters involving litigation or possible litigation outside of the public forum. He submits that by doing so his freedom of expression is violated.

[123] The Municipal Act, s. 239, the constitutionality of which is not challenged, creates exceptions to the rule that meetings must be conducted in the public forum. Those exceptions include where the subject matter is litigation and subjects that trigger the long standing right of solicitor/client privilege.

[124] The Applicant in the past, has asked Council to waive solicitor/client privilege and to discuss litigation matters in public, even when one of the litigious matters in issue are the subject of this ruling. The Applicant goes as far as to say that there is no rational basis whatsoever, to deny or limit residents of the Town regarding their fundamental right to meaningful communication with their elected officials concerning litigation matters. I disagree.

[125] The Town’s right to deal with such matter outside of the public forum are authorized by and limited by statute. Further the concept of solicitor/client privilege in our system of justice is without challenge. The need for Council, when discussing litigious and receiving advice which is subject to solicitor/client privilege, to do so outside of the public forum is both reasonable and necessary. The sections related to litigation and privilege are proportional between the effects of the limiting measure and the objective to conduct Town business effectively and efficiently and in a timely manner.

[126] I find that there is proportionality between the effects of the limiting sections and the objective of the sections in the Town’s procedural by-law.

[127] The Town has met its burden of proof and the sections in issue, are found to be reasonable limits as can be demonstrably justified in a free and democratic society.

RULING

[128] The Application is accordingly dismissed.

COSTS

[129] Regarding Costs, it was agreed that after my decision was released submissions would be received on the issue of costs. The Applicant categorizes himself as a public interest litigant, a status challenged by the Town and submits that the Applicant’s motive in making this claim is to protect himself from an adverse costs award.

[130] I would ask both the Applicant and counsel for the Town, if they cannot agree on costs to come to an estimate of time needed to make submissions on costs. They are then contact my office and set up a time to hear submissions and whether the issue can be addressed via a Zoom conference.

Bielby J. Released: February 9, 2023