Information No. 22-9064
ONTARIO SUPERIOR COURT OF JUSTICE
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B E T W E E N :
10 HIS MAJESTY THE KING
15 v.
20 NORMAN BLANCHFIELD
25 **********
B A I L R E V I E W
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D E C I S I O N
35 RENDERED BY THE HONOURABLE JUSTICE A. LONDON-WEINSTEIN
on May 8, 2023 at OTTAWA, Ontario
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APPEARANCES:
Mr. T. Radcliffe, Counsel for the Crown
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Mr. D. Freedom, (As agent and not counsel) Mr. N. Blanchfield, Self-Represented
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( I )
Table of Contents
ONTARIO COURT OF JUSTICE
Exam. Cr. Re-
WITNESSES In-Chief Exam. Exam.
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10
E X H I B I T S
15 EXHIBIT NUMBER ENTERED ON PAGE
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L E G E N D
25 (ph) Transcribed as heard
(sp) Proper spelling not provided
(sic) Transcribed as said and not in error
TRANSCRIPTIONIST’S NOTE: No supporting documentation provided
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Transcript Ordered: May 9, 2023
Request Received: May 9, 2023
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Transcript Completed: May 9, 2023
DECISION APPROVED BY
LONDON-WEINSTEIN, J. May 17, 2023
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R. v Norman Blanchfield
MAY 8, 2023
D E C I S I O N
5 LONDON-WEINSTEIN, J. (Orally):
The Applicant seeks a variation of his bail to permit him to participate in social media beyond the manner that has already been agreed
10 to by the Crown which was for business purposes.
On April 29th the Applicant was arrested on Rideau Street during the public demonstration known as Rolling Thunder. He was charged with
15 causing a disturbance and mischief under $5,000. He was live-streaming the protest. The Crown opposed his release. On May 4, 2022 the Applicant was released on a recognizance under the supervision of a surety following a
20 contested bail hearing on May 1st before Justice of the Peace Legault.
His Worship imposed two conditions: do not post comments on social media inciting the
25 public to protest illegally; do not be found in the Ottawa area except for attending court or meeting with your lawyer.
On June 30th the Applicant was arrested on
30 Highway 417. He was charged with one count of breach of recognizance for allegedly failing to comply with the requirement that he remain out
of Ottawa. The Crown opposed his release.
On July 4, 2022 the Applicant was released on a new recognizance under the supervision of a
5 different surety. After a contested hearing the bail judge imposed seven conditions: reside with his surety; follow the rules of the residence and those of the surety; abide by a curfew from 6:00 p.m. to 6:00 a.m. with two
10 exceptions; do not attend in Ontario with two exceptions; do not drive or have care and control of a motor vehicle without a valid driver’s licence; do not use social media or telecommunications devices or cell phone with
15 some exceptions; respond within five minutes to any doorknock by police.
On September 1, 2022 during a self- represented judicial pretrial, the Applicant
20 asked to delete the following three conditions: curfew; do not attend in Ontario; do not use social media. In support of his request he provided the following reasons: he works in construction roofing in Ontario on occasion; he
25 works during the day and needs time in the evening to address his family’s needs; he has the right to freedom of speech. The Crown consented to delete the curfew but not the social media condition. The Crown also
30 consented to add the following two exceptions to the do-not-attend-in-Ontario condition: for employment purposes while in possession of
written proof; for direct transit with his children to and from CHEO. The Crown also consented to the surety approving the variations remotely via FaceTime. The Court issued a new
5 recognizance.
On September 28, 2022 the Applicant asked again to delete the condition that he not attend in the city and refrain from the use of social
10 media. In support of his request he cited hardships including banking, shopping and restaurants and again noted his right to freedom of speech. The Crown consented to further relax the condition by prohibiting attendance in
15 downtown Ottawa instead of all of Ontario. The Crown also consented to the surety approving of the variations remotely via FaceTime. The Court issued a fresh recognizance. The Crown did not consent to delete the social media condition.
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On November 24, 2022 during a subsequent judicial pretrial before Justice Perkins-McVey the Applicant asked to delete the social media condition. Her Honour noted....
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Now, I just want to say for the record that normally I would not have access to what goes on in a judicial pretrial, particularly in the Ontario Court of Justice, but these were agreed
30 statements of facts which were filed with this Court which is how I had access to that information.
Her Honour noted:
“We are allowed to expressed our political views - I don’t mean “we” as in “me” - but
5 we as a society.”
She informed the Applicant that bail review applications are addressed in the Superior Court of Justice. The Crown did not consent to delete
10 the condition entirely, but the Crown did consent to add an exception for work purposes to advertise for business. The Crown also consented for the surety to approve the variations remotely via FaceTime. The Court
15 issued a new recognizance.
On January 11, 2023 my brother Justice Maranger summarily dismissed the Applicant’s first application for a bail review. The Court
20 was focused on the application for return of seized property.
The Applicant argues that the current restriction of his social media access is one
25 which unduly restricts his right to freedom of expression and communication. The Respondent, which is the Crown, points to the disruption and damage caused to the City of Ottawa, first by the Freedom Convoy in 2022, the disruption
30 caused by Rolling Thunder and the role of social media in generating support and interest in news events. The Crown points out that additional
similar protests are likely to occur.
In R. v. Skelly [2021] ONSC 555 Justice Goldstein was faced with a somewhat related
5 issue. The applicant in that case requested a bail review under s. 520 of the Criminal Code. He was banned from posting or communicating on any Internet social media platform, including but not limited to Twitter, Facebook, Instagram
10 and TikTok. Mr. Skelly defied the government lockdown order prohibiting indoor and outdoor dining at restaurants. Mr. Skelly announced on social media that as a protest against the lockdown measures he would be opening for
15 business, including indoor dining. As a result a large crowd attended at Adamson Barbeque. Police and bylaw enforcement officers also attended. The inside diners did not maintain social distancing and Adamson Barbeque was
20 serving food in violation of the Reopening Ontario Act, 2020 S.O. 2020 Chapter 17. Toronto public health officers laid charges against him and took possession of the Queen Elizabeth Boulevard location, padlocking the premises.
25 They gave Mr. Skelly a notice under the Trespass to Property Act, R.S.O. 1990, c. T21. The Crown alleged that Mr. Skelly entered an adjacent unit and then broke a hole through the drywall in order to enter the restaurant. Mr. Skelly was
30 observed serving food in the restaurant as well as kicking the padlock. He was charged with obstructing a police officer and mischief under
$5,000 for kicking off the padlock. He also faced a number of provincial violations. He was released on consent and agreed to a number of conditions including a social media ban.
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Justice Goldstein concluded that an absolute ban on Mr. Skelly’s ability to use social media was simply too broad. He noted at paragraph 15:
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“A ban on all forms of expression, however, was incompatible with the principle of restraint. It was also incompatible with perfectly legitimate forms of expression on
15 social media, such as expressing a political view about the lockdown measures, or advertising a lawful takeout business, or even streaming a demonstration of barbequing techniques as a form of business
20 promotion - not to mention merely sharing family photos on Instagram. Freedom of expression is enshrined in the Canadian Charter of Rights and Freedoms. As Justice Cory stated in Edmonton Journal v Attorney
25 General of Alberta, 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326 at
para. 78:
It is difficult to imagine a guaranteed right more important to a
30 democratic society than freedom of expression. Indeed, a democracy cannot exist without that freedom to
express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates
5 all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized”
Justice Goldstein found that it was an err in
10 law for the Justice of the Peace to have agreed to such a broad condition.
In an age of corporate media ownership social media has a role to play in providing an
15 easily accessible source of information, a method of communication for ordinary people. For example, when masses of protestors battled police armed with tear gas in Istanbul in 2013 CNN played a documentary about penguins. The
20 only source of information regarding the riots was found on social media. A video on social media of police surrounding and beating an unarmed woman was shared more than 30,000 times. Yet, social media is also a source of
25 disinformation and the spread of false ideas. During the Freedom Convoy social media use assisted protestors who caused havoc when they occupied Wellington Street with noisy trucks and blasting air horns, disrupting the life of
30 citizens trying to go about their normal lives.
Justice Rouleau noted the role of social media during the Freedom Convoy protest in the Public Order Emergency Commission Report of the public inquiry into the 2022 Public Order
5 Emergency, Volume 2, Analysis, Part 1, released in February of 2023. He wrote:
“One thing that became clear from the evidence I heard during the Inquiry was the
10 critical role of social media played in shaping the Freedom Convoy movement. Facebook, Twitter and numerous other platforms were the tools by which organizers met, coordinated and connected
15 with participants. During the protests social media was highly influential in how the protests were viewed by others in Canada and around the world.”
20 The Public Inquiry heard evidence of key events during the protest when social media played a decisive role. For example, when live streams of RCMP enforcement actions in Coutts, Alberta caused other protestors to join the
25 protestors in Coutts who were blockading the road. Social media is an effective method of communication which enables persons to connect with each other and share information. It also presents its own unique challenges. In a paper
30 prepared for the Commission, Professor Emily Laidlaw discussed the reality of misinformation and disinformation and malinformation and how
social media permits hate speech, propaganda, conspiracy theories and lies to be propagated further, faster and less expensively than at any other time in history.
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The Commission Report found many false beliefs were propagated on social media including: False beliefs that COVID-19 vaccines manipulate genes, social media feeds full of
10 homophobic or racist content, and inaccurate reporting of important events. Facebook and Instagram were found to be largely pro-Convoy platforms while Twitter was home to many opponents of the protestors.
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The Commission Report concluded that while there remain many complexities in the evidence, what is clear is that social media played an important role in the events of January and
20 February 2022 and will likely play an important role in future protests. As always, history provides perspective. Marshall McLuhan noted years ago that our communications have moved from an oral tradition to an age of literacy,
25 and finally, to an electronic age.
I take judicial notice of the fact that when Gutenberg developed the printing press in 1436 it not only revolutionized communication,
30 but it also allowed revolutionaries to communicate with greater speed and expediency. In Renaissance Europe for example, the arrival
of mechanical, moveable type printing introduced the era of mass communication which permanently altered the structure of our society. Literacy increased sharply and a middle class developed
5 as a result of the free circulation of information and non-traditional ideas. History teaches us that the Reformation, the Renaissance and the Scientific Revolution were all impacted by the influence of the printing press.
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In a similarly dramatic way the development of the Internet and the use of social media has radically changed the way we communicate.
Traditional forms of media like newspapers are
15 dying. Like-minded people can now exchange ideas outside of the control of more traditional forms of media. Not all of these ideas are beneficial to our continued development as a stable democracy. However, the ability to
20 exchange ideas and to express opinions, even highly unpopular ones, are protected by our Charter. Sections 2(b), (c) and (d) of the Charter guarantees the right to fundamental freedom to thought, belief, opinion and
25 expression, including freedom of the Press and other media of communication; (c), freedom of peaceful assembly; and (d) freedom of association.
30 Technology has in the past and will always present challenges to societal life. Technology can, as the printing press established, threaten
existing social structure. This new technology poses unique societal challenges as noted by Justice Rouleau. However, the challenges of new technology are ones which we have had to address
5 since at least 1436 when moveable type was first developed. Power structures are threatened. Some disruption is inevitable. As with other forms of communication technology - including Artificial Intelligence (AI) I might note - the
10 law will have to continue to develop in a Charter-compliant way to address the challenges to public safety posed by the misuse of social media and other forms of new technology.
15 However, an absolute ban on the use of social media restricting the ability to criticize the government or to express views contrary to the majority is too broad a prohibition on the critical right to publicly
20 dissent, a right which is at the core of our democratic system of government. Democracy demands an active, not a static, balancing act. In this case, the needs of public safety must be balanced with the need to preserve the right to
25 expression, protest, and the right to hold and express opinions which are critical of government.
In my view, courts must be especially
30 careful to not stifle opinions which may be unpopular or even wildly unpopular, so important is the right to freedom of expression of ideas.
Social media has revolutionized the way ordinary people can communicate ideas and is highly popular. The danger of a precedent authorizing the suppression of free speech poses a threat
5 which should be weighed along with the need to preserve public safety when determining whether an absolute ban on the use of social media by the Applicant is warranted.
10 I agree with the reasoning of Justice Goldstein in Skelly. He noted the Supreme Court pointed out in R. v. Zora, [2020] SCC 14 at para. 101:
15 “...it is not uncommon for counsel to agree to a condition that may seem somewhat onerous but does not warrant turning the matter into a contested hearing, which could result in the accused having to stay
20 in custody for a few more days. In such cases, counsel can also seek a review of the condition after a reasonable length of time and ask that it be altered.”
25 I also would review the bail condition on the grounds that the imposition of the bail condition was an error in law. Counsel may agree on conditions but ultimately it is the judicial officer who is responsible to ensure
30 that the bail conditions are appropriate. R. v. Zora at para. 102, R. v. Antic, 2017 SCC 27 at para. 56.
As Hill, J. noted, a Justice of the Peace at a bail hearing is not a rubber stamp. R. v. Singh, 2018 ONSC 5336, [2018] O.J. No. 4757 Superior Court at paras. 24 to 25.
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A ban on all forms of expression on social media is incompatible with the protection of the right to free speech in a democratic society.
When assessing the threat to public safety I
10 have considered that police are able to monitor social media for evidence of law-breaking. I have also considered that the police have learned how to cope with these types of protests. They have the experience of the
15 Freedom Convoy and are better able to prevent recurrence of that magnitude.
I found that it was an error in law to impose an absolute ban on social media use as
20 that condition is overly broad and intrudes too deeply on the right to freedom of speech and expression.
When I say that, I am contemplating that
25 the Crown has already agreed to variations for the business purposes which I already discussed. What I am talking about is a ban on the ability to criticize government on social media and I think that a ban that prohibits the Applicant
30 from doing that is an error in law because it goes too far.
The Applicant’s bail is therefore varied as the Applicant requested to read:
“Do not use social media or any other mode
5 of communication to counsel or encourage others to break the law.”
Thank you.
FORM 3
ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
5
Evidence Act
I, J. Walsh, certify that this document is a true and accurate transcription to the best of my skill and ability, quality of
10 the audio recording and notes provided, of R. v Norman Blanchfield in the Ontario Superior Court of Justice held at
161 Elgin Street, Ottawa, Ontario, K2P 2K1 taken from Recording 0411_CR31_20230508_083110_10, as recorded and certified by A. Fayad in Form 1.
15
J. Walsh, C.C.R.
Certified Court Reporter/Transcriptionist
20 ACT No. 1184021333
July 15, 2024
Date
25 DECISION APPROVED BY LONDON-WEINSTEIN, J. MAY 17 2023
THIS CERTIFICATION DOES NOT APPLY TO THE DECISION WHICH WAS JUDICIALLY EDITED
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Ontario, Canada