Picture this. Then-U.S. President Donald Trump, upset that pro-choice demonstrators gathered near federal buildings to oppose pro-life events, imposed a ban on any protests within 300 feet of such buildings.
Now imagine if former Alberta Premier Jason Kenney, upset that Black Lives Matter demonstrators gathered outside provincial buildings violating the spirit of Covid rules, specifically banned such protests within 100 metres of such buildings.
And finally, imagine if Prime Minister Stephen Harper, upset that demonstrators protested restrictions on safe injection sites, banned such protests within 100 metres of government buildings.
Most Canadians and Americans would be alarmed at the response that these politicians had towards protests with which they disagreed.
In the U.S., there would be immediate lawsuits and calls to respect the Bill of Rights. Protests would ensue.
We would expect the same in Canada. Law professors would sign an open letter criticizing Premier Kenney and Prime Minister Harper for flagrantly violating the constitution. Editorial Boards would condemn these attacks on civil liberties. A Charter challenge would be launched. Interested groups would demonstrate, notwithstanding the ban.
There would be outrage that conservative politicians used their powers to fine and jail political opponents and ban their free expression.
But these draconian hypotheticals became reality on Tuesday. Calgary City Council, led by its activist Mayor Jyoti Gondek, passed a bylaw banning “specified protests” inside or within 100 metres of city-run libraries and recreation centres, as well as YMCA gyms and certain arts venues, from one hour before opening until one hour after closing.
The “Safe and Inclusive Access” bylaw was ostensibly enacted to respond to recent disruptions of and protests against Drag Queen-hosted events in Calgary.
A report to Council justified the measures, noting that “[t]hese protests have, and continue to, put the safety and welfare of the public at risk. The risk to safety and welfare of the public creates an urgent need to address the matter…”
Echoing this position, last Friday, Councillor Kourtney Penner claimed that the then-proposed bylaw was necessary, because “[t]he psychological and physical safety of Calgarians is at risk…”.
The bylaw defines the banned “specified protests” as “an expression of objection or disapproval towards an idea or action related to “such grounds as race, gender, religion, sexual orientation, and source of income.” Those convicted under the ban face a potential fine of $10,000 and a year’s imprisonment.
The bylaw was rushed through Council, debated in one session, not subjected to the customary committee review, with city staff even admitting that the bylaw is the first of its kind in Canada.
It’s clear why supporters of the bylaw wanted to rush its adoption – despite the misgivings of certain Councillors during this week’s Council debate – as there was an immediate chance to score political points with certain groups on the back of American culture wars, while creating a convenient pretext to silence the Council majority’s political opponents.
Further scrutiny and study would have revealed that not only is Calgary’s bylaw a solution in search of a problem, but that it is one of the more egregious and unconstitutional exercises of authority in a major Canadian municipality in recent memory, and will actually prevent most, if not all, public demonstrations – even those that Councillors might endorse.
There are already laws to address actual “physical harm” caused to community members. Assault, uttering threats, and mischief are all offences under the Criminal Code. Hate-motivated offences can attract additional criminal penalties. Alberta already has trespass laws that prevent demonstrators from entering certain private spaces.
Councillors presumably know this, which is why they needed to extend their authority to prevent the “psychological harm” they feel occurs when protestors raise uncomfortable issues. Unfortunately for these Councillors, however, the Charter protects the freedoms of expression and assembly, and any infringement of these rights must be justified as a reasonable limit.
As the bylaw targets only “specified protests” (which is so broadly-defined as to include nearly every type of protest), the Courts will find that the bylaw infringes the Charter, but will consider whether the bylaw restrictions are rationally connected to their objective (“preventing physical and psychological harm”) and whether the restrictions are minimally impairing and proportionate.
The bylaw as enacted bans peaceful, silent protests on sidewalks and public areas outside designated municipal buildings. It would ban pro-choice protestors from opposing restrictions on abortion access and pro-life protestors opposing abortion access. Faith-based groups would be restricted from discussing religious issues. Those opposing a minimum basic income could not protest. Those expressing themselves on LGBT-related issues couldn’t. A single person holding a sign related to any of these causes would be charged under the bylaw. Of course, any counter-protest related to any of these causes would also be banned.
And given that some political protests are restricted, but not others, the law will likely be applied in a discretionary manner, open for abuse and misuse by city authorities and the targeting of certain groups over others based solely on their ideology, religion, or otherwise.
Banning virtually all demonstrations on certain public property during daytime hours, which do not impede the public and may not even create noise – while perhaps not ironically permitting loud, obnoxious, profanity-laden rallies in support of the Mayor and her Council allies – will surely fail to be justified under the Charter and will be struck down.
In language that would make Orwell turn in his grave, Mayor Gondek defended her protest ban on groups both right and left, claiming that “[t]here’s no banning of protests. It is simply removing [them] from the entrance so that people can have a safe experience inside those buildings.”
It is an unfortunate symptom of our political culture that speech a politician doesn’t like is now classified as a “harm” impacting “safety”, as if words are fists and a placard is a weapon. Instead of responding to protestors and political opponents with respect, kindness, and better arguments, Calgary City Council has chosen to use the hammer of the law to avoid any heavy persuasive lifting.
In doing so, rather than have the best political argument win, Calgary City Council has decided to unconstitutionally shut down most political protests – even ones with which they agree.
If you wouldn’t want Trump, Kenney, or Harper doing it, you shouldn’t want supposedly progressive politicians doing it instead.
Ryan P. O’Connor is a civil litigation lawyer based in Toronto.
