A non-profit civil liberties group in Canada is threatening legal action against the Whitehorse, Yukon, city council over a controversial bylaw which the group says violates the Canadian Charter of Rights and Freedoms.
The Canadian Constitution Foundation has given the Whitehorse City Council until its meeting on Sept. 16, 2024, to amend its civility policy, removing parts that the group deems to breach constituents’ freedom of expression.
The policy, which passed in a 4-2 vote, is a procedural bylaw that governs how members of the public can interact with their city council. The policy aims to prevent behaviour the council deems offensive or abusive in the form of language, signs, attire, and written documents.
“The CCF respects the work of local councils and understands the need to maintain a certain level of order in council meetings,” the group said in a letter to the Mayor and Council. “The CCF, however, after a careful review of the Civility Policy passed by the Whitehorse City Council, is of the opinion that this policy violates the right to freedom of expression guaranteed under section 2(b) of the Charter of Rights and Freedoms and will chill members of the public from attending Council meetings and participating in our local democracy.”
CCF contends with four main parts of the policy: a section that would allow councillors to restrict what their constituents can wear to a council meeting, a ban on bringing in signs with political messages, a ban on the distribution of “inappropriate” written material, and a ban on “microaggressions.”
The CCF argued that “hurtful or offensive ideas” are not sufficient grounds to justify infringing on freedom of expression.
“The policy…recognizes the need to balance those rights with reasonable limits to maintain a safe, productive, and harassment-free workplace for Council and City staff,” the preamble to the policy said.
The policy allows administrators to discard or refuse to distribute any document that they have reasonable grounds to deem as “inappropriate.” The policy lists several examples of what could be deemed inappropriate including “making accusations” or using “insulting language” directed to council, administration, members of the public or “identifiable groups.”
“(Restrictions on what written material is allowed) disproportionately limits expression,” the CCF said. “Citizens are entitled to use language in their communications that others, including politicians, may find “insulting” or accusatory.”
The city defines microaggressions, which the policy would prohibit, as a “comment or action that subtly and often unconsciously or unintentionally expresses a prejudiced attitude towards a member of a marginalized group.”
“Even speech that ‘ridicules, belittles or otherwise affronts the dignity’ of people is not considered so extreme that it can be outlawed,” the CCF said. “It is thus difficult to see how ‘subtle’ and sometimes ‘unconscious’ or ‘unintentional’ expressions can be banned by Council.”
The CCF noted that giving the council authority to make the public remove or cover up a piece of attire such as buttons headware would have limited the efficacy of the women’s suffrage movement woman, which used buttons in its advocacy.
The group also argued that a ban on signs, which wasn’t merely about the size of the sign related to physical safety, clearly violates the public’s right to expression.
In his remarks to the council, councillor Ted Laking, one of two, along with Councilor Mellisa Muray, who opposed the bylaw, said passing the law could have unintended consequences in the future.
“Everybody has an opinion, and the person who’s calling for another opinion to be censored this week may find that they are having their opinion censored the following,” Laking said at the council meeting. “I think it’s certainly fair for us to hold ourselves as councillors to a certain level. We have some business to conduct here….but the delegate portion is an avenue in which the public can get their opinions and their beliefs on the public record.”
He said that because the city council is a publicly funded entity, it is crucial to allow the public to express themselves freely.
Mayor Laura Cabott and Councilors Dan Boyd and Kirk Cameron, who all voted in favour of the policy, argued that it had already been drafted at a previous meeting, which some members didn’t attend, and that voting against it now would cause undue work on the council’s administration.
“What this policy does – It protects people to come here to speak to us, even if we don’t like what they’re saying to us,” Cabott said while arguing for the policy to pass. “You can always rework something and make it better, and there are opportunities to amend, for sure, but I think it’s a shame in all the work that we put into this, all the input that we’ve had from the public, that we’re now just going to turn that off.”
