Constitutionality of Community Standards By-laws

By: Patrick Shannon and Linda McKay-Panos

Recently, the Alberta town of Taber passed a Community Standards By-Law (see: http://www.taber.ca/DocumentCenter/View/1006) that has garnered a fair bit of attention, even internationally. See: http://www.macleans.ca/news/canada/tabers-real-target-mennonites/ Some of the attention and response has been light hearted, but the passing of the by-law and the response to it actually lead to some more serious questions about the ability of municipalities to pass Community Standards by-laws, which exist in numerous places in some form or another. The issues we see as important include:

1. Is a by-law that resembles a provision of the Criminal Code intra vires (within the jurisdiction or authority of) the municipal government?

2. How do Community Standards relate to Charter rights like freedom of expression and assembly?

The Constitution Act, 1867, provides in sections 92(13) and (16) that provinces have the jurisdiction to pass laws related to property and civil rights, and to matters of a merely local or private nature in the province. In Alberta, municipalities and their powers are governed by the Alberta Municipal Government Act, RSA 2000, c M-26, which provides:

3. The purposes of a municipality are:

(a) to provide good government,

(b) to provide services, facilities or other things that, in the opinion of the council, are necessary or desirable for all or a part of the municipality, and

7. A council may pass bylaws for municipal purposes respecting the following matters:

(a) the safety, health and welfare of people and the protection of people and property;

(b) people, activities and things in, on or near a public place or place that is open to the public;

Several of the provisions in Taber’s Community Standards By-law 4-2015 are echoed in other jurisdictions. The two provisions that drew our attention to the possibility of a constitutional challenge are:

12. No person shall be a member of the assembly of three or more persons in any Public Place where a Peace Officer has reasonable grounds to believe the assembly will disturb the peace of the neighborhood, and any such person shall disperse as requested by a Peace Officer.

15. No person shall yell, scream or swear in a public place.

We next examine the two important issues stated above with these two provisions in mind.

1. Is a by-law that resembles a provision of the Criminal Code intra vires the municipal government?

It is not uncommon for certain by-laws to overlap in some areas with existing provisions of the Criminal Code. Particularly with regard to traffic offenses, there are a set of laws at the municipal level for less serious infractions and a set under the Criminal Code for criminal acts. As a result, a by-law will not necessarily be found to be ultra vires (outside the jurisdiction of) the province, providing it relates, in pith and substance, to one of the provincial heads of power.

In R v Keshane, 2011 ABQB 525 (“Kehane”), the City of Edmonton passed a Public Places By-law (“by-law”) that contained a provision stating that “a person shall not participate in a fight or other similar physical confrontation in a public place.” The applicant was involved in a fight on public sidewalk and police issued a ticket. The applicant successfully brought application for declaration that the provision was unconstitutional (not within the City’s jurisdiction). However, the Crown’s appeal to the Alberta Court of Queen’s Bench was allowed and the Alberta Court of Appeal upheld the finding that the by-law was constitutional—within the City’s legislative jurisdiction (see R v Keshane, 2012 ABCA 330). The court held that section 7 of the by-law dealing with fighting in a public place, in pith and substance, related to providing a safe and enjoyable public place for the benefit of all residents of and visitors to city, which was within provincial legislative authority as either or both matter of property and civil rights in province under s 92(13) of Constitution Act, 1867, or a matter of merely local nature under s 92(16).

In Smith v St Albert (City), 2014 ABCA 76 (“Smith”), the municipality became concerned about sale of paraphernalia connected to illegal drug trade and city council amended business licence by-law by adding a provision that restricted businesses from displaying or offering for sale three items restricted by by-law. Smith sold restricted products and was ticketed. The Court of Queen’s Bench judge concluded that, in pith and substance, the by-law was criminal law and was ultra vires the authority of the municipality. The municipality’s appeal was allowed, even though the law’s essential character was about suppressing conditions that would be likely to lead to criminal activity (ABCA, para 18). Provincial and Federal offenses can exist and overlap – as is the case with some automobile offenses – provided the provincial law is squarely anchored within a provincial head of power (ABCA, para 42). In this case, the by-law sought to “develop and maintain safe and viable communities” (ABCA, para 48) and to preserve “the safety, health and welfare of people” (ABCA, para 18). The by-law fell under both provincial and federal heads of power, and the provisions were of roughly equivalent importance. The bylaw then for one purpose and in one aspect fell under federal jurisdiction and for one purpose and in one aspect was provincial in jurisdiction. Even so, the Court must ask whether the by-law is at risk of becoming more criminal law. Here, it because applied in limited circumstances – to shopkeepers rather than the public at large – and because it limited the sale of certain products as part of a larger licensing scheme at the municipal level, it was within the municipality’s jurisdiction.

In both Keshane and Smith, the court affirmed that the Constitution Act, s 92(16) provides provinces the right to delegate to municipalities the power to create laws managing local affairs. (This is reflected in ss 3 and 7 of the Alberta Municipal Government Act). Taber, may seek to justify its new by-laws under s 7, which provides for “the safety, health and welfare of people and the protection of people and property.” The police force and government of Taber have mentioned that they hope enacting s 12 of the by-law will permit them to handle the assembly of groups that disturb the peace without recourse to criminal charges. It is not unreasonable for a municipality to enact by-laws that deal with less serious varieties of offenses that exist under the Criminal Code. It would, however, be ultra vires the province to permit by-laws that allow police to avoid charging an accused who has, on the facts, committed a criminal offense. In Smith, the by-laws in question were considered intra vires because they contained limitations clarifying the circumstances in which the laws would be applied. In Smith, the law applied specifically to stores selling a precise number of certain items connected to drug offenses. This kind of constraining language is absent from sections 12 and 15 of Taber’s By-law.

2. How do Community Standards relate to rights such as freedom of expression and assembly under the Canadian Charter of Rights and Freedoms (“Charter”)?

Valid by-laws may infringe the Charter, providing that they are justified under Charter s 1.

In R v Pawloski, 2014 ABPC 126, Mr. Pawloski was charged under Calgary’s Municipal Traffic 26M96 by-law, for attempting to improperly join the Calgary Stampede parade. He was convicted at trial. The court found that the by-law breached his freedom of expression but was saved by the reasonability provisions in s 1 of the Charter. In its Charter section one analysis, the court held that the objectives of the by-law were pressing and substantial. The limitations proscribed by the law were reasonably connected, constituted minimum impairment, and were proportionate. The law did not prohibit citizens from engaging in lawful expressive activity or protest, except within the confines of the time and place of a permitted parade. The law did not deprive Mr. Pawloski of the choice in exercise of his rights, it simply asked that he obtain a permit if he wanted to participate in a parade – and that he not disturb the parade of other citizens.

In R v Pawlowski , 2011 ABQB 93, Mr. Pawloski, as part of his work with his religious organization, placed large signs, tables, and a large wooden cross in front of City Hall. He was subsequently charged with violating Calgary’s Parks and Pathways by-law. He faced similar by-law charges for operating amplifiers in a public park. He was acquitted at trial. The Court found that the sections of the street by-law dealing with placing material on the street infringed his right of freedom of expression under s 2(b) of the Charter and were not saved by Charter s1. The By-law had no apparent criteria, making it arbitrary, and as result failed the proportionality test as being not minimally restrictive. The appeal was allowed in part, R v Pawowski, 2011 ABQB 93, with the Court finding that the violation of Mr. Pawlowski’s rights with regard to the use of the sound system were justified under Charter s 1 – the object of the law was to control noise and achieve safe and accessible enjoyment for people of the city. The ban minimally impaired freedom of expression in parks, and did not curtail public discourse. The beneficial effects of the by-law outweighed the prejudicial effects.

Thus, some limitation in the interest of safe and accessible enjoyment of public spaces will be found to be justified, while a complete infringement of public discourse will not. The objectives sought by the Taber by-laws may well be pressing and substantial. If, as police have indicated, they seek to limit harassment at hockey games and shouting around drinking establishments, this would fall well within the powers granted to the province to regulate local spaces. Nevertheless, the vague wording used in current bylaw is likely to leave the community and law enforcement wondering what might constitute an infringement. For example, at what point will an assembly be deemed to have disturbed the peace? In the Criminal Code, the disturbance must be “tumultuous”, which means there must be an actual or constructive threat of violence. Would a group of protesters disturb the peace? What about an activist like Mr. Polowski? Similarly, s 15 does not make clear what swear words will be prohibited. Nor does it clarify how these swears might be uttered. Would it be acceptable to swear in a conversation? As a result of stubbing one’s toe? Or would it require repeated cuss words constituting a nuisance? Because these ambiguities may give rise to charges for activities not related to the objective of promoting safe and accessible spaces, it is likely that the effect of these laws will be found disproportionate.

As a result, the problem with the by-laws is not their objective, or necessarily their similarity to existing provisions of the Criminal Code. The town of Taber has the right, granted by the Alberta Municipal Government Act, to make laws that render public spaces accessible, peaceful and enjoyable for all members of a community. By-laws that restrict noise and prevent people from disturbing the peace are rationally connected to this objective, and such laws have been enacted in cities and towns throughout the nation. The issue with these by-laws, as currently written, is that they are overbroad in their language. Even for small offenses carrying fines, the citizens of a community should be able to understand what activities will be prohibited by a given by-law. Moreover, determining the required threshold should not be left entirely to the discretion of peace officers.

Does the Charter Apply to Universities? Pridgen Distinguished in U Vic Case

By: Linda McKay-Panos

Case Commented On: BC Civil Liberties Association v University of Victoria, 2015 BCSC 39

In Pridgen v University of Calgary, 2012 ABCA 139, one member of the Alberta Court of Appeal, Justice Paperny, came to the conclusion that the Canadian Charter of Rights and Freedoms could apply to the actions of the University of Calgary in disciplining the Pridgen brothers for non-academic misconduct (see a post on that decision here). In BC Civil Liberties Association v University of Victoria, 2015 BCSC 39 (“UVic”), the British Columbia Supreme Court ruled that the Charter did not apply, and distinguished Pridgen on several grounds.

Pridgen involved a number of University of Calgary students in the Faculty of Communication and Culture (now Arts) who posted derogatory comments about one of their instructors on Facebook, and who were disciplined for non-academic misconduct. The discipline included writing mandatory letters of apology and lengthy periods of probation. Some students appealed the faculty’s decision to the General Faculties Council Review Committee, which upheld the finding of non-academic misconduct. The Pridgens sought further appeal to the University’s Board of Governors. One of the grounds of appeal was that their freedom of expression under the Charter had been violated by the University. Justice Jo’Anne Strekaf of the Alberta Court of Queen’s Bench granted the Pridgens’ application for judicial review on both Charter and administrative law grounds (see Pridgen v University of Calgary, 2010 ABQB 644).

On appeal, only one Alberta Court of Appeal Justice in Pridgen, Marina Paperny, directly addressed the issue of whether the Charter could apply to the University; the University argued that there was an “evidentiary vacuum” that should preclude that analysis (at para 62). For a number of reasons, Justice Paperny held that the Court of Appeal should determine the issue of whether the Charter applied to the University in the context of the case. She provided a thorough review of the previous case law on Charter section 32 (which provides that the Charter applies to government), and concluded that there are five categories of cases in which the Charter may apply. These include (at para 78):

Legislative enactments;
Government actors by nature;
Government actors by virtue of legislative control;
Bodies exercising statutory authority; and
Non-governmental bodies implementing government objectives.

While Justice Strekaf had determined that in this case, the University was a “non-governmental body implementing government objectives”, Justice Paperny would have found that the University, in imposing disciplinary sanctions, was a “body exercising statutory authority” (at para 105). Thus, the statutory authority to discipline students for non-academic misconduct (Student Misconduct Policy) must be interpreted and applied in light of the Charter right to freedom of expression. Furthermore, the breach of the Pridgens’ right to freedom of expression by the decision of the Review Committee could not be saved by Charter section 1.

The remaining two justices at the Alberta Court of Appeal did not consider the Charter’s application directly and decided the matter on administrative law grounds.

Pridgen is one of a number of cases that address the issue of whether and when universities are subject to the Charter (see, for example: McKinney v University of Guelph, [1990] 3 SCR 229; Harrison v University of British Columbia, [1990] 3 SCR 451; R v Whatcott, 2012 ABQB 231). In the UVic case, Cameron Côté, a former student at the University of Victoria, was on the executive of a student club called Youth Protecting Youth (“YPY”). He was informed by the President of the Students’ Society that the University had prohibited YPY from using campus space because of its prior activities (i.e., anti-abortion activities). The activity proceeded and YPY and Côté were admonished for defying the direction of the president of the Students’ Society. Mr. Côté and the British Columbia Civil Liberties Association (BCCLA) asked the BC Supreme Court, among other things, for a declaration that any restrictions or regulations placed by the UVic on students who wish to use the school for “expressive purposes” be consistent with the Charter.

In addressing the issue of whether the University policies were subject to the Charter, the BCCLA and Côté relied on Justice Paperny’s judgment in Pridgen to support their position that any regulation of speech on University property is subject to Charter scrutiny (at para 137). Recall that Justice Paperny’s reasoning was based on the determination that the university was exercising statutory authority and thus was subject to the Charter.

Chief Justice Hinkson of the BCSC distinguished Pridgen for a number of reasons. First, he noted that neither Justices O’Ferrall nor McDonald agreed with Justice Paperny in Pridgen in terms of the Charter issue. In particular, Justice O’Ferrall had held that a ruling on the application of the Charter was unnecessary to the lower court’s disposition of the case and to the disposition of the University’s appeal. He was further influenced in his conclusion because the issue of Charter infringement had not been explored in the original hearing (at para 138). Justice McDonald had held that it was neither appropriate nor necessary for the lower court to have embarked on a Charter analysis in Pridgen (at para 132).

Second, Justice Hinkson noted that Côté, unlike the Pridgens, was not subject to any actual discipline by the University (at para 141).

Third, Alberta’s applicable legislation differs from that of British Columbia, because the BC University Act, RSBC 1996, c 468, specifically prohibits the Minister from interfering with certain powers granted to the University, and also gives the president and senate authority over student discipline (at para 141).

Fourth, Justice Hinkson accepted the University’s submission that in booking space for student club activities, the University is neither controlled by government, nor performing a specific government policy or program (following Lobo v Carlton University, 2012 ONCA 498).

Fifth, the Charter did not apply to the impugned decisions as they were undertaken “by the University with respect to the management of its privately owned land, and not to the exercise of governmental policy or the implementation of a specific government program regulating the use of University land” (at para 147). Thus, the decisions made by the University were within the University’s “sphere of autonomous operational decision-making” and not subject to the application of the Charter (at para 148).

Justice Hinkson thereby concluded that the Charter did not apply to the activity of booking space by students (at para 152). He declined to grant the declarations sought by Côté and the BCCLA.

Commentary

John Dixon of the National Post has criticized this decision and indicated it will likely be appealed (see here). Dixon notes that it is rather ironic the UVic case begins with a quotation from University of Victoria’s Vice President, Jim Dunson:

Universities are places where difficult ideas and issues are often discussed and debated. Freedom of speech is a core component of intellectual inquiry and is a fundamental value of the University of Victoria …

Yet it was Dunson who issued the order to stop the activities and threatened further punishment of the pro-life students in the case at issue.

While Chief Justice Hinkson relied on several factors to distinguish Pridgen, some similar distinguishing factors were present in R v Whatcott, 2012 ABQB 231. In that case, however, the result was very different. The Alberta Court of Queen’s Bench determined that the University of Calgary had used anti-trespassing legislation to prevent an opportunity for participation in a learning activity, and this created a direct connection between the University’s governmental mandate and the impugned activity. The Charter applied, even to a non-student, who was using university property to distribute printed material without university permission. In contrast, in Lobo v Carlton University, 2012 ONCA 498, the activity—refusal of Carleton Life Line’s request to display its Genocide Awareness Project in outdoor area of campus—was characterized as “book[ing] university space for non-academic extra-curricular use,” and thus not subject to the Charter (at para 4).

Whether the Charter applies appears to be dependent on whether the activity is characterized as one that is related to learning or is determined to be purely non-curricular. However, when very similar activities are characterized differently, confusion results. It looks like the Supreme Court of Canada will have to settle this issue.

This post has been reprinted with permission from Ablawg. Check it out here: http://ablawg.ca/2015/02/06/5332/