



COURT OF APPEAL FOR
    ONTARIO

CITATION: Bracken v. Niagara Parks Police, 2018 ONCA 261

DATE: 20180319

DOCKET: C62796

Doherty, LaForme and Miller JJ.A.

BETWEEN

Fredrick Bracken

Applicant (Appellant)

and

Niagara Parks Police and
Niagara
    Parks Commission

Respondents (
Respondent
)

Fredrick Bracken, acting in person

John Craig and Tala Khoury, for the respondent

Heard: September 20, 2017

On appeal from the decision of Justice James A. Ramsay of
    the Superior Court of Justice, dated September 9, 2016, with reasons reported
    at 2016 ONSC 5615.

B.W. Miller J.A.:


OVERVIEW

[1]

On August 2, 2016, in the run-up to the U.S. presidential election, the
    appellant, Mr. Bracken, stood in Grand View Plaza in Niagara Parks, holding a sign
    reading, Trump is right. Fuck China. Fuck Mexico.

[2]

Parks staff informed the Niagara Parks Police (the NPP) that they had
    received a complaint about a man standing on the sidewalk holding a sign. The
    NPP attended and concluded the sign was offensive and disturbing to visitors.
    They informed Mr. Bracken that he was not permitted to display the sign, and
    asked him to leave. Mr. Bracken refused. He argued that he had a
    constitutionally protected right to display the sign, which he characterized as
    a statement about economic and trade policy. The NPP officers did not see
    things the same way. Mr. Bracken became increasingly animated, calling one of the
    officers a fucking piece of shit and a power tripping fucking idiot, among
    other things. Eventually, one of the officers issued Mr. Bracken a summons
    under the
Provincial Offenses Act
, R.S.O. 1990, c. P.33 for two offences
    contrary to s. 2(9)(a) of O. Reg. 829 made under the
Niagara Parks Act
,
    R.S.O. 1990, c. N. 3 (the Regulations): (1) disturbing other persons and (2)
    using abusive or insulting language.



[3]

On August 4, Mr. Bracken went to the NPPs headquarters to discuss the summonses
    and clarify whether he could display his sign in the Parks. Mr. Bracken was
    told that he could not, and if he were to return with the sign he would be
    removed pursuant to the
Trespass to Property Act
, R.S.O. 1990, c. T.21.

[4]

Mr. Bracken sought relief before the Superior Court on multiple grounds.
    The only grounds relevant to this appeal are declarations that: (1) s. 2(9)(a)
    of the Regulations violates s. 2(b) of the
Charter
; and (2) the oral
    trespass notice served on him at the NPP headquarters similarly violates s.
    2(b).

[5]

The application judge dismissed the application. He held that s. 2(9)(a)
    did not limit Mr. Brackens s. 2(b)
Charter
rights, because the
    constitutional guarantee of freedom of expression does not apply to shouting insulting
    or abusive language in the Parks. He declined to determine whether the oral
    trespass notice infringed s. 2(b), as he was not satisfied that a trespass
    notice had in fact been issued.

[6]

Mr. Bracken appeals both aspects of the judgment.

[7]

For the reasons that follow, I would allow the appeal in part. The
    application judge made a palpable and overriding error in finding that a
    trespass notice had not been issued, and further erred in not granting a
    declaration quashing the notice. Although the application judge erred in concluding
    that s. 2(9)(a) does not limit rights under s. 2(b) of the
Charter
, I
    would hold that the limits are justified under s. 1 of the
Charter
. I
    would therefore dismiss the constitutional challenge to s. 2(9)(a).

[8]

As explained further below, the two offences with which Mr. Bracken was
    charged were adjudicated before the Ontario Court of Justice and are not before
    this court. Nor do we have before us the evidential record from those
    proceedings describing Mr. Brackens interactions with other users of the Parks
    that day. Although the interpretation of s. 2(9)(a) set out below may be
    relevant for the adjudication of Mr. Brackens offence conviction appeal, nothing
    in these reasons addresses the question of whether the trial judge erred, on
    the facts before him, in finding that Mr. Bracken committed the offence of
    using abusive or insulting language contrary to s. 2(9)(a).

BACKGROUND AND PROCEDURAL
    HISTORY

[9]

The Commission is a provincial Crown agency created in 1887 and given
    jurisdiction over the Parks by the
Niagara Parks Act
. Section 22(1)(a)
    of the
Act
gives the Commission the power to make regulations
    regulating and governing the use by the public of the Parks, under which
    authority it passed s. 2(9)(a).

[10]

This
    appeal has an irregular history. Mr. Brackens application began as a motion
    for an interlocutory injunction prohibiting the Commission and NPP from
    enforcing the oral trespass notice, and was subsequently expanded to include constitutional
    remedies. It does not appear that an originating process was ever issued.
    Nevertheless, the matter was argued as an application before Ramsay J., on the
    basis of a thin evidentiary record that included a brief affidavit from Mr.
    Bracken (appending a DVD recording of his protest and some of his interactions
    with the NPP) and a responding affidavit by Paul Forcier of the NPP, partially
    comprised of hearsay of what he was told by the officers who engaged with Mr.
    Bracken on August 2, 2016. There was no cross-examination on the affidavits.

[11]

Subsequent
    to the application before Ramsay J., Mr. Bracken was convicted of one of the
    charges under s. 2(9)(a) by Justice of the Peace Lancaster in separate
    proceedings in the OCJ. As noted above, Mr. Brackens appeal of that conviction
    is not presently before this Court. We denied Mr. Brackens oral motion to file
    fresh evidence from those proceedings on the basis that the motion was brought
    late  on the morning of the hearing before us  and granting it would have
    been unfair to the respondent, which had prepared the appeal on a different
    record. This appeal is therefore to be determined on the record as it stood before
    Ramsay J.

ISSUES

[12]

Although
    there are numerous grounds of appeal set down in the Notice of Appeal, at oral
    argument they reduced to two main issues. These are whether the application
    judge erred:

1.       in not
    finding that s. 2(9)(a) of the Regulations infringes s. 2(b) of the
Charter
;

2.       in not
    granting a declaration quashing the oral trespass notice.

[13]

Mr.
    Bracken also claimed an infringement of his rights under s. 7 of the
Charter
.
    As this argument was raised for the first time on appeal and at best bears
    tangentially on the matters in dispute, it would not be in the interests of
    justice, in my view, to consider it at this stage in the proceedings.

ANALYSIS

[14]

I
    will first consider the constitutional challenge to s. 2(9)(a) before addressing
    the constitutionality of the oral trespass notice.

A.

The constitutional protection of freedom of expression

[15]

A
    defining feature of a free society is the right to speak openly and publicly
    without fear of government censure. Freedom of expression is deeply ingrained
    in democratic, egalitarian cultures, and reinforces all of the other
    fundamental freedoms. In Canada it receives legal protection through common
    law, statute, and s. 2(b) of the
Charter
. Its countermajoritarian
    nature was stressed by the Supreme Court in
Irwin Toy Ltd. v. Quebec
    (Attorney General)
, [1989] 1 S.C.R. 927, at pp. 968-969:

Freedom of expression was entrenched in our Constitution and is
    guaranteed  so as to ensure that everyone can manifest their thoughts,
    opinions, beliefs, indeed all expressions of the heart and mind, however
    unpopular, distasteful or contrary to the mainstream.

The Supreme Court cautioned against restricting
    protection to only those ideas that are warmly received by the public, citing the
    European Court of Human Rights:

[freedom of expression] is applicable not only to
    "information" or "ideas" that are favourably received or
    regarded as inoffensive or as a matter of indifference, but also to those that
    offend, shock or disturb the State or any sector of the population.  Such
    are the demands of that pluralism, tolerance and broadmindedness without which
    there is no "democratic society".
[1]

[16]

Freedom
    of expression is not boundless, however, and a properly functioning society must
    limit many types of expression for the common good. Discerning the line between
    reasonable and unreasonable limits on expression is, however, a perpetual
    challenge, taken up initially by legislators, and secondarily by courts on
    judicial review.

[17]

In
    this appeal, this court is required to assess the constitutionality of one such
    limit established by the Commission to govern conduct at the Niagara Parks: s.
    2(9)(a).

B.

The constitutional challenge to s. 2(9)(a)

(1)

Statutory interpretation

[18]

The
    first step in assessing the constitutionality of a regulation is interpretation.

[19]

Section
    2(9)(a) provides:

(9)  no person shall, within the Parks,

(a) use abusive or insulting language, or conduct
    himself or herself in the Parks in a manner that unnecessarily interferes with
    the use and enjoyment of the Parks by other persons;

[20]

This
    is a regulation, drafted by the Commission and approved by Order in Council. It
    is not a statute and therefore there was no legislative debate and no legislative
    record to aid in its interpretation. And although the respondent provided
    several written histories surrounding the creation of the Commission and the
    Parks, none of these address issues that would assist in the interpretation of
    s. 2(9)(a).

[21]

The
    general context of the Regulations is provided by s. 22(1)(a) of the
Niagara
    Parks Act
, which authorizes the Commission to make regulations regulating
    and governing the use by the public of the Parks. The Regulations impose
    significant restrictions on the types of recreational and commercial activities
    that may be carried out in the Parks, as well as on the more general behaviour of
    the Parks users.
The Regulations further
    provide, at ss. 2(11) and 2(13), that anyone who contravenes s. 2(9)(a) may be
    removed from the Parks by an officer, and shall not re-enter the parks within
    72 hours without permission from the Commission.

[22]

Whether
    a user of the Parks has contravened s. 2(9)(a) is determined in the first
    instance by the NPP, whose decision can result not only in immediate expulsion,
    but also prohibition on re-entry for up to three days, reviewable by the
    Commission.

[23]

In
    reading s. 2(9)(a), the application judge concluded that the provision captures
    only language that is so extremely offensive or insulting that it could
    interfere with the peaceful use and enjoyment of the parks by other persons. On
    this reading, the class of speech the Commission intended to capture with the term
    abusive or insulting language is significantly narrower than the ordinary
    meaning of that phrase.

[24]

Mr.
    Bracken objects to this interpretation which, he submits, fails grammatically
    and amounts to a legal error. In oral argument, he argued that the application
    judge ignored the disjunctive or in s. 2(9)(a) and effectively read it as
    stating:

no person shall, within the Parks, use abusive or insulting
    language  in a manner that unnecessarily interferes with the use and enjoyment
    of the Parks by other persons.

[25]

On
    Mr. Brackens reading, abusive or insulting language is not restricted to
    language that unnecessarily interferes with the use and enjoyment of the Parks
    by others, but encompasses the widest meaning of the words. He objects that the
    application judge read down s. 2(9)(a), choosing an artificially narrow
    meaning in order to uphold the constitutionality of the provision. I disagree.
    As I explain below, the application judge appropriately interpreted the
    provision by ascertaining the intentions of the Commission as expressed through
    the words it used.

[26]

The
    thrust of Mr. Brackens argument is that s. 2(9)(a) consists of two independent
    prohibitions: (1) of the use of abusive and insulting language in the Parks,
    and (2) of conduct that unnecessarily interferes with the use and enjoyment of
    the Parks by other persons, and these must be kept analytically separate. Mr.
    Brackens grammatical argument is that the phrase, in a manner that
    unnecessarily interferes with the use and enjoyment of the Parks by other
    persons, directly applies only to the preceding words, that is, conduct
    himself or herself in the Parks, and does not apply to the prohibition on
    using abusive or insulting language. I agree, but this argument does not
    assist him.

[27]

In
    statutory interpretation, context is critically important. Even though the restriction
    in a manner that unnecessarily interferes with the use and enjoyment of the
    Parks by other persons does not apply
directly
to the prohibition on
    using abusive or insulting language, its inclusion in the same provision
    sheds light on the meaning of that phrase. It suggests that, as a whole, s. 2(9)(a)
    addresses restrictions thought necessary in order for a member of the public to
    use the Parks without interfering with other patrons.

[28]

Further
    (confirmatory) context is provided by use of the phrase abusive or insulting
    language in criminal law, reaching back in English law at least to the
Metropolitan
    Police Act 1839
, ch. 47, s. 54(13). Although statutory prohibitions
    against abusive or insulting language take different forms in different
    jurisdictions, Commonwealth courts have consistently held that such
    prohibitions do not capture
all
abusive or insulting language. Rather,
    they are typically limited to those instances likely to interfere with public
    order in some way: see
Coleman v. Power
, [2004] HCA 39, at paras. 193,
    257-258
; Harvey v. Director of Public Prosecutions
, [2011] EWHC 3992
    (Admin), 2011 W.L. 5105637, at paras. 12-15.

[29]

In
    domestic criminal law, shouting insulting or obscene language is insufficient
    to constitute a disturbance under s. 175(1)(a)(i) of the
Criminal Code
,
    which requires an interference with the
ordinary and
    customary use by the public of the place in question
:
R. v. Lohnes
,
    [1992] 1 S.C.R. 167, at 177 (emphasis added);
R. v. Swinkels
, 2010
    ONCA 742, 103 O.R. (3d) 736, at para. 32.

[30]

It
    is therefore unsurprising that in the context of regulating the use of a public
    park, a prohibition on insulting or abusive language would require something
    akin to a restriction on interference with the ordinary and customary use of
    the place in question.

[31]

Whether
    conduct interferes with the peaceful use and enjoyment of the Parks must be established
    on an objective basis. A court should assess the type and intensity of the
    language and behaviour in question against the conditions that ought to prevail
    in the specific location of the Parks at the specific time, as is the case in
    the criminal context of causing a disturbance by using insulting or obscene
    language:
Lohnes
, at p. 180;
Swinkels,
at para. 19. The
    inquiry presumes that members of the public have some resilience, particularly concerning
    political speech, and are required to tolerate public expression of a wide
    range of views on matters of public life, including those views that are
    inconsistent with their own beliefs, choices, and commitments. Mere offence at
    a message, particularly a message advocating for some vision for the better advancement
    of the public good, is not enough. The public is not required to endure
    personalized invective, but nothing in the signs message could be
    characterized in this way. As the application judge below noted, the contents
    of Mr. Brackens sign, even with its profanity, came nowhere near close to the
    line. The officers concern that citizens of Mexico or China who happened upon
    the sign might be offended by it, was well wide of the mark. The sign, which
    effectively stated that the national interests of other countries should be
    subordinate to domestic interests, disparaged no one. Even if Mexican or
    Chinese nationals took offence, or others took offence on their behalf, such
    offence could not bring the sign within the meaning of abusive or insulting
    language.

[32]

In
    summary, on my interpretation of s. 2(9)(a), the prohibition of the use of
    abusive or insulting language extends no further than to proscribe the use of
    personal invective, interfering with a patrons use of the Parks.

(2)

Section 2(b)
Charter
analysis

[33]

It
    remains to be determined whether s. 2(9)(a) violates s. 2(b) of the
Charter
.
    It is necessary to bear in mind the two-stage structure of
Charter
adjudication. The inquiry at the first stage focuses on whether a persons purported
    exercise of a
Charter
right has been limited by state action. The
    second stage is concerned with whether the limit is justified in a society that
    is free and democratic. A positive determination at the first stage  a conclusion
    that a claimants exercise of right has been limited  is
not
a
    determination that the claimants
Charter
rights have been violated. Although
    it was once common to describe s. 1 analysis as a matter of saving violations
    of
Charter
rights, this language is misleading   s. 1 analysis is not
    a matter of excusing rights violations, but of establishing the reasonable
    limits on rights: Guy Régimbald and Dwight Newman,
The Law of the Canadian
    Constitution
, 2nd ed. (Markham: LexisNexis Canada, 2017), at p. 546-47;
    see also Grégoire Webber,
The Negotiable Constitution: on the limitation of
    rights
(Cambridge: Cambridge University Press, 2009), at p. 122.

[34]

The
    first stage inquiry into whether s. 2(b) rights have been limited proceeds by
    way of three questions: (1) does the activity in question have expressive
    content? (2) if so, does either the method or location of the expression
    disentitle it to s. 2(b) protection? and (3) if the expression is protected, does
    the impugned government action limit the expression either in purpose or
    effect?
Montréal (City) v. 2952-1366 Québec Inc.
, 2005 SCC 62, [2005]
    3 S.C.R. 141, at para. 56.

Question 1: Expressive content

[35]

Does
    abusive or insulting language, as interpreted by the application judge and
    earlier in these reasons, have expressive content? I conclude that it does. Expression
    has been given wide meaning by the Supreme Court. Expression is never excluded
    from s. 2(b) because of the content of the message it conveys:
Irwin Toy
,
    at

p. 969;
R. v. Keegstra
, [1990] 3 S.C.R. 697, at p. 729;
City
    of Montréal
, at para. 58. Subject only to certain exclusionary rules described
    below, s. 2(b) extends protection to any activity that conveys or attempts to
    convey a meaning:
Irwin Toy
, at p. 969. This includes abusive or
    insulting language captured by s. 2(9)(a), as such language can convey or
    attempt to convey meaning  albeit in an extremely offensive manner. That such
    expression potentially interfere[s] with the peaceful use and enjoyment of the
    parks by other persons does not preclude the intermediate conclusion that the
    prohibition of the use of such language limits expressive content.

Question 2:      Excluded expression

[36]

Some
    methods of expression are categorically excluded from the scope of s. 2(b)  specifically,
    violence and threats of violence. This limit is internal to s. 2(b); once it is
    established that the method of expression is, for example, an act of violence,
    the constitutional inquiry is at an end and the state is not required to justify
    any limit on the expression.

[37]

State
    actors are not required to justify limits on expression that is violent or
    threatens violence because, according to longstanding doctrine, there are no
    competing interests capable of justifying it. As this court explained in
Fort
    Erie
, at para. 30: to give acts of violence even defeasible protection
    under s. 2(b) would give them an unacceptable legitimacy. It would be
    tantamount to declaring  that an individuals self-expression through acts of
    violence could, in some conceivable circumstances, take priority over the
    public good of protecting persons by restraining acts of violence. That said,
    because the consequences of characterizing expression as violent are extreme 
    the characterization conclusively defeats the
Charter
claim without canvassing
    whether there are any competing considerations  this court cautioned at para.
    50 against expanding the category of what constitutes violence or threats of
    violence. The violence exception to the scope of freedom of expression remains
    sharply limited.

[38]

In
    its written submissions, the respondent proposed an expansion to the violence
    exception to encompass emotionally violent expression. This submission was
    expressly rejected by this court in
Fort Erie
, at para. 49. Put
    simply, the emotional impact of expression on a third party has no bearing on the
    question of whether that expression was conveyed through a violent act. Thus, the
    Supreme Court has held that even hate speech is not inherently violent, despite
    the risk that such expression will have an emotionally damaging impact on its
    targets:
Keegstra
, at pp. 731-732.

[39]

A
    second exclusionary rule relates to the physical location where the expression
    takes place. Freedom of expression does not encompass the right to
    non-interference with expression in
every
locale, public or private. It
    does not even extend to all government-owned property:
City of Montréal
,
    at paras. 60-61; Régimbald and Newman, at p. 631ff.

[40]

In
City of Montréal
, at para. 74, the Supreme Court articulated a test
    for the determining whether s. 2(b) protection applied in any given public
    location: whether the place is a public place where one would expect
    constitutional protection for free expression on the basis that expression in
    that place does not conflict with the purposes which s. 2(b) is intended to
    serve, namely (1) democratic discourse, (2) truth finding, and (3)
    self-fulfilment. The Court specified two factors that should be considered in
    answering that question: (a) the historical or actual function of the place;
    and (b) whether other aspects of the place suggest that expression within it
    would undermine the values underlying free expression.

[41]

With
    respect to the first factor, the Court drew a subtle but important distinction
    between historical use and actual function of a place. Historical use, as
    developed in that judgment, is determined by a factual inquiry into community practices.
    What use has the community made of the place, apart from whatever governmental
    function it may also serve? An established community practice of free
    expression in a location is some evidence of a social convention that the location
    ought to be available for free expression. The case law identifies examples such
    as sidewalks (
City of Montreal
, at paras. 67-68), airports (
Committee
    for the Commonwealth

of Canada v. Canada
, [1991] 1 S.C.R. 139, at
    pp. 158-159), parks (
Commonwealth
, at pp. 152-153;
R. v.

Batty
,
    2011 ONSC 6862, 108 O.R. (3d) 571, at paras. 70-72), utility poles (
Ramsden
    v. Peterborough (City)
, [1993] 2 S.C.R. 1084, at pp. 1100-1102), and the
    town square (
Fort Erie
, at para. 54).

[42]

The
    inquiry into the actual function of a place has a different focus. Actual
    function concerns the primary, governmental function of the place, rather than
    the communitys secondary use of it as a public forum:
City of Montréal
,
    at para. 76. The question is whether the governmental activity that goes on at
    the place is compatible with the use of the place as a public forum; in other
    words,[w]ould an open right to intrude and present ones message by word or
    action be consistent with what is done in the space? Or would it hamper the
    activity?:
City of Montréal
, at para 76.  The exercise of freedom of
    expression would hamper governmental functions, including the provision of
    public services, if a right of access were allowed in essentially private
    places that require privacy. Section 2(b) does not extend protection to
    expression in such locations.

[43]

Ultimately,
City of Montréal
characterizes historical use and actual function as
    markers of constitutionality, on-going patterns of property use that reflect both
    formal governmental choices and informal social conventions. These practices,
    the Supreme Court says, are a ready guide to what is likely reasonable in a
    free and democratic society. But historical use and actual function must still
    be critically evaluated to determine whether they in fact align with what is
    reasonable. The underlying question is whether a practice of free expression
    in the place in question would undermine the purposes of the [s. 2(b)] guarantee,
    which includes the practices of democracy and efficient governance:
City of
    Montréal
, at paras. 76-77;
R. v. Banks
, 2007 ONCA 19, 84 O.R.
    (3d) 1, at para. 119.

[44]

The
    respondent argues that the history of the Parks does not reveal any use of it
    as a public forum, and that the actual function is incompatible with the exercise
    of freedom of expression. I disagree with both submissions. Although the record
    does not provide any compelling evidence of the historical use or non-use of
    the Parks as a public forum for expression, as in
Greater Vancouver
,
    at para. 43, the very fact that the general public has access to the Parks
    is an indication that members of the public would expect constitutional
    protection of their expression in that space. An aspect of freedom of
    expression is the ability to address people in places where crowds are known to
    congregate.

[45]

With
    respect to the actual, governmental, function of the Parks, the respondent seeks
    to distinguish the function of the Parks from that of a municipal park or town
    square or other outdoor public location. The reason for the establishment of
    the Parks, on the respondents evidence, was to remedy commercial exploitation
    that impaired the ability of visitors to experience the natural landscape, and
    to preserve the Niagara Falls as a global asset. Grandview Plaza is a place of
    public recreation: it serves as a venue to view Niagara Falls and facilitates
    the various commercial enterprises sanctioned by the Parks.

[46]

The
    respondent further argues that the Parks are intended to function as a haven or
    refuge from public debate, assembly, or protest, and a place to experience
    natural beauty without the distraction of potentially divisive expression. In
    the respondents view, some forms of expression, such as abusive or insulting speech,
    are incompatible with this function of the Parks and therefore do not come
    within the scope of s. 2(b) protection.

[47]

Here
    the respondent miscasts the nature of the location-based exclusion under s.
    2(b), and strays into considerations properly addressed in the reasonable
    limits analysis under s. 1 of the
Charter
. The location-based analysis
    is a preliminary screen only, to weed out claims of entitlement to platforms
    that are clearly unsuitable for public address given their governmental function.
    The question is not whether insulting or abusive language is compatible with
    the Parks function, but whether public expression in general is compatible
    with it.

[48]

Additionally,
    given the sheer size of the Parks, the location-based analysis must be more
    finely grained than what the respondent suggests, and must focus on the part of
    the Parks where the events occurred.  Grandview Plaza is a large, open space
    where Parks-sanctioned commercial enterprises are located. Indeed, the initial
    complaint about Mr. Bracken did not come from a visitor whose experience of the
    Parks was frustrated by either his sign or his behaviour, but from a vendor who
    objected to Mr. Bracken occupying the space where the vendor wanted to set up
    his ice-cream cart. It is capable of accommodating hundreds if not thousands of
    people. According to the evidence of Officer Forcier, it is one of the busiest
    places in the Parks, and nearly 17,000 people passed through it on August 2. At
    the time of Mr. Brackens demonstration, hundreds of people had just
    disembarked from tour buses and were queuing to buy tickets for the Wildplay Zipline
    attraction and Hornblower boat tours.

[49]

In
    my view, the evidence does not establish that the function of either the Parks
    as a whole or Grandview Plaza specifically would be impaired by constitutional
    protection of expression within the Parks. Grandview Plaza is a place where
    people congregate and must expect to interact with others. That is precisely
    what made it an attractive destination for Mr. Bracken. Nothing that happens
    there requires quiet or an absence of distraction. Indeed, neither quiet nor
    the absence of distraction is even possible there. As in
Greater Vancouver
,

[u]nlike the activities which occur in certain government
    buildings or offices
, those which occur [in the Parks] do
    not require privacy and limited access
Like a city street, [the Parks
    are]
a public place where individuals can openly interact
    with each other and their surroundings
(
Greater Vancouver
, at
    para. 43, emphasis added).

[50]

Nor
    am I persuaded that there is anything else about the Parks that suggests that the
    exercise of freedom of expression within it would undermine the purposes for
    constitutional protection of that freedom. Although there could be places
    within the Parks where the constitutional protection of freedom of expression
    does not extend (private offices, for example), Grandview Plaza is not one of
    them.

[51]

Of
    course, the mere fact that freedom of expression is protected within a
    particular location does not mean that no limits on expression in that location
    are permissible. But any such limits fall to be considered under s.1 analysis.

Question 3: does s. 2(9)(a) of
    the Regulations limit 2(b) of the Charter in purpose or effect?

[52]

The
    third step of the s. 2(b) inquiry is to ask whether the limits imposed by s.
    2(9)(a) on free expression flow from the provisions purpose, or whether they
    are better understood as incidental effects.

[53]

If
    it is determined that s. 2(9)(a) has as its
purpose
the limitation of
    expression, that is sufficient to establish a s. 2(b) limit on expression and
    the government must defend the limit under s.1 of the
Charter
. But if
    the provision limits expression as a side-effect of the pursuit of some other purpose,
    then the claimant faces the additional hurdle of establishing that the expression
    subject to the limitation furthers one of the underlying goods advanced by the
    protection of expression: (1) enabling democratic discourse; (2) facilitating
    truth seeking; or (3) contributing to integral self-fulfillment:
Irwin Toy
,
    at p. 976.

[54]

The
    respondent argues that s. 2(9)(a) does not have as its purpose the limitation
    of expression: any message whatsoever can be delivered as long as the form of
    expression does not attack the physical or psychological integrity of the
    audience. The provision is said not to target the communication of any
    particular set of ideas, only the method used to convey ideas.

[55]

I
    do not accept this submission for two reasons.

[56]

First,
    insofar as it applies to psychological integrity, the argument is simply an
    iteration of the argument rejected above, urging an expansion of the violence
    exception to include emotional violence.

[57]

Second,
    just because
some
means of expression (predominantly physical
    violence) can be readily identified and excluded from the ambit of freedom of
    expression, does not mean that such a neat division between content of
    expression and the means of communication is always possible:
Ford v.
    Quebec (A.G.)
, [1988] 2 S.C.R. 712, at  pp. 748-750. Over some range of
    cases at least, the medium is the message. Tone of voice, volume, facial
    expressions, and body language all convey meaning that cannot necessarily be conveyed
    effectively in words. The exercise of free expression is diminished by
    restrictions on the means that make it effective. So it is no answer for the
    respondent to say there is no limit on ones exercise of freedom of expression
     that everyone is free to convey whatever ideas they want  provided they use
    appropriately temperate language. To take a familiar example from US First
    Amendment case law, the meaning conveyed by shouting fuck the draft does not
    translate, without significant loss of meaning, to the quiet declaration, I am
    implacably opposed to the draft:
Cohen v. California
(1971), 403 U.S.
    15.

[58]

For
    these reasons, I conclude that the application judge erred in determining that s.
    2(9)(a) did not limit freedom of expression under s. 2(b). The Commission is required
    to demonstrate, in s. 1 analysis, that the limit placed on expression can be
    justified.

(3)

Section 1

[59]

Where
    the exercise of a
Charter
right has been limited by a statute or
    regulation, the party seeking to uphold the statute or regulation may justify the
    limitation. This is because the scope of non-absolute rights such as freedom of
    expression cannot be determined without an assessment of the reasonable limits
    necessary for maintaining the conditions conducive to a healthy society,
    including those limits needed to protect public safety, order, health, or
    morals or the fundamental rights and freedoms of others:
R. v. Big M Drug
    Mart
, [1985] 1 S.C.R. 295, at p. 337.

[60]

The
    framework for determining whether a legislative limit on rights is reasonable
    and justified was set out in
R. v. Oakes
, [1986] 1 S.C.R. 103, at pp.
    138-139. Although aspects of the
Oakes
test, set out below, are
    expressed in technical terms such as balancing and minimal impairment, the
    test is at root an evaluation of the extent to which limits are reasonable in a
    free and democratic society:
R. v. K.R.J
., 2016 SCC 31, [2016] 1
    S.C.R. 906, at para. 58; see also Francisco J. Urbina,
A Critique of
    Proportionality and Balancing
, (Cambridge: Cambridge University Press,
    2017), at pp. 4-9.

(a)

Prescribed by law

[61]

Section
    1 of the
Charter
authorizes only such limits as are prescribed by
    law. This requirement is satisfied by a regulation promulgated by the Commission
    pursuant to the exercise of its statutory power.

[62]

Mr.
    Bracken, however, objects to s. 2(9)(a) on the basis of its vagueness. He
    argues that the uncertain boundaries of the words abusive or insulting mean
    the provision provides no guidance either to a person like himself who wants to
    know what he can and cannot lawfully do in the Parks, or to a police constable
    tasked with enforcing it. The result, he argues, is the antithesis of the rule
    of law: instead of being subject to a clear rule capable of guiding behaviour,
    he is subject to a vague standard whose meaning depends on the whims of the NPP
    officer applying it.

[63]

In
    support of his argument, Mr. Bracken points to the history of his engagement
    with the NPP. On August 2, 2016, he was told that he was not permitted to
    display his sign in the Parks. Two days later, when he attended at the station
    and sought clarification, he was told again, by a different officer, that the
    sign was not permitted, and that if he attended again with the sign he would be
    removed from the premises. Significantly, the respondent now concedes that the display
    of the sign in the Parks does not infringe s. 2(9)(a) and that the oral
    trespass notice cannot be maintained. This series of events, Mr. Bracken
    argues, demonstrates that s. 2(9)(a) is unconstitutionally vague.

[64]

I
    would reject this submission.

[65]

The
    concern about vagueness in legal standards, the discretion it gives to those who
    interpret and implement them, and the challenge it poses to the Rule of Law has
    long been a preoccupation of jurists: see Timothy A.O. Endicott,
Vagueness
    in Law
(Oxford: Oxford University Press, 2001). In Canadian law, the
    leading treatment of vagueness remains
R. v. Nova Scotia Pharmaceutical
    Society
, [1992] 2 S.C.R. 606, which holds that it is an impossible demand
    that the legislature, and those exercising delegated rule-making powers like
    the Commission, address in advance every conceivable contingency in a laws
    application. Although the law can identify clear areas of permissible and
    impermissible behaviour where there is no room for doubt about ones
    obligations, it is inherent to our legal system that some conduct will fall
    along the boundaries of the area of risk:
Nova Scotia Pharmaceutical
    Society
, at p. 639.

[66]

An
    appropriately specific law gives fair notice of the type of behaviour that enters
    the risk zone of non-permissible conduct. That requirement of fair notice is
    satisfied where the law sufficiently delineate(s) an area of risk and
    provides the criteria to be used by those applying the law to particular
    circumstances. It is unrealistic to demand that the law do more:
Nova
    Scotia Pharmaceutical Society
, at pp. 638-39. The fair notice requirement
    can also be satisfied in part where the prohibited conduct coincides with the
    substratum of common morality in society; that is, when independent of the
    law, everyone knows that the proscribed act is wrongful:
Nova Scotia
    Pharmaceutical Society
, at pp. 634-635.

[67]

Section
    2(9)(a) is sufficiently detailed to provide an adequate basis for reasoned
    analysis applying legal criteria, as demonstrated in the discussion above about
    the provisions interpretation. It provides fair notice to the public and appropriately
    limits enforcement discretion. Furthermore, even members of the public who are
    unaware of s. 2(9)(a) would know that it is wrong to interfere with other
    persons in their use of public recreational space. That s. 2(9)(a) is, like any
    law, capable of being misinterpreted (and was misinterpreted by the NPP with
    respect to the display of the sign) is beside the point. The remedy for
    unreasonable exercise of enforcement discretion is, in the ordinary course, an
    appeal (if provided) or judicial review; it is not the invalidation of the
    relevant law.

(b)

Proportionality test

[68]

To
    establish that the limit s. 2(9)(a) places on freedom of expression is
    reasonable and demonstrably justified, the respondent must show that the provision
    has a sufficiently important objective to warrant limiting the right and that
    the means chosen are proportionate to that achieving that objective.

[69]

The
    test for proportionality adopted in
Oakes
has three components. As summarized
    recently in
K.R.J.
, at para. 58:

A law is proportionate if (1) there is a rational connection
    between the means adopted and the objective; (2) it is minimally impairing in
    that there are no alternative means that may achieve the same objective with a
    lesser degree of rights limitation; and (3) there is proportionality between
    the deleterious and salutary effects of the law. The proportionality inquiry
    is a normative and contextual one, which requires courts to examine the broader
    picture by balanc[ing] the interests of society with those of individuals and
    groups.

Does s. 2(9)(a) have a sufficiently important purpose?

[70]

This
    step of the analysis is not onerous. Its most frequent analytical function is
    not so much to screen out unimportant legislative purposes (of which we can
    assume there will be few) as it is to provide a preliminary assessment of the impugned
    provision for use in the minimal impairment and overall proportionality steps
    that follow.

[71]

The
    importance of s. 2(9)(a) is obvious. Communities have an interest in
    maintaining the public character of shared spaces, which requires the use of
    legislation and regulation to prevent individuals and groups from using public
    space in a way that renders it unfit for the reasonable use of others. The
    guidance provided by regulations such as s. 2(9)(a), helps to preserve the
    Parks as a place of public recreation and a global tourist attraction. As Brown
    J. (as he then was) observed in
Batty
, at para. 91, without rules
    governing what people can and cannot do in parks, they would be at risk of
    descending into battlegrounds of competing uses  or places where the
    stronger, by use of occupation and intimidation, could exclude the weaker or
    those who are not prepared to resort to confrontation.

[72]

I
    conclude that s. 2(9)(a) has a sufficiently important purpose: safeguarding the
    reasonable use of the Parks by the public, by prohibiting others from
    unreasonably interfering with that use.

Rational Connection

[73]

The
    rational connection branch of the test is satisfied if the impugned provision
    contributes in some way to advancing its objective. Again, the requirement is
    easily satisfied here. The specific means adopted by s. 2(9)(a)  a prohibition
    on abusive and insulting language or other conduct that unnecessarily interferes
    with the use of the Parks by other persons  clearly advances its objective of maintaining
    the public character of the Parks.

Minimal impairment

[74]

Section
    2(9)(a) will fail the minimal impairment test only if there are alternative
    schemes, less restrictive of freedom of expression, that achieve the
    provisions objective "in a real and substantial manner":
K.R.J
,
    at para. 70;
Alberta v. Hutterian Brethren of Wilson Colony
, 2009 SCC
    37, [2009] 2 S.C.R. 567, at para. 55.  The Commission, which promulgated the
    regulation, is owed a "measure of latitude in this inquiry; the question
    is whether the means it chose is within an acceptable range of alternatives,
    not whether it is the least restrictive means imaginable:
City of Montréal
,
    at para. 94;
R. v. Edwards Books and Arts Ltd.
, [1986] 2 S.C.R. 713,
    at p. 772;
Gordon

v. Canada (Attorney General)
, 2016 ONCA
    625, 404 D.L.R. (4th) 590, at paras. 258-261.

[75]

Section
    2(9)(a) does not cast a wide net over expressive activity in the Parks. As
    noted above, the provision does not curtail expression that society expects a reasonable
    person to be able to tolerate. It does not restrict expression that is
    annoying, or even infuriating. People using public spaces are required to tolerate
    exposure to ideas with which they intensely disagree  ideas that may be
    inimical to their own deeply cherished commitments and choices.

[76]

The
    record before us discloses no alternative scheme to s. 2(9)(a) that would be
    less impairing of freedom of expression and capable of substantially achieving
    the provisions objectives. I conclude that s. 2(9)(a) is minimally impairing
    of s. 2(b).

Overall proportionality

[77]

The
    final question is whether there is proportionality between the salutary effects
    of s. 2(9)(a) and its deleterious effects on the right to freedom of expression.

[78]

Unfortunately,
    the court does not have the benefit of submissions from Mr. Bracken on the deleterious
    effects of s. 2(9)(a). He objects to what he calls the reading down of the provision
    and insists that it be interpreted as proscribing all speech that is merely
    insulting or abusive, without more. I have rejected this submission as an
    unsupportable interpretation of s. 2(9)(a).

[79]

I
    will therefore proceed under the assumption that section 2(9)(a) has two
    negative effects on freedom of expression. First, persons who wish to express themselves
    in a manner that infringes the provision will be unable to do so. This is an
    undeniable loss of freedom. Second, is the chilling effect; some persons may unnecessarily
    self-censor, either because they wrongly conclude their expression contravenes
    s. 2(9)(a) and keep silent, or because they are concerned that officials tasked
    with enforcing s. 2(9)(a) will misapply it and curtail lawful expression. As
    McLachlin J. (as she then was) noted in dissent in
Keegstra
at p. 850,
    in weighing the intrusiveness of a limitation on freedom of expression our
    consideration cannot be confined to those who may ultimately be convicted under
    the limit, but must extend to those who may be deterred from legitimate
    expression by uncertainty as to whether they might be convicted.

[80]

Neither
    concern, in my view, is significant in this appeal.

[81]

First,
    although s. 2(9)(a) undoubtedly restricts freedom of expression within the
    Parks, the type of expression it prohibits carries little weight in the s. 1
    analysis, as it does not meaningfully advance any of the genuine human goods associated
    with freedom of expression:
Whatcott v. Saskatchewan Human Rights Tribunal
,
    2013 SCC 11, [2013] 1 S.C.R. 467, at para. 112. As described above, s. 2(9)(a)
    does not prohibit the expression of contentious or controversial ideas. It does
    not prohibit or curtail robust contributions to public debate. It does not
    prohibit incivility, profanity, or vulgarity. In proscribing the use of abusive
    or insulting language, it merely prohibits personal invective.

[82]

Turning
    to the second concern, I make two observations about the possible chilling
    effect created by s. 2(9)(a).

[83]

First,
    one aspect of a chilling effect presupposes over-enforcement of s. 2(9)(a) by
    the NPP. This is a reasonable concern. This concern, however, does not provide
    grounds for finding the provision unconstitutional. Enforcement problems, should
    they occur, are to be addressed through the oversight of administrative law. The
    Commission is entitled to promulgate regulations under the assumption that they
    will be applied constitutionally by the NPP:
Little Sisters Book & Art
    Emporium v. Canada (Commissioner of Customs & Revenue Agency)
, 2007
    SCC 2, [2007] 1 S.C.R. 38, at para. 71. As this court held in
R. v. Khawaja
,
    2010 ONCA 862, 103 O.R. (3d) 321, at para. 134:

Nor can improper conduct by the state actors charged with
    enforcing legislation render what is otherwise constitutional legislation
    unconstitutional. Where the problem lies with the enforcement of a
    constitutionally valid statute, the solution is to remedy that improper
    enforcement, not to declare the statute unconstitutional.

[84]

Second,
    these proceedings mark the first time that s. 2(9)(a) has been judicially
    interpreted. Following this decision, and any future decisions that apply s.
    2(9(a) to individual cases, greater certainty may be expected, further reducing
    the law's chilling effect:
R. v. Sharpe
, 2001 SCC 2, [2001] 1 S.C.R.
    45, at para. 104. This increased certainty will benefit both members of the
    public and NPP officers tasked with enforcing the Regulations.

[85]

Set
    against these concerns are significant benefits for users of the Parks in
    knowing their reasonable use of the Parks will not be frustrated by abuse
    directed towards them. The narrow limit on expression placed on all users of
    the Parks is, in my view, proportionate to the benefit to be achieved in
    maintaining the character of the Parks as a place of public resort.

[86]

On
    the basis of the foregoing analysis, I conclude that the limits on freedom of
    expression established by s. 2(9)(a) are fully justified. The regulation does
    not violate the
Charter
. I would dismiss this ground of appeal.

C.

The challenge to the oral trespass notice

[87]

There
    remains the
Charter
challenge to the oral trespass notice.

[88]

Both
    parties take the position that when Mr. Bracken attended at NPP headquarters on
    August 4, an NPP officer, Mr. Forcier, delivered an oral trespass notice to Mr.
    Bracken: he was not to return to the Parks with his sign. If he did, he would
    be arrested and removed from the premises. Mr. Bracken sought a declaration
    that he was lawfully permitted to attend with his sign on the sidewalk. The
    application judge declined to grant the declaration, noting that he had already
    expressed the opinion that doing no more than returning with the sign in
    question would not breach s. 2(9)(a), and stating that he did not know just
    what the police would do if [Mr. Bracken] returned to the park with the sign. It
    appears that the application judge thought it would be sufficient to draw the
    NPPs misapplication of s. 2(9)(a) to the parties attention, and that would be
    sufficient to resolve the matter of the trespass notice. It was not.

[89]

It
    was only at the hearing of this appeal, more than a year after the decision of
    the application judge was released, that the respondent conceded that the
    on-going trespass notice was invalid. Up to that point, the respondent took the
    position that the trespass notice was valid and subsisting. The respondent
    further argued that Mr. Brackens challenge to the trespass notice was moot
    because the NPP could have removed Mr. Bracken from the Parks pursuant to the
Trespass
    to Property Act
, given his violation of s. 2(9)(a)(the constitutionality
    of which had been upheld), and alternatively, because the notice was authorized
    by s. 2(11) of the Regulations (which Mr. Bracken has not challenged).

[90]

The
    respondents conclusion is a
non sequitur
. The mere fact that
    provisions of the
Trespass to Property Act
and s. 2(11) of the
    Regulations may authorize the NPP to issue trespass notices or otherwise
    exclude persons from the Parks says nothing about whether the exercise of that
    power in this particular case was lawful or constituted a violation of a
Charter
right.

[91]

Mr.
    Bracken attended at the station on August 4 specifically to clarify whether, on
    the NPPs understanding of the law, he was permitted to display his sign.
    Inspector Forcier told him that he was not and that he would be arrested and
    removed if he did so. This disagreement about his legal rights was the impetus
    for Mr. Bracken to bring this proceeding in the first place, challenging the
    trespass notice as an infringement of his
Charter
rights. To be fair
    to the respondent, it was not always clear what remedy Mr. Bracken was seeking
    or on what grounds. And to be fair to Mr. Bracken, it is not always a simple matter
    to determine whether the proper course of action is to challenge a decision,
    the legislation authorizing the decision, or both. In the circumstances of this
    multi-pronged and on-going dispute between the parties, it was an error for the
    application judge not to bring some clarity by issuing a declaration quashing
    the trespass notice.

[92]

In
    summary, based on the above analysis on the scope and constitutionality of s.
    2(9)(a), and in the absence of any submission by the respondent to justify the
    trespass notice, I conclude that the trespass notice constituted an
    unconstitutional curtailment of freedom of expression in an open public venue.

[93]

Unlike
    the protesters in
Batty
, who essentially converted a public park to
    their exclusive use, this was an instance of a single person, standing on a
    sidewalk at the edge of a public, semi-commercial plaza within a park, holding
    a sign displaying a political message. Political messages are always
    provocative. They imply that others are wrong, perhaps through ignorance,
    mistake, negligence, or even moral failure. They frequently risk offending
    those with contrary views. But in a free society individuals are permitted to
    use open public spaces to address the people assembled there  to challenge
    each other and to call government to account. The idea that the Parks are
    somehow different  that they are categorically a safe space where people are
    to be protected from exposure to political messages  is antithetical to a free
    and democratic society and would set a dangerous precedent. Again, this does
    not mean that there cannot be any limitation on expression in the Parks based
    on time of day, appropriate limits on noise, or the nature of any interference
    with the specific activities going on in the specific location within the
    Parks. The analysis must always be contextual. But in this instance, it is
    conceded that there were no circumstances that would justify the removal of a
    single protester with a sign from a busy plaza, and that the display of the
    sign, despite its profanity, did not constitute the use of insulting or abusive
    language within the meaning of s.2(9)(a).

[94]

Although
    the trespass notice has now been withdrawn and the issue is moot, in my view it
    is nevertheless in the interests of justice to issue a declaration stating
    there was no basis in law to issue the trespass notice enjoining the display of
    the appellants sign and quashing the trespass notice.

Disposition

[95]

I
    would allow the appeal in part. I would allow the appeal with respect to the
    trespass notice of August 4, 2016, and issue a declaration quashing the notice
    as set out above. I would dismiss the appeal with respect to the constitutional
    challenge to s. 2(9)(a).

[96]

As
    success is divided, there is no order as to costs.

Released: March 19, 2018

B.W. Miller J.A.

I agree Doherty J.A.

I agree H.S. LaForme
    J.A.





[1]

Handyside v. The United Kingdom
, Eur. Court H. R., decision of 7
    December, 1976, Series A No. 24, at para.49.


