



COURT OF APPEAL FOR ONTARIO

CITATION: Brac5

DATE: 20170825

DOCKET: C61824

Feldman, Lauwers and Miller JJ.A.

BETWEEN

Fredrick Bracken

Applicant (Appellant)

and

The Town of Fort Erie

Respondent (Respondent)

Fredrick Bracken, acting in person

Christine Carter and Michael Krygier-Baum, for the
    respondent

Heard: November 17, 2016

On appeal from the judgment of Justice T. Maddalena of
    the Superior Court of Justice, dated February 12, 2016, with reasons reported
    at 2016 ONSC 1122.

B.W. Miller J.A.:

Overview

[1]

The appellant, Mr. Bracken, describes himself as a citizen journalist.
    When he disagrees with government decisions, he states his opinions, demands
    answers, and makes use of traditional means of protest, such as marching in the
    town square. He also video records his protests and interactions, sometimes
    aggressively questioning people at a proximity they find uncomfortable. He can
    be confrontational, loud, agitated, and excitable. He is a large man and some
    people find him intimidating.

[2]

The respondent, the Town of Fort Erie, is like all employers, required
    to take steps to protect the safety of its employees. It has a Workplace Violence
    Prevention Policy, and a Workplace Violence Committee and Officer. When Mr.
    Bracken protested outside the Town Hall on June 16, 2014, an employee inside
    Town Hall who had never seen a protest before was alarmed. She placed the Town
    Hall under lockdown, and advised the interim Chief Administrative Officer of
    her fears for her safety and the safety of others.

[3]

The CAO gave instructions to call the police, issue a trespass notice, and
    direct Mr. Bracken to leave. The police attended and directed Mr. Bracken to
    leave. He refused. He was arrested, handcuffed, and held in the back of a
    police cruiser for 15 minutes. He was then issued a trespass notice banning him
    from all Town property for one year, as well as given a provincial offences ticket
    for failing to leave. He tore up the trespass notice and left the premises
    without further incident.

[4]

As I explain below, the Towns response to Mr. Brackens protest, in expelling
    him from the premises and issuing the trespass notice, was a violation of his
    rights under the
Canadian Charter of Rights and Freedoms
. I would
    quash the trespass notice.

[5]

In what follows, I will set out the events of June 16, 2014, which must
    be placed in the context of an on-going dispute between Mr. Bracken and the
    Town of Fort Erie, particularly with its former interim CAO, Richard Brady. I
    will then address the errors in the reasons of the application judge, which led
    her to conclude, mistakenly, that Mr. Brackens acts of protest were not
    protected by s. 2(b) of the
Charter
. This will require an analysis of
    both s. 2(b) and s. 1 of the
Charter
. I will not address Mr. Brackens
    claim under s. 7 of the
Charter
, because it is not necessary for the
    resolution of this appeal.

Background

1. Background to the protest

[6]

Mr. Bracken was angered by the Towns decision to introduce a by-law permitting
    a medical marijuana facility to be built across the street from his home. The
    by-law was on the agenda for a Council meeting on June 16, 2014. He believed
    that he had been misled by Mr. Brady, when the latter had been interim CAO, about
    the content of the proposed by-law. Mr. Bracken had attended previous Town Council
    meetings and had made a video recording on at least one occasion. He had also attended
    at the front desk of Town Hall some weeks prior to June 16, pounded his fist on
    the counter, and angrily demanded to meet with Mr. Brady. He had a video
    recorder with him. His aggressive behaviour was frightening to the Town
    employee working at the counter on that day. Mr. Brady came, reprimanded Mr. Bracken
    for his aggressive behaviour towards the staff member, and then proceeded to a
    closed door meeting with him about the marijuana facility and the proposed
    by-law. No further action was taken against Mr. Bracken on that day.

[7]

Subsequently, several of the employees working at Town Hall discussed
    Mr. Brackens outburst among themselves, and watched some of Mr. Brackens videos
    that he had uploaded to Youtube. The videos themselves were not in the record
    before the Court, and the only description was that they were video recordings made
    by Mr. Bracken as he ran up to people and questioned them. Although the
    evidence from some employees is that watching these videos was a principal
    source of their concern about Mr. Bracken, there is nothing in the record to explain
    why this was the case, other than Mr. Bradys complaint that Mr. Bracken filmed
    too close to peoples faces.

2. The protest at Town Hall  June 16, 2014

[8]

On June 16, 2014, Mr. Bracken attended at Town Hall to protest the
    scheduled vote on the by-law permitting the marijuana facility to operate
    across the road from his home. The meeting was scheduled to begin at 6 p.m. He
    arrived around 5 p.m., entered the unlocked Council chamber and placed a note
    on each councillors desk, as well as the media desk. The notes expressed his
    objection to Councils expected decision regarding the marijuana facility:

Congratulations on being the ONLY COUNCIL AND STAFF IN CANADA
    to go under the 70m setback recommended by Health Canada and the provincial D-6
    guidelines. You crooks must be proud[.]

[9]

He then left the Council chamber and set up his protest outside. On his evidence,
    he wanted to ensure that his megaphone would not be audible inside the Council chamber.
    He did not want to disrupt the meeting. To check the volume of the megaphone, he
    turned on its siren, set it on the ground outside, and ran back into the empty
    Council chamber. He shut the doors behind him and listened for the sound of the
    siren. When he was content that it could not be heard, he ran back outside through
    the Town Hall to turn it off again. He moved quickly, he explained, because he
    was concerned that someone from the nearby skateboard park would steal the megaphone
    while he was gone.

[10]

He began his protest, shouting kill the bill while walking from the
    parking lot to the front doors of the Town Hall, where his presence activated
    the motion sensor that opened the doors. He shouted other things, including
    calling Mr. Brady a liar and a communist, and demanding that Mr. Brady be
    fired.

[11]

Although Mr. Bracken did not encounter anyone either time that he ran in
    and out of the Council chamber, he was observed by Victoria Schultz, the Town
    employee who had originally felt threatened by Mr. Brackens aggressive behaviour
    at the counter some weeks earlier. And his siren was also audible to some other
    employees inside Town Hall, particularly when the automatic doors opened. Signe
    Hansen, the Manager of Parks and Open Space Development, heard the siren from
    within her office located at the rear of the second floor of the building. She
    came out to investigate, and found some of her co-workers gathered on the
    second floor balcony, watching Mr. Brackens protest below. She watched from a
    safe distance as Mr. Bracken walked back and forth and shouted into his
    megaphone. Several of the staff members with her on the balcony expressed fear
    for their safety. She deposed that she also became concerned that Mr.
    Brackens erratic behaviour would intimidate persons coming to the Council
    meeting, which was scheduled to begin an hour later.

[12]

Ms. Hansen moved downstairs to alert the current interim CAO, Tom Kuchyt.
    She was informed that he was in a closed meeting with the mayor, the
    councillors, and all of the senior staff (including Mr. Brady). They had not
    heard Mr. Bracken and were unaware of the commotion. Ms. Hansen was sufficiently
    alarmed to interrupt the meeting, which she and Mr. Kuchyt both stressed was an
    unprecedented act, in order to get directions. She appeared to Mr. Kuchyt to be
    flustered and upset, and advised him that Mr. Bracken was present and pacing
    outside the front entrance with a megaphone, that he had run into the building towards
    Council chambers, that he appeared agitated, and that the staff were fearful
    for their safety.

[13]

As interim CAO, Mr. Kuchyt is responsible for the administration of Town
    property. He also has duties under the
Occupational Health and Safety Act
,
    R.S.O. 1990, c. O.1, particularly with respect to the obligation to maintain a
    workplace free of violence and harassment. On the basis of the information he
    received from Ms. Hansen, Mr. Kuchyt consulted with Mr. Brady and they determined
    that they had had enough of [Mr. Brackens] intimidating behaviour. Mr.
    Kuchyt directed Beverley Bradnam, his Executive Assistant, to prepare a
    trespass notice and to call the police. Once the notice was ready, Mr. Brady
    was to go outside and tell Mr. Bracken to leave the premises. If Mr. Bracken
    refused to leave, Mr. Brady was to hand him the trespass notice.

[14]

Mr. Brady then watched Mr. Bracken for a few minutes from inside the
    Town Hall. No one from the Town confronted him. A police officer arrived and advised
    Mr. Bracken that a trespass notice had been issued by the Town, and directed Mr.
    Bracken to leave the premises. Mr. Bracken refused and was arrested and placed
    in handcuffs. He was then placed in the back of a police cruiser and held for
    15 minutes. After Mr. Bracken had been arrested, Mr. Brady went outside, gave
    the police officer the trespass notice and a covering letter to give to Mr. Bracken.
    After Mr. Bracken was released, the police officer provided him with the trespass
    notice and letter, which he tore up, as well as the provincial offences ticket.

[15]

The letter stated this extraordinary action has been taken as a result
    of your persistent and escalating confrontational behaviour with Town staff.
    The trespass notice provided that Mr. Bracken was not to enter three Town
    properties for a period of one year: Town Hall, the Municipal Campus, and the
    Public Works Yard. On cross-examination, Mr. Kuchyt explained that these three
    locations were chosen because they were all the Town properties where Town
    employees worked.

[16]

Exceptions were made in the trespass notice for Mr. Bracken to make an
    appointment in advance with the CAO to attend at Town Hall on Town business. He
    was also permitted to use the drop box in the public parking area to pay his
    property taxes.

[17]

The provincial offences ticket was later withdrawn. Mr. Bracken brought this
    application challenging the constitutionality of the trespass notice under s.
    2(b) and s. 7 of the
Charter
.

The reasons of the application judge

[18]

The application judge dismissed Mr. Brackens application on the basis
    that he crossed the line of peaceful assembly and protest, was engaged in
    acts of violence, and that his expression therefore cannot be protected under
    section 2(b) of the
Charter
.: at para. 98. She rejected Mr. Brackens
    argument that he was protesting peacefully: Given the overwhelming evidence to
    the contrary, which I accept, Im not persuaded that he was, under the
    circumstances of that day, protesting peacefully. On the contrary, I accept
    that his language was shouting, incomprehensible, and his behaviour was erratic
    and intimidating.: at para. 95. She concluded that this was a legitimate use
    of a trespass notice to protect public and staff, so there has been no 2(b)
    violation of the
Charter of Rights and Freedoms
.: at para. 101.

[19]

Because she concluded that Mr. Bracken had no right under s. 2(b) to
    protest in the manner that he did, the application judge found that his rights had
    not been limited by government action, and it was therefore not necessary to
    proceed to an analysis under s. 1 to determine whether any limits placed on his
    rights could be justified. She also determined that the absence of a s. 2(b)
    infringement made it unnecessary to consider Mr. Bracken's further claim under s.
    7 of the
Charter
.

[20]

The application judge dismissed the application.

Analysis

[21]

The application judge made an error of law in concluding that Mr. Brackens
    protest did not come within the ambit of s. 2(b) of the
Charter
. Consequently,
    she did not conduct the subsequent analysis to determine whether the expulsion
    and trespass notice limited Mr. Brackens s. 2(b) rights, or whether such
    limitation was nevertheless justified under s. 1 of the
Charter
. She further
    erred in concluding that her finding on the s. 2(b) claim was also dispositive
    of Mr. Brackens s. 7 claim. Additionally, there were palpable and overriding
    factual errors concerning Mr. Brackens conduct on June 16, 2014.

[22]

I will set out below the principles of s. 2(b) jurisprudence, before
    conducting the s. 2(b) and s. 1 analyses that ought to have been performed. I
    begin by addressing some of the procedural irregularities of this application.

The Procedural Irregularities

[23]

First, the application was moot at the time it was heard, as the
    trespass notice had already expired. The application judge exercised her discretion
    to hear it, deciding that the issue was of some importance, particularly since
    the conflict was likely to recur given the relationship between the parties. I
    agree.

[24]

Second, the form in which the application proceeded raises some
    difficulties. Mr. Bracken, who has been self-represented throughout, applied
    for a declaration that his
Charter
rights had been infringed. There
    was, however, a preliminary question that was never addressed: whether the
    Towns expulsion of Mr. Bracken from the premises and the issuance of the
    trespass notice was lawful in the circumstances. The application ought to have
    been framed, in the first instance, as an application for judicial review under
    the
Judicial Review Procedure Act
, R.S.O. 1990, c. J.1, rather than a
    declaration of Mr. Brackens
Charter
rights. This may have obviated
    the need for a
Charter
analysis, and would have brought to the fore
    the issue of the implied limits on the common law authority of government
    actors to exclude persons from public property.

The analytical framework  s. 2(b) analysis

[25]

Freedom of expression has received broad protection in Canadian law, not
    only through the
Charter
, but also through legislation and the common
    law. As Rand J. noted in
Saumur v. City of Quebec
, [1953] 2 S.C.R.
    299, at p. 329: Strictly speaking, civil rights arise from positive law; but
    freedom of speech, religion and the inviolability of the person are original
    freedoms which are at once the necessary attributes and modes of
    self-expression of human beings and the primary conditions of their community
    life within a legal order. Section 2(b) further entrenches the limits on
    government action in order to safeguard the ability of persons to express
    themselves to others. As expressed 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. Such protection is,
    in the words of both the Canadian and Quebec Charters, "fundamental"
    because in a free, pluralistic and democratic society we prize a diversity of
    ideas and opinions for their inherent value both to the community and to the
    individual. Free expression was for Cardozo J. of the United States
    Supreme Court "the matrix, the indispensable condition of nearly every
    other form of freedom" (
Palko v. Connecticut
, 302 U.S. 319
    (1937), at p. 327); for Rand J. of the Supreme Court of Canada, it was
    "little less vital to man's mind and spirit than breathing is to his
    physical existence" (
Switzman v. Elbling
,


[1957] S.C.R. 285
, at p. 306
). And
    as the European Court stated in the

Handyside

case, Eur. Court H. R., decision of
    29 April 1976, Series A No. 24, at p. 23, 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".

[26]

In its early s. 2(b) jurisprudence, the Supreme Court drew on the
    academic literature developed in the context of the First Amendment of the US
    Constitution to identify a set of human goods thought to be advanced by a
    constitutional protection of freedom of expression:
Ford v. Quebec
    (Attorney General)
, [1988] 2 S.C.R. 712. These goods have been expressed
    variously in different decisions over the years. In
Irwin Toy
, they
    were summarized as: (1) enabling democratic discourse, (2) facilitating truth
    seeking, and (3) contributing to personal fulfillment. In
R.W.D.S.U., Local
    558 v. Pepsi-Cola Canada Beverages (West) Ltd.
, 2002 SCC 8, [2002] 1
    S.C.R. 156, at para. 32, they were rendered as: self-fulfilment, participation
    in social and political decision-making, and the communal exchange of ideas. Freedom
    of expression is thus not only inherently valuable to the self-constituting
    person, but courts have long recognized that it is also instrumental to the
    functioning of a healthy political community, particularly by facilitating the
    open criticism of government:
Ramsden v. Peterborough (City)
, [1993] 2
    S.C.R. 1084.

[27]

Although the right is broad, the Supreme Court has identified several
    limits that are inherent in the right itself.

[28]

Of particular significance to this appeal, acts of physical violence or
    threats of violence do not come within the scope of s. 2(b):
Irwin Toy
,
    at pp. 969-70;
R. v. Keegstra
, [1990] 3 S.C.R. 697;
Montréal
    (City) v. 2592-1366 Québec Inc.
, 2005 SCC 62, [2005] 3 S.C.R. 141.
    Violence, the Supreme Court of Canada held in
Montréal (City)
, at
    para. 60, is not excluded because of the message it conveys (no matter how
    hateful) but because the method by which the message is conveyed in not
    consonant with
Charter
protection. Violence and force are predicated
    on the denial that persons are equal in dignity, negating the reciprocity necessary
    for communication and genuine dialogue: violence prevents dialogue rather than
    fostering it.:
Montréal (City)
, at para. 72.

[29]

The exclusion of acts of violence is one of the few limits on the
    protection of expression that is internal to s. 2(b), rather than operating as
    one reason among many in determining whether a limit placed on expression is
    justified under s.1. The rule against violence is thus an exclusionary rule: it
    excludes by kind and not by weight: Joseph Raz,
The Authority of Law
,
    2nd ed. (Oxford: Oxford University Press, 2009), at p. 22. As such, once it is
    determined that an act is an act of violence, deliberation is at an end: there
    is no further information, no other reasons, that can be relevant to the determination
    of whether a claim of right under s. 2(b) can succeed. Acts of violence do not
    receive the
prima facie
, defeasible protection that puts government to
    the task of establishing under s. 1 that the limits imposed on the claimant are
    reasonable and demonstrably justified in a society such as ours: the society of
    a free people, democratically constituted.

[30]

Although some might find it difficult to understand the rationale for
    excluding violence categorically at the s. 2(b) stage rather than dealing with
    it in the s. 1 analysis, to give acts of violence even defeasible protection
    under s. 2(b) would give them an unacceptable legitimacy: Grégoire Webber,
The
    Negotiable Constitution: on the limitation of rights
(Cambridge: Cambridge
    University Press, 2009), at p. 122. It would be tantamount to declaring that
    Canadian constitutional morality is open to the proposition 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.

[31]

The scope of the violence exception has not received much attention.
    In
Keegstra
, the exception was clearly limited to acts of physical
    violence. Dickson C.J. considered, and rejected, the proposition that threats
    of violence could also be categorically excluded from the protection of s.
    2(b). This was not to say that restrictions on threats of violence would therefore
    be unconstitutional, only that such restrictions would have to be assessed at
    the s. 1 stage of analysis. In
R. v. Khawaja
, 2012 SCC 69, [2012] 3
    S.C.R. 555, at para. 70, however, McLachlin C.J. expressly enlarged the category
    of internal limits to include
threats
of physical violence, on the basis
    that a person who threatens violence takes away free choice and undermines
    freedom of action in the same manner as if the person actually committed the
    threatened act of violence.

[32]

A second exclusionary rule, internal to s. 2(b) reasoning, relates to the
    physical
location
where the expression takes place. Freedom of
    expression does not extend to the same degree in every public location:
Committee
    for the Commonwealth of Canada v. Canada
, [1991] 1 S.C.R. 139. It does
    not, for example, extend to publicly owned spaces that are used as private
    offices. As L'Heureux-Dubé J. noted in
Commonwealth
, at pp. 199-200:

[T]he
Charter
s framers did not intend internal
    government offices, air traffic control towers, prison cells and Judges
    Chambers to be made available for leafletting or demonstrations. It is evident
    that the right to freedom of expression under s. 2(b) of the
Charter
does not provide a right of access to all property whether public or private.

[33]

The question, as posed in
Greater Vancouver Transportation Authority
    v. Canadian Federation of Students - British Columbia Component
, 2009 SCC
    31, [2009] 2 S.C.R. 295, at para. 42, is whether the historical or actual
    function or other aspects of the space are incompatible with expression or
    suggest that expression within it would undermine the values underlying free
    expression. The public square is, paradigmatically, a place traditionally used
    to express public dissent is:
Montréal (City)
, at para. 61.

[34]

Having concluded that the claimant has engaged in expression and the
    protection of s. 2(b) is not negated because of an inherent limit such as method
    or location, the next step in the s. 2(b) analysis set out in
Irwin Toy
is to ask whether the government action in question restricts expression in
    purpose or effect:
Montréal (City)
, at para. 82. If the government
    action in question does not purposefully limit the expression in question, but limits
    it only as a side-effect of pursuing some other purpose, the claimant is put to
    the additional burden of establishing that the expression in issue promotes one
    of the three purposes of freedom of expression articulated in
Irwin Toy
,
    at p. 976: enabling democratic discourse, facilitating truth seeking, and
    contributing to personal fulfilment:
Montréal (City)
, at para. 83.

Application  s. 2(b) analysis

[35]

The application judge, as I stated above, found that Mr. Bracken was
    engaged in violence, and his actions therefore did not come within the
    protection of s. 2(b). This conclusion was an error.

The s. 2(b) claim was wrongly
    dismissed based on erroneous findings that Mr. Bracken engaged in violence and interfered
    with others

[36]

What was the basis of the application judges conclusion that Mr. Bracken
    was engaged in violence and that his expression was therefore excluded from s.
    2(b) protection?

[37]

The application judge relied principally on the evidence of Town
    employees, all of whom expressed fear for their physical safety. When
    considering this evidence, it is important to bear in mind that only one
    employee, Mr. Brady, had any face to face interaction with Mr. Bracken on the
    day in question, and that was after Mr. Bracken was already handcuffed and
    under arrest. All of the employees who witnessed Mr. Brackens protest on that
    day observed him from a safe distance.

[38]

None of their allegations about Mr. Brackens behavior, in my view,
    survived Mr. Brackens amateur cross-examination of them.

[39]

The three Town employees who observed Mr. Brackens protest and provided
    evidence were Mr. Brady, Ms. Schultz, and Ms. Hansen. Ms. Schultz provided a
    four paragraph affidavit. Like all of the affidavits filed on behalf of the
    Town, it is short on details of what actually transpired, and instead provides conclusory
    statements about the affiants subjective response to Mr. Bracken: Mr. Bracken
    is loud, overbearing and very intimidating. I did not approach him on my own
    and would not do so because I am not sure how he will react. I am very afraid
    of him.

[40]

This affidavit does not explain what Mr. Bracken did on that day or any
    other that caused Ms. Schultz to be fearful. On cross-examination, she admitted
    that he had never threatened her and had never acted violently towards her. The
    basis of her fear, she said, I think its just your whole demeanour and your
    voice and just your body language in general thats a little intimidating. When
    questioned, she also mentioned his interaction with her at the service counter
    on a previous day in which he was getting very loud, and her discussions with
    colleagues about his Youtube videos.

[41]

Ms. Hansens affidavit was 10 paragraphs. In it she states that she was
    concerned that Mr. Bracken's erratic behaviour would intimidate those trying
    to get into the meeting that was scheduled to begin an hour later. She was
    concerned to make sure staff on the first floor were safe and secure and
    instituted a lockdown procedure to ensure the safety of the staff. (On the
    evidence in the record, the lockdown consisted of locking an internal door
    between the Council chamber and the administrative offices.) She stated that
    she remains concerned about her safety and the safety of others around Mr.
    Bracken.

[42]

As with Ms. Schultzs affidavit, Ms. Hansens affidavit chronicles no
    acts of violence or threatened violence during Mr. Brackens protest, or of Mr.
    Bracken preventing or attempting to prevent anyone from entering Town Hall.

[43]

Ms. Hansens attitude to public protest, and the fragility of her safety
    concerns, emerged on cross-examination:

171. Q: Youre not aware if protesting is allowed on Town
    property?

A: Im not.

172. Q: Have you ever seen a protest on Town property?

A: No.



179. Q: have I ever been verbally violent or physically violent
    with you, maam?

A: Ive never had a conversation with you before.



251. Q: is it normal for someone who has never had a
    conversation with somebody - has never spoken a word with somebody, whos never
    interacted with somebody, whos never been threatened by anybody who is - to be
    so concerned for their safety that they require police presence at a
    cross-examination? Does that make sense to you, maam?

A: it does when I observe the behaviour that you demonstrated
    on that day.

252. Q: we already said that was just pacing back and forth
    with the megaphone.

A: Yeah.

[44]

Ms. Bradnam, the Executive Assistant to the CAO and member of the
    Workplace Violence Committee, swore a 10 paragraph affidavit. She did not
    observe Mr. Bracken on the day in question. At the direction of Mr. Kuchyt, Ms.
    Bradnam prepared the trespass notice and phoned the police. She was told by Ms.
    Hansen that Mr. Bracken was acting in a very intimidating way. She attested
    that Ms. Hansen was very upset and concerned for the safety of staff and other
    members of the public. Ms. Bradnam also expressed her fear for her safety if
    Mr. Bracken returns to Town Hall. Like Ms. Hansen, she admitted on
    cross-examination, that Mr. Bracken had never been violent with her, threatened
    her, or even met her.

[45]

The third witness to the protest, Mr. Brady, was the only affiant to
    state that he observed Mr. Bracken physically preventing people from attending
    the meeting at Town Hall. If true, this could constitute an act of violence. However,
    the totality of the evidence, including Mr. Bradys evidence on
    cross-examination, renders not credible the evidence in his affidavit. He only
    observed Mr. Bracken for five minutes, compared with Ms. Hansen, who observed
    him for nearly the entirety of his protest, which she stated was approximately
    20 minutes, and who did not observe Mr. Bracken physically obstruct anyone. Mr.
    Bracken himself vehemently denied obstructing anyone. There were no affidavits
    from any member of the public claiming that Mr. Bracken had obstructed them. And
    on cross-examination, Mr. Brady was unable to provide a single detail to back
    up his assertion that Mr. Bracken had obstructed anyone. Indeed, it would have
    been odd for Mr. Bracken to prevent anyone from attending the meeting. He
    wanted people to attend. He wanted an audience. He wanted to publically expose
    Town Council. His protest was of an entirely different nature than those who
    seek to obstruct government or to deny others a platform on which to speak.

[46]

Indeed, the thrust of Mr. Bradys evidence was not that Mr. Bracken was
    preventing people from entry, but that he was creating an unsafe environment for
    Town staff: employees were frightened because of Mr. Bracken bullying them. The
    employees were indeed frightened, but the evidence does not disclose any
    reasonable basis for their fear. The bullying claim is impossible to square
    with the evidence. Mr. Bracken had no interaction with any Town employee in the
    Town Hall that day, including Mr. Brady, prior to his arrest. And the only
    employee with whom he had ever engaged, aside from Mr. Brady and Mr. Kuchyt, was
    Ms. Schultz, in the single incident at the service counter, weeks earlier.

[47]

There was other evidence relied on by the application judge to determine
    that Mr. Bracken was violent on June 16. Some of it was irrelevant, such as Mr.
    Brackens conduct a year later when he had a disagreement with a Town works
    crew at a fire hydrant. Some of it was both irrelevant and hearsay, such as
    unsworn police statements about Mr. Bracken's conduct after arrest. The
    application judges inference is that Mr. Brackens aggressive conduct post
    arrest, while handcuffed and confined in the back of a police car, is some
    evidence that he must have engaged in acts of violence while protesting. It is
    tantamount to concluding, as counsel for the Town urged us to conclude, that
    Mr. Bracken is a violent man and therefore must have engaged in violent acts.
    It is not a sound inference.

[48]

This, then, is the totality of the evidence that Mr. Brackens protest
    was violent and not meriting
Charter
protection. The application judge
    described it as overwhelming. With respect, it is not.

[49]

Violence is not the mere absence of civility. The application judge
    extended the concept of violence to include actions and words associated with a
    traditional form of political protest, on the basis that some Town employees claimed
    they felt unsafe. This goes much too far. A persons subjective feelings of
    disquiet, unease, and even fear, are not in themselves capable of ousting
    expression categorically from the protection of s. 2(b).

[50]

The consequences of characterizing an act as violence or a threat of
    violence are extreme: it conclusively defeats the
Charter
claim
    without consideration of any other factor. Accordingly, courts must be vigilant
    in determining whether the evidence supports the characterization, and in not
    inadvertently expanding the category of what constitutes violence or threats of
    violence.

[51]

The Towns logic, accepted by the application judge, appears to be this:
    (1) Mr. Bracken was agitated, loud, and angry; (2) his protest was therefore
    not peaceful; (3) all non-peaceful protest is violent; and (4) violence is not
    protected by s. 2(b). The error is readily apparent. A protest does not cease
    to be peaceful simply because protestors are loud and angry. Political
    protesters can be subject to restrictions to prevent them from disrupting
    others, but they are not required to limit their upset in order to engage their
    constitutional right to engage in protest.

[52]

A finding that a persons expression is an act of violence or a threat
    of violence is, as explained above, determinative that their expression is not
    protected by the
Charter
. Once it is determined that an act is violent
    or a threat of violence, deliberation is at an end and the claim of a s. 2(b)
Charter
violation is defeated. Courts should therefore not be quick to conclude that a
    persons actions are violent without clear evidence. Here, there is no evidence
    that Mr. Brackens protest was violent or a threat of violence, and the finding
    that it was constitutes a palpable and overriding error.

[53]

With respect to location, the second internal limit to s. 2(b), the
    application judge did not make a direct finding that Mr. Brackens protest was
    at a location where s. 2(b) protection does not exist, or that his use of the
    space was inconsistent with its function. She did, however, find that he
    interfered with the publics use of space at the Town. Again, this finding is
    unsupported. There is no evidence whatsoever that he physically obstructed
    anyone, or otherwise impaired anyones ability to use public space. He paced
    back and forth with a megaphone. These are not idiosyncratic actions,
    notwithstanding the Towns characterization of them as erratic. They have a
    clear meaning within the long tradition of civic protest. The purpose of such
    actions is not to occupy that space to the exclusion of anyone else. One
    person, alone in front of Town Hall with a megaphone and a camcorder, is not,
    of itself, an interference with public space that displaces the protection of
    s. 2(b).

[54]

There can be no question that the area in front of a Town Hall is a
    place where free expression not only has traditionally occurred, but can be
    expected to occur in a free and democratic society. The literal town square is
    paradigmatically the place for expression of public dissent.

Were s. 2(b) rights limited by the trespass notice?

[55]

The next question in the constitutional analysis is whether the expulsion
    of Mr. Bracken and the issuance of the trespass notice by the Town limited Mr.
    Brackens s. 2(b) rights, and whether the limit was by purpose or only by
    effect. The application judge did not address these questions.

[56]

Taking the evidence of Mr. Kuchyt and Mr. Brady, it would be possible to
    conclude that the Towns decision to revoke Mr. Brackens permission to be
    present on the premises, and to issue the trespass notice encompassing all Town
    property where employees work, with a one year duration, was not done with the
    purpose of preventing Mr. Bracken from conveying his message, but was rather done
    to protect the safety of staff and ensure the orderly proceeding of the Council
    meeting. Nothing much turns on this point, as I conclude that even if the
    silencing of Mr. Bracken was only a side-effect of the ultimate purpose to
    ensure the safety of employees and visitors, he is able to establish that the
    effect on him is to impair his participation in each of the three goods
    advanced by the guarantee of freedom of expression articulated in
Irwin Toy
,
    namely enabling democratic discourse, facilitating truth seeking, and
    contributing to personal fulfilment.

[57]

I acknowledge that several of the affiants attested that Mr. Brackens
    speech was incomprehensible, and that the application judge made that finding. But
    again, the finding was unsupportable. Some affiants, up on the balcony or
    elsewhere on the second floor, might not have heard him distinctly. Others, who
    distinctly heard him saying kill the bill might not have had sufficient context
    to understand the message. That did not make his speech incomprehensible,
    with the insinuation  made in various places in the Towns affidavits  that Mr.
    Bracken was raving. To the contrary, Mr. Brady, watching from the atrium and
    well-acquainted with Mr. Brackens grievances, heard Mr. Bracken and clearly understood
    what he was saying. He didnt like it.

[58]

Mr. Brackens speech, that day, was directed towards protesting the expected
    adoption of a by-law that he understood to be promoting the interests of a
    marijuana facility across from his home. He wanted the by-law defeated. He also
    criticized the members of Town Council. No doubt, they did not like being
    called liars and communists. Mr. Brady did not like Mr. Bracken calling for him
    to be fired. On cross-examination, he stated that Mr. Bracken had no right to
    say so. He viewed it as a threat to his livelihood. The language was neither
    polite nor restrained. But as this Court pointed out in
Cusson v. Quan
,
    2007 ONCA 771, 87 O.R. (3d) 241, rev'd 2009 SCC 62, [2009] 3 S.C.R. 712, at
    para 125: (d)emocracy depends upon the free and open debate of public issues
    and the freedom to criticize the rich, the powerful and those  who exercise
    power and authority in our society Debate on matters of public interest will
    often be heated and criticism will often carry a sting and yet open discussion
    is the lifeblood of our democracy.

[59]

Whether the issuance of the trespass notice is viewed as a means to
    silencing Mr. Bracken or simply as a means of protecting others, it had the
    effect of preventing him from conveying his message to his intended audience,
    not only on June 16, but for an entire year thereafter. This was unquestionably
    a limit on his s. 2(b) rights.

Section 1: the analytical framework

[60]

Where, as here, a persons
Charter
right has been limited by the action
    of a government actor, in this case the Town, the actor can seek to justify its
    action under s. 1 of the
Charter
, which provides:

The
Canadian Charter of Rights and Freedoms
guarantees the
    rights and freedoms set out in it subject only to such reasonable limits
    prescribed by law as can be demonstrably justified in a free and democratic
    society.

[61]

In establishing the framework for
Charter
analysis, the Supreme
    Court determined early on that the finding of a
Charter
rights
    violation would be a two-step inquiry. The preliminary finding that a right such
    as freedom of expression has been limited by government action is thus an
    intermediate conclusion, and not itself a finding of a violation of a
Charter
right: (i)t is only if the limitation on a right or freedom is not kept within
    reasonable and justifiable limits that one can speak of an infringement of the
Charter
:
Slaight Communications Inc. v. Davidson
, [1989] 1 S.C.R. 1038, per
    Lamer J. (in dissent but not on this point). It is only after determining that the
    limitation placed by legislation or government action on the exercise of the right
    is invalid that we can say that the right has been violated: Aharon Barak,
Proportionality:
    constitutional rights and their limitations
(Cambridge: Cambridge
    University Press, 2012), at pp. 101-03. The violation of a
Charter
right is thus established at the conclusion of the s. 1 analysis, after taking into
    account the reasons for the limit imposed by government, responding to the needs
    and circumstances of others living in community in a free and democratic
    society:

Régimbald and Newman,
The Law of the Canadian
    Constitution
, 2nd ed. (Markham: LexisNexis Canada, 2017), at p. 546-47;
    see also Webber,
The Negotiable Constitution
.

[62]

The framework for determining whether a
legislative
limit on
    the exercise of a
Charter
right is justified in accordance with the
    principles of a free and democratic society was set out in
R. v. Oakes
,
    [1986] 1 S.C.R. 103. The proportionality test at the heart of the
Oakes
analysis was recently summarized by Karakatsanis J. in
R. v. K.R.J.
,
    2016 SCC 31, [2016] 1 S.C.R. 906, 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 (
Oakes
, at p. 139).

[63]

Where, as here, there is no challenge to
    the constitutionality of legislation, the analytical framework changes,
    although the nature of the justification remains the same. In
Doré v.
    Barreau du Québec
, 2012 SCC 12, [2012] 1
    S.C.R. 395, the Supreme Court explained that the application of the s. 1 test
    set out in
Oakes
needed to be
    adapted for the review of administrative actions: see also
Loyola
    High School v. Quebec (Attorney General)
, 2015 SCC 12, [2015] 1 S.C.R.
    613, at para. 40
. In doing so, the Court did not
    lay down a rigid formula, but stressed that flexibility is needed in order to
    adapt the analysis to the great variety of administrative decisions that come for
    judicial review: while a formulaic application of the
Oakes
test may not be workable in the context of an
    adjudicated decision, distilling its essence works the same justificatory
    muscles: balance and proportionality.: at para. 5. The reasonableness of a
    decision is contingent on its context: at para. 7. The ultimate question,
    whether the context is legislative or a matter of government action, is
    whether, in all the circumstances, a limit that has been placed by government on
    the exercise of a
Charter
right
    is reasonable in a free and democratic society.

Section 1: application

[64]

Although the appropriate analysis for determining whether the rights
    limitation was reasonable and satisfies the requirements of s.1 is guided by
Oakes
and
Doré
, it must be adapted to this specific context.

Prescribed by law

[65]

Section 1 establishes that limits to
Charter
rights must be
    reasonable and must be prescribed by law. In the context of governmental
    action, such as expelling a person from government owned property and issuing a
    trespass notice, this means that the action must be grounded in law. That is,
    the action must have been an exercise of a sufficiently defined legal power,
    guided by legal norms:
Slaight
;
R. v. Nova Scotia Pharmaceutical
    Society
, [1992] 2 S.C.R. 606. A law need not be a statute to satisfy the
    prescribed by law requirement. Law in this context includes regulations and
    the common law, and it is sufficient that the limit simply result by necessary
    implication from either the terms or the operating requirements of the "law".:
Greater Vancouver
, at para. 52.

[66]

Accordingly, in offering a justification for the limit it has imposed on
    Mr. Brackens expression, s. 1 requires the Town to first establish that the
    limit is one that is prescribed by law.

[67]

Although Mr. Bracken does not challenge the Towns authority to expel a
    person from Town property or issue a trespass notice, it is nevertheless
    important to be clear about the source of this authority in assessing the
    constitutionality of the Towns actions.

[68]

Although neither the trespass notice nor its cover letter reference the
    legal authority for expelling Mr. Bracken or issuing the notice, the Towns
    position is that the CAO, who made the decision to issue the trespass notice,
    draws authority from two sources: (1) s. 229 of The
Municipal Act
,
2001
,
    S.O. 2001, c. 25, which grants the CAO authority for exercising general
    control and management of the affairs of the municipality, and (2) the
Occupational
    Health and Safety Act
, s. 25(2)(h), which requires an employer to take
    every precaution reasonable in the circumstances for the protection of a
    worker. The Town also references a Workplace Violence Prevention Policy which
    is posted in public areas of the Town Hall, and lists four customer behaviours
    that we do not tolerate: threatening, verbal abuse, crossing physical
    barriers, and physical contact. In terms of sanction, it states that any
    customer who engages in this conduct may be refused service and/or removed from
    the premises.

[69]

I do not agree with the Towns characterization of the source of its
    authority. Although the
OHSA
imposes a duty on the Town to take
    reasonable precautions to protect workers, it does not confer any powers on the
    Town regarding the activities of someone who is not a co-worker:
Rainy
    River (Town) v Olsen
, 2017 ONCA 605. And although s. 229 of the
Municipal
    Act
grants authority to the CAO to exercise certain powers of the Town, it
    does not resolve the question of what powers the Town has.

[70]

Neither does the authority to exclude others from property come from the
Trespass to Property

Act
, R.S.O. 1990, c. T.21,

which
    does not set out the preconditions for its use. The authority to invoke the Act
    must come from other legal sources, such as the right to exclude others that is
    inherent in the status of an occupier in the common law of property. That is,
    the Act does not create any substantive property rights, but functions as an
    enforcement mechanism for rights that come from other sources: see
Batty v.
    Toronto (City)
, 2011 ONSC 6862, 108 O.R. (3d) 571
,
at paras.
    81-82;
R. v. S.A.
, 2014 ABCA 191, 312 C.C.C. (3d) 383, at para. 277-278.

[71]

In
Commonwealth
, McLachlin J. noted that under the common law,
    the Crown as property owner is entitled to withdraw permission from an invitee
    to be present on its property, subject always to the
Charter
. At
    common law, an occupier of a property has the power to expel others, and has
    the power to invoke the remedies supplied by the
Trespass to Property Act
.
    In my view, the authority to revoke Mr. Brackens licence to be present on the
    premises and issue the trespass notice, and thus the law that is the source
    of the limit on Mr. Brackens rights, is the common law.

[72]

The
Trespass to Property Act
has also long been used by
    government as a mechanism to exercise this common law power to exclude persons
    from public property: see, for example,
Batty
;
Smiley v. Ottawa
    (City)
,

2012 ONCJ 479, 100 M.P.L.R. (4th) 306;
R. v. Semple
,
    2004 ONCJ 55, 119 C.R.R. (2d) 295;
Gammie v. Town of South Bruce Peninsula
,
    2014 ONSC 6209, 322 C.R.R. (2d) 22. Unlike other municipalities, the Town has
    no by-law regulating its use of trespass notices, or even a trespass policy. I
    observe that the risk of arbitrary action is higher in the absence of a
    well-crafted by-law, and there are greater opportunities for uncertainty as to
    what sorts of actions will be permitted.

[73]

I am nonetheless satisfied that in relying on the common law power of an
    occupier, the Town was imposing a limit on
Charter
rights that it can
    seek to justify under s. 1 of the Charter. The expulsion of Mr. Bracken and the
    trespass notice must be assessed by means of the proportionality test.

Proportionality test

[74]

It is not appropriate, in the context of the decision to expel Mr.
    Bracken and issue the trespass notice, to engage in a full blown
Oakes
analysis into all of the inquiries that come under the umbrella of the
    proportionality test. As I explain below, the proportionality analysis can be
    resolved on the basis of the preliminary issue that the Town could not, on the
    facts of this appeal, establish that it was acting for a sufficiently important
    purpose. But even if it were able to succeed on this basis, it would
    nevertheless fail on the grounds of minimal impairment and proportionality between
    the deleterious and salutary effects of the expulsion and trespass notice.

[75]

I observe that where a government issues a trespass notice relying on
    the common law power to expel persons from property, it is exercising a power
    that is subject to implied limits. It cannot be issued capriciously; that is,
    it cannot be issued, in the circumstances of a public protest in the town
    square, without a valid public purpose. What constitutes a valid public purpose
    need not be fully canvassed here, but it would include, for example: the
    prevention of unlawful activity, securing the safety of persons, preventing the
    appropriation of public space for exclusive private use, and preventing the
    obstructing of the operation of government and the provision of government services.
    These implied limits are echoed in the proportionality analysis.

[76]

The Town sought to secure the physical safety of its employees and
    visitors by means of the immediate expulsion of Mr. Bracken, and the issuance
    of the trespass notice banning him from all Town property for a year. Its
    stated justification was that he had engaged in an escalating pattern of abuse
    of Town staff, and that there was a reasoned apprehension that he posed a
    threat to employees, wherever they worked. As noted earlier, the factual basis
    on which Mr. Kuchyt issued the trespass notice was largely erroneous. Mr.
    Bracken was not engaged in any violent activity. He was not blocking anyone. He
    was not preventing anyone from accessing the building. His behaviour was
    neither intimidating, in any relevant sense of the word, nor erratic. The Town
    employees, both junior and senior, were alarmed, but they were alarmed too
    easily. At its highest, the evidence is that several employees said they felt
    unsafe. The basis for that fear appears to be (1) one prior interaction in
    which Mr. Bracken was loud and intimidating, but in which he was never
    violent or threatening; (2) Mr. Brackens videotaping of a Council meeting; (3)
    Mr. Brackens videos posted to Youtube, in which he is said to chase people
    down and question them; (4) his actions on the day of his protest. If anyone
    felt intimidated by him, other than Town employees who had never before
    witnessed a protest and doubted that protests in front of Town Hall were
    lawful, it was not because he was threatening anyone.

[77]

Accordingly, the Towns actions, both in (1) requiring Mr. Bracken to
    leave the premises that day, and (2) issuing a prospective trespass notice,
    were premised on factual errors. These errors constituted a fundamental
    misapprehension of the nature of Mr. Brackens actions and the threat they
    posed to the safety of other persons and the decorum and operation of the
    meeting of Town Council. On these facts, it cannot be said that the Town was
    acting for a purpose that could satisfy its burden of justification under s.1.

[78]

That is sufficient to dispose of the appeal. I will, however, address
    some of the additional branches of the proportionality test.

[79]

Even if it had had a sufficiently important purpose, the Towns actions
    were not minimally impairing. There were many options that the Town could have
    chosen short of expulsion that could have achieved the same purpose: for
    example, actually talking with Mr. Bracken and cautioning him not to use the
    megaphone in the building, asking him to lower the volume if it was disruptive to
    those working inside, and asking him to keep a respectful distance from people
    entering Town Hall. It should be recalled that the first person to address Mr.
    Bracken after he began his protest was a police officer, instructing him that a
    trespass notice had been issued and that he was required to leave the premises.

[80]

With respect to the terms of the trespass notice, recall that the trespass
    notice and covering letter were hurriedly drafted by Ms. Bradnam at the
    direction of Mr. Kuchyt, as Mr. Bracken was outside denouncing Mr. Kuchyt and
    Mr. Brady. The trespass notice took on a punitive nature, banning Mr. Bracken
    from all Town property for a full year, terms which were far in excess of
    whatever immediate threat, real or imagined, the notice was intended to
    ameliorate. In a free and democratic society, it is no small matter to exclude a
    person from public property. To do so for a full year is extraordinary and must
    be amply justified. Here it was not. Even if the facts had been as alleged by
    the Town, it would not have justified the leap to a one year exclusion.

[81]

With respect to the geographic reach of the notice, that too was
    overbroad. Mr. Bracken was banned for one year from attending every Town
    property where Town employees worked. The overbreadth is evident from the fact
    that there was no suggestion that he had ever set foot in two of the three
    properties, let alone caused any problems there.

[82]

Finally, on a comparative analysis of the salutary and deleterious effects
    of the Towns actions, the effects on Mr. Bracken were disproportionate to any
    benefit that was achieved, given the finding that the expulsion of Mr. Bracken
    did not in any way advance the common good. The statutory obligation to promote
    workplace safety, and the safe space policies enacted pursuant to them, cannot
    be used to swallow whole
Charter
rights. In a free and democratic
    society, citizens are not to be handcuffed and removed from public space
    traditionally used for the expression of dissent because of the discomfort their
    protest causes.

[83]

The conclusion must be that the deleterious effects are out of
    proportion to the public good achieved by the infringing measure:
Alberta
    v.

Hutterian Brethren of Wilson Colony
, 2009 SCC 37, [2009] 2
    S.C.R. 567, at para. 78.

[84]

The limits placed on Mr. Brackens s. 2(b) rights by the Town were not
    justified under s. 1 of the
Charter
.

Disposition

[85]

I would allow the appeal, quash the trespass notice, and issue a
    declaration that the issuance of the trespass notice by the Town constituted a
    violation of the appellants rights under s. 2(b) of the
Charter
.

[86]

I would award costs of the appeal to Mr. Bracken, in the amount of
    $4,000 inclusive of disbursements and taxes. Mr. Bracken is also entitled to
    his costs of the application below. I would encourage the parties to consult
    and come to a resolution on quantum. If they are unable to do, the court will
    accept brief written submissions on costs from each party, no more than two
    pages in length, within 15 days of the date of the release of these reasons.

Released: KF AUG 25 2017

B.W. Miller J.A.

I agree. K. Feldman
    J.A.

I agree. P. Lauwers
    J.A.


