Vindicated
You Tube Reporter/Videographer Fred Bracken Arrested, handcuffed and thrown into a police cruiser because of bald faced lies from
Authorities Niagara Regional Regime
Fred Bracken has been exonerated!
The Niagara Region tyrants Schlange and Burroughs violated Fred's Charter Rights by improperly and arrogantly issuing against him a one-year trespass notice as per the judgment below.
Read the judgment of THE HONOURABLE MR. JUSTICE R. J. NIGHTINGALE to learn who the perjurers are and who bore false witness against Mr. Bracken.
Worse; the characters involved in this farce casually and blatantly violated their 'OATH of OFFICE'. They are now proven liars and perjurers and still employees of the Niagara Regional Regime.
The only question left to be asked, is why we vote or hire such obviously corrupt individuals?
Is this not proof the we need term limits and a recall mechanism?
CITATION: Bracken v. Regional Municipality of Niagara Corporation, 2015 ONSC 6934
COURT FILE NO.: 10408/15
DATE: 2015 Nov 12
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN Fredrick Bracken - and - Regional Municipality of Niagara Corporation
Applicant
Self-Represented
Laura M. Day, for the Respondent
Respondent
HEARD: August 7, 2015
THE HONOURABLE MR. JUSTICE R. J. NIGHTINGALE
[1]
Frederick Bracken brings this application for a declaration that a no
trespass notice issued by the Chief Administrative Officer ("CAO") of
the Respondent Regional Municipality of Niagara (the "Region") dated
June 24, 2014 under the Trespass to Property Act ("TPA") against him is
unconstitutional. He alleges it violates his rights under Sections 2 and
7 of the Canadian Charter of Rights and Freedoms. He asks to be allowed
to start attending Regional council chambers and council meetings
immediately.
[2]
The trespass notice prohibited the Applicant from entering the
regional headquarters of the Region located at 2201 St. David's Rd.,
Thorold for a period of one year. That effectively prevented him from
attending Regional Council meetings which were held there. It stated
that arrangements for entry by the Applicant for purposes of regional
business may only be made by his contacting the CAO.
Page: 2
Threshold Issue: Mootness
[3]
The Region raised the issue of mootness for the Court's
consideration as the trespass notice expired on June 25, 2015. This
expiration date was after the commencement of this application on March
30, 2015 and cross examinations of the Deponents on their affidavits
filed but before this application was heard on August 7, 2015.
[4]
The Ontario Court of Appeal recently in The Commissioner of the
Ontario Provincial Police et al v. Mosher et al 2015 ONCA 722 confirmed
that the general principle of mootness would apply when a Court's
decision will not, in effect, resolve some controversy that affects or
may affect the rights of the parties. As a general rule, Courts decline
to decide cases in which their decision will have no practical effect on
such rights of the patties. The essential element of a !is inter partes
must exist not only when a proceeding commences but also when the court
is assigned the task of deciding it.
[5]
In my view, even though the Applicant is no longer barred from
the Region's headquarters and Council meetings, it is appropriate for
the Court to exercise its discretion to decide the issues raised in this
application despite some mootness that has arisen for the following
reasons.
[6}
Firstly, in reality there is still an adverse relationship that exists
between the parties. The Applicant commenced a Small Claims Court action
against the Region and other individuals initially in November 2014
claiming damages arising out of the Region's same no trespass notice it
served on him. That action has not been heard and has been adjourned in
part because of the inability of the Small Claims Court in that action
to render a declaration claimed by the Applicant regarding the
constitutional validity of the no trespass notice; Section 97, Courts of
Justice Act.
[7]
The Region also agrees that a determination in this application of that
issue will no doubt narrow the issues to be determined in the Small
Claims Court action.
[8]
Secondly, there is no concern for judicial economy in this
application. The application was heard on its merits in its entirety
in one day leaving only the decision of this Court
Page: 3
now being rendered. The issues also involve some public importance of which a resolution would be in the public interest.
[9]
Thirdly, there is no need for the court in this case to be sensitive to
its role as the adjudicative branch and avoid intrusions into the role
of the legislative branch. The Commissioner of the Ontario Provincial
Police, above; Gammie v. Town of South Bruce Peninsula [2014] ONSC 6209.
It is not the TPA that is being constitutionally challenged; rather, it
is simply the specific no trespass notice issued by the Region's CAO
that is.
Factual Background
[10]
There is a dispute between the parties regarding some of the underlying
facts that formed the basis of the no trespass notice issued by the
Region's CAO on June 24, 2014.
[11]
Essentially, the Region's position is that it was issued primarily but
not solely because of the Applicant's behaviour during his attendance
at Region Council meetings on December 12, 2013 and June 19, 2014.
[12]
At the first meeting, the Applicant was initially requested not to
videotape the Council meeting to which he objected. The Region's council
members then discussed the matter openly and passed a motion permitting
him and all members of the public to videotape Council meetings which
were televised to the public anyway. The Applicant denied his temper and
tension escalated when he was initially told to stop the video
recording. He was not requested to leave that meeting because of any
suggestion of disruptive behaviour. There was no evidence of the
Applicant having any contact, communication or issues with Councillor
Zimmerman at that meeting as confirmed by her evidence.
[13]
In any event, nothing of significance occurred for the rest of that
meeting or any subsequent Region Council meetings the Applicant
attended until the one of June 19, 2014. His evidence was that he did
not interrupt any meeting nor was any point of order raised about his
behaviour. No TPA notice to the Applicant had been contemplated or
drafted before that June 19 meeting.
Page: 4
[14]
This dispute on the facts pertains to the extent and severity of the
Applicant's behaviour towards a particular council member, Ms. Zimmerman
before that June 19 meeting commenced. His affidavit and
cross-examination confirms he simply attempted to ask her a question
from his position in the public gallery regarding why she was suing him
personally because of an article he had written about her. She
responded "would you get out of here" and walked away.
[15]
Councillor Zimmerman alleged in her affidavit that the Applicant made
unfounded allegations regarding her personal life unrelated to council
business, he was uncivil when requesting an interview, he demanded
answers to questions that did not involve regional business and he was
so aggressive and spoke so loudly and quickly that she could not get a
word in. She alleged after she walked away, the Applicant started pacing
back and forth in the Council Chambers and she felt intimidated and
threatened and unsafe. She complained to Mr. Schlange, the Region's CAO,
the following week on June 23 requesting that he ensure her right to
work without harassment in the Council Chambers and essentially to issue
a no trespass order against the Applicant.
[16] However, the Applicant's videotape
taken of that entire incident does not support the Zimmermann version
of the severity of incident and appears to confirm that while standing
behind the rail in the public gallery, he simply asked her why she was
suing him for his reporting news of a personal matter involving her.
There was no threat of violence or threatening or intimidating behaviour
indicated in that videotape. She admitted as indicated on the video
that her only response was "would you get out of here" before she walked
away. She admitted on reviewing the videotape that her affidavit stating he demanded an interview was not correct.
[17]
The Applicant was approached by Mr. Burroughs, the Regional Chairman
requesting he not videotape the Councillor which the Applicant
declined. The Applicant was never asked to leave that meeting by anyone
on Council nor by the police officer who was present. The Applicant
continued to attend the meeting that evening without incident.
[18]
CAO Schlange, after some discussions with Regional Chair Burroughs,
then advised members of Region Council on June 25, 2014 by individual
emails to them that he would be issuing a notice of trespass to the
Applicant giving the following reasons:
a)The Region had an obligation to ensure all individuals in regional facilities feel safe and free from harassment.
b)He
and the Chair had received numerous concerns from the public, staff and
members of Council with regard to the confrontational behaviour of the
Applicant and he recently ananged for police presence during Council
meetings to address his behaviour.
c)The Applicant had been approached on numerous occasions to correct his behaviour but they witnessed no significant improvement.
d)The notice of trespass was being issued to ensure no further harassment was experienced by anyone at regional headquarters.
[19]
However, no reasons whatsoever were given for the issuance of the no
trespass notice either in the notice itself or to the Applicant
otherwise.
[20]
It appears that the issue of the no trespass notice prohibiting the
Applicant from attending future Region Council meetings for one year was
never considered by Council as a whole nor was any resolution
authorizing such a prohibition ever passed by Council. The head of
Region council, being the Chairman Mr. Burroughs, at no time expelled
the Applicant for improper conduct at the meeting on June 19, 2014 or at
any prior or subsequent meeting of Council.
[21]
The Applicant, as indicated above, strenuously denied those
allegations in his affidavit and cross-examination. In addition, the
affidavit and cross-examination evidence of Regional Councillor Andy
Petrowski was that the Applicant did not yell at Councillor Zimmerman
and that he asked her a question in a very calm, cool and collected
manner as disclosed on the video. He confirmed he did not witness nor
was he aware of any conduct or behaviour or unlawful conduct of the
Applicant that evening that "crosses over the line" and would justify
the issuance of a trespass notice. He confirmed that
Page: 6
typically
people approached Councillors to ask them questions coming into the
chamber councillor sitting area which the Applicant did not do.
[22]
The evidence of Gary Burroughs, the Region's Chairman, in cross
examination confirmed he was not aware of the Applicant ever breaking
any of the Region's rules, bylaws and regulations while on Region
property. He stated Regional Council arranged for a police presence at
council meetings after the December 12, 2013 meeting and admitted that
the Applicant caused no issues when the police were present for Council
meetings in April and May 2014.
[23]
He admitted that the Council meeting had not yet commenced on June 19
when the Applicant from the public gallery posed a question to
Councillor Zimmerman who was standing on the other side of the rail
inside Council chambers. He also admitted that the Applicant was not
engaging in any acts of physical violence. He simply stated that the
Applicant had a "threatening appearance" because of his use of a camera
when close to people.
[24]
Burroughs admitted that he as Chairman of Regional Council had the
ability under s. 241(2) of the Municipal Act to expel anyone in the
Council chambers for improper conduct at the Council meeting. He did not
do so at any time regarding the Applicant. He also admitted that he did
not have the authority to ban people from future meetings of Council
under the Municipal Act. When he stated that "it was decided" that the
Region would issue a trespass notice prohibiting the Applicant from
attending at regional headquarters (not all regional property) for a
period of one year, he was not referring to any decision made by
Regional Council-only he and Mr. Schlange made the decision.
[25]
Rather, he admitted he also at no time brought before Council their
decision to issue the no trespass notice to the Applicant so as to let
the Councillors consider and vote as Council on the Applicant's
potential outright banishment from all future Council meetings. He was
aware Council by bylaw could consider banning someone from council
meetings. He suggested in this case it was a staff issue and issued by
staff, the CAO.
[26]
Burroughs frankly admitted that the no trespass notice issued banning
the Applicant from Council meetings was how he and CAO Schlange dealt
with Burroughs' request to the Applicant that evening not to film
Councillor Zimmerman which request was declined by the Applicant.
[27]Further reference will be made to additional evidence and facts herein as required in the analysis.
Analysis
[28]
Rule 14.05(3)(g.1) of the Rules of Civil Procedure specifically allows
the Applicant to bring this application for a declaration that the
trespass notice issued by the Region's CAO violates his rights under the
Canadian Charter a/ Rights and Freedoms.
[29]
Although there are some factual disputes regarding the extent of the
behaviour of the Applicant at the June 19, 2014 Region Council meeting,
the facts that are not in dispute are sufficient to allow this Court to
make a decision on this application based on the affidavits and cross
examinations. The Respondent Region has not suggested that a trial of
the issues is required and an application proceeding will not be
converted into an action unless there is good reason to do so. In my
view, the issues can be determined without the necessity to order a
trial of the issues and the hearing of oral evidence from all of the
witnesses involved.
[30]
The effect of the no trespass notice which prohibited the Applicant
from entering regional headquarters prevented the Applicant from
attending any Regional Council meetings for that following one year
period. The notice allowed him to enter the regional headquarters only
for purposes of regional business by his first contacting Mr. Schlange
the CAO. It did not ban him from entering other Regional property or
buildings.
[31]
There was no appeal or ban modification process provided or available
to the Applicant with respect to the no trespass notice including its
terms.
[32]
However, it was evident that the Applicant only attended regional
headquarters for the purpose of attending Regional Council meetings held
there. He had never attended there
Page: 8
on
any other day until then other than on Council meeting days. He went
regularly to Council meetings and had no business reasons for attending
at regional headquarter1. He is disabled and in receipt of ODSP income.
[33)
It appears that the primary purpose or at least primary effect of the
ban was to prevent his attendance at Regional Council meetings held
there.
[34]
Section 2 of the Charter gives the Applicant fundamental freedoms of
conscience, religion, thought, belief, opinion and expression including
freedom of the press and other media of communication, freedom of
peaceful assembly and freedom of association. The main issue in this
case is the Applicant's right of freedom of expression under Section
2(b).
[35)
Section 7 of the Charter confirms the Applicant has the right to life,
liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.
[36)
The Region issued a no trespass notice as the occupier of its premises
at the regional headquarters under the TPA to the Applicant which was a
government action within the meaning of section 32(1) of the Charter.
The Charter is therefore applicable in this case. Batty v. Toronto
(City) [2001) O.J. No. 5158.
Section 2(b) Argument
[37]The Supreme Court of Canada in Montreal (City) v. 2952 - 1366 Quebec Inc.[2005 ] 3
S.C.R. 141 confirmed that the Court is required when considering claims under s. 2(b) of the Charter to address three questions:
a)Does the Applicant's conduct or statement have expressive content?
[38]
The Region concedes that the Applicant's right to enter the Region's
Council chambers located at regional headquarters satisfies the
requirement of expressive content but that is subject to the method and
location of that expression. Gammie v. Town of South Bruce Peninsula
2014 ONSC 6209.
Page: 9
[39]
The Region also concedes that the Council chambers are public property
which the Applicant is entitled to use in exercise of his right to
freedom of expression unless that right seriously interferes with the
use of the public property by the city or other individuals.
b) If so, does the method or location of this expression remove that protection?
[40]
The method or location of expression may be excluded from protection:
for example, violent expression or threats of violence fall outside the
scope of the Section 2(b) guarantee. Greater Vancouver Transportation
Authority v. Canadian Federation of Students [2009] S.C.J. No.31 @ para
28.
[41]
In this case, there is no evidence of actual physical violence or
threats of physical violence by the Applicant to any members of
Council, Region staff members or members of the public.
[42] Given the contents of the videotape
of the June 19, 2014 pre- Council meeting discussion between the
Applicant and Councillor Zimmerman, I am not satisfied on a balance of
probabilities that the Applicant was violent or made threats of violence
to her that reasonably caused her to fear for her safety. She was
simply asked a question by the Applicant as to why she was suing him for
his reporting on a matter involving her personally. She responded
briefly and walked away.
[43] The videotape
evidence is also contrary to the evidence of CAO Shlange that he
observed on June 19 the Applicant yelling at Ms. Zimmerman1man and was
confrontational and fixated on her. He baldly alleged the Applicant's
"attendance" at Council meetings was disruptive. However, he provided no
specifics whatsoever of that including what, if anything, or when the
Applicant did or said that was disruptive up to and including the June
19, 2014 meeting.
[44]
Regional Chair Burroughs did not allege any violence or threats of
violence from what he saw of that incident and nor did Regional
Councillor Petrowski. There was no evidence from the attending police
officer suggesting the Applicant was violent or threatened violence or
was acting in an intimidating manner to anyone that evening.
Rather, the
Page: 10
evidence
was that no one from Council itself including the attending police
officer requested or required the Applicant to leave the meeting.
There were no issues whatsoever regarding his behaviour while he
thereafter attended the entire Region Council meeting.
[45]
Regarding the Region's concern about its staff, CAO Schlange in his
affidavit only stated that he saw the Applicant "confront" members of
staff at the Council meetings of December 12, 2013 and June 19, 2014.
However, he provided no particulars whatsoever as to what he meant
although he admitted the Applicant never entered the Council chamber
reserved for Region staff and him on either date. In fact, he refused to
provide any details as to which staff members complained of the
Applicant's behaviour prior to June 19, 2014 and what the complaints
were. He stated they "expressed concerns of not being comfortable during
their line of business" but they refused to sign an affidavit and he
refused to give any details himself.
[46]
Mr. Burroughs also stated the "concerns" of several staff and council
members formed part of the reasons for the notice being issued. He
refused to name them and simply stated they had concerns of their
physical safety at the meeting and getting to the parking lot.
[47]
Respondent's Counsel suggested their right not to get involved should
be respected. However, the Court requires there to be relevant
admissible evidence on which it can rely and Rule 39.01(5) permits only
statements of the Deponent's information and belief that are not
contentious if the source of the belief and fact of the belief are
specified in the affidavit. This was clearly not the case here and, in
any event, what was said by Schlange and Burroughs does not establish
any violence or threats of violence towards staff or Councillors by the
Applicant.
[48]
CAO Schlange also admitted the Applicant had not broken any regional
rules, regulations or bylaws on regional property and had not engaged in
physical violence behaviour on regional property. He suggested there
was "threatening behavior" which he defined as making staff and
councillors feel "uncomfortable being where they are" and being
videotaped individually by him and that they felt somewhat threatened by
the way the Applicant asked questions.
Page: 11
[49]
He admitted he never considered having a less restrictive TPA notice
of less than one year but gave no reasons why not. He also admitted
there was no ban modification process available to the Applicant and
stated "we made it clear that we were going for the one year ban". "It
was one year, ban the Council meetings, he's done, everything is done?"
Answer: "That's right".
[50]
Douglas Draper is a local reporter who attended Regional Council
meetings. He alleged he received emails from the Applicant in April and
May 2014 which included derogatory remarks about his ability as a
journalist and about others. Mr. Draper was upset and said the emails
made him "uncomfortable" and "concerned" about the Applicant's behavior.
He stated he stopped attending Regional Council meetings until he
learned the Applicant was banned from them.
[51]
Draper stated that he did not think the Applicant treated people in a
respectful manner. He did not say that the Applicant threatened him
with physical violence or treated him in a threatening manner at the
Region and there is nothing in those emails that suggests any violence
or threats of violence to him, any member of Council or Regional staff.
He stated that the Applicant holding up a small sign during an earlier
Council meeting that said "social justice sucks" was "disturbing
behaviour" to him but admitted there was no suggestion the Applicant
threatened him with it.
[52]
Accordingly, I am also not satisfied on the balance of probabilities
that the Applicant was violent or made threats of violence that
reasonably caused Regional Councillors or staff or members of the public
to fear for their own safety so as to require a complete prohibition on
the Applicant's attending any future Region Council meetings for one
year.
[53]
The evidence does not establish that the Applicant exercised or
attempted to exercise physical force against a Region staff member in
the workplace that could cause physical injury to the staff member. Nor
does the evidence establish that there was any statement or behaviour of
his that was reasonable for a Region staff member to interpret as a
threat to exercise physical force against the staff member in the
workplace that would cause physical injury to him or her.
Page: 12
[54]
Accordingly, the no trespass notice by the Region with respect to the
Applicant's attendance at Region Council meetings at regional
headquarters was likely not necessary pursuant its obligations under
Section 32.0.5 of the Occupational Health & Safety Act ("OHSA"). I
am not satisfied that the evidence establishes that the Applicant's
right to attend Region Council meetings would seriously interfere with
the use of the Region's public property by the Region or other
individuals. Gammie v. Town of South Bruce Peninsula, above.
c) Does the TPA notice infringe the Applicant's protected expression, either in purpose or effect?
[55]
In effect, the no trespass notice prohibited the Applicant from
attending any future Region Council meetings for one year. The notice
only permitted him to attend at regional headquarters for other regional
business if he first contacted the Region CAO. However, as indicated,
he never had any reason to go there for that.
[56]
I do not accept the Region's position that the Applicant still being
entitled to simply watch the Region council proceedings on television
or to contact Region Councillors by telephone or email to ask questions
would be an acceptable restriction on his Sections 2(b) and 7 Charter
rights. In my view, his s. 2(b) right is to actually be able to attend
and participate in open public Council meetings if he is not violent or
threatens violence and abides by the applicable rules. Gammie, above;
Committee Commonwealth of Canada
v. Canada 1991 Canlii 119 (SCC).
[57]
I also do not accept the Region's position that the purpose and effect
of the TPA notice was only to prevent an unprotected form of
expression i.e. the Applicant's alleged threatening, aggressive and
bullying manner towards individuals at Council meetings and disruptive
conduct and demonstrations.
[58]
Similar to the facts in Gammie, the notice preventing the Applicant
from attending all Region Council meetings prohibited unprotected
disruptive, violent activity but also freedom of expression that is
protected.
Page: 13
[59]
Again, the Applicant was never charged with any offence let alone a
criminal offence regarding his conduct at the June 19, 2014 Council
meeting. He was not asked to leave because of his alleged conduct by
anyone including the attending police officer nor was he expelled from
the meeting and there were no behavioral problems for the balance of the
meeting he attended. Again, Mr. Burroughs' evidence was that the no
trespass notice banning the Applicant from Council meetings was how he
and Schlange dealt with the Applicant's refusing his demands not to film
Ms. Zimmerman.
[60]
The effect of the Region's notice prohibited the Applicant from
attending at Regional Council meetings altogether for one year and
accordingly, violated his right to freedom of express10n.
Was the TPA notice protected by section 1of the Charter?
[61]
Under this section, the Charter guarantees the rights and
freedoms of the Applicant only to such reasonable limits prescribed by
law as can be demonstrated in a free and democratic society.
[62]
The Region has the onus to establish that its trespass notice to the
Applicant was justified as a reasonable limit prescribed by law under
this section.
[63] Any limit on the Applicant's Charter rights by the Region must be reasonable in that:
a)
the objective which the limit is designed to serve must be of
sufficient importance to warrant overriding a constitutionally
protected right; and
b) the means chosen to obtain the objective are reasonably and demonstrably justified. R.
v. Oakes [1986] 1 S.C.R. 103; Gammie, above.
[64] The second criterion of the Oakes test has three components:
i)
the measure must be carefully designed to achieve the objective in
question (i.e. the measures must be rationally connected to the
important objective that the limitation is designed to serve);
Page: 14
ii)the measure should impair the right or freedom in question as little as possibleand
iii)there must be a proportionality between the effects of the limiting measure and its objective .
[65]
Similar to Gammie, that the purpose of the no trespass notice may
have been to preserve order at Region Council meetings and that the
no trespass notice was connected rationally to the objective the Region
had of maintaining order at its meetings and ensuring safety of
Councillors and staff.
[66]
However, even if that were so, the trespass notice has not
satisfied the requirements that the notice would impair the right or
freedom of the Applicant as little as possible and only to the
extent necessary to promote its objective effectively. Gammie, above; R.
v. Semple [2004] O.J. No.2137.
[67]
The notice could have restricted the Applicant's ability to ask
questions and make presentations during future Council meetings
regarding Council business only in accordance with the Region's rules
and procedural bylaws. It could have restricted his communication in a
non-disruptive manner with Council members to the confines of Council
chambers before Council meetings or alternatively restricted his
communication with them by email or written correspondence.
[68]
There was no attempt by the Region to restrict the Applicant's
attendance at council meetings as long as he didn't disrupt or
attempt to disrupt the proceedings. The notice could have made it
clear that his right to attend future meetings would be in jeopardy and
potentially taken away because of any improper conduct that would
warrant his expulsion from the meeting by the Chair of Region Council
under the Municipal Act.
[69]
The notice, which prohibited his attendance at Council meetings for one
year, could have been for a much shorter period of time at which point,
the Region could then determine if his alleged disruptive behaviour was
no longer an issue.
[70]
The notice to protect staff could have confirmed that Region staff
except the CAO would not be required to communicate or interact with
the Applicant thereby restricting his
Page: 15
communication
and contact with Region staff altogether and requiring him to deal
directly with the CAO only on any Region matters including at Council
meetings.
[71]
The Region has failed to explain why a significantly less intrusive but
equally effective measure was not chosen and has not established that
its restrictions of a complete ban for one year fell within a range of
reasonably alternatives tailored objectively to the infringement so as
to constitute a minimal impairment of the Applicant's s. 2(b) freedoms.
[72]
For similar reasons, the Region has not established that its total ban
of the Applicant attending any future Region Council meetings for one
year meets the test of proportionality between the effects of this
limiting measure and its objective. He was allowed to videotape
the proceedings since December 2013 and there were no significant
behaviour problems at subsequent meetings albeit with police presence
there. If at a meeting the Applicant exhibited improper conduct that
obstructed the deliberations or proper action of Regional Council, the
head of Council could exercise his power of expulsion under s. 241 of
the Municipal Act. I disagree that there were no other practical means
of balancing the rights of Regional councillors and staff and other
members of the public other than to prohibit the Applicant's attendance
at council meetings and limit his attendance at regional headquarters
for one year.
[73]
Accordingly, the no trespass notice issued by the Region CAO
effectively prohibiting the Applicant from attending all the Region's
Council meetings for one year infringed his right to freedom of
expression and assembly under section 2(b) of the Charter and cannot be
justified under section 1 of the Charter.
Application of Section 7 of the Charter
[74] The Applicant also suggests his Section 7 rights under the Charter have been violated by reason of the no trespass notice.
[75]
Given my findings noted above, it is not necessary to decide that issue
even though the effect of the Region's prohibition prevents the
Applicant from participating fully in or simply attending to watch
in person Regional Council meetings enjoyed by the
Page: 16
community
in a free and democratic society. The issue is not so much the effect
of the notice restricting the Applicant from attending at regional
headhunters but rather his being prohibited from attending regular
regional Council meetings located and conducted there.
[76]
The Supreme Court of Canada has indicated that the individual's
protected activity rights under s. 7 of the Charter are restricted to
those which are of fundamental personal importance, which are rooted in
fundamental concepts of human dignity, personal autonomy, privacy and
choice about matters which go to the individual's fundamental being.
B.R. v. Children's Aid Society (1995) 1 SCR 315; R v. S.A. 2014 ABCA
8191.
[77]
The decision of R. v. Grant 2009 SCC 32 confirmed that courts must be
careful not to trivialize the right to liberty under Section 7 or
overshoot its purpose. As noted herein, it is Section 2 of the Charter
on which citizens often rely, as in this case, when they have been
prevented from assembling in public places.
[78] It is not necessary to decide whether Section 7 of the Charter is engaged in this matter and I decline to do so.
Authority of Region CAO to Issue the Trespass Notice
[79]
This application was brought and advanced by the Applicant on the sole
grounds that the Region's no trespass notice of June 24, 2014 was
unconstitutional in violation of the Applicant's rights under Sections 2
and 7 of the Charter.
[80]
The application and responding records and facts of the parties did
not raise or refer to the issue of, nor was it argued, whether the
Region CAO even had the authority on his own under the Municipal Act to
administratively issue a valid no trespass notice to the Applicant
prohibiting his attendance at future Regional Council meetings.
[81]Some of the issues might include the following:
[82]
The Municipal Act s. 239 provides that all meetings of Region Council
shall be open to all members of the public which would include the
Applicant with some exceptions.
Page: 17
[83]
Section 241 of the Municipal Act is the authority granted to the head
of Council i.e. the Regional Chair, to expel members of the public from
the council meeting for improper conduct but that does not give him
authority to prohibit members of the public from attending future
meetings.
[84]
No resolution or bylaw was considered or passed by Regional Council to
ban the Applicant from attending future Council meetings or to
authorize the CAO to issue the no trespass notice to that effect.
[85]
No injunctive proceedings were authorized or commenced by the Region
restraining the Applicant from entering the Council chamber to attend
meetings because of his alleged past disorderly conduct that disrupted
Council meetings so that business could not be conducted. Rogers, The
Law of Municipal Corporations 2d ed., p.238; Port Coquitlam v. Osberg
1993 2 D.M.P.L. 139 BCSC.
[86]
There was no evidence from the Region regarding the existence of any
procedural bylaw that allowed the Region's CAO without Regional
Council's prior resolution or authority to issue the no trespass notice
in question to the Applicant banning his attendance at future Council
meetings.
[87]
I point out these issues only for the purpose of confirming that this
Court is not deciding the issue of whether the no trespass notice
issued by the Region CAO was illegal or invalid for any of these or
other reasons as compared to it being unconstitutional because of
violations of the Applicant's Charter rights which was the only issue
raised and argued before this Court. It would accordingly not be
appropriate for the Court to consider or decide that issue in these
circumstances.
[88]
However, nothing in this decision should be interpreted as any
indication of this Court confirming the validity or invalidity of that
no trespass notice on that basis.
Page: 18
Conclusion
[89]
The application is allowed. The trespass notice issued by the Regional
Municipality of Niagara Corporation to the Applicant dated June 24, 2014
is invalid and is of no force and effect.
[90]
If the parties are unable to agree on the costs of this application,
the Applicant can make submissions of no more than three pages in length
together with a bill of costs within 15 days from the date of this
decision. The Respondent shall similarly have a right of response within
10 days thereafter. Otherwise there will be no order as to costs.
The Honourable. J slice R. J. Nightingale
Released: November 12, 2015
CITATION: Bracken v. Regional Municipality of Niagara Corporation, 2015 ONSC 6934
COURT FILE NO.: 10408/15
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Fredrick Bracken
Applicant
- and -
Regional Municipality of Niagara Corporation
Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice R. J. Nightingale
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