City council鈥檚 last-minute changes to a bubble zone bylaw last week appear to fly in the face of legal advice it had received about how it could聽defend its legislation from a Charter challenge.
In a confidential report obtained by the Star, city solicitor Wendy Walberg said that the municipality could potentially argue in court that the bubble zone legislation meant to limit protests outside places of worship, schools and child-care centres was reasonable if it was 鈥渘arrowly tailored鈥 to address specific purposes of the bylaw “and not go further than necessary to do so.”
鈥淲hile the bylaw likely infringes the Charter, the city can argue the limits it would place on expressive rights are reasonable limits,鈥 reads Walberg鈥檚 report. But, it added, 鈥減redicting any judicial outcome is fraught.鈥
In a lengthy and often emotional session last week, council instead that from a . Some legal experts say the changes now make the city鈥檚 legislation less likely to withstand a constitutional challenge, which Walberg’s report warned council to expect.
A bubble zone bylaw, or access bylaw, had been in the works for more than a year, spurred by local protests against Israel’s deadly bombardment of Gaza following the Oct. 7, 2023 Hamas attack.
Some members of the Jewish community have called for these bubble zone protections after protests were held against events connected to Israel hosted inside Toronto-area synagogues and churches. Some events were held outside service hours.
Critics 鈥 including 海角社区官网police, city officials such as bylaws staff, some councillors and constitutional lawyers 鈥 have argued that legislation like this is unnecessary, potentially dangerous for bylaw officers and it would limit civil liberties.
Walberg鈥檚 advice was written to inform the聽 that went to council last week. It required property owners to prove in their application there had been a demonstration in the past 90 days outside of a place of worship, school or child-care centre and that the incident prevented access inside the building for its 鈥減rimary purpose.鈥
Staff鈥檚 version of the bylaw included recommendations to keep the bubble zone to 20 metres and for it to have a lifespan of about six months. Walberg鈥檚 report singled out those features as part of a 鈥渃areful balancing鈥 in the bylaw that could help the city make a case for minimizing its violations of the Charter.
鈥淭hese arguments are more likely to succeed on a strong evidentiary record that proves the minimal impairment (of Charter rights),鈥 it said.
Even with the guardrails聽in staff鈥檚 draft, the confidential report warned councillors and the mayor that they 鈥渟hould assume鈥 a court won鈥檛 necessarily take the city鈥檚 side.
However, the majority of councillors last week voted to聽聽that increases聽the bubble zones to 50 metres and doubles the lifespan to a year. (There is no limit on the number of times property owners can request a renewal.)
Council also dropped the requirement for proof that there had been a previous demonstration. Now, any owners of the roughly 3,000 eligible institutions in 海角社区官网can apply for and get a bubble zone during service hours if they 鈥渞easonably believe鈥 a demonstration may occur where people 鈥減erform or attempt to perform an act of discouragement鈥 to prevent others from entering the building.
Speaker Frances Nunziata did not allow councillors to go in camera and consult with the city鈥檚 lawyers on these changes because the request came in mid-debate. The majority of council later voted to keep Walberg鈥檚 report sealed. None of the councillors the Star reached out to were willing to comment on it.
鈥淭hese changes made to the bylaw, to my mind anyway, have aggravated the interference with freedom of expression and freedom of assembly,鈥 said Jamie Cameron, a professor emerita at Osgoode Hall Law School and one of Canada鈥檚 leading scholars in constitutional law and the Charter, in an interview. She did not view the sealed document, but reviewed both versions of the bylaw.
For Cameron, whose teachings also focused on criminal law, another element that makes this bylaw 鈥渜uite vulnerable鈥 to a legal challenge is how the city redefined banned activity as 鈥渁cts of discouragement鈥 that may not even happen.
鈥淚t鈥檚 vague and it鈥檚 grossly overbroad. It doesn鈥檛 even target a level of harm that can justifiably be prohibited,鈥 Cameron said, adding that existing provincial and criminal laws prohibit the types of聽harmful and illegal acts the bylaw is trying to prevent. 鈥淪o the harm that becomes the basis for the bubble zone is speculative in nature.鈥
The confidential legal report describes limiting protests near such buildings as 鈥渁 novel approach,鈥 so municipal bylaws like this have not been 鈥渞eviewed by appellate-level courts. Consequently, the city does not have appellate-level guidance in assessing the judicial treatment of 鈥榓ccess areas.鈥欌
This means city lawyers only had cases such as bubble zones around abortion clinics to look to 鈥 which courts ruled were constitutional only after 鈥渞igorous investigation鈥 and evidence to justify 鈥渢he exceptional infringement鈥 on Charter rights, said James Turk, director of 海角社区官网Metropolitan University鈥檚 Centre for Free Expression, who did not view the sealed report but reviewed both versions of the bylaw.
After years of intense and nearly daily anti-choice protests at clinics and homes of health-care workers, and multiple successful injunctions, British Columbia courts ruled in favour of those bubble zones, according to the ruling.
鈥淚n this situation, the city solicitor had a more difficult situation because there haven鈥檛 been many instances of that outside of places of worship,鈥 Turk said, referring to what he called the “impossible job” of crafting a bylaw that could meet council’s demands and be constitutional.
Given this, Cameron said the amended bylaw鈥檚 approach then becomes a form of 鈥減rior restraint鈥 鈥 or censorship 鈥 which prevents people from expressing themselves in anticipation that they鈥檙e going to violate a law, even if they don鈥檛.
According to Walberg鈥檚 confidential report, even though the bylaw would allow 鈥減eaceful鈥 demonstrations, some people 鈥渕ay unnecessarily self-censor because they wrongly conclude their expression would fall within the prohibited conduct or they are concerned those enforcing the bylaw will misapply the bylaw.鈥
Walberg鈥檚 report doesn鈥檛 predict what would happen if staff鈥檚 鈥渃areful鈥 efforts to minimize Charter violations were modified, but it advised elected officials repeatedly to assume that a legal challenge might be successful even if the bylaw has guardrails in place.
鈥淭he majority of council disregarded that caution,鈥 Turk said. 鈥淚t was a decision driven by intense political pressure that disregards Canadians鈥 fundamental rights and even ignores the message from police that (the bylaw) will be of little use to them.鈥
Walberg’s report said the Charter allows limits on fundamental rights and freedoms when they infringe on other ones, but the limits must be “reasonable and demonstrably justified in a free and democratic society.” To meet that threshold, the report continued, the way the city implements a law “must be proportional” to the reason the law exists.
“If council refers to ‘victims’ as people who are hearing things they don’t like, outside of an authoritarian society, there’s no way to deal with that,” said Turk. “That’s the price of democracy.”
Chow told reporters last week before council that she supported staff鈥檚 version of the bylaw, calling it 鈥渂alanced,鈥 but ultimately voted for the modified version.
鈥淚 supported the access bylaw because I thought it was important,鈥 Chow said Monday at an unrelated press conference, noting the freedom to practise religion is also protected by the Charter.
“It’s important to have a balanced approach to protect the fundamental Charter rights of people.”
The bylaw takes effect July 2.
