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Freedom of Expression in the 'Trump Era'

Is a "Trump is right. F**k China. F**k Mexico" Sign Protected Speech?

David Elmaleh
David Elmaleh
Partner

Gabriela Caracas
Gabriela Caracas,
Associate

March 2018

by David Elmaleh and Gabriela Caracas

Case comment: Bracken v Niagara Parks Police

Passionate political supporters often choose to convey their message in a manner that grasps observer's immediate attention, regardless of how it may be interpreted. This is the precise fashion in which Fredrick Bracken decided to transmit his electoral support for the current United States President, Donald Trump, while at Niagara Parks. In choosing Niagara Parks as his political forum, Mr. Bracken prompted, for the first time, the Court of Appeal's interpretation and constitutional analysis of section 2(9)(a) of Niagara Parks Act, Regulation 8291 (the “Regulation”) which provides:

(9) ...no person shall, within the Parks

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

Facts

On August 2, 2016, Mr. Bracken stood in Niagara Parks and displayed a sign that read: “Trump is right. Fuck China. Fuck Mexico.” Someone was displeased, and the Niagara Parks Police were notified. The police requested that Mr. Bracken leave, due to the offensive nature of his sign. Mr. Bracken aggressively protested, swearing at the police officers, and noting that it was his constitutional right to express his opinions. He was charged with (1) disturbing other persons, and (2) using abusive or insulting language, both acts in contravention of section 2(9)(1) of the Regulation.

Two days later, Mr. Bracken attended the Police's headquarters to discuss the summons. He was told not to display his sign at that location and was notified verbally that if he did not capitulate, he would be removed pursuant to the Trespass to Property Act.2

Mr. Bracken brought an application before the Superior Court seeking declarations that the Regulation, as well as the oral trespass notice, violated his right to freedom of expression. Mr. Bracken's application was dismissed. He appealed.

The Appeal

The Court of Appeal disagreed with the application judge and unanimously decided that the Regulation does limit Mr. Bracken's rights under s. 2(b) of the Charter, but nevertheless held those limits were saved under s.1. The “oral” trespass notice though was quashed.

The Court of Appeal focused on the location of the expression at-issue – finding that there was nothing about the location that would nullify one's right to protected speech. The Court distinguished the public location from other locations where the constitutional protection of freedom of expression does not extend (private offices, for example).

...tone of voice, volume, facial expressions, and body language all convey meaning that cannot necessarily be conveyed effectively in words.

The decision also reiterated that tone of voice, volume, facial expressions, and body language all convey meaning that cannot necessarily be conveyed effectively in words. The exercise of free expression is diminished by restrictions on the means that make it effective. The Court took a familiar example from US First Amendment case law, noting that the meaning conveyed by shouting “fuck the draft” does not translate, without significant loss of meaning, to the quiet declaration, “I am implacably opposed to the draft”.

The Regulation, therefore, infringed s.2(b).

The Court went on to find however that the Regulation's infringement on one's freedom of expression was justified because the limits were reasonably necessary to maintain the conditions conducive to a healthy society, including those limits needed to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

The specific means adopted by s. 2(9)(a) – a prohibition on abusive and insulting language or other conduct that unnecessarily interferes with the use of the public park by other persons – clearly advances its objective of maintaining the public character of the park.

The Court of Appeal concluded that the narrow limit on expression placed on all users was proportionate to the benefit to be achieved by maintaining the character as a place of public resort.

The Regulation was, therefore, fully justified and did not violate the Charter.

With respect to the oral trespass notice, a declaration quashing the notice was granted as it found to be an unconstitutional curtailment of freedom of expression in an open public venue. This was not an intricate determination given that the police had already recognized that the trespass notice was invalid and withdrew the notice prior to the hearing of the appeal.

Conclusion

This decision serves a reminder that our protected rights are not boundless. Government actors are entitled to enact regulations that narrowly limit one's freedom of expression in certain circumstances.

Read the full Court of Appeal decision.


1 R.R.O. 1990, Regulation 829.
2 R.S.O. 1990. C.T.21.


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