How Canadian cities are censoring free speech - and a new court challenge

Christine speaks with lawyers Kristopher Kinsinger from Smith Valeriote LLP & Josh Dehass from the Canadian Constitution Foundation (CCF), to discuss a Waterloo anti-bullying & anti-harassment bylaw being challenged in court. The Canadian Constitution Foundation (the “CCF”) has filed a Notice of Application with the Ontario Superior Court in Kitchener seeking to quash an amendment to the Region of Waterloo’s Code of Use By-law, which infringes the constitutional freedoms of expression and peaceful assembly, and is beyond the powers of the Region to enact. On September 27, 2023, Region of Waterloo Council voted in favour of amending its Code of Use By-Law #13-050 to prohibit communications that “reasonably constitute harassment,” including placards and speeches on regional property such as parks, trails and regional headquarters. Harassment is defined in the by-law as “experiencing objectionable or unwelcome conduct, comment, bullying, or actions that could reasonably cause offence or humiliation, including conduct, comment, bullying, or actions because of race, religious beliefs, colour, disability, age, ancestry, place of origin, martial status, source of income, family status, gender, gender identity, gender expression, sexual orientation, socio-economic status or housing status.” Anyone who violates the by-law could face a fine of up to $5,000. The amended by-law is an unlawful attempt to criminalize speech, which falls under exclusive federal jurisdiction. Even if the amendments had been within the Region’s jurisdiction, they could not withstand constitutional scrutiny because the Supreme Court of Canada has made clear that merely hurtful or offensive ideas are not sufficient to justify limits on freedom of expression, as guaranteed by section 2(b) of the Charter of Rights and Freedoms. The amended bylaw also infringes on the freedom of peaceful assembly as protected by section 2(c) of the Charter. Regional Council rushed to pass the amendment at the urging of activists who claimed that doing so would combat Islamophobia and create a safer and more welcoming community. In doing so, Regional Council ignored the concerns raised by local residents such as Julia Malott and Miriam Awazi, who testified that they feared the amended by-law would prevent them from engaging in protected expression and assemblies. Awazi told Regional Council that the amendment “allows people to weaponize their feelings against the right of others to speak.” Malott noted that the amendment puts by-law officers in the awkward position of having “to sort out complex questions of the blurred line between dissenting opinion and matters of objectionable and unwelcome comment.” In a vote of 9-5, Council voted down a proposal by Kitchener Mayor Berry Vrbanovic that would have assessed the constitutionality of the proposed amendment to the by-law by a lawyer with expertise in the Charter. In October 2023, the CCF sent a letter to Regional Council warning of the amended by-law’s unconstitutionality and urging that it be repealed. To date, the Region has not responded to this letter. The CCF is represented in this application by Kristopher Kinsinger of SmithValeriote LLP and CCF Counsel Josh Dehaas. Kinsinger said that while the Region’s goal of discouraging hatred in its community may be a noble one, its tactics must comply with the Constitution and the powers which have been validly delegated to it by the provincial legislature. “The Supreme Court of Canada has been clear that the legislative authority to criminalize public harms and evils lies exclusively with Parliament. Simply put, the Region of Waterloo cannot usurp exclusive federal jurisdiction by enacting its own expanded version of the prohibitions on hate speech that are already contained in the Criminal Code.” Dehaas said that the amended bylaw is an unacceptable restriction on expression and peaceful assembly because it empowers bylaw officers to police speech. He worries that it could be used to target people with unpopular but constitutionally-protected points of view. “Freedom of expression exists to protect even the most controversial viewpoints because history has shown repeatedly that the received wisdom is often incorrect and we can only get to the truth and govern ourselves democratically if people are allowed to speak their minds,” he added. “The Region of Waterloo has no business punishing people for exercising their constitutionally guaranteed freedoms. Such profound restrictions on our fundamental freedoms cannot be justified in a free and democratic society.”