THE DEMOCRATIC REPORTER
Pages of Special Interest;
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Opening comments - more at end. Click on [ 1 ] numbers for my end comments.
There are a number of items to link off this letter but don't have the time right now. Such as how the City tried hide this letter and the City's letter in response to this letter, soon.
If you want more about our Charter rights to use public land click here.
Ruby & Edwardh
October 10, 2001
Dear Ms. Mailer:
Re: Obligations of the City of Mississauga and the Peel Regional Police under the Canadian Charter of Rights and Freedoms
I am writing on behalf of the Friends of Cawthra Bush (the "Friends") to complain that your actions in ejecting members of the Friends from Cawthra Estate on October 25, 2000 contravened the Canadian Charter of Rights and Freedoms.
I request that this letter be placed on the agenda for the next City Council meeting for consideration by the Mayor and Council.
I understand that the Cawthra Bush provides habitat to the threatened Jefferson Salamander, and that the Friends have been engaged for a number of years, in efforts to persuade the municipality to properly preserve this important ecosystem.
It is my further understanding that on October 25, 2000 at the Cawthra Estate, which is a public park belonging to the City of Mississauga, the Friends attended at a fundraising event for the United Way in order to solicit signatures for a petition calling for the protection of the Cawthra Bush. Don Barber and two others attended and situated themselves on the driveway leading up to the location of the event. During the course of the event, two Peel police officers and a City security guard apparently approached Mr. Barber and his colleagues and ordered them to leave the property, claiming to be acting under instructions from City staff.
Apparently, no reason for the ejection was given; nor were Mr Barber and his colleagues afforded an opportunity to speak with City staff. Upon being threatened with arrest pursuant to the Trespass to Property Act, I am told that Mr. Barber and his colleagues left the park.
Ruby & Edwardh - 2 -
The City of Mississauga has a constitutional duty to permit the expressive activity engaged in by Mr. Barber and his colleagues on October 25, 2000. Freedom of expression, including petitioning members of the public to support a cause, is guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. Accordingly, the actions of the City of Mississauga in prohibiting the non-violent political expression of Mr. Barber and his colleagues on public property violated the Charter.
The leading case governing freedom of expression on public property is the decision of the Supreme Court of Canada in the Committee for Commonwealth of Canada v. Canada, [ 1991 ] 1 S.C.R. 139. Peter Hogg, the leading constitutional law scholar in Canada, summarizes the case as follows:
... In Committee for the Commonwealth of Canada v. Canada (1991), the
The only constitutionally-permissible limitations on the right of access to state-owned property are those where allowing access would be fundamentally incompatible with the function of the property. For example, the Charter does not guarantee a right of access for political protest on airport runways or in judges' chambers. However, the property at issue here is in no way special or distinct from public property generally, and the City is under a constitutional duty to permit non-violent expression within the park.
Indeed, public parks are mentioned numerous times by the Supreme Court of Canada in the Commonwealth decision as an example of public property on which citizens have the right to engage in non-violent expressive activity. Mr. Justice LaForest notes at p. 142 of the judgment that "streets and parks have ... acquired special significance as places where one can address one's fellow citizens on any number of matters".
The effect of the Commonwealth decision is to protect from state interference activities such as those engaged in by Don Barber and his colleagues. For example, municipal by-laws prohibiting postering on municipal property have been struck down in decisions of the Supreme Court of Canada and the Ontario Court of Appeal: See Ramsden v. Peterborough,  2 S.C.R. 1084, Toronto v. Quickfall (1994) 16 O.R. (3rd) 665 (C.A.). Similarly, in the recent decision of the Ontario Court of Justice in R. v. Behrens,  O.J. No. 245, the court found that non-violent protest on the grounds of Queen's Park is constitutionally protected such that the
1 Peter W. Hogg, Constitutional Law of Canada (Toronto: Carswell, 2001 - looseleaf edition) at pp. 40-30-31.
2Ruby & Edwardh - 3 -
As this brief survey demonstrates, it is well-settled law in Canada that the Charter of Rights and Freedoms protects the freedom of citizens to express themselves in public' parks. Thus, by the constitutional law of the land, municipalities and other government institutions must allow such expression on public lands, and any actions taken to prohibit it violate the Charter. In this way, the rights and responsibilities of municipalities with respect to public municipal property are qualitatively different from the rights and responsibilities of private property holders. There is no authority allowing the City to treat its public parks as private property either for its own, or for private entities' purposes.
Finally, section 40(1)(a) of By-law 277-96 of the City of Mississauga prohibits the circulation or display of circulars, handbills, notices, bills or advertisements, without a permit. Section 48 authorizes police officers and municipal enforcement officers to order persons who have violated By-law 277-96 to leave a park. The seeking of signatures on a petition does not fall within the meaning of any of the terms used in section 40(1)(a). But in any event, these provisions are a limitation on freedom of expression since it demands government approval before a person can exercise freedom of expression. If the By-law limits political expression, it would violate the Charter and would need to be amended to bring it into conformity with the law.
By way of summary, the City of Mississauga and the Peel Police Department violated the Charter on October 25, 2000 by preventing Don Barber and two others from engaging in lawful expressive activity in Cawthra Estate. You are requested to cease and desist from prohibiting any further non-violent expressive activity in Cawthra Estate, whether on the part of Don Barber or others. If you wish to avoid being sued for damages for your past actions, you should write to me indicating that you will protect any Charter right to peaceful freedom of expression in public parks in the future. I hope to hear from you.
Thank you for your attention to this matter.
(signed Clayton Ruby (per Raymond MacCallum))
cc The Cawthra Ratepayers' and Residents' Association (CRRA)
[COMMENTS BY DON B. - ]
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