In the recent decision of the Alberta Court of Queens Bench, R. v. Pawlowski, 2011 ABQB 93, an Alberta Justice sitting on appeal of acquittals on a bylaw prosecution for operating an amplification system in a public park, dismissed an appeal of a conviction under two Calgary bylaws. The appeal Judge found that the bylaw provisions were not invalid under the Canadian Charter of Rights and Freedoms as an infringement of the freedom of expression protected under section 2:
- freedom of conscience and religion; and
- freedom of thought, belief, opinion and expression.
The facts of the case involved a religious activist who made use of parks and streets as a “Street Church” for the purpose of speaking to the public, often through an electronic amplification system.
The Parks and Pathways Bylaw of the City of Calgary provided as follows:
“21. No person, while in a Park, shall:
(e) operate an amplification system;”
Over the years, there were many complaints about the Street Church’s activities regarding the level of sound that resulted from amplification. The park where Mr. Pawlowski preached was known as Triangle Park. The Trial Judge found that the principle function of Triangle Park had become that of “a gathering place for the homeless, for those buying and selling drugs, and for people engaged in criminal activities.”
The Trial Judge concluded that the effect of the prohibition against amplification in the Parks and Pathways Bylaw was to infringe on the right to freedom of religion in a manner that was disproportionate to the objective of reducing sound pollution and therefore violated the Charter and could not be saved as a reasonable limit under section 1 of the Charter.
The accused was also charged with violations of section 17(1)(a) of the Street Bylaw which provided as follows:
“17(1)Except to the extent specified in and subject to the conditions of a permit signed by or on behalf of the Traffic Engineer, no person shall
(a)place, dispose, direct or allow to be placed, directed or disposed, any Material belonging to that person or over which that person exercises control, on any portion of a Street; “
The Trial Judge declared section 17(1)(a) of the Street Bylaw to be of no force or effect under section 52 of the Constitution Act, 1982. He concluded that the effect of the bylaw restriction on the placement of material in the street had the effect of restricting the defendant’s freedom of expression. The court found a significant nexus between the defendant’s activities and participation in social and political decision making, one of the values that was identified by the Supreme Court of Canada in a 1989 decision as underlying the right of freedom of expression.
Section 1 of the Charter of Rights and Freedoms permits a provision in a law to be upheld as valid even where it violates one of the fundamental freedoms protected under the Charter. However, in order to save a legislative provision from being struck down where it violates the Charter, the court must be satisfied that the infringement involves the minimal impairment of the right necessary to protect the pressing and substantial value that the legislative provision seeks to protect.
The judge at trial found a sweeping ban on the placement of material in streets was not rationally connected with the aims of the bylaw. He reasoned it could apply to material of all types leading to the potential for abuse of the law. That potential outweighed the possible benefits of keeping the streets clear of objects and obstructions that might interfere with the use of the street or the esthetics of the street.
The court also found that the provision in the Street Bylaw infringed the defendant’s freedom of religion. The ban, in its terms, was so broad that it prevented any sidewalk preacher from even having a conversation with a colleague or pausing to chat with a group of people on a park bench. Therefore, while the bylaw itself was not aimed at controlling expression, it had the effect of restricting freedom of expression. This ruling was upheld on appeal, with the court having the benefit of the B.C. Court of Appeal decision in Vancouver (City) v. Zhang.
On appeal, the lower court ruling in relation to the Parks and Pathway Bylaw was overturned. The court found that “with respect to the Noise Bylaw, the citizens of Calgary are entitled to a healthy environment, including noise control in City parks. I conclude, as did the Supreme Court of Canada, that the beneficial effects of the bylaw outweigh its prejudicial effects.” Although the court accepted the characterization of Triangle Park – that it had become a gathering place for the homeless, for those buying and selling drugs and for people engaged in criminal activities – it concluded that this did not mean that the residents were necessarily to be subjected to abuse of the enjoyment of their environment.
The appellate court found that controlling noise and having peaceful use of City parks was certainly “rationally connected to the objective of accessibility for enjoyment by the public.”
On another issue, the defendant alleged that the City had engaged in an abuse of process through its escalating enforcement of its bylaws. The Trial Judge found that the City had come very close to crossing the line between proper conduct and abuse of its powers. The appellate court did not consider that the City had abused its powers. The City, faced with balancing the concerns of the public with the wishes of the defendant, had tried many times, prior to laying charges, to come up with solutions acceptable to both sides. When it could not find a solution, the City exercised its discretion to revoke the permit.
The Pawlowski decision highlights the scrutiny that will be applied to bylaw provisions restricting the use of public spaces in light of the development of the application of the Charter to municipal bylaws that are found to restrict the exercise of freedoms in public places, as seen in Adams v. Victoria (City) and Vancouver (City) v. Zhang.