Staff are proposing the City of Ottawa take a “cautious approach” on implementing a possible “bubble bylaw” to restrict demonstrations near certain community spaces, including schools and hospitals, and warn a bylaw may spark legal challenges.
In October Council approved a motion from Coun. Allan Hubley to direct staff to explore the feasibility of a “vulnerable social infrastructure” bylaw to address possible harassment and hate speech during demonstrations. The motion noted the City of Vaughan implemented a bylaw last year.
In a memo to Council Thursday afternoon, staff recommend Ottawa conduct a comprehensive bylaw review before proceeding with a “bubble zone bylaw.”
“Based on a preliminary review, staff acknowledge that hate and harassment are growing issues,” says the memo from Ryan Perrault, general manager of Emergency and Protective Services.
“While these matters are partially regulated through the Criminal Code and the Ontario Human Rights Code, municipalities may have a role in regulating and enforcing against non-criminal harassment and nuisance behaviour in public spaces that obstruct access to certain facilities. However, a cautious approach is recommended to avoid unjustified infringements on Charter-protected rights and freedoms, as well as potential conflicts with existing laws and authorities.”
Perrault says while an assessment indicates the development and implementation of a new bylaw is feasible, “this approach should be informed by research, engagement and consultation.”
Perrault says that if Ottawa proceeds with developing a safe access bylaw, “it will be essential to demonstrate, with evidence, the public need for such restrictions.”
“While there are existing laws and regulations available to the Ottawa Police Service to address harassment or other anti-social behaviours, these measures typically apply after the fact,” Perrault said. “The intended impact of safe access regulations is to prevent behaviours that obstruct individuals’ safe access to sites such as religious institutions or daycare centres. The review of a bubble zone approach may also help address public nuisance behaviours that don’t rise to the level of criminal offences but impede access to certain facilities.”
Vaughan’s bubble bylaw restricts demonstrations within 100 metres or a “reasonable distance” from a religious institution, school childcare centre, hospital or congregate care facility.” Protesters who violate the bylaw face fines of up to $100,000.
Brampton has passed a new Protecting Places of Worship from Nuisance Demonstrations Bylaw in response to recent protests, and Toronto has directed staff to develop a vulnerable social infrastructure bylaw.
Perrault said a legal review would be “especially important” for key elements of any potential bylaw, including determining the types of negative activities that would trigger the application of the bylaw, the size and geographic limits of the “bubble zone” and types of social infrastructure required around a protective zone.
“Should the city proceed with developing a safe access bylaw, it will be essential to demonstrate, with evidence, the public need for such restrictions,” Perrault writes. “This will require data collection, analysis, and public consultation and engagement. Understanding the equity and human rights implications, both for and against regulation, will be critical. Given the Vaughan and Calgary bylaws remain untested, any similar regulatory initiative by the City of Ottawa would carry significant risk of constitutional challenges. Therefore, judicial guidance from case law in this area will be important to consider.”
The memo estimates a bylaw review would take approximately nine months and would include engagement and consultation. Perrault also notes neither the Vaughan nor Calgary bylaws for protests near social infrastructure has been tested in court.
“The constitutionality of each approach remains unsettled. While safe access laws for abortion services have established a foundation for potential regulations, the Court has set a very high bar for justifying such limits and determining their scope,” Perrault says. “Although the need to protect the human rights, safety, and well-being of residents, as well as to preserve their access to social infrastructure, is pressing and substantial, staff recommend that a comprehensive review and consultation process be undertaken to ensure proportionality before enacting a bylaw that would restrict protest activity.”
Both the Jewish Federation of Ottawa and the National Council of Canadian Muslims have supported implementing a bubble bylaw near religious institutions.
