Some protests in Toronto are crossing lines. We shouldn't let city staff decide where those lines are
The incident was a reminder that police already have the laws they need to end the disorder when protests cross a line. There is simply no need for the new 'bubble zone' bylaw that the City of Toronto council passed on Thursday in a 16-9 vote.
The bylaw, which has been debated at council for more than a year, is a response to protests in Toronto outside places of worship, religious schools and daycare centres after rallies targeted the Jewish and also Hindu communities in the Greater Toronto Area. The bylaw will ban disfavoured political speech within 50 metres of eligible centres that request to be placed inside a protest-free zone.
That may sound appealing to those fed up with the chaos, but bubble zones are unacceptable limits on the Charter right to freedom of expression.
A better option: just enforce the laws we already have, like mischief and intimidation, when protesters go too far.
The main problem with the bubble zones bylaw is they are content -based restrictions. They silence people on the basis of their message. The bylaw will allow city staff, upon request, to create an 'access zone' outside of a school, child care centre or places of worship (so-called Social Infrastructure), inside of which no person would be allowed to '(1) perform or attempt to perform an act of disapproval concerning a person's attendance (at the school, place of worship or daycare) … (2) persistently request that a person refrain from accessing … (3) obstruct, hinder or interfere or attempt to obstruct, hinder or interfere with another person's access … or '(4) express an objection or disapproval towards any person based on race, ancestry, place of origin, colour, ethnic origin, citizenship, religion/creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance by any means, including graphic, verbal, or written means.'
While the law states that its purpose is to protect 'access,' only subsection (3) addresses access, and it's redundant: obstructing, hindering and interfering is mischief under the Criminal Code. Just ask the Ottawa Freedom Convoy protesters recently convicted for their street blockades.
Subsections (1), (2), and (3) are content-based restrictions because they would give city staff the power to ban speakers based on their message within 50 metres of more than 3,000 locations across the city.
Think about how broad that power is. The bylaw could be used to block someone from protesting sales of land in the West Bank that take place inside a synagogue. It could be used to block protests outside high schools against transgender women competing in women's sports — and counterprotests in favour of trans rights. It could be used, as Coun. Alejandra Bravo pointed out, to ban protests outside Catholic churches by residential school survivors.
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Content-based restrictions are hard to justify because they undermine the very purpose of free speech, which is to allow individuals, rather than the state, to decide what messages they wish to express. People need this freedom to express even the most unpopular ideas because often the received wisdom turns out to be wrong. You can't do that when the state can act as a censor.
The good news is that laws that aim at the physical consequences of speech, rather than content, tend to be constitutionally sound. In addition to laying mischief or intimidation charges for protesters who block sidewalks and streets, police can enforce noise bylaws and the Highway Traffic Act when people disturb the peace with loudspeakers in pickup trucks.
Council should reconsider this bylaw. Rather than infringing rights, we should just use the laws we already have.
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