IN DEPTH: City Bylaws Increasingly Used to Prohibit ‘Offending’ People in Canada

People hold signs during the 1 Million March for Children demonstration supporting parental rights, in Ottawa on Sept. 20, 2023. (The Canadian Press/Sean Kilpatrick)

Measures with the stated purpose of preventing discrimination are increasing in cities across Canada, but some say they put undue restrictions on free expression.

Waterloo, Ontario, added a section to one of its bylaws this month to ban speech on public property that makes others “feel harassed.” Calgary has a similar bylaw against causing “offence or humiliation” anywhere in public.

In recent years, London, Ontario, has also passed such a bylaw, as has Edmonton.

“It’s important to note that there is no right to not be annoyed, to not be offended,” Canadian Constitution Foundation (CCF) lawyer Joanna Baron told The Epoch Times.

She argues that harmful behaviours are already regulated by the Criminal Code, and such bylaws go beyond what the Supreme Court has deemed an appropriate limit on free speech. They also arguably go beyond a city’s authority, she said.

The CCF is mounting a legal challenge against another Calgary bylaw, the Safe and Inclusive Access Bylaw, which limits “discriminatory” protests near some public facilities, specifically recreation facilities and libraries. And CCF is considering a challenge against the new Waterloo “harassment” restrictions.

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While the bylaws in both Calgary and Waterloo are largely aimed at limiting speech on LGBT and race issues, they can have far-reaching implications beyond that, Ms. Baron said.

“[Calgary’s Safe and Inclusive Access Bylaw] bans protests connected to national identity and origin, gender, a number of other topics,“ she said. ”So, for example, given that it touches on both gender and national identity, things like the Iranian ‘Woman, Life, Freedom’ protests would be caught very clearly under this bylaw.”

The bylaw was motivated by protests against drag queen story hours as being inappropriate for children, but Ms. Baron says it would also effectively ban demonstrations in favour of drag story hours.

“The LGBTQ movement gained its freedoms through protests—protests that were very controversial at the time. So I think it’s incredibly short-sighted for anybody who advocates for LGBTQ rights [to support such bylaws],” she said.

She recalled the somewhat comic outcome of protests and counter-protests earlier this year over transgender people accessing women’s change rooms in Calgary. In the end, people on both sides ended up with street harassment fines.

It goes to show “maybe the government shouldn’t be involved,“ Ms. Baron said. ”Let people be obnoxious and annoy each other and offend each other and work it out. That’s what you do in a free society.”

Harassment Measures

Ontario’s NDP proposed similar legislation earlier this year. Bill 94, the Keeping 2SLGBTQI+ Communities Safe Act, aimed to create a maximum fine of $25,000 for anyone “performing an act of intimidation” in a space designated as a “safety zone” for LGBT people. An example of such a safety zone would be the area surrounding drag events, up to a 100-metre radius.

The proposed legislation says “making offensive remarks ... with respect to matters of social orientation or gender roles” qualifies as “an act of intimidation” that could be heavily penalized.

Waterloo’s new restrictions, effective Jan. 1, 2024, apply to “actions that could reasonably cause offence or humiliation.” Some delegates at the Sept. 27 meeting during which city council passed the motion expressed concern over the subjective nature of “offence.”

While this wording remains in the legislation, council did make a concession by removing a definition of being “harassed” as “feeling tormented, troubled, worried, plagued, or badgered.” It also added that “nothing in this subsection shall prevent or limit a lawful protest.”

The 1 Million March for Children came up in the discussion around the bylaw. On Sept. 20, while protesters across the country marched to express their concerns over gender ideology in schools and called for parental rights, some called the protests “hateful.”

Delegate Janice Jim said such protests harass LGBT people and should be banned by this bylaw. Another delegate, however, expressed concern that the bylaw would limit lawful protests like the 1 Million March.

“Placing restrictive covenants on the speech of others, even when done with the best of intentions, causes resentment and animosity towards marginalized identities to grow,” said Julia Malott, who self-identified as a transgender parent.

In 2018, London’s city council approved a bylaw prohibiting “abusive or insulting” language in public spaces. It carries a minimum fine of $500 and a maximum fine of $25,000.

The bylaw was prompted by many complaints the city had received about two street preachers, but the wide-ranging implications sparked a debate over free speech.

Councillor Jared Zaifman said at the time that the interpretation of “abusive and insulting” language may be too subjective, CBC reported.

Edmonton amended its public places bylaw in 2021 to include harassment based on race, religion, gender identity, and sexual orientation with a fine of $250 for a first-time offence and double that for subsequent offences.

The bylaw includes the controversial definition of being “harassed”—“feeling tormented, troubled, worried, plagued or badgered”—that Waterloo removed from its bylaw amendment.

Going Beyond the Criminal Code

These bylaws seek to penalize speech that doesn’t meet the high threshold of “hate speech” as defined by the Criminal Code, a point that has been part of the discussions around the bylaws, Ms. Baron noted.

Proponents of such bylaws have argued that there should be penalties for speech that’s offensive but that doesn’t meet that threshold. Opponents say the high threshold was set by the Supreme Court because limiting free speech is not justified for anything below that threshold.

Ms. Baron cited a 2021 Supreme Court case that received much attention for upholding the right to free speech, even when it is offensive. A Quebec Human Rights Tribunal had handed out a hefty fine to comedian Mike Ward over jokes he made about a well-known disabled teen singer, but the Supreme Court ruled that Mr. Ward’s jokes didn’t amount to discrimination under Quebec’s rights charter.

“In a free society, we do have restrictions on speech where it rises to the level of hate speech, counselling genocide, inciting violence. There are criminal prohibitions on that,” Ms. Baron said.

“In a free society, when you’re just talking about feeling offended ... [or] feeling harassed, if there’s no accompanying threat of any physical harm, there are other ways to respond to it.”

That’s where counter-protests and the like come in, she said. The overarching issue isn’t about restricting the rights of LGBT people or anyone else, Ms. Baron said. “This is about protecting fundamental freedoms.”

Marnie Cathcart contributed to this report.