City’s proposed ‘nuisance’ protest ban doesn’t pass Charter test

If the City of Winnipeg wants to protect public safety when it comes to protests, it should enforce laws that are already on the books.

What it should not do is pass a sweeping, constitutionally dubious bylaw that tramples on fundamental freedoms in the name of sparing people from being offended.

Yet that’s precisely what council is poised to do when it votes Feb. 26 on a proposed ban on so-called “nuisance” protests within 100 metres of a long list of “vulnerable social” locations — schools, hospitals, places of worship, post-secondary institutions, libraries, community centres, cemeteries and more.

On paper, the objective sounds noble: protect access, reduce intimidation, promote safety. In practice, the bylaw is far too broad, far too vague and far too discretionary to meet the Charter standard of a “reasonable limit.”

The Charter of Rights and Freedoms guarantees freedom of expression and peaceful assembly. It also allows governments to impose “reasonable limits” on those rights, but only those that are demonstrably justified in a free and democratic society. That means the law must be narrowly tailored, minimally impairing and proportionate to a pressing objective.

Winnipeg’s proposal fails that test.

The proposed bylaw defines “nuisance demonstrations” as protests involving the expression of “objection or disapproval” toward an idea, action, person or group based on characteristics such as race, religion, gender identity or sexual orientation. That’s incredibly broad and vague.

It defines intimidation in sweeping terms that include conduct “reasonably expected” to incite intolerance or cause fear. That’s also extremely vague.

Think about the real-world implications.

Students rallying at the University of Winnipeg over Indigenous rights? Potentially banned.

A demonstration on campus in support of transgender youth? Also potentially banned.

A peaceful rally criticizing a religious institution’s position on LGBTTQ+ issues held on a public sidewalk near that institution? Off-limits.

That is not a narrow, carefully calibrated response to specific threats. It is a blanket restriction on basic Charter rights.

No one disputes the seriousness of hate or harassment. But police already have the authority to intervene when protests cross the line into criminal conduct.

Harassment, threats, hate speech, assault, obstruction — these are not legal grey areas. They are offences under the Criminal Code and other statutes. If demonstrators are blocking entrances, intimidating individuals or inciting violence, law enforcement can and should act.

What this bylaw does instead is create a broad buffer zone around a staggering number of locations and hand bylaw officers and police the discretion to determine what constitutes unacceptable “nuisance” speech.

That is precisely the kind of open-ended power the Charter was designed to guard against.

There is no constitutional right to be free from discomfort in public. The Supreme Court of Canada has repeatedly affirmed that freedom of expression protects speech that is unpopular or controversial.

If governments can silence protests simply because it makes some people feel uneasy near a school or place of worship, the slope becomes dangerously slippery.

Even a cursory look at other municipalities shows Winnipeg didn’t have to go this far.

Oakville and Brampton took a narrow approach, focusing specifically on places of worship. Toronto allows access zones around certain facilities, but only if an operator applies for one.

Winnipeg, by contrast, has opted for a maximalist model.

If this passes in its current form, it will almost certainly face a court challenge. And if the courts find it overbroad and not minimally impairing — which they almost certainly will — it will be struck down.

There is a better way.

If council is concerned about specific sites experiencing repeated obstruction or intimidation, it should craft a narrowly defined response focused on those sites and that conduct. It should rely on existing criminal and provincial laws where possible. It should ensure any buffer zones are tightly drawn and supported by clear evidence of necessity, like the province did by banning protests outside abortion clinics.

What it should not do is redraw the map of public protest across the city. Unfortunately, that’s what it’s doing with this proposed bylaw.

Democracy is messy. It is loud. It sometimes unfolds uncomfortably close to institutions we value. That is the price of living in a society where the government does not get to decide which viewpoints may be expressed and where.

City hall didn’t get this right.

Council should send this bylaw back to the drawing board and come back with something that truly balances safety and freedom — not a sweeping prohibition that sacrifices basic Charter rights.

tom.brodbeck@freepress.mb.ca