South Bruce Peninsula council has decided against making any changes to a controversial public nuisance bylaw.
Council had a discussion about its existing bylaw Tuesday, with Mayor Jay Kirkland asking to revisit it to see if council still felt the current bylaw was appropriate.
The bylaw states, “No person shall picket in or on any public place without authorization” and attaches a $400 fine to contravention of that bylaw. Picketing is defined in the Town’s bylaw as, “any activity associated with protesting/objecting and may include display of signs, placards, signs, shirts, hats etc which portrays a message, symbols or marks, silence, shouting, chanting, singing, marching, standing and sitting.”
The bylaw has been a recent topic of discussion after the Canadian Constitution Foundation named the Town the recipient of a runner-up to its first-ever Municipal Muzzle Award in June.
Mayor Jay Kirkland said the bylaw is meant to address protests impeding the use of Town facilities, and picketing in unsafe places. “It’s a process I feel we need to have within the municipality,” said Kirkland during Tuesday’s discussion.
He added, “We’re not trying to hide anything. We’re trying to be up front with our bylaws and that’s why I asked it to come forward today was, let’s talk about it.” He added, “There’s two sides to every fence and you always want to try to make sure that we are able to do both sides, and I think that’s what this bylaw does.”
Only one councillor, Deputy Mayor Caleb Hull felt the picketing section of the bylaw was unnecessary and should be removed. He said during discussion, “To me, it is something that we shouldn’t be part of. We should expect citizens to protest and not occupy spaces but to protest in the way they see fit and not break the law.”
Hull explained he feels the freedom to peacefully protest is a Charter right, and while he understands the current bylaw helps to organize safe protests, the Town doesn’t have the bylaw to enforce things when a protest goes ‘above and beyond peaceful.’
“When it goes above and beyond peaceful protest, it is no longer in my opinion, a municipal issue, it’s a police issue. So I would like to see all of our protesting bylaws removed,” said Hull.
Councillor Paul Deacon said, “I think to protect those that are not protesting or those that are carrying on their regular duties of day to day living and a protest impeding upon that, I see it as a major issue.”
Councillor Terry Bell asked about who would determine what was peaceful and what wasn’t.
Director of Legislative Services & Clerk Angie Cathrae explained, “It would be whoever was in charge of the particular facility. So it may be Town staff and we consult with the OPP to find out if they believe that it has gone beyond peaceful.”
The Canadian Constitution Foundation (CCF) is criticizing the bylaw, and named South Bruce Peninsula and Caledon as runners up to the Muzzle Award winning Calgary. The CCF is an organization made up of people from a number of professional backgrounds, but many with an emphasis on law. They challenge what they believe are violations of Charter rights. You might be familiar with their challenge of the Trudeau government’s use of the Emergencies Act during the Freedom Convoy protests and blockades in Ottawa in 2022.
The foundation says its legal team reviewed bylaws from more than 80 municipalities. They claim they identified an ‘alarming increase’ in local laws that suppress the free expression Canadians are entitled to under the Charter of Rights and Freedoms.
The CCF says in its Muzzle Award report, “South Bruce Peninsula, Ontario, has an outrageous bylaw that prohibits picketing in any public place unless authorized by the town.
The CCF continues, “Yes, even silent protests are illegal according to the geniuses who wrote this bylaw, which cannot possibly be constitutional. The right to protest is a fundamental one protected by the Charter, and this blanket ban on public protests without permission cannot be justified. You do not need the government’s permission to protest, and this law needs to be challenged if the municipality does not repeal it soon.”
During discussion, Director of Legislative Services/Clerk Angie Cathrae painted the bylaw in a different light Tuesday, saying, “For the most part, any picketing that we have had, the folks are very respectful. They want their message heard, so they’re respectful of the public as well. They allow the public to pass. We’ve had picketing in all kinds of instances in the municipality here and we haven’t stopped it.”
Cathrae told council they’ve never dealt with people throwing things, or doing graffiti or blocking traffic.
She noted the $400 fine associated with picketing that contravenes the bylaw has never been issued.
Cathrae added, “The bylaw saying ‘without approval from the Town’ doesn’t mean you have to come here and get a permit or anything like that. Of course you’re allowed to picket. So if we see you picketing and it’s peaceful, that’s approval. We approve of it. We’re okay with where you are.”
Cathrae noted part of the intent of the 2020 bylaw update was to address an incident at the 2020 Wiarton Willie prediction morning.
She said it’s also to protect staff when protesters enter a Town building. Cathrae told council Tuesday, “You as council have obligations under occupational health and safety that if somebody comes in to staff’s workplace picketing and making them feel unsafe or harassed, you have to stop that. We’ve had people in the past that have said, ‘You can’t make me stop it, you show me the bylaw that says that,’ — “so I have a bylaw that says it,” said Cathrae.
She said, “We’ve also had times where we, unfortunately had to remove people from council chambers and when you call the OPP, they want to know that you have the authority to do that – “show us the bylaw that you can do that, show us where you’re doing that,” she said.
Cathrae noted, “Our own staff have picketed. We have no problem with it.”
In a different instance a young woman planning to protest on the sidewalk in Sauble was directed by staff to protest under the Sauble (now Saugeen) sign to where Cathrae said, she was safer.
Cathrae said, “We don’t want people on a sidewalk or somewhere where they have such a large group that someone gets pushed, and they get pushed out and they get hit by a car or something because then they’re going to sue the Town and the Town has liability.”
She continued, “We own a sidewalk, we have to make sure that sidewalk is maintained and safe, so that’s what the bylaw is about,” adding, “They may be peaceful, it just might not be a big enough space for them, maybe they didn’t know they were going to get that big as an organization so maybe we’ll give them another space so they can picket in two places but that has always been the interpretation and that’s how we’ve applied it,” said Cathrae
“It’s not meant to stop people, it’s just meant for it to be safe,” said Cathrae.
In the end, no changes were made to the bylaw. Deputy Mayor Hull was the only member of council who voted in favour of a motion considering potential changes.
