CCF urges Waterloo Regional Council to rescind unconstitutional ‘harassment’ bylaw

CCF urges Waterloo Regional Council to rescind unconstitutional ‘harassment’ bylaw

TORONTO – The Canadian Constitution Foundation has published a letter to Waterloo Regional Council warning of the unconstitutionality of the recently amended Code of Use Bylaw and urging the region to bring it into compliance with the Charter of Rights and Freedoms. The CCF is warning Council that it is now preparing next steps to litigate. 

The Bylaw prohibits “communicating, causing or permitting communication, with any person in a way that causes the person, reasonably in the circumstances, to [sic] constitute harassment.” 

“Harassed” is defined as “experiencing objectionable or unwelcome conduct, comment, bullying, or actions that could reasonably cause offence or humiliation…”

“While well-intentioned, Waterloo Regional Council has overstepped by enacting a Bylaw that threatens to fine and banish people from region-owned property if they engage in ‘objectionable and unwelcome’ expression, which is an unjustifiable limit on the Charter-protected guarantees of freedom of expression and freedom of assembly,” said CCF Litigation Director Christine Van Geyn. 

In the now published letter sent to all councillors on October 24, CCF Counsel Josh Dehaas explains that the Supreme Court has made clear that while hateful speech can be limited using the Charter’s reasonable limits clause, speech that is merely objectionable, unwelcome, offensive or humiliating cannot be limited.

“The recent conversations we’ve seen about what constitutes criminal hate speech at pro-Palestinian rallies only goes to show how difficult it is for trained police hate crimes units to draw the line between legal speech and hate speech,” said Dehaas. “How are bylaw officers supposed to discern whether speech meets that strict standard?”

CCF Litigation Director Christine Van Geyn noted that giving bylaw officers the power to fine and ban people for their speech is ripe for abuse and is certain to create a chilling effect.

“As numerous citizens of Waterloo told regional council at its meeting on September 27, the amended Bylaw will prevent residents from exercising their constitutionally-protected rights to assembly and speech because they will now have to fear that what they say could lead to a hefty fine,” Van Geyn said.

“It’s our strong preference not to litigate considering the flaws in the Bylaw can be remedied by Council before the amendments come into force, but if council doesn’t act we will be forced to seek judicial review,” Van Geyn added. “We hope to hear from Waterloo Council, but given their silence to date we are now preparing those next steps.”