Near the end of the Council debate over the proposed nuisance bylaw on March 25th, Mayor Farbridge commented that there seemed to be a lot of "misinformation" in the community, leaving the impression that the issue was not fully understood by those opposing the bylaw.
Was she right? Yes and no. As was mentioned in a previous blog post, City staff did not provide sufficient context information for a full public understanding of the issue, even at community input sessions. It was left for concerned citizens to try to make sense of the bylaw and its intent. Not many, of course, are experts in interpreting law, not to mention fully understanding the Municipal Act, the Provincial Offences Act and the Canadian Charter of Rights and Freedoms. It's actually quite impressive how ordinary citizens were able to bring themselves up to speed on these issues in order to form intelligent opinions about the nuisance bylaw proposal.
But councillors and staff are not off the hook. Some did not have a full understanding of the issue either, and made public statements during the process that were misleading or inaccurate.
So, let's have a look at some of the myths and facts that surrounded the City of Guelph's nuisance bylaw issue.
The nuisance bylaw would restrict the distribution of handbills or notices.
There are already City bylaws on the books that restrict the distribution of handbills. According to Doug Godfrey, City manager of bylaw compliance and security, the Traffic Bylaw section 5 regulates handbills being attached to vehicles, the Municipal Lot Bylaw section 16 regulates handbills being distributed or attached to vehicles within City parking lots, and the Sign Bylaw identifies a handbill as a poster and sets regulations for their placement. However, he added that "it is the responsibility of each Officer when enforcing any Bylaw to review the circumstances and ensure that enforcement will not affect a person's Rights and Freedoms."
The City agreed to remove the handbill clause from the nuisance bylaw, but as you can see from the above, that won't take handbill restrictions off the books.
One could get up to a $10,000 fine for a first offence; for example, by obstructing a sidewalk.
Though the proposed nuisance bylaw only mentioned two sets of monetary figures related to fines - up to $10,000 for a first offence for individuals and up to $25,000 for any subsequest conviction ($50,000 and $100,000 for a corporation) - these fines are actually set by the province and could only be applied if the matter went to provincial court. City of Guelph bylaw officers would only be able to hand out fines based on a list of much smaller, provincially approved 'set fines' - typically ranging between $300 and $500 (see here).
Why the 'set fines' are not mentioned explicitly in the proposed nuisance bylaw is a bit of a mystery. Once GCL found out about them (only by asking the right people), we insisted that they be included in the text of the proposed bylaw to clear up any misconceptions. They weren't.
The main target of the bylaw was nuisance parties.
The media seemed to buy into this initially (the Mercury wrote, "The impetus behind the bylaw was to give bylaw and police officers the authority to shut down parties that pose a public nuisance and safety risk" - see here), and several councillors still seem to believe this.
However, the bylaw as proposed clearly had three targets: nuisance parties, major protests, and - to a lesser extent - bringing scattered but related bylaws into one document. There is no mistaking that the initial bylaw took aim at major protests like the lengthy Occupy protest and the Hanlon Creek Business Park occupation with the following were included:
- Host or participate in a public rally or protest that exceeds 24 consecutive hours
- Place, install or erect any temporary or permanent structure, including any tent or booth
- Distribute, display or discard any handbill, notice, circular, advertisement, promotional item or sample
- Obstruct any sidewalk or pathway
See Part II and Part III for more details on this.
The proposed bylaw did not infringe on the Canada's Charter of Rights and Freedoms (according to the legal team at City Hall)
Canada's preeminent Charter watchdog, the Canadian Civil Liberties Association, wrote a letter to Mayor Farbridge saying that "significant portions of the proposed bylaw are contrary to the rights of freedom of expression, association and peaceful assembly that are protected by the Canadian Charter." After staff revised the bylaw, removing all references to protests, rallies and handbills, the CCLA wrote a second letter to the mayor saying that even the revised version had the potential to limit constitutionally protected rights and freedoms and backed that up with detailed explanations of their concerns.
When it comes to interpreting constitutional law, which opinion carries more weight - a municipal legal team, or a team of legal experts dedicated to interpreting constitutional law?
Clearly, the debate around the nuisance bylaw has been a learning experience for all involved - citizens, councillors, staff and the media. When (if?) a third revision of the proposed nuisance bylaw (minus the nuisance party provisions already passed) arrives this summer for more public consultation, everyone involved should have a much greater understanding of the issue - and what is at stake.