Raise the Hammer

The Council cannot simply adopt the standards of the Legislature, as those standards may not stand in a Charter challenge. In law, they cannot be cited as a defense, they can be cited as an example of community standards, but nothing more. The reason for this is that the Legislature and Parliament both enjoy Parliamentary Privilege and their codes cannot be tested against the Charter.

Whereas, a Municipal Council does not enjoy privilege, and must comply with the Charter.

As an example, if someone where to call a Councillor a liar, and is ejected from the Chamber for "unparliamentary language"; they can go to the Divisional Court and cite the defence of truth in stating their Charter Right to expression has been violated.

Similarly, if someone is to call a Councillor a hypocrite, that's "unparliamentary language", but even more clearly protected by the Charter.

The Bracken v. Fort Erie (Town), 2017 ONCA 668 case is instructive. I'll note that context matters, and that language within a Council Chamber will be judged in a different context than that directly outside City Hall, nonetheless, the Court is clear that expression will be protected by the Court when it is criticizing those in power. (The courts are consistent in dismissing libel suits by political bodies, politicians, and government officials in all but the most extreme of cases. Niagara Peninsula Conservation Authority v. Smith, 2017 ONSC 6973 is a good recent example. (Personally, I like citing Halton Hills (Town) v. Kerouac, 2006 CanLII 12970 (ON SC)))

I'll draw your attention to paragraph 58 of Bracken v. Fort Erie:

Mr. Bracken’s speech, that day, was directed towards protesting the expected adoption of a by-law that he understood to be promoting the interests of a marijuana facility across from his home. He wanted the by-law defeated. He also criticized the members of Town Council. No doubt, they did not like being called liars and communists. Mr. Brady did not like Mr. Bracken calling for him to be fired. On cross-examination, he stated that Mr. Bracken had no right to say so. He viewed it as a threat to his livelihood. The language was neither polite nor restrained. But as this Court pointed out in Cusson v. Quan, 2007 ONCA 771 (CanLII), 87 O.R. (3d) 241, rev'd 2009 SCC 62 (CanLII), [2009] 3 S.C.R. 712, at para 125: “(d)emocracy depends upon the free and open debate of public issues and the freedom to criticize the rich, the powerful and those … who exercise power and authority in our society… Debate on matters of public interest will often be heated and criticism will often carry a sting and yet open discussion is the lifeblood of our democracy.”

The City Council's Procedural Bylaw needs to focus on disruption to proceedings, not language. There is language which is disruptive, racism for example is disruptive. The 'pressing and substantial' goal of the Procedural Bylaw is to ensure the effective and good governance of the City of Hamilton. Language which disrupts or creates a hostile environment on protected grounds can be forbidden to get to that goal. Language which is solely uncomfortable or undesired cannot be restricted.

Comment edited by JoeyColeman on 2018-06-29 12:03:13