Lawyers representing the Region of Waterloo were in court today. The Canadian Constitution Foundation (CCF) is challenging the region’s 2023 Code of Use bylaw amendment. The bylaw was changed to prohibit communications that “reasonably constitute harassment” at regionally-owned facilities, such as regional headquarters or on public transit. At the time, they said the decision was made to help curb hate. According to the region’s website, harassment includes “experiencing objectionable or unwelcome conduct, comment or bullying” and “actions that could reasonably cause offence or humiliation, including conduct, comment, bullying or actions because of race, religious beliefs, colour, disability, age, ancestry, place of origin, marital status, source of income, family status, gender, gender identity, gender expression, sexual orientation, socio-economic status and/or housing status.” Lawyers representing the region said moves were made to amend the bylaw after an attack on the Afzaal family in London, Ont. killed four people. However, the CCF believes the bylaw oversteps the region’s power and infringes on residents’ right to freedom of expression. “We’re not questioning the region on a policy level here with what they tried to do,” Kristopher Kinsinger, a lawyer representing the CCF said. “We’re not questioning their motives or suggesting they were acting in bad faith when they adopted an amendment to their Code of Use bylaw.” The CCF challenge includes two main principles. Firstly, that the federal government is the only authority when it comes to the Criminal Code and hate crimes. “There are already prohibitions in the Criminal Code to prohibit hate speech as a crime,” Kinsinger said. “Municipalities like the region aren’t authorized to do that.” Secondly, the CCF believes the bylaw could impede legitimate expressions of free speech. “We have a concern based on the Canadian Charter of Rights and Freedoms and the guarantee of freedom of expression, that the way the region has defined harassment as consisting of offensive or humiliating comment or conduct is far too subjective to survive constitutional scrutiny because there’s this open question about offensive and humiliating to whom?” Kinsinger explained. “If someone wants to go into a public space like that and engage in, say, a protest or even just their own engagement with other citizens, they have to ask themselves, ‘[Will] what I’m going to say offend someone? Is it going to humiliate someone?’ And, as a result, they may start to check their own speech.” Julia Malott lives in the region and wrote an affidavit supporting the challenge. “There’s a big difference between saying that something is objectionable, it’s offensive, and calling that out, and forbidding that to be done, especially on public property, in our public squares, in our meetings and in the places where democracy happens,” she said. Malott said the bylaw could make people reconsider voicing their opinions. “The gray area is huge, so to put that upon citizens to say you might face ejection, a $5,000 fine for saying things that people find offensive,” said Malott. The Region of Waterloo, represented by lawyer Andrew Lokan, disagrees with the CCF position. Lokan said the bylaw does not intrude on federal law because the code specifically deals with what happens on regional property. Additionally, the region said it is within their mandate to try to establish equal access to regional property to all residents on equal terms. Lokan said the region is trying to address harassing behavior, not political speech. When referencing people being harassed on public transit he stated, “These are not political science seminars being held at the back of the bus where these incidents stem from.” Justice Scott Latimer heard the case, he did not make a decision today and it unclear when a decision will be made.
