Measures with the stated purpose of preventing discrimination are increasing in cities across Canada, but some say they put undue restrictions on free expression.
Waterloo, Ontario, added a section to one of its bylaws this month to ban speech on public property that makes others “feel harassed.” Calgary has a similar bylaw against causing “offence or humiliation” anywhere in public.
In recent years, London, Ontario, has also passed such a bylaw, as has Edmonton.
She argues that harmful behaviours are already regulated by the Criminal Code, and such bylaws go beyond what the Supreme Court has deemed an appropriate limit on free speech. They also arguably go beyond a city’s authority, she said.
While the bylaws in both Calgary and Waterloo are largely aimed at limiting speech on LGBT and race issues, they can have far-reaching implications beyond that, Ms. Baron said.
The bylaw was motivated by protests against drag queen story hours as being inappropriate for children, but Ms. Baron says it would also effectively ban demonstrations in favour of drag story hours.
“The LGBTQ movement gained its freedoms through protests—protests that were very controversial at the time. So I think it’s incredibly short-sighted for anybody who advocates for LGBTQ rights [to support such bylaws],” she said.
Harassment Measures
Ontario’s NDP proposed similar legislation earlier this year. Bill 94, the Keeping 2SLGBTQI+ Communities Safe Act, aimed to create a maximum fine of $25,000 for anyone “performing an act of intimidation” in a space designated as a “safety zone” for LGBT people. An example of such a safety zone would be the area surrounding drag events, up to a 100-metre radius.The proposed legislation says “making offensive remarks ... with respect to matters of social orientation or gender roles” qualifies as “an act of intimidation” that could be heavily penalized.
While this wording remains in the legislation, council did make a concession by removing a definition of being “harassed” as “feeling tormented, troubled, worried, plagued, or badgered.” It also added that “nothing in this subsection shall prevent or limit a lawful protest.”
Delegate Janice Jim said such protests harass LGBT people and should be banned by this bylaw. Another delegate, however, expressed concern that the bylaw would limit lawful protests like the 1 Million March.
“Placing restrictive covenants on the speech of others, even when done with the best of intentions, causes resentment and animosity towards marginalized identities to grow,” said Julia Malott, who self-identified as a transgender parent.
The bylaw was prompted by many complaints the city had received about two street preachers, but the wide-ranging implications sparked a debate over free speech.
Going Beyond the Criminal Code
These bylaws seek to penalize speech that doesn’t meet the high threshold of “hate speech” as defined by the Criminal Code, a point that has been part of the discussions around the bylaws, Ms. Baron noted.Proponents of such bylaws have argued that there should be penalties for speech that’s offensive but that doesn’t meet that threshold. Opponents say the high threshold was set by the Supreme Court because limiting free speech is not justified for anything below that threshold.
That’s where counter-protests and the like come in, she said. The overarching issue isn’t about restricting the rights of LGBT people or anyone else, Ms. Baron said. “This is about protecting fundamental freedoms.”