Court says ban from town hall property is unconstitutional

TORONTO — Banning an obnoxious but non-violent protester from town property violated his right to express his political views, Ontario’s top court ruled Friday.

In its decision, the Court of Appeal ruled the town of Fort Erie was wrong to have issued a trespass order against Fred Bracken, and that a lower court should have tossed it out as unconstitutional.

Bracken may be a large man who gets agitated and in people’s faces, is aggressive in questioning, and can be intimidating, but no evidence exists that he was violent or threatened violence, the Appeal Court said.

“A protest does not cease to be peaceful simply because protesters are loud and angry,” the Appeal Court said. “Political protesters can be subject to restrictions to prevent them from disrupting others, but they are not required to limit their upset in order to engage their constitutional right to engage in protest.”

Court records show Bracken was incensed that town council had decided to allow a medicalmarijuana facility across the street from his home. He engaged in some front-desk fist pounding, and was prone to shoving a video camera in the faces of people he questioned about the decision.

In June 2014, a town employee placed town hall under lockdown as Bracken outside wielded a megaphone, which he said he took pains to ensure would not be loud enough to disrupt a council meeting inside. He paced up and down yelling, “Kill the bill!” He also called the town’s chief administrative officer a liar and a communist, court records show.

Alarmed town staff called police, who ordered Bracken to go away. He refused. Officers then arrested him.

They gave him a ticket for failing to leave and a trespass notice banning him for a year from town property at which its employees worked.

A covering letter stated the ban was the result of his “persistent and escalating confrontational behaviour” with town staff.

While the ticket was later withdrawn, Superior Court Justice Theresa Maddalena upheld the trespass notice in February last year on the grounds that Bracken had been shouting and that his behaviour was “erratic and intimidating.”

Maddalena found he had “crossed the line of peaceful assembly and protest,” thereby negating his free-speech rights.

The Court of Appeal, however, was more sympathetic to the selfrepresented Bracken, finding Maddalena had made several legal errors in her constitutional analysis, and factual mistakes about his behaviour.

“The area in front of a town hall is a place where free expression not only has traditionally occurred, but can be expected to occur in a free and democratic society,” Miller said. “The literal town square is paradigmatically the place for expression of public dissent.”

Among other things, evidence from town staff that they feared for their safety was flimsy at best, the Appeal Court said.

One staffer admitted Bracken had never threatened her or acted violently toward her, while another said she had never before seen a protest on town property and had never had a conversation with him.

“None of their allegations about Mr. Bracken’s behaviour, in my view, survived Mr. Bracken’s amateur cross-examination of them,” Justice Bradley Miller said in writing for the Appeal Court. “Violence is not the mere absence of civility.”

The Appeal Court also rejected the administrative officer’s contention that staff were frightened because Bracken had been “bullying them,” saying the claim simply did not square with the evidence.