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Case Study

AGING WITH EASE: AGE-FRIENDLY COMMUNITY PLANNING
SLOANE SWEAZEY, PSD RESEARCH

The demographics of Canadian municipalities are changing. There are now more older people than there are young people, a trend that we will face for decades ahead. The older population requires municipal policies and services to change and adapt with the varying unique needs of seniors. Communities are responding accordingly, with age-friendly community planning, which is a policy approach that ensures the elderly can continue to thrive throughout their senior years.

 

I. Age-Friendly community Planning

 

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Case Study

HOW EXPANDING THE OMBUDSMAN’S JURISDICTION WILL IMPROVE MUNICIPAL ACCOUNTABILITY & TRANSPARENCY
MARY MCFADYEN QC, GOVERNMENT OF SASKATCHEWAN

Saskatchewan’s population is just over 1 million people, and it has 778 cities, towns, villages, resort villages, rural municipalities and northern municipalities – 1 for every 1,414 people. The provincial government has given wide powers to these municipalities under The Cities Act, The Municipalities Act, and The Northern Municipalities Act, 2010. The over 4,000 elected council members in these municipalities are empowered to pass resolutions and bylaws to provide good government and services for their residents. They must not let their personal interests, or those of someone close to them, influence their decisions or the way they carry out their duties.

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Case Study

PROTECTING AGAINST PRIVACY BREACHES IN THE PUBLIC SECTOR
OMAR HA-REDEYE, FLEET STREET LAW

Privacy law can be a nebulous concept, but in an era of big data and digitization, it’s one that is of crucial importance to the public sector. Organizations operating in the public sector have a special responsibility, as they provide services to society that often necessitate collecting, analyzing, and presenting findings based on the personal information of private citizens.

 

“The threat of class actions … means that public sector employees should be extraordinarily vigilant in ensuring that they do not inadvertently access or disclose private information. For the supervisors and managers in this setting, it means there should be a greater level of responsibility in ensuring this does not occur.”

Of course, all of this access comes with an enormous amount of responsibility. Both federal and provincial governments have enacted a myriad of sometimes overlapping statutes to address privacy. Although these statutes might be tweaked occasionally, most public sector employees are familiar with their duties as they relate to legislation. What they may not be as aware of is the growing body of privacy torts found in common law, which has implications not only for public sector employees, but for the supervisors who manage them. These common law torts increase the financial risk to organizations, and should be addressed through greater system controls.

 

I. Intrusion upon seclusion

 

The first Canadian privacy tort was introduced in 2012. The case involved a bank teller who accessed the bank records of her ex-boyfriend more than 174 times over four years. Although no common law privacy tort existed at the time, the facts of the case were so shocking that the Ontario Court of Appeal created a new tort, or a basis for commencing a lawsuit, called “intrusion upon seclusion.”

The court awarded $10,000 to the ex-boyfriend, noting that this action was motivated by personal interest, and the information was not used for any fraudulent or criminal purposes. The types of private information that would be covered by this new tort included financial or health records, sexual practices or orientation, employment-related information, or a private diary or correspondence. All of these types of information could potentially be found in the hands of public sector employees.

The relatively small amount awarded in this case by itself would not necessarily create an enormous financial risk. However, we’ve seen in the years since that where the records of several individuals have been inappropriately accessed, class actions have been launched. In cases where an individual has unlawfully conducted widespread access of numerous records, lawsuits have the potential to surpass the million-dollar mark.

Worth noting is that not all jurisdictions across Canada have adopted this privacy tort. Although it has found some acceptance in Nova Scotian courts, British Columbian courts have noted that their respective privacy legislation already protects against these interests, and have therefore not adopted it.

 

II. PUBLIC DISCLOSURE OF PRIVATE FACTS

 

The next significant privacy tort came in 2016, where an ex-boyfriend uploaded an intimate video of his former partner to the Internet. The effect on the woman was devastating, and the judge likened the impact to someone who was sexually assaulted. This tort was dubbed “public disclosure of private facts,” and the judge awarded $50,000 plus an additional $50,000 in aggravated and punitive damages because of the ex-boyfriend’s lack of remorse.

 

iii. PUBLICITY GIVEN TO PRIVATE LIFE

 

Although the above case stalled because the ex-boyfriend, who had not bothered to defend the action, emerged after the decision to challenge it, the tort still has significance for public sector employees. A 2015 Federal Court decision certified a class action against the Government of Canada for notices sent in the mail to 40,000 participants of the Marihuana Medical Access Program (MMAP). The problem was that the envelopes indicated that they related to the MMAP on the outside, meaning that anyone handling or receiving them would have inappropriately obtained personal health information of the recipient.

The Federal Court called this tort “publicity given to private life,” but the effect on public sector employees is the same. A Manitoba court in 2015 also indicated that family members may also potentially be able to claim harm due to the breach of privacy of their relative, especially where there is medical or health information involved. The novelty of this tort, and its use in several different ways, means that this area of law will continue to evolve in years to come.

The threat of class actions in this context means that public sector employees should be extraordinarily vigilant in ensuring that they do not inadvertently access or disclose private information. For supervisors and managers in this setting, it means there should be a greater level of responsibility in ensuring this does not occur.

Although the bank in the 2012 privacy law case was not found financially responsible because these were the actions of a rogue employee, it’s quite likely that a court in the near future would find the same inattentiveness sufficient to find vicarious liability against the employer as well. The class action over the MMAP was made directly against the government, meaning that the individual employees responsible for the envelopes were not even named as parties.

 

IV. Privacy in the Public Sector

 

In 2018, there are a wide array of tools that employers can use to ensure that their employees are not mishandling private information. Computer servers can be automated to flag unusual or irregular behaviour, such as accessing of files that do not relate to a person’s job description or their role in the organization. These flags can then be followed up by a supervisor more intimately informed about the employee’s role.

Other tools can include keystroke software, Internet or app usage, tracking emails (especially private accounts), computer screen recording, monitoring phone use, video or audio surveillance, GPS tracking of vehicles, and location tracking by access badge. These measures can potentially be considered heavy handed by an employer, and should not be used uniformly for all public sector employees.

Where monitoring tools are used, there should be a clear justification for doing so, including the extent of the risk of privacy interests involved. Employees should be made aware in writing of the measures being employed and offer training on how to follow established policies and procedures. Public sector employees, like all employees, also have their own privacy rights. These rights can be seen as defended in cases where employers have been sued for invasion of privacy using these common law torts.

Of particular interest to public sector employers could be their employees’ social media activity. Although complete bans of all social media are unlikely to be complied with, and would therefore erode the cooperative relationship between public sector employees and their supervisors, there can be policies and procedures in place about appropriate use of social media. Employees can be made aware of the heightened responsibility involved with dealing with the private information belonging to the public, and the necessity in safeguarding this information from friends and colleagues online.

Social media activity that occurs after hours or off of the premises can also create risks for employers. Just because a public sector employee is not at work does not necessarily mean that their activities have no bearing on their job. Employees should still behave in a responsible manner that does not affect their employer’s legitimate business interests, especially where those interests involve safeguarding private information.

Finally, it is important for public sector employers to be consistent in the application of all policies that are intended to protect private information. Employees who violate these policies should be disciplined appropriately, including termination with cause where justified through the significance and quantity of a privacy breach. These measures are important to impart to all public sector employees the necessity of collectively protecting private information, and the consequences for failing to do so.

Ultimately, the responsibility of protecting the private information of citizens will become a central role of public sector employees who are operating in the digital era. This will not only require technological competence in ensuring this occurs, but also cooperation within an organization and with supervisors to ensure that proper policies and procedures are followed.

 

OMAR HA-REDEYE is a lawyer in Toronto who practices primarily in the areas of employment law, health law, and privacy law.

 

Case Study

INSIDER THREATS – OVERLOOKED CYBERSECURITY RISKS IN GOVERNMENT
JUSTIN SHERMAN, DUKE UNIVERSITY

Spies. Criminals. Hacktivists. When considering cybersecurity risks to government, these are all threats that come to mind; certainly, each of these groups poses significant digital threats that also carry into the physical domain. But when considering the holistic cyber threat, how often do we focus our attention to threats outside the organization? In reality, the answer is too much and as a result, insider cybersecurity threats are frequently overlooked.

 

“Cyberpsychology indicates that most of us behave more recklessly in the digital domain than in the physical one, operating under perceived veils of anonymity – making insider threats in the cyber world even greater than their physical counterparts.”

 

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Case Study

THE OPIOID CRISIS: THE STORY OF A NATION UNRAVELLING
SARAH BROWNING, PSD RESEARCH

In 2016, the Public Health Agency of Canada reported that at least 2,861 Canadians had died from opioid-related overdoses. As Canadians kick off 2018 and statistics from 2017 begin to roll in, Canadian health officials are bracing the public for a grim reality: the opioid crisis was responsible for the deaths of over 4,000 Canadians.[i] As the overdose epidemic continues to sweep the country, and local newspapers print countless obituaries of beaming young mothers, superstar college athletes, and dedicated handymen, an increasing number of Canadians find themselves asking the same questions: How could this person have been an addict? Where are these drugs coming from? What is fentanyl? What is the government doing about it?

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Case Study

PLANNING TO ELIMINATE CRIME IN NORTH BATTLEFORD
RYAN MACKRELL, CITY OF NORTH BATTLEFORD

One of the most common topics of discussion in and around the City of North Battleford, Saskatchewan is crime. A quick Google search will attest to that. With several recent national articles and extra media coverage on criminal activity, there is no shortage of information. A recent article in Maclean’s magazine refers to North Battleford as “Canada’s most dangerous place” and an article in Regina’s Leader Post referred to the City as the “Crime Capital of Canada.” Since the Crime Severity Index (CSI) was introduced in 2009, North Battleford has ranked number one in violent and non-violent crimes until 2017, when North Battleford’s ranking dropped to number two in violent crimes.

 

“North Battleford is home to some of the nation’s best leisure facilities, a beautiful river valley, top playgrounds and so many other benefits that are overlooked by people that aren’t residents. Residents who live and work in this region understand there is more to the City than crime.”

 

I. North Battleford, Saskatchewan

 

North Battleford is a small city of 14,315 residents, located on the banks of the North Saskatchewan River.  It is surrounded by the Town of Battleford (4,429), seven First Nation Reserves and several small communities. Because of its unique geography, the City serves approximately 40,000 people within a radius of 60 kilometers. This creates a challenge for the City as it only has a tax base to support 14,000 people with the need and demand for 40,000. There are simply not sufficient resources and services for a City of 14,000 to serve a regional population of 40,000.  Ultimately, this will create gaps in the system.  In 2014, the City of North Battleford adopted a Community Safety Strategy to help counteract the gaps related to crime.  This strategy is a holistic, service-based approach based upon five pillars: creating opportunities; helping individuals and families with complex needs; coordination of existing programs and seeking new programs; crime prevention/crime suppression; and engagement of people within the “regional community”.

 

II. Community Safety Planning

 

One of the first action items from this plan was the appointment of Herb Sutton as the Community Safety Coordinator of North Battleford. Mr. Sutton works extensively in North Battleford and the surrounding region to carry out this strategy on a daily basis. Some of the noteworthy initiatives that his work has produced include: Citizens on Patrol, Eyes that Care Campaign, Crime Prevention Through Environmental Design (CPTED) Committee, Safety Acceptance Guidance and Empowerment Group (SAGE), Concern For Youth, and working with the RCMP and local Community Safety Officers. One of Mr. Sutton’s key partnerships is working closely with City Council and with City Administration, specifically the Planning Division.  This partnership, and the support that is generated from the local government and administration, are foundational to his work.  Without this support, the Community Safety Plan would not be an effectual document.

The role of a planner within a municipality is defined by the specific needs and dynamics of that community. For the most part there will always be the basic planning functions such as Planning Legislation, Zoning Bylaws, Land Use Policy, Development Permits, Subdivisions, etc. Applying the community needs and wants into those duties and delivering the community objectives is what planning really entails. Anyone can read and interpret a bylaw, but a planner’s work should reflect and improve the community in which it’s being applied. That is what North Battleford is trying to do.

In 2014, the City of North Battleford facilitated training for Herb Sutton and the City Planner in Crime Prevention Through Environmental Design (CPTED) and SafeGrowth®. CPTED and SafeGrowth® are training programs of a community safety planning and development process. These programs include methods of neighbourhood risk assessment and crime analysis. One key objective is for experts to not strictly apply prevention strategies, but rather to work with neighbourhood inhabitants and service providers collaboratively, to organize a coherent plan towards building a safe, viable and sustainable neighbourhood.

 

“Creating a sense of community has long term effects on creating safer places to live. People take pride, ownership, responsibility and look out for one another if they get to know their neighbours and have a sense of place to the area.”

 

Following this training, City Administration began incorporating CPTED principles into their daily work plans and implementing specific CPTED projects across the City.  City leaders acknowledged the importance and effectiveness of this training and brought in world renowned CPTED and SafeGrowth practitioners to North Battleford to train a significant amount of staff.  One of the major goals of this training was to build internal capacity by having key directors, managers and labourers trained with CPTED principles. From this training came the formation of a City Council approved CPTED Committee that meets monthly to discuss ongoing CPTED projects, new projects and reports back to City Council.

One of the biggest projects from the CPTED Committee is Formalizing Neighbourhoods in North Battleford. This project works at establishing neighbourhoods with formal boundaries and official names in North Battleford. The City recognizes that “place matters”, promoting not only the well-being of individuals but also the health and prosperity of the broader community. Launching an effective community safety program into neighbourhoods with public interaction will create a sense of place for the residents, reduce petty crime and help establish formalized neighbourhoods. Neighbourhoods represent key environmental settings for residents to interact and build a sense of place.

Encouraging residents to get to know their neighbours through Formalizing Neighbourhoods is essential in establishing these neighbourhoods and this is being done by encouraging Block Parties and other non-informal activities amongst residents. Creating a sense of community has long term effects on creating safer places to live. People take pride, ownership, responsibility and look out for one another if they get to know their neighbours and have a sense of place in the area.

Block Parties are an easy way to foster neighbourhood cohesion and encourage positive interactions amongst neighbours. The CPTED Committee has promoted block parties in the community for the past three years. The Committee has worked with City Council to waive the application permit fees associated with block parties. Council has also declared a weekend during the year as an official North Battleford Block Party Weekend.  Every block party registered that weekend was entered to win a case of free hot dogs and hamburgers. Barricade rentals, delivery and pick-up are all now provided free of charge, where in the past there was a $75 delivery charge and $100 deposit. The purpose of this is to promote block parties by making the process as easy as possible for residents.

The City had two block parties in 2014 and 2015. 2016 was the first year of promoting and waiving fees and there was a total of 14 parties. 2017 was the second year of promoting and waiving fees, and it produced a total of 13 block parties. The ideology behind block parties is to create a positive atmosphere for interactions amongst neighbours.  Research has demonstrated that creating environments for positive interactions between neighbours increases the sense of belonging, establishes new friendships and most importantly results in safer streets where people are healthier and happier. 

Art Alley is a collaborative project between CPTED, the City of North Battleford, North Battleford Downtown Business Improvement District (BID) and the RCMP. Art Alley is the first project of its kind in North Battleford and will help transform the exterior façade of downtown to look vibrant, creating a positive space for the community. Research shows that beautifying an area that regularly attracts negative activity helps instill greatly ownership and interest in a space, thereby reducing unfavourable activity. Art Alley has been active for two years, has completed four murals in the Downtown and inspired several other murals in the area.

 

 

CPTED, in conjunction with the City, has also introduced Street Murals as a community engagement strategy and neighbourhood capacity building initiative. One of the key outcomes of a street mural is a traffic calming measure. As motorists approach the intersection they notice the mural and instinctively slow down. Additionally, the painting of the mural is a community building event. People in the area are strongly encouraged to come out and paint the mural together and get to know one another.  The murals typically last a year or two and become faded, which is not seen as a negative, but rather another opportunity for the public to go out and repaint or redo another mural on the street and spend more time together as a community.  The two street mural projects that were completed in 2017 were very successful.  Over 30 local residents came out for each project.  Friendships were renewed, and new connections were made during the activity.  The projects also provided opportunity for informal discussions about community safety in the neighbourhood, and encouraged residents to commit to watching out for each other and to take responsibility for keeping their neighbourhood safe.

 

 

Another role of the CPTED Committee is to conduct, promote and monitor safety audits in the community. A safety audit is a collaboration amongst residents that allows people to assess how safe or unsafe they feel in their surroundings. These audits are used by the CPTED Committee to make recommendations about the area to reflect CPTED principles and the wishes of the community. North Battleford has conducted over ten audits in the past two years with over a hundred recommendations, resulting in countless improvements to several areas around the city.

The City recently adopted a Downtown Revitalization Action Plan which reflects a specific element related to CPTED. During the formation of the plan, two safety audits were conducted in the Downtown and a list of recommendations were formed from these audits. These recommendations became part of the action items in the plan. The City now requires CPTED principles in all major development plans.

Another crime prevention approach was printing and mailing out Residential Safety Brochures to every resident in North Battleford. These brochures consisted of tips and important messages that encourage residents to get to know their neighbours, to pay more attention to image and maintenance of their property, as well as providing safety tips related to lighting, and checklists for home security. Important contact information such as Fire Department, RCMP, and other emergency numbers were included, as well as ways to become active by joining Citizens on Patrol or starting neighbourhood watches.

The key factor in carrying out all of these projects is Public Engagement. The need to build community safety “with” the community, and not “for” it, is embedded in CPTED research.  The City has prioritized public engagement as essential to planning in North Battleford, so the public will be consulted to identify the issues and concerns that arise throughout processes. The City has challenged itself to go beyond the traditional community engagement model of calling a single community meeting to ask for community input.  Instead, City planners and staff have organized and attended a wide variety of community events bringing residents together in neighbourhoods to talk about safety, community, neighbourhood boundaries and any other topics that the public desires.  It has been determined it is essential to work with the community members and not be reactive in nature, to earn their trust and gather their input openly.

Analysis of some of the crime statistics from the RCMP indicate that there are many “crimes of opportunity.”  Vehicles, houses and garages that are left unsecured provide easy targets for potential criminals. To help address this, the City has created a new initiative.  Eyes That Care Program is a partnership between the City of North Battleford, CPTED and the RCMP to implement crime preventative measures to reduce preventable crimes. The program encourages residents to sign up and commit to watching over their neighbourhood, lock-up their belongings, and receive updates on events or news regarding crime in the City. In exchange for signing up, residents receive a free solar motion sensor light, an Eyes That Care display sign and an opportunity for residents to nominate a Monthly Eyes that Care Neighbourhood Champion who will be entered to win a $50 gift card.

The City of North Battleford includes a large First Nation population with over 20 percent of its’ residents identifying as Indigenous. Engaging and collaborating with local First Nations is vital towards creating a complete picture of the needs and wants of the community. The history of poor relationships between Indigenous and non-Indigenous populations in North Battleford poses unique challenges for engagement. Within our community exist issues relating to trust, poverty, crime, addiction, and racism. Working with our communities and trying to better understand their history is the only way to overcome these challenges. Reconciliation is a term just beginning to enter into the discussions, but it is early in the process. There is much more work to do in order to see this become a reality. Decades of poor relations will not be reconciled overnight, but having conversations and working together on projects is a start towards understanding the complete picture. The City has recently begun holding these dialogues, with the inclusion of Elders and local First Nation tribal councils in these community development projects.

 

 

Housing is another key component identified in our community to help reduce crime if properly planned. A 2015 study outlined the current state of the housing market in North Battleford and identified several gaps in the system. Many of these gaps exist at the lower end of the housing continuum. Affordable housing, senior housing, homelessness, transitional housing and supportive housing are all areas recognized as needing more support in North Battleford, as an effective housing continuum in the City is very important. However, housing is not necessarily a function of local municipalities and is typically viewed as a Federal or Provincial responsibility. City Council and Administration realized that waiting for another level of government to step in is not going to solve the issues that exist currently, and have taken a lead role in closing the existing gaps in the housing market. The City has partnered with the Provincial Government to fund a Housing Action Plan which is to be completed in February of 2018. This study will outline the next steps, programs and roles needed for community organizations, the City, and other levels of government to use as tools to overcome the existing housing challenges and to enable the City of North Battleford for success in the future goals related to housing.

Community-based organizations are essential to overcoming local challenges. Some organizations in North Battleford were competing against one another for funding and projects. With help from the City, these organizations now work together and hold monthly meetings for collaboration and pooling resources to achieve common goals. Many initiatives are coming to fruition with a local group of housing partners working together to build a Rooming House for the most vulnerable “hard to house” people in North Battleford. A local HUB also meets regularly and shares resources to achieve similar results. Other agencies and organizations have joined forces to do the same.  Having these groups working together – rather than in silos – strengthens relationships and builds capacity in the community, but most importantly achieves results in the most effective and efficient manner. 

 

III. Concluding Thoughts

 

While North Battleford may rank amongst the top cities on the Crime Severity Index, if other aspects of the City are measured, such as the level of community commitment, strength and safety initiatives, it would rank amongst the top in those categories too. Regardless of the negative articles written about this community and of the criminal activity that occurs, our Civic leaders and members of the public are committed to improving North Battleford. There is no shortage of work to be done and this is recognized by everyone involved. This is why North Battleford is one of the strongest communities today. Most of the crime prevention strategies being implemented today will take several years before the full benefits are realized, but that doesn’t mean they should not be put into action or done. Frustration and impatience can be expected from some in the community, but continuing to pursue research-based approaches to community safety will pay dividends down the road.

Finding new ways to promote these initiatives is a task in itself, and is done so in part by reassuring residents that more than just crime occurs in North Battleford. North Battleford is home to some of the nation’s best leisure facilities, a beautiful river valley, top playgrounds and so many other benefits that are overlooked by people that aren’t residents. Residents who live and work in this region understand there is more to the City than crime. Unfortunately, a headline of “North Battleford Crime Capital” sells more magazines than “North Battleford’s Beautiful River Valley Increases Quality of Life”. It is up to our citizens of our community to rally behind one another and to sell the positive features of our city and our region – by working as partners towards a common goal for a safer, more viable community. 

 

RYAN MACKRELL, MCIP, RPP is the City Planner for the City of North Battleford. Ryan has an honours degree in Regional Urban Planning from the University of Saskatchewan and a Certificate in Local Government Authority from the University of Regina. He was born and raised in North Battleford and now lives there with his wife and three kids.

 

Case Study

SHOULD GOVERNMENTS REGULATE DISTRACTED CROSS WALKING?
ALEKS DZINTARS, PSD RESEARCH

Distracted driving is the most common example of the dangers posed by smartphones. Using a smartphone while driving decreases the amount of time that drivers pay attention to the road in front of them, thus increasing the risk of an accident. Recognizing the risk of this phenomenon, laws and strict penalties exist in order to deter drivers from both driving and operating their smartphones at the same time. The fines for distracted driving across North America range from under $100 in California to $10,000 in Alaska.[i]

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Case Study

THE INVESTING IN CANADA INFRASTRUCTURE PLAN: WHAT’S NEXT?
PSD’S SLOANE SWEAZEY IN CONVERSATION WITH THE HONOURABLE AMARJEET SOHI, CANADA’S MINISTER OF INFRASTRUCTURE & COMMUNITIES

The infrastructure gap continues to persist in Canada – its burden heavily impacting municipalities who own the majority of Canadian infrastructure. In 2016, Infrastructure Canada announced the Investing in Canada Plan, a sizeable $180 billion investment in infrastructure over a 12-year period. PSD sat down with the Honourable Amarjeet Sohi, Minister of Infrastructure Canada, to speak about the Plan, discuss new funding opportunities for municipalities, and to learn of the type of infrastructure investments to be expected in 2018.

It’s been a busy year for Infrastructure Canada with the implementation of Phase 1 of the Investing in Canada Plan. What progress has been made in 2017 to address the infrastructure gap in Canadian communities?

We launched a historic Investing in Canada Infrastructure Plan in two phases. We started Phase 1 in 2016, investing more than $12 billion to improve community infrastructure, public transit, water and wastewater infrastructure, affordable housing, and cultural infrastructure, which involves rehabilitation and repairs. Phase 1 is currently being delivered and I am proud to say that we have approved more than 4,000 projects since its beginning in 2015 – most of them currently underway. The projects are enabling communities to buy new buses, or convert their diesel buses to electric or more fuel-efficient buses. Even more, investments are allowing municipalities to turn their old transit fleet into more accessible transit fleets, as well as improving the quality of water in many small rural communities, including Indigenous communities. It also allows communities to renovate and rehabilitate social housing units. These are the achievements we are making in Phase 1 as we launch our long-term plan, which we will be negotiating with the provinces and territories and concluding those negotiations by the first quarter of next year.

 

Entering 2018, what do you perceive as the key infrastructure issues facing Canadian municipalities?

The long-term infrastructure plan focuses on five areas of investment: public transit, green infrastructure, social infrastructure, trade and transportation, and rural and northern communities.  We are investing $29 billion over the next 12 years towards public transit infrastructure. In regards to green infrastructure, we want to support communities to be more resilient to climate change – flood and disaster mitigation, quality of water, and wastewater infrastructure. Also, supporting investment in new technologies where provinces can undertake projects that will reduce the production of greenhouse gas emissions. $21.9 billion is being invested to support social infrastructure, which includes affordable housing, early learning and childcare facilities, and recreational and cultural infrastructure. We are also focused on trade and transportation infrastructure, as well as supporting rural and northern communities. This is the focus of discussions with the provinces and territories to sign bilateral agreements.

 

 

Have you seen communities already implement green infrastructure solutions and if so, what do those look like?

We have seen many communities implement the use of green infrastructure funding to improve the quality of water in their communities while also improving the systems that deal with wastewater or solid waste. We have also seen green infrastructure being used for long-term planning initiatives to understand how the resiliency of communities can be improved.

 

What do you think of the municipal asset management regulation coming down the pipeline in Ontario? Do you think that this is something that the rest of Canada should adopt as well?

We strongly encourage municipalities to develop long term capital plans, as well as plans to manage the existing assets they have. We are working closely with the Federation of Canadian Municipalities, where we have provided them with dedicated funding to build the capacity of communities – particularly midsized and small communities – to help them develop an asset management plan. We firmly believe that having a plan in place is the responsible approach to take. Not only does it allow you to assess what kind of infrastructure a community owns, but what condition it is in, what kind of investment it would require to keep it in good condition, and also, recognizing the new needs in communities. We’re supporting the municipal sector to develop that kind of asset management plan.

 

Can you talk about the Smart Cities Challenge? What tips can you provide to communities looking to participate in the challenge?

We see the Smart Cities Challenge as a potential way to use technology to improve a community’s quality of life and solve problems. We are not going to define what a smart community looks like – we are going to leave it up to the local communities and they should work with the private sector, post-secondary institutions, the non-profit sector, and other aspects of the community to develop their Smart City Challenge projects. The idea behind the Challenge is to make sure municipalities have enough resources from the federal government to think outside of the box and to think more creatively using data and technology, and to mobilize the community to come up with creative ideas to solve problems.

Timeline of Smart Cities Challenge Process       Source: Infrastructure Canada

 

 

You highly encourage municipalities to partner with the private-sector to implement Smart City initiatives. Why do you think public-private partnerships (PPPs) are so valuable and what advice can you give to municipalities looking to embark on a PPP?

I think it is always valuable when you bring different expertise to the same table, whether it is expertise in data management or expertise in the technology sector. The public sector expertise knows what the problems are and the private sector expertise can be utilized to solve those public problems. At the end of the day we all live in communities; we have the same interests and values of building a community that we all desire to live in. We want welcoming and inclusive places where everyone has the opportunity to succeed – where an economy prospers, and jobs are being created. That is a shared goal and a shared goal by many people in the private sector and other institutions. In our minds, it is always valuable to bring all the players together to come up with creative ideas.

 

The Board of Directors for the Canadian Infrastructure Development Bank were recently announced. What can we expect from the Bank in 2018?

I am very pleased that we have appointed ten very committed Canadians from very diverse experiences who will bring their knowledge and expertise to help us succeed in what we want the Infrastructure Bank to achieve, which is to build new infrastructure. I am very proud that these Canadians are stepping up to help us set up the Bank and get the Bank’s work underway.

More information about the Canadian Infrastructure Bank, including its key functions and structure, can be found on Infrastructure Canada’s website: http://www.infrastructure.gc.ca/CIB-BIC/index-eng.html.

 

As the Infrastructure Minister, what are the main questions or concerns that you get from municipalities?

I come from a municipal background and municipalities face a number of challenges in regards to infrastructure. One of them is the lack of long-term sustainable and predictable funding. My goal in the first quarter of next year is to focus on signing bilateral agreements that will give communities that certainty, that will give them long-term predictable funding. The other challenge municipalities face is the limited capacity to match. This is why we have contributed 50 percent of the funding to Phase 1 and we will contribute 40 percent of the funding in Phase 2 to relieve some of the pressures on property owners in communities. As well, municipalities are looking for partnership. They are not looking for a top-heavy approach coming from Ottawa, but more collaborative partnerships where the local decision making is respected.

 

What other funding opportunities will be made available to help municipalities close the infrastructure gap more quickly and efficiently?

We want to demonstrate to them that we are here for the long term – that is why we’re tripling our investments in infrastructure. We will be investing close to $180 billion over the next decade, so that is a significant increase on our part. We also hope that provinces will continue to provide them the necessary support as well. And for municipalities to have their own capital plan. All of the different powers of government coming together to build more infrastructure is the best approach and that’s the approach that Canadian municipalities have asked us to develop and that’s exactly what we are doing.

 

What is the long-term outcome you hope to achieve by the end of this 12-year Investment Plan?

Our government came into power to build a stronger middle class and provide opportunities for Canadians to work hard each and every day to be part of the middle class. So economic growth and economic opportunity are both very important to us. We believe that investing in infrastructure makes an economy more productive, more efficient, and it opens up opportunities for long-term economic growth. So that’s one objective. The other goal that we want to achieve is building more resilient communities. Asking questions such as, “how are we moving towards a more low-carbon economy?” And, “are we building communities where we all desire to live in; are they welcoming places – are they places where everyone feels that they can succeed?” I think those are the objectives that we want to achieve and those are the objectives not only to infrastructure investment, but a government-as-a-whole approach. Everything that we do is to make communities better, to create opportunities for Canadians, to create jobs for them, and to build a strong middle class.

 

Infrastructure Canada is working towards a low-carbon future. How will infrastructure related projects achieve this goal?

We are developing a green lens – a climate change lens – which means that when we evaluate infrastructure projects we examine and consider how the projects build more resilient communities and how do they help us reduce the impact of greenhouse gas emissions. That green lens is being developed in partnership with other partners and we are very hopeful that with such a collaborative approach municipalities will be able to adapt and implement practices that will help us reduce the impact of greenhouse gas emissions.

 

SLOANE SWEAZEY, MA is a Research Analyst for the Public Sector Digest. She completed her master’s degree in Political Science, specializing in Public Policy and Administration, as well as a Bachelor’s Degree in Political Science and International Development, both from the University of Guelph. Sloane has worked on multiple research projects examining policy analysis and development. Her research interests surround municipal governance and public policy, where she has researched community-engagement initiatives and child care policy at length. In her role, Sloane researches and writes articles for publication, while also sourcing content from external contributors.  

 

Case Study

OXFORD COUNTY: ACHIEVING 100% RENEWABLE ENERGY BY 2050
ZACHARY COX, OXFORD COUNTY

We can do better. The belief that change is both possible and necessary is the foundation for Oxford County’s commitment to achieving 100% renewable energy within 35 years. On June 24, 2015, Oxford County committed to a 100% renewable energy goal when County Council unanimously passed a motion to reach the target by 2050. In doing so, Oxford became the first municipality in Ontario to commit to such a milestone, and the second in Canada, after Vancouver, B.C.

Oxford County citizens have embraced renewable energy innovation for years, with numerous green energy events and the installation of private-sector projects such as the Gunn’s Hill Wind Farm and the Greenholm Farms anaerobic digester. Now, there is a municipal commitment to continued local investment in preserving the planet.

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Case Study

THE FUTURE OF ELECTRIC VEHICLES IN CANADA
THE HONOURABLE JIM CARR, CANADA’S MINISTER OF NATURAL RESOURCES

When we asked Canadians earlier this year to imagine their energy future, electric vehicles were top of mind for them. They described a Canada where one day there would be electric vehicle charging stations in their neighbourhoods, connected to a grid that is clean, affordable and reliable, and built on technology we are exporting to the world. That future is closer than many might have guessed.

With significant new investments from our Government’s first two budgets, we are helping to transform the transportation system — starting with fast-charging infrastructure for electric vehicles along our most heavily travelled passenger and freight routes. We are also helping to develop the next-generation of charging technology.

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Case Study

MAKING NATURE COUNT: MUNICIPAL NATURAL ASSET MANAGEMENT
SARA JANE O’NEILL, SMART PROSPERITY INSTITUTE

The way cities deliver services is changing, often for the better. Excess stormwater was once treated as waste, funneled through a concrete channel and out of the urban area. Now, vegetation and gardens are being re-planted to soak up the water where it lands. Urban trees were once only viewed as an amenity and valued solely for their aesthetic value. Increasingly, they are valued for their role in energy conservation, air pollution reduction, and human health improvements. Roads, bridges, and buildings were once seen as a city’s only assets. Now, leading local governments recognize that, for example, wetlands, forests, creeks and foreshores are also vital assets.

 

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Case Study

ACHIEVING SUSTAINABILITY & CLIMATE CHANGE ADAPTATION THROUGH ASSET MANAGEMENT
KIM FOWLER, SUSTAINABILITY MAKES CENTS CONSULTING

Local governments own about 60 percent of infrastructure across Canada that include roads, potable water, stormwater and wastewater systems, recreation centres and fire halls, but only receive 8 cents on the tax dollar. The federal government receives 50 cents and provincial governments get 42 cents. Over one-third of these assets that comprise the backbone of services in our communities are reaching the end of their life cycle, are in fair to very poor condition, and need to be replaced. In 2007, the Federation of Canadian Municipalities (FCM) estimated a $123 billion infrastructure deficit for local governments across Canada, to increase at a rate of $5 billion per year. That deficit almost reaches $200 billion when forecasted to 2017 (without inflation).

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Case Study

ASSET MANAGEMENT & CLIMATE CHANGE: THE CASE FOR INTEGRATION
STEFANIE FISHER, PSD RESEARCH

With the increased occurrence of severe weather events, it has necessitated municipalities to adapt their infrastructure planning to consider more resilient and adaptive activities for their assets. The parallels between asset management practices and climate change planning are evident. Several communities within Canada are taking steps to integrate their asset management and climate change practices, bringing more reliable forecasting for long-term infrastructure planning.

Infrastructure is often the first (and in many cases the most) impacted by severe weather, natural disasters, and all other climatic events. There are ways that municipalities can integrate climate change adaptation strategies into their asset management practices, mainly through risk assessments, lifecycle management projects, and levels of service. Risk assessments are critical to determining the vulnerability of assets, assisting in planning for future lifecycle events. When developing and/or conducting risk assessments, several steps can be taken to integrate climate change planning. For example, a risk management framework could be developed that includes a climate change risk assessment. Or, if a municipality is looking to implement a longer-term strategy, each asset’s vulnerability could be evaluated based on all risks (i.e. climate/environmental, routine use, etc.), and an asset renewal strategy could be developed based on these factors.

For lifecycle activity frameworks, municipalities could implement a cost analysis for their investment decision-making processes, taking into account the change in lifecycle events based on climate change/environmental factors. Finally, municipalities could look at how climate change vulnerabilities will affect the ability to continue with current or desired levels of service. As an example, a municipality could perform an assessment of the financial impact that climate change will have on upholding a certain level of service. The assessment could also look at how climatic events will affect the ability for certain assets and services to be used by citizens. If municipalities are able to integrate climate change planning into the asset management practices explained above, the impact from climatic events would be lessened, assisting in maintaining long-term infrastructure renewal goals.       

The Government of Canada understands the importance of both climate change planning and asset management, having recently made several grants available that focus on climate change and the integration of asset management and climate change planning. The majority of the federal funding has been made available through the Federation of Canadian Municipalities (FCM) and their Climate and Asset Management Network (CAMN), as well as the Municipalities for Climate Change Innovation Program (MCIP). In addition, FCM has made funding available specifically for asset management planning through the Municipal Asset Management Program (MAMP). Several municipalities have received funding from both the MAMP and MCIP grants, allowing for simultaneous work to be completed towards both their asset management and climate change planning goals. This showcases the commitment by many Canadian communities towards climate change and asset management.    

Figure 1: Allocation of MAMP & MCIP Funding by Activity

PSD conducted an analysis of the MCIP and MAMP recipients, and grouped the projects together based on the type of activity being funded. Figure 1 demonstrates a breakdown of the various categories of projects. The type of project most funded were ones focused on producing asset management plans, policies, strategies, and/or inventories. Data collection and reporting projects were the second most commonly funded type of project, followed by feasibility studies, and climate change adaptation and resilience strategies.

Those participating in Phase II of CAMN will conduct one of three project types: levels of service, risk assessment, or lifecycle. As was previously discussed, these are integral ways that municipalities are able to link their asset management and climate change adaption practices, and make more informed decisions regarding their assets. With the completion of these projects, there will be tangible resources and best practices available for other municipalities who are looking to conduct similar projects.

The City of Kenora, located in Northwestern Ontario, is an example of a community undertaking both asset management and climate change adaptation planning. In order to align with Ontario asset management requirements, Kenora has been building out its capabilities, and are now extending this to include climate change strategies. As a part of the FCM CAMN program, they are working with PSD to develop risk assessment frameworks that incorporate climate change considerations, helping to better prepare their assets for the increased pressures of inclement weather.                                                        

Communities are beginning to see continuous effects from climate change on their infrastructure, and in order to be proactive and mitigate these effects, municipalities must take advantage of the funding available. The integration of asset management and climate change adaption practices will go a long way in ensuring that already aging infrastructure is capable of withstanding climatic events – or in the case of asset failure, there are means available for repair or replacement. This key form of integration will assist in better long-term strategic planning, ensuring longevity in a municipality’s assets.    

 

STEFANIE FISHER, MA received her honour’s bachelor’s degree from King’s University College at Western University in Political Science and her master’s degree from the Norman Paterson School of International Affairs at Carleton University, where she specialized in intelligence and national security. Previously, Stefanie has worked as a research assistant, contributing to several different projects, including one on the Futures of Terrorism. In addition, as a part of her master’s research she looked at municipal critical infrastructure and the different regional infrastructure funding programs such as the Ontario Gas Tax Fund.     

 

Case Study

A TALE OF THREE CITIES: BEST PRACTICES IN MUNICIPAL WATER AND WASTEWATER MANAGEMENT
JONATHAN ARNOLD & BRENDAN FRANK, ECOFISCAL COMMISSION

Municipal water and wastewater systems are vital to our health and prosperity. About 90 percent of Canadian households and businesses are connected to municipal systems. We drink, bathe, and play in it. We use it to grow food, manufacture goods, and cool off machinery. After we’ve used it, wastewater is transported, treated, and released back into the environment. It’s hard to think of a more foundational public service.

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Case Study

BUILDING RESILIENCE: INTRODUCING THE CHIEF RESILIENCE OFFICER
PSD’S SLOANE SWEAZEY IN CONVERSATION WITH ELLIOTT CAPPELL, CITY OF TORONTO & ATYIA MARTIN, CITY OF BOSTON

2017 endured an endless list of tragedies. 100-year storms were a monthly occurrence this past summer and community-wide protests inspired violent uproar. Disasters – be they natural or not – affect communities and citizens very differently and unequally. In the face of the storm arises the Chief Resilience Officer: a community’s best new resource to equip itself against hardship and ensure that a community is strong, adaptive and united in the face of shocks and stresses. PSD had the opportunity to speak with two CROs, one from the City of Toronto and the other from the City of Boston, to discuss their new positions and share how resilience will be pursued in their respective municipalities.

 

I. Elliott Cappell, CRO, City of Toronto

 

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Case Study

AN URBAN RESILIENCE REVOLUTION, STARTING WITH 100 CITIES
OTIS ROLLEY, 100 RESILIENT CITIES

In 2013, the year of the Rockefeller Foundation’s centennial, it was becoming clear that three major trends were affecting people across the globe: urbanization, globalization, and climate change. Over 50 percent of the world’s population currently lives in cities, and that number is expected to rise to 70 percent by 2050. More interconnected than ever, these urban centers are also more vulnerable to climate-related threats, placing them at the forefront of all three defining trends. Understanding this and what it means for our collective future, the Foundation created 100 Resilient Cities (100RC) – a US$164 million commitment to help cities around the world become more resilient to social, economic, and physical challenges that increasingly characterize the 21st century.

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Case Study

LOW CARBON RESILIENCE IN CANADIAN MUNICIPALITIES: THE IMPORTANCE OF GREEN INFRASTRUCTURE
EDWARD NICHOL, ADAPTATION TO CLIMATE CHANGE TEAM

Municipalities across Canada are at risk from a variety of current and future climate change impacts. Extreme heat events are projected to increase in frequency and magnitude, heavy precipitation events are expected to occur more frequently, permafrost is likely to warm, and sea levels are projected to rise.[i] These risks affect the built and social infrastructure within municipalities – the buildings, transportation networks, energy systems, telecommunications, and water treatment systems, and the people that depend on them.

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Case Study

YORK REGION’S WASTE MANAGEMENT SM4RT LIVING PLAN
PSD’S SLOANE SWEAZEY IN CONVERSATION WITH LAURA MCDOWELL, REGIONAL MUNICIPALITY OF YORK

Canadian municipalities have made great strides in tackling the effects of climate change, and continue to do so. Such effort is instrumental in diminishing environmental degradation country-wide. PSD spoke with Laura McDowell, Director of Environmental Promotion and Protection for York Region, to discuss the ways in which the municipality has implemented their own programs, particularly looking at the SM4RT Living Plan – a one-of-a-kind waste management master plan that stresses reduction and reuse, while highlighting the importance of community collaboration.

 

Can you provide an overview and description of the SM4RT Living Plan and where the idea came from?

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Case Study

ONTARIO’S UPDATED GREENBELT PLAN
ONTARIO MINISTRY OF MUNICIPAL AFFAIRS

The Greater Golden Horseshoe (GGH) is one of the most dynamic and fastest growing regions in North America. More than one-in-four Canadians call the region home. Its diverse economy and high quality of life attract people from around the globe. To help shape the future of the region and preserve its natural heritage, Ontario’s internationally recognized Greenbelt was created in 2005.

The vision for the plan was to:

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Case Study

HOW MUNICIPALITIES OUGHT NOT TO TRAMPLE CITIZENS’ FREEDOM OF EXPRESSION
JACOB R. W. DAMSTRA, LERNERS LLP

Municipalities and other public bodies are charged with making decisions that have wide-reaching impacts across broad swaths of society. They are often mandated to do so, explicitly or implicitly, in the public interest, and in a free, open, and democratic manner. Frequently, such decisions involve matters of some controversy among the constituents who will be affected by or interested in the outcome. As a result, Council and Board deliberations, debates, and decisions are subject to considerable public scrutiny and, often, criticism.

Concerned citizens sometimes lobby councillors or board members by letter or email, attend open meetings to make representations or pose difficult questions, and even take to protest. Councillors, board members, or staff sometimes find these actions by citizens to be disruptive or even intimidating. While some individuals and their actions may be viewed as a nuisance, others can come across as threatening. When the actions give rise to concerns about safety or disruption of the decision-making process, the question arises what public bodies should and should not do to manage perceived "troublemakers" or threats.

In a decision released on August 25, 2017, Bracken v. Fort Erie (Town), 2017 ONCA 668 (“Bracken”), the Court of Appeal for Ontario, the province’s top court, explained how issuing a “Trespass Notice” under the Trespass to Property Act, R.S.O. 1990, c. T.21 may not be an appropriate solution. The difficulty, the Court held, is that such a drastic action by the public body may be an unconstitutional breach of an individual’s freedom of expression. Using the Bracken decision as a reference point, this article considers the constitutional and administrative law issues that arise when a municipality or public body considers removing or banning an individual from public spaces, including open council or board meetings. This article also discusses alternatives suggested in Bracken and in other court decisions on dealing with these challenges posed by vocal constituents, as well as precautionary measures that municipalities and other public entities might consider in the interests of transparency and free, open, democratic governance.

 

"In light of the decision in Bracken, municipalities and other public bodies would be prudent to consider taking precautionary measures to ensure the validity of any prohibitions against attendance on public lands issued to a concerned citizen, and to canvass alternatives to the type of outright ban implemented by the Trespass Notice issued to Mr. Bracken." 

 

I. Background – The Legal Landscape

 

In order to understand the decision in the Bracken case and its implications, it is important to set out the legal landscape within which the case unfolded.

The Trespass to Property Act

In Ontario, the Trespass to Property Act, like similar legislation in other provinces, sets out the governing laws regarding trespassing. The purposes of this legislation are to provide greater control over entry and use of an occupier’s premises (i.e. lands or structures), to set out penalties and remedies for violations of the legislation, and to establish clear terms for recreational use of private lands.

An “occupier” is defined in the Trespass to Property Act as: “(a) a person who is in physical possession of premises, or (b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, even if there is more than one occupier of the same premises.”

Section 2(1) of the Trespass to Property Act makes it an offence for any person, not acting under a right or authority conferred by law, who

(a) without the express permission of the occupier, the proof of which rests on the defendant,

(i) enters on premises when entry is prohibited under this Act, or

(ii) engages in an activity on premises when the activity is prohibited under this Act; or

(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier.

An occupier may issue a notice prohibiting entry on premises pursuant to section 3(1), and, according to section 5(1), such notice may be given orally or in writing, by means of clearly visible signs, or by a marking system described in section 7 of the Trespass to Property Act.

 

The Canadian Charter of Rights and Freedoms

Whenever a premises in Ontario is public land or when the occupier is a government body, any action taken by that public entity is subject to compliance with the Canadian Charter of Rights and Freedoms (the “Charter”). The Charter guarantees certain rights and freedoms, which cannot be infringed unless it is by some “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (section 1).

For example, and specifically relevant to the issue of prohibitions against trespass under the Trespass to Property Act, everyone has fundamental freedoms under section 2 of the Charter to freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication, and freedom of peaceful assembly. Additionally, every citizen has the right to vote in federal and provincial elections protected by section 3 of the Charter. And, everyone has certain legal rights including: to life, liberty and security of the person (section 7); to be secure against unreasonable search and seizure (section 8); not to be arbitrarily detained or imprisoned (section 9). The Charter also provides, in section 24(1), the ability of citizens to seek a remedy from the courts for any violation of their rights or freedoms.

The interplay between a public body’s ability to make use of the Trespass to Property Act and the protections afforded to individuals by the Charter was squarely at issue in the Bracken case.

 

The Open Meetings Principle

Before moving on to the specifics of the Bracken decision, it is important to understand one more important element of the legal landscape: the “open meetings principle.”

In Ontario, the Municipal Act, 2001, S.O. 2001, c. 25, enshrines the open meetings principle at section 239, which states: “Except as provided in this section, all meetings shall be open to the public.”

The open meeting principle ensures that citizens have the right to a transparent, open decision-making process of local governments, committees and boards. A corollary of this principle is that concerned citizens will be free to observe the meetings of municipalities and other public entities and participate in the manner prescribed by the applicable rules, regulations, and by-laws.

 

II. Fredrick Bracken and the Town of Fort Erie

 

With this legal landscape in mind, it is now appropriate to turn to the Bracken case and the lessons that it holds regarding the use of trespass notices by municipalities or other public bodies.

 

Facts

Fredrick Bracken is a self-described citizen journalist. He challenges and protests government decisions with which he does not agree through various means, including marching with a megaphone, loudly exclaiming his concerns and demands. He also video records his protests and interactions with members of the public and government officials.

On June 16, 2014, Town Council for the Town of Fort Erie was scheduled to discuss a by-law which would permit a medical marijuana facility to be built across the street from Mr. Bracken’s house. Mr. Bracken opposed the by-law, and decided, on the evening of the scheduled Council meeting, to protest the proposed by-law.

Mr. Bracken attended at Town Hall about an hour before the Council meeting began to set up his protest. He entered the unlocked Council chamber and left a note on each councillor’s desk expressing displeasure with the proposed by-law. He also ensured that his megaphone siren could not be heard inside of the Council chamber so as to not disrupt the meeting. Mr. Bracken returned to the Town Square outside Town Hall and began marching back and forth, shouting into his megaphone “kill the bill” and other things, including demands that a senior Town staff member was a liar and should be fired.

Mr. Bracken’s protest was peaceful, but loud and apparently disturbing to some municipal staff who observed his marching and chanting. The municipality’s interim Chief Administrative Officer called the police, had the appellant arrested, and issued a Trespass Notice preventing the appellant from entering certain municipal properties for one year, which included preventing him from attending council and other committee meetings, which are open to the public and he otherwise would have been entitled to attend.

 

Charter Application Dismissed

Mr. Bracken brought an application in the Superior Court of Justice, challenging the constitutionality of the Trespass Notice under sections 2(b) (freedom of expression) and 7 (right to life, liberty and security of the person) of the Charter.

In a decision released as Bracken v. Fort Erie (Town), 2016 ONSC 1122, the application judge dismissed Mr. Bracken’s application, stating at paragraph 98 that Mr. Bracken “crossed the line of peaceful assembly and protest” and was engaged in acts of violence such that his expression was not protected under section 2(b) of the Charter. The application judge also commented at paragraphs 95 and 101 that Mr. Bracken’s language was incomprehensible shouting and his behaviour was erratic and intimidating, and therefore the use of a Trespass Notice was a legitimate effort to protect the public and Town staff and not a violation of Mr. Bracken’s freedom of expression.

The application judge declined to rule on Mr. Bracken’s challenge to the Trespass Notice under section 7 of the Charter.

 

Appeal to the Court of Appeal Allowed

Mr. Bracken appealed the dismissal of his application to the Court of Appeal for Ontario. In a unanimous decision by Justices Feldman, Lauwers, and Miller, the Court of Appeal allowed Mr. Bracken’s appeal, found that the Town’s Trespass Notice violated Mr. Bracken’s freedom of expression under section 2(b) of the Charter, and quashed the Trespass Notice. Given the result under section 2(b), the Court of Appeal found it unnecessary to consider section 7.

As an aside, the Court of Appeal also noted that the application ought to have been framed not as a Charter application, but as an application for judicial review under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, to determine: “whether the Town’s expulsion of Mr. Bracken from the premises and the issuance of the trespass notice was lawful in the circumstances.” This would have “brought to the fore the issue of the implied limits on the common law authority of government actors to exclude persons from public property.” Since the application was not framed in that manner, that issue remains to be determined another day.

The Court of Appeal decision provides some helpful guidance regarding the protections of freedom of expression provided by section 2(b) and the interplay between the Charter and the Trespass to Property Act. A full discussion of the Court’s analysis is beyond the scope of this article, but certain highlights are worth noting. Justice Miller, writing for the Court of Appeal, concluded that:

 

  1. Mr. Bracken’s protest was a form of expression protected by section 2(b) of the Charter;
  2. Mr. Bracken’s protest was not violent, nor did it threaten violence - “A person’s subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of s. 2(b)” (paragraph 49);
  3. The location of Mr. Bracken’s protest in front of Town Hall, in the literal “town square”, “is a place where free expression not only has traditionally occurred, but can be expected to occur in a free and democratic society” (paragraph 54);
  4. The Trespass Notice had the effect of limiting Mr. Bracken’s section 2(b) rights to freedom of expression by preventing him from conveying his message to his intended audience, both on that day and for one entire year thereafter;
  5. The “statutory obligation to promote workplace safety, and the “safe space” policies enacted pursuant to them, cannot be used to swallow whole Charter rights. In a free and democratic society, citizens are not to be handcuffed and removed from public space traditionally used for the expression of dissent because of the discomfort their protest causes” (paragraph 82); and
  6. The limit on Mr. Bracken’s section 2(b) freedom of expression was not a reasonable one that could be demonstrably justified in a free and democratic society under section 1 of the Charter, as it failed to meet the proportionality analysis set out in R. v. Oakes, [1986] 1 S.C.R. 103. Specifically, the Town could not establish it was acting for a sufficiently important public purpose, nor could the Town demonstrate that the Trespass Notice was minimally impairing of Mr. Bracken’s Charter rights or that the benefits of expelling Mr. Bracken were proportionate to the deleterious effects on his rights.

 

In quashing the Trespass Notice, the Court of Appeal cautioned against the type of blanket prohibition and commented that the one-year ban employed by the municipality in Bracken as being overboard and arbitrary.

In light of the decision in Bracken, municipalities and other public bodies would be prudent to consider taking precautionary measures to ensure the validity of any prohibitions against attendance on public lands issued to a concerned citizen, and to canvass alternatives to the type of outright ban implemented by the Trespass Notice issued to Mr. Bracken. 

 

III. Precautionary Measures

 

The Court of Appeal’s judgment in Bracken provides examples of precautionary measures a government body might take to ensure the validity of any notices of prohibition against trespass issued. At paragraph 72, Justice Miller comments: “Unlike other municipalities, the Town has no by-law regulating its use of trespass notices, or even a trespass policy. I observe that the risk of arbitrary action is higher in the absence of a well-crafted by-law, and there are greater opportunities for uncertainty as to what sorts of actions will be permitted.” A first step, therefore, might be for municipalities and other public bodies to ensure that they have such a by-law or policy, or review existing by-laws or policies with reference to Bracken.

Justice Miller also observed, at paragraph 75 of the Bracken decision, a government actor’s exercise of the common law power to expel persons from public property is “subject to implied limits.” Such limits include that the trespass notice “cannot be issued capriciously, that is, it cannot be issued, in the circumstances of a public protest in the town square, without a valid public purpose.” Some examples of valid public purposes would include: “the prevention of unlawful activity, securing the safety of persons, preventing the appropriation of public space for private use, and preventing the obstructing of the operation of government and the provision of government services.” Additionally, in a separate case involving Mr. Bracken, Bracken v. Regional Municipality of Niagara Corporation, 2015 ONSC 6934, Justice Nightingale noted at paragraph 65, that another valid public purpose could be “to preserve order at Regional Council meetings”. Municipalities and public bodies might want to take the precautionary second step of considering the validity and importance of the purpose for prohibiting an individual from entry on public premises prior to issuing a trespass notice. 

 

IV. Alternatives to Trespass Prohibitions

 

Finally, in Bracken, the Court of Appeal suggested alternative approaches that would have had less impact on Mr. Bracken’s freedom of expression.

To justify any limit imposed on an individual’s rights or freedoms under the Charter, a government entity must show that its actions impair the right or freedom as little as possible, and only to the extent necessary to promote the valid public purpose. Justice Miller explained at paragraph 79 that the Town had a number of more minimally impairing options available to it in dealing with Mr. Bracken. Examples suggested include “actually talking with Mr. Bracken and cautioning him not to use the megaphone in the building, asking him to lower the volume if it was disruptive to those working inside, and asking him to keep a respectful distance from people entering Town Hall.”

In the Bracken v. Regional Municipality of Niagara Corporation case, Justice Nightingale similarly suggested, at paragraphs 67-70, more minimally impairing alternatives to an outright ban such as trespass notices that would:

  • restrict the citizen’s ability to ask questions and make presentations during future Council meetings regarding Council business in accordance with the rules and procedural bylaws;
  • restrict the citizen’s communication in a non-disruptive manner with Council members to the confines of Council chambers before Council meetings;
  • restrict the citizen’s communication with Council members or staff by email or written correspondence;
  • make the citizen’s attendance at Council meetings conditional on not disrupting or attempting to disrupt the proceedings;
  • make it clear to the citizen that his or her right to attend future meetings would be in jeopardy and potentially taken away because of any improper conduct that would warrant expulsion from the meeting by the Chair under the Municipal Act, 2001;
  • be for a much shorter period of time (than one full year) at which point, the government body could then determine if the citizen’s alleged disruptive behaviour was no longer an issue; or
  • confirm that staff except the CAO would not be required to communicate or interact with the citizen thereby restricting his or her communication and contact with staff altogether and requiring the citizen to deal directly with the CAO including at Council meetings.

 

The Court of Appeal made similar observations in Bracken, especially about the length and geographic scope of the prohibition. At paragraph 80, Justice Miller observed: “the trespass notice took on a punitive nature, banning Mr. Bracken from all town property for a full year, terms which were far in excess of whatever immediate threat, real or imagined, the notice was intended to ameliorate.” Justice Miller also commented, that the geographic scope of the notice was overboard as there was no evidence or suggestion that Mr. Bracken ever set foot in two of the three properties from which he was banned, let alone caused problems there. Accordingly, even when use of a prohibition against trespass might be warranted, its terms should be carefully circumscribed to what is necessary in the circumstances including time frame, portions of the occupier’s lands, and conduct on those lands.

 

V. Conclusion

 

Municipalities and other public decision-making bodies are charged with a difficult task and a number of competing obligations. First and foremost, these government entities are mandated to govern, in the public interest, for the best interest of the public. In carrying out this mandate, some decisions will inevitably stir up controversy and dissent amongst constituents with diverse and diverging views. In some cases, those with dissenting voices may decide to take steps to have their voices heard in any number of ways – which will run the spectrum from passive and docile to loud, angry, and violent. In those circumstances, government actors will need to find a balance between preserving order and ensuring the safety and security of staff, other constituents and members of Committees or Councils on one hand, and respecting individual rights and freedoms enshrined in the Charter on the other hand.

The balancing of rights as between two groups of individuals is not an easy one as reflected by 35 years of disputes under the Canadian Charter of Rights and Freedoms since its inception in 1982. However, the Court of Appeal for Ontario’s recent decision in Bracken v. Fort Erie (Town), provides some useful guidance to municipalities, other public bodies, and individuals alike regarding the delicate interplay between the Trespass to Property Act, the Charter, and the principles of free, open, and democratic debate on which our society is founded.

 

JACOB R. W. DAMSTRA is a litigation associate at Lerners LLP in London, ON practicing in health law, commercial litigation, appeals, labour and administrative law, environmental and public interest litigation, class actions, insurance defence. He is a frequent writer and blogger on law and on life, a Reserve Canadian Armed Forces Officer, a non-profit Board member, a community volunteer, a hockey coach, and a proud father of three sons. Jacob can be reached at jdamstra [at] lerners [dot] ca, @jacobdamstra, and http://www.lerners.ca/jacob-r-w-damstra/