Calgary bylaw aimed at protecting LGBTQ events faces legal challenge

A City of Calgary bylaw that puts a buffer between protesters and drag events is facing a legal challenge over whether a municipal government has the power to enact such rules.

In March, the Safe and Inclusive Access bylaw was passed to address escalating protests at drag events, including a number of Reading with Royalty events at Calgary libraries. 

The bylaw prohibits certain types of protests within 100 metres of an entrance to a city-owned recreation facility or library. The city says it established access zones so people are able to access public services and facilities without being "exposed to messaging or behaviour that is hateful, intimidates, harasses, or discriminates."

The bylaw will be looked at in a judicial review in February 2025, after a constitutional challenge was filed in May. The Canadian Constitution Foundation, which filed the challenge, said it's part of their mandate to defend fundamental freedoms.

In an emailed statement, the group's executive director, Joanna Baron, said the bylaw got their attention "as it is an obvious infringement of the right to free expression." 

"It restricts specified protests in zones around recreational centres and libraries — locations that are hubs for democratic expression. Moreover, it targets specific forms of expression, whereas the Charter's guarantee of free expression is content-neutral," the statement read. 

Yoav Niv, an Alberta criminal regulatory lawyer who represents that group, said they will challenge whether a municipal government has the ability to enact this type of bylaw.

"The municipality of Calgary is effectively trying to regulate criminal harassment and hate speech, which is already enshrined in the Criminal Code. That's the federal government's job," he said. 

Niv added that the bylaw was rushed forward to address protests, and he takes issue with the bylaw prohibiting some types of protests, but not others. 

"We can't have a situation where you're allowed to have one kind of political expression in a certain place, but you're not allowed to have others. And that is the difficulty," Niv said.

The city says between March 14 and Sept. 24 there have been seven charges laid under the Safe and Inclusive Access bylaw. 

Niv said during a judicial review the judge will determine whether the government had the authority to make the law. If the judge determines they didn't, then the bylaw would need to be redrafted. 

Drag performer Shane Onyou, a longtime participant in the Reading with Royalty events, said there are still protesters at the readings, and some protesters have snuck into the events, but the situation has improved. 

"Since they aren't allowed to be right in front of wherever we are doing a 2SLGBTQ event, it has made it a lot safer for people to enter," Onyou said. 

He said prior to the introduction of the bylaw, protesters were pulling fire alarms and yelling at the children. 

"The bylaw has created a safe entryway — that's basically all it's given us. They're still allowed to yell hateful stuff. They're still allowed to protest. They just can't do it right in the front entrance." 

Onyou added that the protests only started in the past year and a half. 

Howard Kislowicz, an associate professor in the faculty of law at the University of Calgary who studies constitutional law, said one of the main parts of the argument from the Canadian Constitution Foundation is that the bylaw is about criminal law, which is a federal jurisdiction. 

But he added that the bylaw could apply to property and civil rights, which is a provincial power that flows to a municipality. 

"It will depend on the evidence presented, how a court will see this law." 

He added that on arguments regarding free expression, the Canadian Constitution Foundation has the evidentiary burden to prove that the bylaw violates or infringes freedom of expression. 

He said the city will need to show that there was a good reason for the bylaw and a rational connection between that purpose and the bylaw. 

The city says it can't comment on this legal challenge as it is ongoing.