Mayor presses to move forward with 'bubble bylaw' despite Charter concerns

Ottawa Mayor Mark Sutcliffe said he will be supporting a motion directing staff to start work on a "bubble bylaw" to restrict protests near institutions such as schools, hospitals and places of worship.

According to Sutcliffe, the motion is expected to come to a joint meeting of council's emergency and protective services committee and the public works and infrastructure committee on Thursday. From there, it would go to council for a final vote.

"I think most people would like to see some provisions in place so that people can go to a place of worship without being intimidated by some type of demonstration, that parents can drop their kids off at school without there being a demonstration getting in their way," Sutcliffe said.

Other cities have passed similar bylaws. They include Vaughan, Ont., which prohibits "nuisance demonstrations" within 100 metres of places of worship, schools, child-care facilities and hospitals.

"I think we need to find a careful balance here and move forward with something that will protect the right of people to protest, but also allow people free access to the institutions that they're going to," Sutcliffe said.

Staff recommended more cautious approach

City staff have already prepared a feasibility assessment that cautions against moving quickly with a bubble bylaw, also known as a safe access bylaw. They recommended a comprehensive bylaw review that's estimated to take nine months.

The assessment notes there are constitutional issues with restricting protest, and that a bylaw would be at risk of legal challenge. Calgary is currently defending a similar bylaw against challenges.

"Staff caution that it would be prudent to assess the outcome of those proceedings before moving forward with similar regulations here," the assessment said.

But Sutcliffe said waiting could take too long, adding it might take a year or two to find out whether other cities' bylaws pass muster in the courts. He said he's been speaking with leaders from local education, health-care and religious communities who want to see action sooner.

"This is time-sensitive and I think the community expects us to show leadership on this issue, and I'm prepared to see and support moving forward with the process of creating a bylaw," the mayor said.

"It doesn't mean that there's a bylaw the next day," Sutcliffe added. "It means staff would then start the process of creating a bylaw, which would take months and includes public consultation to make sure we land in a place where we are striking that very careful balance."

Police already have powers: CCLA

In an interview, the Canadian Civil Liberties Association (CCLA) said a bubble bylaw would raise important Charter concerns, though much would depend on the details. 

"When you talk about bubble zone legislation, what you're really doing is you're prohibiting protests that are peaceful but that might be disruptive or offensive from taking place near community gathering spaces," said Anaïs Bussières McNicoll, director of the association's fundamental freedoms program.

She said police already have powers to ensure safe access to the institutions that Sutcliffe is worried about.

"There is a host of conduct that is prohibited under the Criminal Code, violent conduct but also conduct that isn't physically violent such as uttering threats, hate propaganda, intimidation, criminal harassment," Bussières McNicoll said. 

"So the police are not powerless at protests. They have broad powers to protect physical safety and they do not need a new bylaw to do that."

Kitchissippi Coun. Jeff Leiper said he still wants to see a copy of the motion supporters of the bylaw plan to introduce. But he said he's wary about moving forward now, especially when the new Liberal government has already committed to addressing the same issue.

"A number of us have concerns that we may be proceeding into constitutionally fraught territory before this is tested by the courts," said Leiper. 

He said any work toward studying or preparing a bylaw would be wasted if the courts rule that municipal bubble bylaws are unconstitutional.

"That could all go down the drain depending on what the courts say," Leiper said. "I think this is an area that is best left to the federal and provincial governments."