COURT OF APPEAL FOR
    ONTARIO

CITATION: Bracken v. Niagara Parks Police, 2018 ONCA 261

DATE: 20180319

DOCKET: C62796

Doherty, LaForme and Miller JJ.A.

BETWEEN

Fredrick Bracken

Applicant (Appellant)

and

Niagara Parks Police and
Niagara
    Parks Commission

Respondents (
Respondent
)

Fredrick Bracken, acting in person

John Craig and Tala Khoury, for the respondent

Heard: September 20, 2017

On appeal from the decision of Justice James A. Ramsay of
    the Superior Court of Justice, dated September 9, 2016, with reasons reported
    at 2016 ONSC 5615.

B.W. Miller J.A.:

OVERVIEW

[1]

On August 2, 2016, in the run-up to the U.S. presidential election, the
    appellant, Mr. Bracken, stood in Grand View Plaza in Niagara Parks, holding a sign
    reading, Trump is right. Fuck China. Fuck Mexico.

[2]

Parks staff informed the Niagara Parks Police (the NPP) that they had
    received a complaint about a man standing on the sidewalk holding a sign. The
    NPP attended and concluded the sign was offensive and disturbing to visitors.
    They informed Mr. Bracken that he was not permitted to display the sign, and
    asked him to leave. Mr. Bracken refused. He argued that he had a
    constitutionally protected right to display the sign, which he characterized as
    a statement about economic and trade policy. The NPP officers did not see
    things the same way. Mr. Bracken became increasingly animated, calling one of the
    officers a fucking piece of shit and a power tripping fucking idiot, among
    other things. Eventually, one of the officers issued Mr. Bracken a summons
    under the
Provincial Offenses Act
, R.S.O. 1990, c. P.33 for two offences
    contrary to s. 2(9)(a) of O. Reg. 829 made under the
Niagara Parks Act
,
    R.S.O. 1990, c. N. 3 (the Regulations): (1) disturbing other persons and (2)
    using abusive or insulting language.

[3]

On August 4, Mr. Bracken went to the NPPs headquarters to discuss the summonses
    and clarify whether he could display his sign in the Parks. Mr. Bracken was
    told that he could not, and if he were to return with the sign he would be
    removed pursuant to the
Trespass to Property Act
, R.S.O. 1990, c. T.21.

[4]

Mr. Bracken sought relief before the Superior Court on multiple grounds.
    The only grounds relevant to this appeal are declarations that: (1) s. 2(9)(a)
    of the Regulations violates s. 2(b) of the
Charter
; and (2) the oral
    trespass notice served on him at the NPP headquarters similarly violates s.
    2(b).

[5]

The application judge dismissed the application. He held that s. 2(9)(a)
    did not limit Mr. Brackens s. 2(b)
Charter
rights, because the
    constitutional guarantee of freedom of expression does not apply to shouting insulting
    or abusive language in the Parks. He declined to determine whether the oral
    trespass notice infringed s. 2(b), as he was not satisfied that a trespass
    notice had in fact been issued.

[6]

Mr. Bracken appeals both aspects of the judgment.

[7]

For the reasons that follow, I would allow the appeal in part. The
    application judge made a palpable and overriding error in finding that a
    trespass notice had not been issued, and further erred in not granting a
    declaration quashing the notice. Although the application judge erred in concluding
    that s. 2(9)(a) does not limit rights under s. 2(b) of the
Charter
, I
    would hold that the limits are justified under s. 1 of the
Charter
. I
    would therefore dismiss the constitutional challenge to s. 2(9)(a).

[8]

As explained further below, the two offences with which Mr. Bracken was
    charged were adjudicated before the Ontario Court of Justice and are not before
    this court. Nor do we have before us the evidential record from those
    proceedings describing Mr. Brackens interactions with other users of the Parks
    that day. Although the interpretation of s. 2(9)(a) set out below may be
    relevant for the adjudication of Mr. Brackens offence conviction appeal, nothing
    in these reasons addresses the question of whether the trial judge erred, on
    the facts before him, in finding that Mr. Bracken committed the offence of
    using abusive or insulting language contrary to s. 2(9)(a).

BACKGROUND AND PROCEDURAL
    HISTORY

[9]

The Commission is a provincial Crown agency created in 1887 and given
    jurisdiction over the Parks by the
Niagara Parks Act
. Section 22(1)(a)
    of the
Act
gives the Commission the power to make regulations
    regulating and governing the use by the public of the Parks, under which
    authority it passed s. 2(9)(a).

[10]

This
    appeal has an irregular history. Mr. Brackens application began as a motion
    for an interlocutory injunction prohibiting the Commission and NPP from
    enforcing the oral trespass notice, and was subsequently expanded to include constitutional
    remedies. It does not appear that an originating process was ever issued.
    Nevertheless, the matter was argued as an application before Ramsay J., on the
    basis of a thin evidentiary record that included a brief affidavit from Mr.
    Bracken (appending a DVD recording of his protest and some of his interactions
    with the NPP) and a responding affidavit by Paul Forcier of the NPP, partially
    comprised of hearsay of what he was told by the officers who engaged with Mr.
    Bracken on August 2, 2016. There was no cross-examination on the affidavits.

[11]

Subsequent
    to the application before Ramsay J., Mr. Bracken was convicted of one of the
    charges under s. 2(9)(a) by Justice of the Peace Lancaster in separate
    proceedings in the OCJ. As noted above, Mr. Brackens appeal of that conviction
    is not presently before this Court. We denied Mr. Brackens oral motion to file
    fresh evidence from those proceedings on the basis that the motion was brought
    late  on the morning of the hearing before us  and granting it would have
    been unfair to the respondent, which had prepared the appeal on a different
    record. This appeal is therefore to be determined on the record as it stood before
    Ramsay J.

ISSUES

[12]

Although
    there are numerous grounds of appeal set down in the Notice of Appeal, at oral
    argument they reduced to two main issues. These are whether the application
    judge erred:

1.       in not
    finding that s. 2(9)(a) of the Regulations infringes s. 2(b) of the
Charter
;

2.       in not
    granting a declaration quashing the oral trespass notice.

[13]

Mr.
    Bracken also claimed an infringement of his rights under s. 7 of the
Charter
.
    As this argument was raised for the first time on appeal and at best bears
    tangentially on the matters in dispute, it would not be in the interests of
    justice, in my view, to consider it at this stage in the proceedings.

ANALYSIS

[14]

I
    will first consider the constitutional challenge to s. 2(9)(a) before addressing
    the constitutionality of the oral trespass notice.

A.

The constitutional protection of freedom of expression

[15]

A
    defining feature of a free society is the right to speak openly and publicly
    without fear of government censure. Freedom of expression is deeply ingrained
    in democratic, egalitarian cultures, and reinforces all of the other
    fundamental freedoms. In Canada it receives legal protection through common
    law, statute, and s. 2(b) of the
Charter
. Its countermajoritarian
    nature was stressed by the Supreme Court in
Irwin Toy Ltd. v. Quebec
    (Attorney General)
, [1989] 1 S.C.R. 927, at pp. 968-969:

Freedom of expression was entrenched in our Constitution and is
    guaranteed  so as to ensure that everyone can manifest their thoughts,
    opinions, beliefs, indeed all expressions of the heart and mind, however
    unpopular, distasteful or contrary to the mainstream.

The Supreme Court cautioned against restricting
    protection to only those ideas that are warmly received by the public, citing the
    European Court of Human Rights:

[freedom of expression] is applicable not only to
    "information" or "ideas" that are favourably received or
    regarded as inoffensive or as a matter of indifference, but also to those that
    offend, shock or disturb the State or any sector of the population.  Such
    are the demands of that pluralism, tolerance and broadmindedness without which
    there is no "democratic society".
[1]

[16]

Freedom
    of expression is not boundless, however, and a properly functioning society must
    limit many types of expression for the common good. Discerning the line between
    reasonable and unreasonable limits on expression is, however, a perpetual
    challenge, taken up initially by legislators, and secondarily by courts on
    judicial review.

[17]

In
    this appeal, this court is required to assess the constitutionality of one such
    limit established by the Commission to govern conduct at the Niagara Parks: s.
    2(9)(a).

B.

The constitutional challenge to s. 2(9)(a)

(1)

Statutory interpretation

[18]

The
    first step in assessing the constitutionality of a regulation is interpretation.

[19]

Section
    2(9)(a) provides:

(9)  no person shall, within the Parks,

(a) use abusive or insulting language, or conduct
    himself or herself in the Parks in a manner that unnecessarily interferes with
    the use and enjoyment of the Parks by other persons;

[20]

This
    is a regulation, drafted by the Commission and approved by Order in Council. It
    is not a statute and therefore there was no legislative debate and no legislative
    record to aid in its interpretation. And although the respondent provided
    several written histories surrounding the creation of the Commission and the
    Parks, none of these address issues that would assist in the interpretation of
    s. 2(9)(a).

[21]

The
    general context of the Regulations is provided by s. 22(1)(a) of the
Niagara
    Parks Act
, which authorizes the Commission to make regulations regulating
    and governing the use by the public of the Parks. The Regulations impose
    significant restrictions on the types of recreational and commercial activities
    that may be carried out in the Parks, as well as on the more general behaviour of
    the Parks users.
The Regulations further
    provide, at ss. 2(11) and 2(13), that anyone who contravenes s. 2(9)(a) may be
    removed from the Parks by an officer, and shall not re-enter the parks within
    72 hours without permission from the Commission.

[22]

Whether
    a user of the Parks has contravened s. 2(9)(a) is determined in the first
    instance by the NPP, whose decision can result not only in immediate expulsion,
    but also prohibition on re-entry for up to three days, reviewable by the
    Commission.

[23]

In
    reading s. 2(9)(a), the application judge concluded that the provision captures
    only language that is so extremely offensive or insulting that it could
    interfere with the peaceful use and enjoyment of the parks by other persons. On
    this reading, the class of speech the Commission intended to capture with the term
    abusive or insulting language is significantly narrower than the ordinary
    meaning of that phrase.

[24]

Mr.
    Bracken objects to this interpretation which, he submits, fails grammatically
    and amounts to a legal error. In oral argument, he argued that the application
    judge ignored the disjunctive or in s. 2(9)(a) and effectively read it as
    stating:

no person shall, within the Parks, use abusive or insulting
    language  in a manner that unnecessarily interferes with the use and enjoyment
    of the Parks by other persons.

[25]

On
    Mr. Brackens reading, abusive or insulting language is not restricted to
    language that unnecessarily interferes with the use and enjoyment of the Parks
    by others, but encompasses the widest meaning of the words. He objects that the
    application judge read down s. 2(9)(a), choosing an artificially narrow
    meaning in order to uphold the constitutionality of the provision. I disagree.
    As I explain below, the application judge appropriately interpreted the
    provision by ascertaining the intentions of the Commission as expressed through
    the words it used.

[26]

The
    thrust of Mr. Brackens argument is that s. 2(9)(a) consists of two independent
    prohibitions: (1) of the use of abusive and insulting language in the Parks,
    and (2) of conduct that unnecessarily interferes with the use and enjoyment of
    the Parks by other persons, and these must be kept analytically separate. Mr.
    Brackens grammatical argument is that the phrase, in a manner that
    unnecessarily interferes with the use and enjoyment of the Parks by other
    persons, directly applies only to the preceding words, that is, conduct
    himself or herself in the Parks, and does not apply to the prohibition on
    using abusive or insulting language. I agree, but this argument does not
    assist him.

[27]

In
    statutory interpretation, context is critically important. Even though the restriction
    in a manner that unnecessarily interferes with the use and enjoyment of the
    Parks by other persons does not apply
directly
to the prohibition on
    using abusive or insulting language, its inclusion in the same provision
    sheds light on the meaning of that phrase. It suggests that, as a whole, s. 2(9)(a)
    addresses restrictions thought necessary in order for a member of the public to
    use the Parks without interfering with other patrons.

[28]

Further
    (confirmatory) context is provided by use of the phrase abusive or insulting
    language in criminal law, reaching back in English law at least to the
Metropolitan
    Police Act 1839
, ch. 47, s. 54(13). Although statutory prohibitions
    against abusive or insulting language take different forms in different
    jurisdictions, Commonwealth courts have consistently held that such
    prohibitions do not capture
all
abusive or insulting language. Rather,
    they are typically limited to those instances likely to interfere with public
    order in some way: see
Coleman v. Power
, [2004] HCA 39, at paras. 193,
    257-258
; Harvey v. Director of Public Prosecutions
, [2011] EWHC 3992
    (Admin), 2011 W.L. 5105637, at paras. 12-15.

[29]

In
    domestic criminal law, shouting insulting or obscene language is insufficient
    to constitute a disturbance under s. 175(1)(a)(i) of the
Criminal Code
,
    which requires an interference with the
ordinary and
    customary use by the public of the place in question
:
R. v. Lohnes
,
    [1992] 1 S.C.R. 167, at 177 (emphasis added);
R. v. Swinkels
, 2010
    ONCA 742, 103 O.R. (3d) 736, at para. 32.

[30]

It
    is therefore unsurprising that in the context of regulating the use of a public
    park, a prohibition on insulting or abusive language would require something
    akin to a restriction on interference with the ordinary and customary use of
    the place in question.

[31]

Whether
    conduct interferes with the peaceful use and enjoyment of the Parks must be established
    on an objective basis. A court should assess the type and intensity of the
    language and behaviour in question against the conditions that ought to prevail
    in the specific location of the Parks at the specific time, as is the case in
    the criminal context of causing a disturbance by using insulting or obscene
    language:
Lohnes
, at p. 180;
Swinkels,
at para. 19. The
    inquiry presumes that members of the public have some resilience, particularly concerning
    political speech, and are required to tolerate public expression of a wide
    range of views on matters of public life, including those views that are
    inconsistent with their own beliefs, choices, and commitments. Mere offence at
    a message, particularly a message advocating for some vision for the better advancement
    of the public good, is not enough. The public is not required to endure
    personalized invective, but nothing in the signs message could be
    characterized in this way. As the application judge below noted, the contents
    of Mr. Brackens sign, even with its profanity, came nowhere near close to the
    line. The officers concern that citizens of Mexico or China who happened upon
    the sign might be offended by it, was well wide of the mark. The sign, which
    effectively stated that the national interests of other countries should be
    subordinate to domestic interests, disparaged no one. Even if Mexican or
    Chinese nationals took offence, or others took offence on their behalf, such
    offence could not bring the sign within the meaning of abusive or insulting
    language.

[32]

In
    summary, on my interpretation of s. 2(9)(a), the prohibition of the use of
    abusive or insulting language extends no further than to proscribe the use of
    personal invective, interfering with a patrons use of the Parks.

(2)

Section 2(b)
Charter
analysis

[33]

It
    remains to be determined whether s. 2(9)(a) violates s. 2(b) of the
Charter
.
    It is necessary to bear in mind the two-stage structure of
Charter
adjudication. The inquiry at the first stage focuses on whether a persons purported
    exercise of a
Charter
right has been limited by state action. The
    second stage is concerned with whether the limit is justified in a society that
    is free and democratic. A positive determination at the first stage  a conclusion
    that a claimants exercise of right has been limited  is
not
a
    determination that the claimants
Charter
rights have been violated. Although
    it was once common to describe s. 1 analysis as a matter of saving violations
    of
Charter
rights, this language is misleading   s. 1 analysis is not
    a matter of excusing rights violations, but of establishing the reasonable
    limits on rights: Guy Régimbald and Dwight Newman,
The Law of the Canadian
    Constitution
, 2nd ed. (Markham: LexisNexis Canada, 2017), at p. 546-47;
    see also Grégoire Webber,
The Negotiable Constitution: on the limitation of
    rights
(Cambridge: Cambridge University Press, 2009), at p. 122.

[34]

The
    first stage inquiry into whether s. 2(b) rights have been limited proceeds by
    way of three questions: (1) does the activity in question have expressive
    content? (2) if so, does either the method or location of the expression
    disentitle it to s. 2(b) protection? and (3) if the expression is protected, does
    the impugned government action limit the expression either in purpose or
    effect?
Montréal (City) v. 2952-1366 Québec Inc.
, 2005 SCC 62, [2005]
    3 S.C.R. 141, at para. 56.

Question 1: Expressive content

[35]

Does
    abusive or insulting language, as interpreted by the application judge and
    earlier in these reasons, have expressive content? I conclude that it does. Expression
    has been given wide meaning by the Supreme Court. Expression is never excluded
    from s. 2(b) because of the content of the message it conveys:
Irwin Toy
,
    at

p. 969;
R. v. Keegstra
, [1990] 3 S.C.R. 697, at p. 729;
City
    of Montréal
, at para. 58. Subject only to certain exclusionary rules described
    below, s. 2(b) extends protection to any activity that conveys or attempts to
    convey a meaning:
Irwin Toy
, at p. 969. This includes abusive or
    insulting language captured by s. 2(9)(a), as such language can convey or
    attempt to convey meaning  albeit in an extremely offensive manner. That such
    expression potentially interfere[s] with the peaceful use and enjoyment of the
    parks by other persons does not preclude the intermediate conclusion that the
    prohibition of the use of such language limits expressive content.

Question 2:      Excluded expression

[36]

Some
    methods of expression are categorically excluded from the scope of s. 2(b)  specifically,
    violence and threats of violence. This limit is internal to s. 2(b); once it is
    established that the method of expression is, for example, an act of violence,
    the constitutional inquiry is at an end and the state is not required to justify
    any limit on the expression.

[37]

State
    actors are not required to justify limits on expression that is violent or
    threatens violence because, according to longstanding doctrine, there are no
    competing interests capable of justifying it. As this court explained in
Fort
    Erie
, at para. 30: to give acts of violence even defeasible protection
    under s. 2(b) would give them an unacceptable legitimacy. It would be
    tantamount to declaring  that an individuals self-expression through acts of
    violence could, in some conceivable circumstances, take priority over the
    public good of protecting persons by restraining acts of violence. That said,
    because the consequences of characterizing expression as violent are extreme
    the characterization conclusively defeats the
Charter
claim without canvassing
    whether there are any competing considerations  this court cautioned at para.
    50 against expanding the category of what constitutes violence or threats of
    violence. The violence exception to the scope of freedom of expression remains
    sharply limited.

[38]

In
    its written submissions, the respondent proposed an expansion to the violence
    exception to encompass emotionally violent expression. This submission was
    expressly rejected by this court in
Fort Erie
, at para. 49. Put
    simply, the emotional impact of expression on a third party has no bearing on the
    question of whether that expression was conveyed through a violent act. Thus, the
    Supreme Court has held that even hate speech is not inherently violent, despite
    the risk that such expression will have an emotionally damaging impact on its
    targets:
Keegstra
, at pp. 731-732.

[39]

A
    second exclusionary rule relates to the physical location where the expression
    takes place. Freedom of expression does not encompass the right to
    non-interference with expression in
every
locale, public or private. It
    does not even extend to all government-owned property:
City of Montréal
,
    at paras. 60-61; Régimbald and Newman, at p. 631ff.

[40]

In
City of Montréal
, at para. 74, the Supreme Court articulated a test
    for the determining whether s. 2(b) protection applied in any given public
    location: whether the place is a public place where one would expect
    constitutional protection for free expression on the basis that expression in
    that place does not conflict with the purposes which s. 2(b) is intended to
    serve, namely (1) democratic discourse, (2) truth finding, and (3)
    self-fulfilment. The Court specified two factors that should be considered in
    answering that question: (a) the historical or actual function of the place;
    and (b) whether other aspects of the place suggest that expression within it
    would undermine the values underlying free expression.

[41]

With
    respect to the first factor, the Court drew a subtle but important distinction
    between historical use and actual function of a place. Historical use, as
    developed in that judgment, is determined by a factual inquiry into community practices.
    What use has the community made of the place, apart from whatever governmental
    function it may also serve? An established community practice of free
    expression in a location is some evidence of a social convention that the location
    ought to be available for free expression. The case law identifies examples such
    as sidewalks (
City of Montreal
, at paras. 67-68), airports (
Committee
    for the Commonwealth

of Canada v. Canada
, [1991] 1 S.C.R. 139, at
    pp. 158-159), parks (
Commonwealth
, at pp. 152-153;
R. v.

Batty
,
    2011 ONSC 6862, 108 O.R. (3d) 571, at paras. 70-72), utility poles (
Ramsden
    v. Peterborough (City)
, [1993] 2 S.C.R. 1084, at pp. 1100-1102), and the
    town square (
Fort Erie
, at para. 54).

[42]

The
    inquiry into the actual function of a place has a different focus. Actual
    function concerns the primary, governmental function of the place, rather than
    the communitys secondary use of it as a public forum:
City of Montréal
,
    at para. 76. The question is whether the governmental activity that goes on at
    the place is compatible with the use of the place as a public forum; in other
    words,[w]ould an open right to intrude and present ones message by word or
    action be consistent with what is done in the space? Or would it hamper the
    activity?:
City of Montréal
, at para 76.  The exercise of freedom of
    expression would hamper governmental functions, including the provision of
    public services, if a right of access were allowed in essentially private
    places that require privacy. Section 2(b) does not extend protection to
    expression in such locations.

[43]

Ultimately,
City of Montréal
characterizes historical use and actual function as
    markers of constitutionality, on-going patterns of property use that reflect both
    formal governmental choices and informal social conventions. These practices,
    the Supreme Court says, are a ready guide to what is likely reasonable in a
    free and democratic society. But historical use and actual function must still
    be critically evaluated to determine whether they in fact align with what is
    reasonable. The underlying question is whether a practice of free expression
    in the place in question would undermine the purposes of the [s. 2(b)] guarantee,
    which includes the practices of democracy and efficient governance:
City of
    Montréal
, at paras. 76-77;
R. v. Banks
, 2007 ONCA 19, 84 O.R.
    (3d) 1, at para. 119.

[44]

The
    respondent argues that the history of the Parks does not reveal any use of it
    as a public forum, and that the actual function is incompatible with the exercise
    of freedom of expression. I disagree with both submissions. Although the record
    does not provide any compelling evidence of the historical use or non-use of
    the Parks as a public forum for expression, as in
Greater Vancouver
,
    at para. 43, the very fact that the general public has access to the Parks
    is an indication that members of the public would expect constitutional
    protection of their expression in that space. An aspect of freedom of
    expression is the ability to address people in places where crowds are known to
    congregate.

[45]

With
    respect to the actual, governmental, function of the Parks, the respondent seeks
    to distinguish the function of the Parks from that of a municipal park or town
    square or other outdoor public location. The reason for the establishment of
    the Parks, on the respondents evidence, was to remedy commercial exploitation
    that impaired the ability of visitors to experience the natural landscape, and
    to preserve the Niagara Falls as a global asset. Grandview Plaza is a place of
    public recreation: it serves as a venue to view Niagara Falls and facilitates
    the various commercial enterprises sanctioned by the Parks.

[46]

The
    respondent further argues that the Parks are intended to function as a haven or
    refuge from public debate, assembly, or protest, and a place to experience
    natural beauty without the distraction of potentially divisive expression. In
    the respondents view, some forms of expression, such as abusive or insulting speech,
    are incompatible with this function of the Parks and therefore do not come
    within the scope of s. 2(b) protection.

[47]

Here
    the respondent miscasts the nature of the location-based exclusion under s.
    2(b), and strays into considerations properly addressed in the reasonable
    limits analysis under s. 1 of the
Charter
. The location-based analysis
    is a preliminary screen only, to weed out claims of entitlement to platforms
    that are clearly unsuitable for public address given their governmental function.
    The question is not whether insulting or abusive language is compatible with
    the Parks function, but whether public expression in general is compatible
    with it.

[48]

Additionally,
    given the sheer size of the Parks, the location-based analysis must be more
    finely grained than what the respondent suggests, and must focus on the part of
    the Parks where the events occurred.  Grandview Plaza is a large, open space
    where Parks-sanctioned commercial enterprises are located. Indeed, the initial
    complaint about Mr. Bracken did not come from a visitor whose experience of the
    Parks was frustrated by either his sign or his behaviour, but from a vendor who
    objected to Mr. Bracken occupying the space where the vendor wanted to set up
    his ice-cream cart. It is capable of accommodating hundreds if not thousands of
    people. According to the evidence of Officer Forcier, it is one of the busiest
    places in the Parks, and nearly 17,000 people passed through it on August 2. At
    the time of Mr. Brackens demonstration, hundreds of people had just
    disembarked from tour buses and were queuing to buy tickets for the Wildplay Zipline
    attraction and Hornblower boat tours.

[49]

In
    my view, the evidence does not establish that the function of either the Parks
    as a whole or Grandview Plaza specifically would be impaired by constitutional
    protection of expression within the Parks. Grandview Plaza is a place where
    people congregate and must expect to interact with others. That is precisely
    what made it an attractive destination for Mr. Bracken. Nothing that happens
    there requires quiet or an absence of distraction. Indeed, neither quiet nor
    the absence of distraction is even possible there. As in
Greater Vancouver
,

[u]nlike the activities which occur in certain government
    buildings or offices
, those which occur [in the Parks] do
    not require privacy and limited access
Like a city street, [the Parks
    are]
a public place where individuals can openly interact
    with each other and their surroundings
(
Greater Vancouver
, at
    para. 43, emphasis added).

[50]

Nor
    am I persuaded that there is anything else about the Parks that suggests that the
    exercise of freedom of expression within it would undermine the purposes for
    constitutional protection of that freedom. Although there could be places
    within the Parks where the constitutional protection of freedom of expression
    does not extend (private offices, for example), Grandview Plaza is not one of
    them.

[51]

Of
    course, the mere fact that freedom of expression is protected within a
    particular location does not mean that no limits on expression in that location
    are permissible. But any such limits fall to be considered under s.1 analysis.

Question 3: does s. 2(9)(a) of
    the Regulations limit 2(b) of the Charter in purpose or effect?

[52]

The
    third step of the s. 2(b) inquiry is to ask whether the limits imposed by s.
    2(9)(a) on free expression flow from the provisions purpose, or whether they
    are better understood as incidental effects.

[53]

If
    it is determined that s. 2(9)(a) has as its
purpose
the limitation of
    expression, that is sufficient to establish a s. 2(b) limit on expression and
    the government must defend the limit under s.1 of the
Charter
. But if
    the provision limits expression as a side-effect of the pursuit of some other purpose,
    then the claimant faces the additional hurdle of establishing that the expression
    subject to the limitation furthers one of the underlying goods advanced by the
    protection of expression: (1) enabling democratic discourse; (2) facilitating
    truth seeking; or (3) contributing to integral self-fulfillment:
Irwin Toy
,
    at p. 976.

[54]

The
    respondent argues that s. 2(9)(a) does not have as its purpose the limitation
    of expression: any message whatsoever can be delivered as long as the form of
    expression does not attack the physical or psychological integrity of the
    audience. The provision is said not to target the communication of any
    particular set of ideas, only the method used to convey ideas.

[55]

I
    do not accept this submission for two reasons.

[56]

First,
    insofar as it applies to psychological integrity, the argument is simply an
    iteration of the argument rejected above, urging an expansion of the violence
    exception to include emotional violence.

[57]

Second,
    just because
some
means of expression (predominantly physical
    violence) can be readily identified and excluded from the ambit of freedom of
    expression, does not mean that such a neat division between content of
    expression and the means of communication is always possible:
Ford v.
    Quebec (A.G.)
, [1988] 2 S.C.R. 712, at  pp. 748-750. Over some range of
    cases at least, the medium is the message. Tone of voice, volume, facial
    expressions, and body language all convey meaning that cannot necessarily be conveyed
    effectively in words. The exercise of free expression is diminished by
    restrictions on the means that make it effective. So it is no answer for the
    respondent to say there is no limit on ones exercise of freedom of expression
     that everyone is free to convey whatever ideas they want  provided they use
    appropriately temperate language. To take a familiar example from US First
    Amendment case law, the meaning conveyed by shouting fuck the draft does not
    translate, without significant loss of meaning, to the quiet declaration, I am
    implacably opposed to the draft:
Cohen v. California
(1971), 403 U.S.
    15.

[58]

For
    these reasons, I conclude that the application judge erred in determining that s.
    2(9)(a) did not limit freedom of expression under s. 2(b). The Commission is required
    to demonstrate, in s. 1 analysis, that the limit placed on expression can be
    justified.

(3)

Section 1

[59]

Where
    the exercise of a
Charter
right has been limited by a statute or
    regulation, the party seeking to uphold the statute or regulation may justify the
    limitation. This is because the scope of non-absolute rights such as freedom of
    expression cannot be determined without an assessment of the reasonable limits
    necessary for maintaining the conditions conducive to a healthy society,
    including those limits needed to protect public safety, order, health, or
    morals or the fundamental rights and freedoms of others:
R. v. Big M Drug
    Mart
, [1985] 1 S.C.R. 295, at p. 337.

[60]

The
    framework for determining whether a legislative limit on rights is reasonable
    and justified was set out in
R. v. Oakes
, [1986] 1 S.C.R. 103, at pp.
    138-139. Although aspects of the
Oakes
test, set out below, are
    expressed in technical terms such as balancing and minimal impairment, the
    test is at root an evaluation of the extent to which limits are reasonable in a
    free and democratic society:
R. v. K.R.J
., 2016 SCC 31, [2016] 1
    S.C.R. 906, at para. 58; see also Francisco J. Urbina,
A Critique of
    Proportionality and Balancing
, (Cambridge: Cambridge University Press,
    2017), at pp. 4-9.

(a)

Prescribed by law

[61]

Section
    1 of the
Charter
authorizes only such limits as are prescribed by
    law. This requirement is satisfied by a regulation promulgated by the Commission
    pursuant to the exercise of its statutory power.

[62]

Mr.
    Bracken, however, objects to s. 2(9)(a) on the basis of its vagueness. He
    argues that the uncertain boundaries of the words abusive or insulting mean
    the provision provides no guidance either to a person like himself who wants to
    know what he can and cannot lawfully do in the Parks, or to a police constable
    tasked with enforcing it. The result, he argues, is the antithesis of the rule
    of law: instead of being subject to a clear rule capable of guiding behaviour,
    he is subject to a vague standard whose meaning depends on the whims of the NPP
    officer applying it.

[63]

In
    support of his argument, Mr. Bracken points to the history of his engagement
    with the NPP. On August 2, 2016, he was told that he was not permitted to
    display his sign in the Parks. Two days later, when he attended at the station
    and sought clarification, he was told again, by a different officer, that the
    sign was not permitted, and that if he attended again with the sign he would be
    removed from the premises. Significantly, the respondent now concedes that the display
    of the sign in the Parks does not infringe s. 2(9)(a) and that the oral
    trespass notice cannot be maintained. This series of events, Mr. Bracken
    argues, demonstrates that s. 2(9)(a) is unconstitutionally vague.

[64]

I
    would reject this submission.

[65]

The
    concern about vagueness in legal standards, the discretion it gives to those who
    interpret and implement them, and the challenge it poses to the Rule of Law has
    long been a preoccupation of jurists: see Timothy A.O. Endicott,
Vagueness
    in Law
(Oxford: Oxford University Press, 2001). In Canadian law, the
    leading treatment of vagueness remains
R. v. Nova Scotia Pharmaceutical
    Society
, [1992] 2 S.C.R. 606, which holds that it is an impossible demand
    that the legislature, and those exercising delegated rule-making powers like
    the Commission, address in advance every conceivable contingency in a laws
    application. Although the law can identify clear areas of permissible and
    impermissible behaviour where there is no room for doubt about ones
    obligations, it is inherent to our legal system that some conduct will fall
    along the boundaries of the area of risk:
Nova Scotia Pharmaceutical
    Society
, at p. 639.

[66]

An
    appropriately specific law gives fair notice of the type of behaviour that enters
    the risk zone of non-permissible conduct. That requirement of fair notice is
    satisfied where the law sufficiently delineate(s) an area of risk and
    provides the criteria to be used by those applying the law to particular
    circumstances. It is unrealistic to demand that the law do more:
Nova
    Scotia Pharmaceutical Society
, at pp. 638-39. The fair notice requirement
    can also be satisfied in part where the prohibited conduct coincides with the
    substratum of common morality in society; that is, when independent of the
    law, everyone knows that the proscribed act is wrongful:
Nova Scotia
    Pharmaceutical Society
, at pp. 634-635.

[67]

Section
    2(9)(a) is sufficiently detailed to provide an adequate basis for reasoned
    analysis applying legal criteria, as demonstrated in the discussion above about
    the provisions interpretation. It provides fair notice to the public and appropriately
    limits enforcement discretion. Furthermore, even members of the public who are
    unaware of s. 2(9)(a) would know that it is wrong to interfere with other
    persons in their use of public recreational space. That s. 2(9)(a) is, like any
    law, capable of being misinterpreted (and was misinterpreted by the NPP with
    respect to the display of the sign) is beside the point. The remedy for
    unreasonable exercise of enforcement discretion is, in the ordinary course, an
    appeal (if provided) or judicial review; it is not the invalidation of the
    relevant law.

(b)

Proportionality test

[68]

To
    establish that the limit s. 2(9)(a) places on freedom of expression is
    reasonable and demonstrably justified, the respondent must show that the provision
    has a sufficiently important objective to warrant limiting the right and that
    the means chosen are proportionate to that achieving that objective.

[69]

The
    test for proportionality adopted in
Oakes
has three components. As summarized
    recently in
K.R.J.
, at para. 58:

A law is proportionate if (1) there is a rational connection
    between the means adopted and the objective; (2) it is minimally impairing in
    that there are no alternative means that may achieve the same objective with a
    lesser degree of rights limitation; and (3) there is proportionality between
    the deleterious and salutary effects of the law. The proportionality inquiry
    is a normative and contextual one, which requires courts to examine the broader
    picture by balanc[ing] the interests of society with those of individuals and
    groups.

Does s. 2(9)(a) have a sufficiently important purpose?

[70]

This
    step of the analysis is not onerous. Its most frequent analytical function is
    not so much to screen out unimportant legislative purposes (of which we can
    assume there will be few) as it is to provide a preliminary assessment of the impugned
    provision for use in the minimal impairment and overall proportionality steps
    that follow.

[71]

The
    importance of s. 2(9)(a) is obvious. Communities have an interest in
    maintaining the public character of shared spaces, which requires the use of
    legislation and regulation to prevent individuals and groups from using public
    space in a way that renders it unfit for the reasonable use of others. The
    guidance provided by regulations such as s. 2(9)(a), helps to preserve the
    Parks as a place of public recreation and a global tourist attraction. As Brown
    J. (as he then was) observed in
Batty
, at para. 91, without rules
    governing what people can and cannot do in parks, they would be at risk of
    descending into battlegrounds of competing uses  or places where the
    stronger, by use of occupation and intimidation, could exclude the weaker or
    those who are not prepared to resort to confrontation.

[72]

I
    conclude that s. 2(9)(a) has a sufficiently important purpose: safeguarding the
    reasonable use of the Parks by the public, by prohibiting others from
    unreasonably interfering with that use.

Rational Connection

[73]

The
    rational connection branch of the test is satisfied if the impugned provision
    contributes in some way to advancing its objective. Again, the requirement is
    easily satisfied here. The specific means adopted by s. 2(9)(a)  a prohibition
    on abusive and insulting language or other conduct that unnecessarily interferes
    with the use of the Parks by other persons  clearly advances its objective of maintaining
    the public character of the Parks.

Minimal impairment

[74]

Section
    2(9)(a) will fail the minimal impairment test only if there are alternative
    schemes, less restrictive of freedom of expression, that achieve the
    provisions objective "in a real and substantial manner":
K.R.J
,
    at para. 70;
Alberta v. Hutterian Brethren of Wilson Colony
, 2009 SCC
    37, [2009] 2 S.C.R. 567, at para. 55.  The Commission, which promulgated the
    regulation, is owed a "measure of latitude in this inquiry; the question
    is whether the means it chose is within an acceptable range of alternatives,
    not whether it is the least restrictive means imaginable:
City of Montréal
,
    at para. 94;
R. v. Edwards Books and Arts Ltd.
, [1986] 2 S.C.R. 713,
    at p. 772;
Gordon

v. Canada (Attorney General)
, 2016 ONCA
    625, 404 D.L.R. (4th) 590, at paras. 258-261.

[75]

Section
    2(9)(a) does not cast a wide net over expressive activity in the Parks. As
    noted above, the provision does not curtail expression that society expects a reasonable
    person to be able to tolerate. It does not restrict expression that is
    annoying, or even infuriating. People using public spaces are required to tolerate
    exposure to ideas with which they intensely disagree  ideas that may be
    inimical to their own deeply cherished commitments and choices.

[76]

The
    record before us discloses no alternative scheme to s. 2(9)(a) that would be
    less impairing of freedom of expression and capable of substantially achieving
    the provisions objectives. I conclude that s. 2(9)(a) is minimally impairing
    of s. 2(b).

Overall proportionality

[77]

The
    final question is whether there is proportionality between the salutary effects
    of s. 2(9)(a) and its deleterious effects on the right to freedom of expression.

[78]

Unfortunately,
    the court does not have the benefit of submissions from Mr. Bracken on the deleterious
    effects of s. 2(9)(a). He objects to what he calls the reading down of the provision
    and insists that it be interpreted as proscribing all speech that is merely
    insulting or abusive, without more. I have rejected this submission as an
    unsupportable interpretation of s. 2(9)(a).

[79]

I
    will therefore proceed under the assumption that section 2(9)(a) has two
    negative effects on freedom of expression. First, persons who wish to express themselves
    in a manner that infringes the provision will be unable to do so. This is an
    undeniable loss of freedom. Second, is the chilling effect; some persons may unnecessarily
    self-censor, either because they wrongly conclude their expression contravenes
    s. 2(9)(a) and keep silent, or because they are concerned that officials tasked
    with enforcing s. 2(9)(a) will misapply it and curtail lawful expression. As
    McLachlin J. (as she then was) noted in dissent in
Keegstra
at p. 850,
    in weighing the intrusiveness of a limitation on freedom of expression our
    consideration cannot be confined to those who may ultimately be convicted under
    the limit, but must extend to those who may be deterred from legitimate
    expression by uncertainty as to whether they might be convicted.

[80]

Neither
    concern, in my view, is significant in this appeal.

[81]

First,
    although s. 2(9)(a) undoubtedly restricts freedom of expression within the
    Parks, the type of expression it prohibits carries little weight in the s. 1
    analysis, as it does not meaningfully advance any of the genuine human goods associated
    with freedom of expression:
Whatcott v. Saskatchewan Human Rights Tribunal
,
    2013 SCC 11, [2013] 1 S.C.R. 467, at para. 112. As described above, s. 2(9)(a)
    does not prohibit the expression of contentious or controversial ideas. It does
    not prohibit or curtail robust contributions to public debate. It does not
    prohibit incivility, profanity, or vulgarity. In proscribing the use of abusive
    or insulting language, it merely prohibits personal invective.

[82]

Turning
    to the second concern, I make two observations about the possible chilling
    effect created by s. 2(9)(a).

[83]

First,
    one aspect of a chilling effect presupposes over-enforcement of s. 2(9)(a) by
    the NPP. This is a reasonable concern. This concern, however, does not provide
    grounds for finding the provision unconstitutional. Enforcement problems, should
    they occur, are to be addressed through the oversight of administrative law. The
    Commission is entitled to promulgate regulations under the assumption that they
    will be applied constitutionally by the NPP:
Little Sisters Book & Art
    Emporium v. Canada (Commissioner of Customs & Revenue Agency)
, 2007
    SCC 2, [2007] 1 S.C.R. 38, at para. 71. As this court held in
R. v. Khawaja
,
    2010 ONCA 862, 103 O.R. (3d) 321, at para. 134:

Nor can improper conduct by the state actors charged with
    enforcing legislation render what is otherwise constitutional legislation
    unconstitutional. Where the problem lies with the enforcement of a
    constitutionally valid statute, the solution is to remedy that improper
    enforcement, not to declare the statute unconstitutional.

[84]

Second,
    these proceedings mark the first time that s. 2(9)(a) has been judicially
    interpreted. Following this decision, and any future decisions that apply s.
    2(9(a) to individual cases, greater certainty may be expected, further reducing
    the law's chilling effect:
R. v. Sharpe
, 2001 SCC 2, [2001] 1 S.C.R.
    45, at para. 104. This increased certainty will benefit both members of the
    public and NPP officers tasked with enforcing the Regulations.

[85]

Set
    against these concerns are significant benefits for users of the Parks in
    knowing their reasonable use of the Parks will not be frustrated by abuse
    directed towards them. The narrow limit on expression placed on all users of
    the Parks is, in my view, proportionate to the benefit to be achieved in
    maintaining the character of the Parks as a place of public resort.

[86]

On
    the basis of the foregoing analysis, I conclude that the limits on freedom of
    expression established by s. 2(9)(a) are fully justified. The regulation does
    not violate the
Charter
. I would dismiss this ground of appeal.

C.

The challenge to the oral trespass notice

[87]

There
    remains the
Charter
challenge to the oral trespass notice.

[88]

Both
    parties take the position that when Mr. Bracken attended at NPP headquarters on
    August 4, an NPP officer, Mr. Forcier, delivered an oral trespass notice to Mr.
    Bracken: he was not to return to the Parks with his sign. If he did, he would
    be arrested and removed from the premises. Mr. Bracken sought a declaration
    that he was lawfully permitted to attend with his sign on the sidewalk. The
    application judge declined to grant the declaration, noting that he had already
    expressed the opinion that doing no more than returning with the sign in
    question would not breach s. 2(9)(a), and stating that he did not know just
    what the police would do if [Mr. Bracken] returned to the park with the sign. It
    appears that the application judge thought it would be sufficient to draw the
    NPPs misapplication of s. 2(9)(a) to the parties attention, and that would be
    sufficient to resolve the matter of the trespass notice. It was not.

[89]

It
    was only at the hearing of this appeal, more than a year after the decision of
    the application judge was released, that the respondent conceded that the
    on-going trespass notice was invalid. Up to that point, the respondent took the
    position that the trespass notice was valid and subsisting. The respondent
    further argued that Mr. Brackens challenge to the trespass notice was moot
    because the NPP could have removed Mr. Bracken from the Parks pursuant to the
Trespass
    to Property Act
, given his violation of s. 2(9)(a)(the constitutionality
    of which had been upheld), and alternatively, because the notice was authorized
    by s. 2(11) of the Regulations (which Mr. Bracken has not challenged).

[90]

The
    respondents conclusion is a
non sequitur
. The mere fact that
    provisions of the
Trespass to Property Act
and s. 2(11) of the
    Regulations may authorize the NPP to issue trespass notices or otherwise
    exclude persons from the Parks says nothing about whether the exercise of that
    power in this particular case was lawful or constituted a violation of a
Charter
right.

[91]

Mr.
    Bracken attended at the station on August 4 specifically to clarify whether, on
    the NPPs understanding of the law, he was permitted to display his sign.
    Inspector Forcier told him that he was not and that he would be arrested and
    removed if he did so. This disagreement about his legal rights was the impetus
    for Mr. Bracken to bring this proceeding in the first place, challenging the
    trespass notice as an infringement of his
Charter
rights. To be fair
    to the respondent, it was not always clear what remedy Mr. Bracken was seeking
    or on what grounds. And to be fair to Mr. Bracken, it is not always a simple matter
    to determine whether the proper course of action is to challenge a decision,
    the legislation authorizing the decision, or both. In the circumstances of this
    multi-pronged and on-going dispute between the parties, it was an error for the
    application judge not to bring some clarity by issuing a declaration quashing
    the trespass notice.

[92]

In
    summary, based on the above analysis on the scope and constitutionality of s.
    2(9)(a), and in the absence of any submission by the respondent to justify the
    trespass notice, I conclude that the trespass notice constituted an
    unconstitutional curtailment of freedom of expression in an open public venue.

[93]

Unlike
    the protesters in
Batty
, who essentially converted a public park to
    their exclusive use, this was an instance of a single person, standing on a
    sidewalk at the edge of a public, semi-commercial plaza within a park, holding
    a sign displaying a political message. Political messages are always
    provocative. They imply that others are wrong, perhaps through ignorance,
    mistake, negligence, or even moral failure. They frequently risk offending
    those with contrary views. But in a free society individuals are permitted to
    use open public spaces to address the people assembled there  to challenge
    each other and to call government to account. The idea that the Parks are
    somehow different  that they are categorically a safe space where people are
    to be protected from exposure to political messages  is antithetical to a free
    and democratic society and would set a dangerous precedent. Again, this does
    not mean that there cannot be any limitation on expression in the Parks based
    on time of day, appropriate limits on noise, or the nature of any interference
    with the specific activities going on in the specific location within the
    Parks. The analysis must always be contextual. But in this instance, it is
    conceded that there were no circumstances that would justify the removal of a
    single protester with a sign from a busy plaza, and that the display of the
    sign, despite its profanity, did not constitute the use of insulting or abusive
    language within the meaning of s.2(9)(a).

[94]

Although
    the trespass notice has now been withdrawn and the issue is moot, in my view it
    is nevertheless in the interests of justice to issue a declaration stating
    there was no basis in law to issue the trespass notice enjoining the display of
    the appellants sign and quashing the trespass notice.

Disposition

[95]

I
    would allow the appeal in part. I would allow the appeal with respect to the
    trespass notice of August 4, 2016, and issue a declaration quashing the notice
    as set out above. I would dismiss the appeal with respect to the constitutional
    challenge to s. 2(9)(a).

[96]

As
    success is divided, there is no order as to costs.

Released: March 19, 2018

B.W. Miller J.A.

I agree Doherty J.A.

I agree H.S. LaForme
    J.A.

[1]

Handyside v. The United Kingdom
, Eur. Court H. R., decision of 7
    December, 1976, Series A No. 24, at para.49.


COURT OF APPEAL FOR ONTARIO

CITATION: Canada (Attorney General) v. Georgiou, 2018 ONCA
    320

DATE: 20180329

DOCKET: C63966

Strathy C.J.O., Simmons and Hourigan JJ.A.

IN THE MATTER of
    section 9.3 of
the Mutual Legal Assistance in Criminal Matters Act
,
    R.S.C., 1985, c. 30

AND IN THE
    MATTER of an application to amend an Order confirming the filing of a restraint
    order issued by a court of criminal jurisdiction in the United States of America

BETWEEN

The Attorney General of Canada

Applicant

(Respondent)

and

George Georgiou

Respondent

(Appellant)

Maurice J. Neirinck, for the appellant

Jeffrey G. Johnston, for the respondent

Heard: February 26, 2018

On appeal from the order of Justice Anne M. Molloy of the
    Superior Court of Justice, dated April 24, 2017.

Hourigan J.A.:

[1]

This appeal concerns the
    interpretation of the
Mutual Legal Assistance in Criminal Matters
    Act
,
R.S.C. 1985, c. 30 (4th Supp.) (the
Act
). At issue is whether the motion judge erred in
    finding that funds subject to an American court order constituted proceeds of
    crime and were thereby subject to enforcement under the
Act
.

[2]

In my view, the motion judge correctly
    concluded that the funds are proceeds of crime under the
Act
. I would therefore dismiss the appeal.

Facts

[3]

In 2010, an American jury convicted the
    appellant of conspiracy and fraud. He was sentenced to 30 years in prison and ordered
    to pay both restitution and a forfeiture money judgment in the amount of $26
    million USD, representing his interest in the property derived from the
    proceeds of his offences.

[4]

In 2012, American authorities discovered an
    account in the name of Brent David Emanuel at a branch of the Royal Bank of
    Canada (RBC) in Milton, Ontario, containing $9.2 million CAD, believed to
    belong to the appellant. On September 21, 2012, Justice Kelly of the U.S.
    District Court for the Eastern District of Pennsylvania issued an order
    restraining the funds in the RBC account as substitute assets (the Kelly
    Order) until further order of that court. It was issued on the basis that the
    $26 million forfeiture money judgment against the appellant remained
    outstanding and the property derived from the proceeds of his offences could
    not be located.

[5]

Under the American
Federal
    Rules of Criminal Procedure,
a forfeiture
    order for the proceeds of crime may be extended to include substitute property
    if the property subject to the forfeiture order cannot be located or has been
    transferred to third parties. Therefore, pursuant to American law, the American
    government was entitled to seek forfeiture of any assets belonging to the
    appellant in satisfaction of the forfeiture money judgment.

[6]

American authorities then requested
    Canadas assistance in enforcing the Kelly Order. On September 24, 2012, Forestell
    J. authorized the Kelly Order to be filed and entered as a judgment of the
    Ontario Superior Court of Justice pursuant to ss. 9.3(1) and (2) of the
Act
. Under s. 9.3(4)(d) of the
Act
, she ordered that the Kelly Order could be enforced
    as if it were made under s. 490.8(3) of the
Criminal Code
. Both s. 9.3(4)(d) of the
Act
and s. 490.8(3) of the
Criminal Code

apply to
    offence-related property.

[7]

In September 2016, the appellant moved to
    set aside Forestell J.s order, arguing that the court had no jurisdiction to
    file and enter the Kelly Order under s. 9.3 of the
Act
because the funds in the RBC account do not
    constitute offence-related property or proceeds of crime. Rather, he argued
    that these funds were the proceeds of a legitimate business transaction and
    were being held by Mr. Emanuel in trust for his mother.

[8]

In February 2017, the respondent moved to
    have the appellants motion summarily dismissed on the basis that it was
    frivolous or vexatious. It is the result of that motion that is at issue on
    this appeal.

Decision Below

[9]

The motion judge granted the respondents
    motion for summary dismissal. She held that the appellants motion to set aside
    Forestell J.s order has no chance of success in fact or in law. She noted
    that s. 9.3(1) of the
Act
applies to the enforcement of an order for the restraint or seizure of
    property situated in Canada and that it was not, on its face, restricted to
    orders in respect of proceeds of crime or offence-related property.

[10]

However, she held that she did not need to decide that
    issue because in her view, the phrase proceeds of crime in s. 9.3(4)(b) of
    the
Act

was broad enough to encompass the Kelly Order. The
    motion judge found that the RBC funds were proceeds of crime because they had
    been substituted for proceeds of crime by a foreign state under its
    legislation. Therefore, substituting s. 462.33(3) of the
Code
(referred to in s. 9.3(4)(b) of the
Act

and dealing
    with proceeds of crime)

for the section originally cited in Forestell J.s
    order (s. 490.8(3), referred to in s. 9.3(4)(d) of the
Act

and dealing
    with offence-related property) resolved any issue of jurisdiction.

[11]

The motion judge also rejected the appellants
    argument that the order of Forestell J. was issued on the basis of material
    misrepresentations.

[12]

On June 21, 2017, Brown J.A. of this court granted leave
    to appeal the order of Molloy J., pursuant to s. 35 of the
Act
. In granting leave to appeal, Brown J.A. stated the
    legal issue in this appeal as follows:

Does an Order under the US
Federal Rules of Criminal
    Procedure
to restrain substitute assets for satisfaction of a forfeiture
    order constitute an order for the restraint or seizure of property situated in
    Canada within the meaning of s. 9.3(1) of the
Act
and for an order to
    restrain the proceeds of crime or offence-related property within the meaning
    of ss. 9.3(4)(b) and (d) of the
Act
?

Analysis

[13]

The respondent argues that the funds in the RBC
    account do not need to be proceeds of crime or offence-related property to be
    subject to restraint under the
Act
. It submits that under s. 9(3)(2), a Canadian court must file the order
    if the preconditions under ss. 9.3(1) and 9.3(3) are met. Because these
    preconditions have been met in this case, it does not matter whether the funds
    are proceeds of crime or offence-related property.

[14]

The respondent also submits that the appellant does
    not have standing to oppose the registration of the Kelly Order, given his
    position that the funds in issue are not his property.
[1]

[15]

In
    my view, it is unnecessary to deal with either of these issues.
This appeal can be decided on the narrow question of
    whether the motion judge erred in finding that the funds qualified as proceeds
    of crime under s. 9.3(4)(b) of the
Act
. I turn now to that issue.

[16]

The starting point of the analysis is the text of s. 9.3
    of the
Act
, which provides as
    follows:

9.3 (1) When a written request is presented to the
    Minister by a state or entity, other than the International Criminal Court
    referred to in section 9.1, for the enforcement of an order for the restraint
    or seizure of property situated in Canada issued by a court of criminal
    jurisdiction of the state or entity, the Minister may authorize the Attorney General
    of Canada or an attorney general of a province to make arrangements for the
    enforcement of the order.

(2) On receipt of an authorization, the Attorney
    General of Canada or an attorney general of a province may file a copy of the
    order with the superior court of criminal jurisdiction of the province in which
    the property that is the subject of the order is believed to be located. On
    being filed, the order shall be entered as a judgment of that court and may be
    executed anywhere in Canada.

(3) Before filing an order, the Attorney General of
    Canada or an attorney general of a province must be satisfied that

(a) the person has been charged with an offence
    within the jurisdiction of the state or entity; and

(b) the offence would be an indictable offence if
    it were committed in Canada.

(4) On being filed,

(a) an order for the seizure of proceeds of crime
    may be enforced as if it were a warrant issued under subsection 462.32(1) of
    the
Criminal Code
;

(b) an order for the restraint of proceeds of
    crime may be enforced as if it were an order made under subsection 462.33(3) of
    the
Criminal Code
;

(c) an order for the seizure of offence-related
    property may be enforced as if it were a warrant issued under subsection 487(1)
    of the
Criminal Code
or subsection 11(1) of the
Controlled Drugs
    and Substances Act
, as the case may be; and

(d) an order for the restraint of offence-related
    property may be enforced as if it were an order made under subsection 490.8(3)
    of the
Criminal Code
or subsection 14(3) of the
Controlled Drugs
    and Substances Act
, as the case may be.

[17]

The
    appellant submits that the $9 million at issue in this case is not proceeds of
    crime or offence-related property. The
Kelly
    Order
provided for the restraint of these funds as legitimate
    non-criminal assets because the American government had been unable to collect
    against the appellant on a money judgment for the value of the proceeds of
    crime. Therefore, the appellant argues that the
Kelly
    Order
was issued to collect an unpaid money judgment, not to restrain
    proceeds of any crime.

[18]

It
    is the appellants submission that ss. 9.3(4)(a) to (d) of the
Act
stipulate that only filed orders for the seizure or restraint of proceeds of
    crime and of offence-related property can be enforced pursuant to s. 9.3.

[19]

Further,
    the appellant argues that in interpreting s. 9.3 of the
Act
, the definition
    of proceeds of crime found under s. 462.3(1) of the
Criminal Code

should
    be applied. That definition refers to property obtained or derived directly or
    indirectly from the commission of an indictable offence. Adopting this
    definition, the appellant submits, would be consistent with the purpose of the
Act
.
    Moreover, he argues that it would be contrary to common sense and public policy
    for proceeds of crime that can be restrained or seized under the
Criminal
    Code
to be narrower than property that can be restrained pursuant to a
    foreign order under the
Act
. This would give foreign states a more
    extensive restraint and seizure power in Canada than the Canadian government.

[20]

The
    appellant submits that the appropriate procedure would have been to instead
    commence civil proceedings to collect the Kelly Order pursuant to ss. 9(1) to (3)
    of the
Act
, but that did not occur.

[21]

I
    would not give effect to any of these submissions, for the following reasons.

[22]

First,
    domestic legislation that has been enacted to implement Canadas international
    obligations should be interpreted broadly and purposively with the aim of
    fulfilling those obligations:
National Corn Growers Assn. v. Canada (Import
    Tribunal)
, [1990] 2 S.C.R. 1324, at 1371. Thus, where a court is faced
    with two possible interpretations of a statute implementing Canadas
    international obligations, the interpretation that allows Canada to fulfill
    those obligations will be preferred:
R. v. Hape
, 2007 SCC 26, [2007] 2
    S.C.R. 292, at para. 53;
R. v. Appulonappa
, 2015 SCC 59, [2015] 3
    S.C.R. 754, at para. 40.

[23]

This
    court has adopted this approach to statutory interpretation in the
    transnational law context in its consideration of the proper application of the
Act
:

Canada (Attorney General) v. Ni-Met Resources Inc.
(2005), 195 C.C.C. (3d) 1 (Ont. C.A.), at para. 19;
Canada (Attorney
    General) v. Foster
(2006), 215 C.C.C. (3d) 59 (Ont. C.A.), at para. 57;
Belgium
    v. Suthanthiran
, 2017 ONCA 343, 347 C.C.C. (3d) 120, at para. 62, leave to
    appeal refused: [2017] S.C.C.A. No. 256.

[24]

Second,
    in the transnational law context, due regard must be had to differences in
    foreign legal concepts. For example, in
France v. Diab
, 2014 ONCA 374,
    120 O.R. (3d) 174, leave to appeal refused: [2014] S.C.C.A. No. 317, this court
    adopted a broad and purposive interpretation of the requirement that a person
    who is being extradited is sought for the purpose of prosecution by the
    foreign state under the
Extradition Act
, S.C.1999, c.18. This court
    held that the test for whether a person is sought for prosecution is whether
    the authorities in the foreign state have taken a step that can fairly be
    described as the commencement of a prosecution in that state. It did not
    require a strictly Canadian understanding of the concept, which would require
    formal charges to be laid: see paras. 165-177.

[25]

In
    the present case, the phrase proceeds of crime should be interpreted in a
    manner that respects differences in legal systems. Rule 32.2(e)(1)(B) of the
    American
Federal Rules of Criminal Procedure
permits the American government
    to enter an order of forfeiture or to amend an existing order of forfeiture to
    include property that is substitute property that qualifies for forfeiture
    under an applicable statute. Pursuant to 21 U.S.C. § 853(p), as incorporated
    by 28 U.S.C. § 2461(c), where,
inter alia
, property of a defendant
    cannot be located or has been transferred to a third party, a court shall order
    the forfeiture of substitute property. The effect of these provisions is that the
    American government is entitled as a matter of law in such circumstances to
    seek the forfeiture of any assets belonging to a defendant in satisfaction of
    the forfeiture money judgment.

[26]

This
    is a policy choice made by the American government, and as its treaty partner, Canada
    should respect that choice. It would violate the principle of comity and
    Canadas treaty obligations for Canada to insist that it will only assist a
    treaty partner where the foreign criminal law provision mirrors the domestic
    Canadian criminal law.

[27]

Third,
    a broad definition of proceeds of crime accords with the purposes of the
Act
.
    At its essence, the
Act
has a dual purpose. It provides for assistance
    to other states in furtherance of Canadas treaty obligations and it ensures
    that those states will in turn provide Canada with assistance when necessary to
    investigate crimes in which Canada has an interest:

Foster
, at
    para. 55.

[28]

In
    my view, interpreting proceeds of crime in a restrictive manner that only
    accords with the Canadian criminal law definition of this term would frustrate
    rather than support these objectives. Imposing the limits of the
Criminal
    Code

definition on foreign orders would undermine Canadas ability
    to cooperate with other states and prevent the government from honouring its
    treaty obligations.

Disposition

[29]

The
    appeal is dismissed. In accordance with the respondents request, no costs are
    awarded.

Released: G.S. March 29, 2018

C.W.
    Hourigan J.A.

I
    agree. G.R. Strathy C.J.O.

I
    agree. Janet Simmons J.A.

[1]

While the appellant maintains that the $9 million was not his
    property as his mother was the sole beneficial owner of that money, he has not
    relied on this in his legal submissions on appeal and does not ask this court
    to determine whether the $9 million in fact belonged to him. He submitted in
    oral argument that he has standing regardless of whether the $9 million is his,
    since he is subject to the order for substitute property.


COURT OF APPEAL FOR ONTARIO

CITATION: Canadian Union of Public Employees v. Ontario, 2018
    ONCA 309

DATE: 20180327

DOCKET: C64287

MacFarland, Huscroft and Nordheimer JJ.A.

BETWEEN

The Canadian Union of Public Employees, Fred Hahn
    on his own behalf and on behalf of all members of the Canadian Union of Public
    Employees in Ontario, John Clarke and Dianne Dowling

Plaintiffs (Appellants)

and

Her Majesty the Queen in Right of Ontario as
    represented by the Premier of Ontario, the Minister of Finance and the Minister
    of Energy

Defendants (Respondents)

Louis Century and Steven Shrybman, for the appellant

Brent Kettles, Christopher P. Thompson and Sunil Mathai,
    for the respondents

Heard: March 19, 2018

On appeal from the judgment of Justice Peter J. Cavanagh
    of the Superior Court of Justice, dated August 14, 2017.

REASONS FOR DECISION

[1]

The appellants, electricity ratepayers required
    to pay debt retirement charges to the Ontario Electricity Financial
    Corporation, brought an action seeking damages and declaratory relief
    concerning the sale of shares in Hydro One, pursuant to a plan to privatize the
    electricity utility. The respondents are the Premier of Ontario, the Minister
    of Energy, and the Minister of Finance, all of whom exercised Ministerial power
    and statutory authority in connection with the sale.

[2]

The appellants claim was based on the tort of
    misfeasance in public office. They alleged that the Premier and Ministers acted
    in bad faith in connection with the privatization plan, and in particular acted
    to reward past donors and to obtain further donations to the Ontario Liberal
    Party.

[3]

The motion judge struck out the appellants
    claim under Rule 21 and dismissed the action. The motion judge concluded that
    the action was not justiciable because it concerned a matter of core policy,
    and so was immune from suit unless the decision was irrational or made in bad
    faith. The appellants did not argue that the decision was irrational. The
    motion judge found that the material facts pleaded were inadequate to support
    either a conclusion or an inference that the Ministers had acted in bad faith.
    Specifically, he concluded that the appellants claim does not contain
    sufficiently detailed and fact-specific allegations linked to actual events,
    documents, and people, to pass muster as a valid pleading of bad faith conduct
    by the Ministers.

[4]

The appellants argue that the motion judge erred
    in three ways:

1.

By assessing the material facts in isolation
    rather than reading the claim generously and as a whole;

2.

By misconstruing material facts as independent
    challenges to government policy, rather than as particulars of the legal
    elements of the claim; and

3.

By failing to accept material facts as true and
    improperly reaching contrary factual findings.

[5]

In essence the appellants argue that, properly
    understood, their claim pleads facts that support a conclusion of bad faith and
    that it should not have been struck out.

[6]

We disagree.

[7]

The law governing the appeal is not in dispute.
    The motion judge was required to strike the appellants claim only if it was
    plain and obvious that it did not disclose a reasonable cause of action. In
    making this determination, the motion judge was required to read the claim
    generously, making allowances for drafting inadequacies:
Nash v.
    Ontario
,

27 O.R. (3d) 1 (C.A.) at para. 11.

[8]

As this court noted in
Trillium Power
    Wind Corp. v. Ontario (Natural Resources)
,

2013
    ONCA 683, 117 O.R. (3d) 721, at para. 52, the exception for irrational and bad
    faith decisions is quite narrow:  A core policy decision made by the Executive
    based on political considerations or electoral expediency does not, on its own,
    constitute bad faith for purposes of a tort claim based on misfeasance in
    public office. Decisions based on political expediency are to be expected. The
    check on them lies in democratic, not judicial, oversight. Thus, more is
    required to sustain a pleading than simply an allegation that government
    officials have acted in bad faith, or have acted for partisan political
    purposes.

[9]

The appellants argued that bad faith was
    established by the Ministers improper and ulterior purpose of rewarding political
    benefactors and enriching the Ontario Liberal Party in the knowledge that their
    decisions were unlawful and likely to harm the appellants.

[10]

The motion judge concluded that this allegation
    was pleaded baldly. He was concerned that a plaintiff not be permitted to
    easily transform a pleading that did not amount to a claim of bad faith into a
    bad faith claim, as he explained:

I do not accept that through the simple device
    of including in a pleading a bald allegation that a political actor
    subjectively knew or was recklessly indifferent or willfully blind to the fact
    that conduct and decisions in respect of the core policy (that are not
    objectively inconsistent with the relevant legislative context) were engaged in
    and taken for all ulterior, dishonest or improper purposes, a plaintiff is able
    to transform a pleading of acts that were not committed in bad faith into a
    pleading of acts that were committed in bad faith.  If such a bald pleading
    could have this effect, then the protection afforded to a core policy decision
    made by a government from interference through a civil tort action would be
    illusory.

[11]

The appellants complain that the motion judges
    concern about opening the litigation floodgates caused him to, in effect,
    elevate the pleading requirement. They contend that there is a fundamental
    difference between taking partisan political considerations into account when
    making policy decisions, which is permissible, and exercising statutory
    authority for the purpose of financially benefitting private benefactors and
    raising money for the Ontario Liberal Party, which is not. The appellants
    submit that they have done enough to plead that this is an example of the
    latter and not the former.

[12]

This submission must be rejected. There is no
    question that it is difficult to plead the tort of misfeasance in public
    office, but that is so because matters of core policy are supposed to be immune
    from suit, absent rare cases of irrationality or bad faith. The appellants say
    that a great deal will be revealed if the suit is permitted to proceed and
    discovery takes place, but to accept the pleading in order to facilitate
    discovery would be to undermine the important purpose of the immunity.

[13]

The appellants next contend that the motion
    judge erred in regarding the material facts as representing challenges to
    government policy, rather than as material facts pleaded in support of their
    central allegation concerning the respondents knowledge and purpose in
    privatizing Hydro One. For example, the appellants say that their submission
    concerning the absence of a plausible policy rationale for the decision is
    circumstantial evidence in support of their bad faith allegation, and not
    simply a substantive complaint about the policy. The same is true of their
    pleadings concerning legislative amendments that removed oversight of Hydro
    One; the structuring and implementation of the share sale and the beneficiaries
    of that sale; and the Ministers fundraising activities.

[14]

We do not accept that the motion judge
    misconstrued the material facts pleaded. He carefully reviewed all of the facts
    and found that they did not plausibly support either the conclusion or the
    inference that the respondents acted in bad faith. He did not reject the
    pleadings on the basis that they were simply an objection to the policy being
    pursued; he found that they were precisely the sort of objections to which the
    immunity was intended to apply. The appellants pleaded that the respondents
    engaged in fundraising activities that included institutions and law firms involved
    in the Hydro One share sale. These were no more than pleadings that the
    government had engaged in political activities that benefited the Ontario
    Liberal Party, which could not possibly support the conclusion or inference
    that they had acted in bad faith.

[15]

Finally, we do not accept that the motion judge
    treated the appellants motion as a summary judgment motion rather than a Rule
    21 motion. The motion judges reasons, read in context, indicated that there
    were innocent explanations for conduct the appellants contended was sinister.
    Execution of the Hydro One sale required considerable assistance from
    professional advisers, who were necessarily paid for their services. Read as a
    whole, his decision makes clear that the appellants allegations simply did not
    support a conclusion or inference that decisions concerning the sale were made
    in bad faith.

[16]

Given the conclusion that the claim was not
    justiciable, the claim was properly struck out and the action was properly
    dismissed. It is unnecessary to consider whether the action was in any event
    barred by parliamentary privilege, constituted an abuse of the courts
    processes, or should be struck out as disclosing no reasonable cause of action.

[17]

The appeal is dismissed.

[18]

The respondents are entitled to costs in the agreed amount of
    $15,000, inclusive of taxes and disbursements.

J. MacFarland J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Cosolo v. Geo. A. Kelson Company Limited, 2018 ONCA
    318

DATE: 20180328

DOCKET: C64150

Feldman, Pardu and Benotto JJ.A.

BETWEEN

Louie Cosolo

Plaintiff

(Respondent)

and

Geo. A. Kelson Company Limited

Defendant

(Appellant)

Geoff Hall and Patrick Pengelly, for the appellant

Patrick Monaghan and Michelle Fan, for the respondent

Heard: March 1, 2018

On appeal from the order of Justice Paul Perell of the Superior
    Court of Justice, dated July 5, 2017, with reasons reported at 2017 ONSC 4150.

REASONS FOR DECISION

[1]

Cosolo is an engineer who was employed by the appellant
    engineering firm
between 2005
    and October 30, 2015,
becoming a vice-president in
    July, 2011. During his employment, Cosolo acquired 43,000 Class E common shares
    of Kelson, which he sold to the company in August 2015 for $891,820. This
    amount was to be paid in ten installment payments of $89,182 each plus interest
    on the outstanding balance.

[2]

He received the first
    installment before resigning in October 2015, but in 2016, after he had become
    the CEO of a rival engineering firm, Kelson refused to make further payments.
    It alleged that Cosolo had breached his fiduciary duties by soliciting Kelson
    employees to join him at the rival engineering firm and by using Kelsons
    confidential information to compete against Kelson.

[3]

Cosolo sued Kelson for
    $802,638 plus interest for breach of contract. Kelson defended and asserted a right
    of setoff for damages for breach of fiduciary duty. When Cosolo moved for
    summary judgment, Kelson resisted, submitting that there were genuine issues
    for trial and that a proper adjudication of the case would require full
    discovery and a full trial. Although Kelson cross-examined on the affidavits
    filed in support of the summary judgment motion, it did not pursue additional documentary
    discovery before the summary judgment motion was heard.

[4]

The motion judge granted
    summary judgment to Cosolo for $750,000, after applying a discount rate of 7%
    to the outstanding debt. Both sides presented expert evidence on the discount
    rate, but neither was given the financial information that was requested from
    Kelson that would affect the rate.

[5]

The motion judge found that as
    vice-president of Kelson, Cosolo had access to sensitive, confidential and
    proprietary information about Kelson, and that Cosolo had a fiduciary
    relationship with Kelson. However, the motion judge found that Cosolo did not
    cause any harm to Kelson by any breach of fiduciary duty. He found that Cosolo
    did not use any confidential or proprietary information from Kelson, that the
    employees who left Kelson to work with Cosolos new employer did so on their
    own initiative, and that the two employees approached by Cosolo did not leave
    Kelson.

[6]

The appellant argues that the
    motion judge made palpable and overriding errors in finding that: (i) Cosolo
    did not breach his fiduciary duty by communicating with two current Kelson
    employees and that even if he did, the communications were meaningless
    breaches; (ii) Cosolo did not use any confidential or proprietary information
    from Kelson; and (iii) a discount rate between 6% and 8% was the best estimate
    of the present value of Cosolos claim.

[7]

The appellant claims that
    given the conflicting evidence on these points, these findings were not
    available on the summary judgment motion and can only be properl
y determined at a trial.
His
    position on the appeal is that the motion judge erred by granting summary
    judgment on the record before him, and not ordering a trial of the issues of
    breach of fiduciary duty by the respondent and the proper discount rate to be
    applied to the respondents claim.

[8]

The appellant submits, in effect, that a breach of fiduciary duty case
    such as this is in a special category that is not suitable for summary
    judgment, and therefore the motion judge should have declined to act on the
    evidence put before the court on the summary judgment motion. Instead he should
    have ordered a trial (or possibly one or more mini-trials) with full
    documentary discovery.

[9]

We do not agree with this submission. The motion judges conclusion that
    the respondent breached no fiduciary duty owed to his employer causing damage
    was amply supported by the evidence. There was nothing raised in the
    cross-examinations on the affidavits to suggest the need for any further
    exploration of either documentary or testimonial evidence to resolve any of the
    issues that the motion judge was asked to decide.

[10]

In other words, there was no genuine issue for trial raised on the
    record. Nor is breach of fiduciary duty a special category that is not amenable
    to summary judgment where no genuine issue for trial is raised.

[11]

Further, there is therefore nothing in this record to suggest that there
    may be other relevant evidence that would have affected either the decision of
    the motion judge whether to grant summary judgment, or his decision on the
    merits. In any event, there was nothing that prevented the appellant from
    seeking further documentary production for the purpose of the motion.

[12]

The appeal is therefore dismissed, with costs in the agreed amount of
    $25,000, inclusive of disbursements and HST.

K. Feldman J.A.

G. Pardu J.A.

M.L. Benotto J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Destaron Property Management Ltd. v. Hindmarsh,
    2018 ONCA 200

DATE: 20180306

DOCKET: C64189

Feldman, Pardu and Benotto JJ.A.

BETWEEN

Destaron Property Management Ltd. and
1260 Marlborough Court Holdings Limited

Plaintiffs (Appellants)

and

Robert Hindmarsh

Defendant (Respondent)

Howard Borlack and Miranda E.
    Serravalle, for the appellants

Robert W. Dowhan and James Prosser, for the respondent

Heard and released orally: March 02, 2018

On appeal from the judgment of Justice Patrick Monahan of
    the Superior Court of Justice, dated July 20, 2017.

REASONS FOR DECISION

[1]

The appellant argues that the motion judge erred in his interpretation
    of an agreement between a landlord and a tenant. The motion judge concluded
    that the landlord released the tenant from liability for damages for a fire the
    tenant caused in the apartment. The appellant agrees that to succeed on his
    appeal, he must show that the motion judges interpretation is not one the
    document could reasonably bear. The appellant concedes that the document
    released the tenant personally, but argues that it left open the possibility of
    a subrogated claim by the landlords insurer against the tenants insurer.

[2]

We do not agree that the motion judges interpretation of the agreement
    was unreasonable. The letter proposed, as an alternative to legal proceedings
    against him, that the tenant agree to terminate the tenancy. The landlord
    referred in the letter to the damage caused to the tenant's and other units and
    indicated no claim would be made against the tenant personally.

[3]

It was open to the motion judge to conclude that the letter amounted to
    a release of the tenant, as the appellant concedes.

[4]

With respect to the phrase in the letter that damages will be dealt
    with between the insurance companies, the appellant submits that the intent of
    the parties and the proper interpretation of the letter was to preserve the
    subrogated claim of the appellants insurer against the tenants insurer, which
    would require the tenant to be named as a defendant if an action were to be
    brought. The problem is that by releasing the tenant, the effect was to
    preclude any such claim.

[5]

The appeal is dismissed with costs to the respondent in the amount of
    $10,000 inclusive of disbursement and HST.

K. Feldman J.A.

G. Pardu J.A.

M.L. Benotto J.A.