In his response to a motion to rescind the city’s Respectful Workplace Policy at Stratford City Hall on July 22, 2024, Councillor Hunter, a lawyer, said the following:

Now I’ve heard people refer to the Bracken case as standing for the proposition that the act [the Occupational Health and Safety Act] only applies to workers, and I think that is a misinterpretation of that case; and I understand, because the court of appeal doesn’t really give a fulsome [sic] explanation of why the act doesn’t apply. They do refer to precedent (an earlier court of court of appeal case which is Rainy River Town and Olsen — the citation I believe is 2017 ONCA 605) and to understand the law you have to read both those cases. In the Olsen case the Court of Appeal says that the Act does not apply to Mr. Olsen because he is not a worker [recte coworker] and because his offensive behaviour did not occur in a workplace. The court in Bracken follows that logic, and they say that the act doesn’t apply to Mr. Bracken because he is not a worker; they don’t unfortunately go any further, but it is also not applicable because his actions did not take place in the workplace.

Since some people may be overawed by his legal language, let’s unpack what Councillor Hunter is actually saying here.

In 2017 Ontario’s Court of Appeal (the highest court in the province) found that the Town of Fort Erie was wrong to have banned a citizen called Fred Bracken from three municipal properties because of his vigorous objections to a proposed by-law. Councillor Hunter implies that Bracken won his case because, as in the case of Olsen v. Rainy River, his alleged offensive behaviour took place outside the workplace (in the town square), which meant that the Occupational Health and Safety Act did not apply to him. This is wrong, both as a matter of fact and of law. One of the actions objected to was that Mr. Bracken left sarcastic notes on each councillor’s desk calling them crooks — an offence that must assuredly “have taken place in the workplace.” But far more telling is the court’s fundamental reason for dismissing the relevance of the OHSA to Mr. Bracken’s activities:

The statutory obligation to promote workplace safety, and the “safe space” policies enacted pursuant to them, cannot be used to swallow whole Charter rights. In a free and democratic society, citizens are not to be handcuffed and removed from public space traditionally used for the expression of dissent because of the discomfort their protest causes.

If the council chamber during meetings is (as Councillor Hunter himself described it) “a public forum,” then the OHSA cannot be used to muzzle those who appear there to express disagreement with the council or its policies.

Since Councillor Hunter has raised the issue of Bracken, however, it is worthwhile looking at its relevance to Stratford’s situation a little more closely. Unlike Mike Sullivan, who appeared at a meeting on February 26, 2024 to draw attention to council’s failure to implement the recommendations of an independent Closed Meetings Investigator who had exposed its many past in camera meetings as illegal, Fred Bracken had a personal stake in making his complaint. Here is how the Ontario Court of Appeal categorized it:

Mr. Bracken’s speech, that day, was directed towards protesting the expected adoption of a by-law that he understood to be promoting the interests of a marijuana facility across from his home. He wanted the by-law defeated. He also criticized the members of town council. No doubt, they did not like being called liars and communists. Mr. Brady [the acting CAO] did not like Mr. Bracken calling for him to be fired. On cross-examination, he stated that Mr. Bracken had no right to say so. He viewed it as a threat to his livelihood. The language was neither polite nor restrained. But as this court pointed out in Cusson v. Quan (2007), “(d)emocracy depends upon the free and open debate of public issues and the freedom to criticize the rich, the powerful and those . . . who exercise power and authority in our society. . . . Debate on matters of public interest will often be heated and criticism will often carry a sting and yet open discussion is the lifeblood of our democracy.” [my italics]

In stark contrast to Fred Bracken, Mike Sullivan’s conduct at the February 26 council meeting was not only public-spirited, but temperate and restrained. He did not shout through a megaphone, he did not leave rude notes on councillors’ desks, he did not call anyone a liar or a communist. Yet his impeccably reasoned and respectfully presented deputation (you can watch the recording of it for yourselves) has been categorized as disrespectful, derogatory, inappropriate and vexatious.

There is, moreover, a further, crucial difference between Mike Sullivan’s alleged behaviour and Fred Bracken’s. Senior staff in Fort Erie reported that Bracken’s behaviour made them feel concerned for their own safety, but in Mike Sullivan’s case there has never been a serious question of the physical intimidation of staff. Nevertheless there are recordings of the mayor categorizing him as “an individual wanting to create an unsafe situation” (and adding that this “is not fair to our staff”), and of Councillor Hunter shutting down a meeting of the Finance and Labour Subcommittee, which Sullivan attended, with the words: “We have implemented a policy that keeps our staff safe. This is the chosen method to keep our staff safe. If we proceed, with workers in the room, with Mr. Sullivan present, we’re exposing the city to liability.”

This is a matter of vital importance, because violence, or the threat of violence, is one of the very few limiting factors on a Canadian citizen’s right to free speech, and for this reason the court in Bracken concluded that “courts should . . . not be quick to conclude that a person’s actions are violent without clear evidence.” Accordingly, it is heartening to discover that Fort Erie’s staff got absolutely nowhere with their (at first glance, more plausible) plea of fear for their personal safety. Here’s how the Ontario Court of Appeal characterized it:

The town’s logic . . . appears to be this: (1) Mr. Bracken was agitated, loud, and angry; (2) his protest was therefore not peaceful; (3) all non-peaceful protest is violent; and (4) violence is not protected by [the free speech provision of the Canadian Charter of Rights and Freedoms]. The error is readily apparent. A protest does not cease to be peaceful simply because protestors are loud and angry. [my italics]

The Ontario Court of Appeals’ further conclusion may stand as a ringing condemnation of the way Stratford’s council and senior staff have treated Mike Sullivan (a man whose behaviour has been neither loud nor angry) over the past few months:

Violence is not the mere absence of civility. [To extend] the concept of violence to include actions and words associated with a traditional form of political protest, on the basis that some town employees claimed they felt “unsafe”. . . goes much too far. A person’s subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of [the Canadian Charter of Rights and Freedoms].

Long may it remain so!

Richard Firth Green, Stratford