Niagara (Regional Municipality) v. Bracken, 2017 ONCJ 319

CITATION: Niagara (Regional Municipality) v. Bracken , 2017 ONCJ 319 DATE: May 19, 2017 R. v. Bracken Between Her Majesty the Queen, and Frederick Bracken Regional Municipality of Niagara Court File: 160620 ONTARIO COURT OF JUSTICE S. Lancaster J.P. Trial: March 30, 2017 Judgment: May 19, 2017 Disturb other persons and unnecessarily interfere with use and enjoyment of the Park Niagara Parks Act , R.R.O. 1990, Regulation 829, s.2(9) (

a) T. Pratt, Fasken Martineau Dumoulin LLP ….... Counsel for the Prosecution F. Bracken …………….................................................................. Defendant Reasons for Judgment [I] S. LANCASTER J.P.: Frederick Bracken is charged on August 2, 2016 with two counts: 1) disturbing other persons, and 2) use abusive or insulting language, both contrary to the Niagara Parks Act , Regulation 829, Conduct of Persons using Parks, s.2(9)(

a) at Victoria Park, 5920 R iver Road, Niagara Falls (Grandview Plaza). This matter returns today for judgment. I. ISSUES: [2] Several issues were raised during this trial, as follows : (

a) Did Mr. Bracken’s behaviour disturb other persons using the Park? (

b) Did Mr. Bracken use abusive or insulting language or conduct himself in a manner that unnecessarily interfered with the use and enjoyment of the Park by other persons contrary to the Regulation? (

c) Is Mr. Bracken’s form of expression protected by s.2(

b) of the Charter? [3] The trial commenced with a Defence ‘Notice of Constitutional Question’ seeking a remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to the two

Part 3 Summons. Mr. Bracken contends that the disclosure documents suggest that the charges flow from his use of a sign. He refers to Justice Ramsay’s (Superior Court of Ontario) finding of September 9, 2016 that his sign language “comes nowhere close to meeting the definition’ of ‘extremely offensive or insulting’ so as to interfere with the use and enjoyment of the parks by other persons. Furthermore, “It (the sign) was a comment on trade policy expressed in strong and vulgar terms. The Regulation does not purport to regulate or limit such political speech” (par. 9 & 10). Mr.

Bracken submits that given this ruling and that his charges flow from his use of the same sign, the charges should be stayed.

Justice Ramsay notes: “The Applicant asks for a declaration that Regulation 829, RRO 1990, made under the Niagara Parks Act infringes his freedom of expression under s.2 of the Charter , an injunction restraining the Niagara Parks Police from acting on an oral notice under the Trespass to Property Act , a declaration that the notice infringes his freedom of expression under s.2 of the Charter of Rights , and an order staying proceedings on two charges under the Provincial Offences Act ”. (Par.1) J.A Ramsay J.

[4] Justice Ramsay ruled the Regulation to be valid and denied the issuance of an injunction (par.20). Justice Ramsay further notes that Mr. Bracken’s language “… could fit the definition of abusive and insulting language”; he left the adjudication of that matter to the trial court and dismissed the application. That decision is currently the subject of an Appeal to the Court of Appeal For Ontario. (par. 21) [5] While Mr. Bracken is not looking to this court for a declaratory order that the charging

section is unconstitutional, he is seeking to have this court stay the charges under s.24(1) of the Charter . Apart from the fact that a stay is only entered as a last resort remedy, in the clearest of cases, this court does not have the jurisdiction to address Mr. Bracken’s motion. Res Judicata applies as the same matter was addressed by a higher court and that matter is before the Court of Appeal. Mr. Bracken declined an adjournment to await the outcome of his appeal. [6] This trial was expected to take two days but concluded in one. Mr.

Bracken was present for the morning, but decided to leave the court at the lunch recess and failed to re-attend. He noted that his defence, and hence the focus of his cross-examination relate to the use of his sign with its political commentary content and Justice Ramsay’s decision. Mr. Bracken questioned Officer’s Dobbin’s training and more particularly his understanding of the Rule of Law, Charter protection, perjury, the Courts of Justice Act , and the authorities that govern his actions as a police officer. As the court questioned the relevancy of some of Mr. Bracken’s questions, Mr.

Bracken concluded that he would not receive a fair trial and left the courtroom. II. EVIDENCE: [7] The court heard from the prosecution’s witnesses, three Niagara Parks Police Service officers; Lance Dobbin (supervisor), and Officers Jason Seaward and Elliott Skeoch who have 24, 7 and 3 years of police service respectively. These officers enforce the Niagara Parks Act and Regulations with a jurisdiction from Niagara-on-the-Lake to Fort Erie, including Queen Victoria Park and Grand View plaza, the offence location.

The officers’ evidence was reasonably detailed and consistent; there was a witness exclusion order in effect. [8] The officers characterized the offence location as the epicentre of the Niagara Falls tourist area, with outstanding views of the Niagara River and Niagara Falls. Exhibit 1 is a Google Map satellite image of the area. The weather was clear, sunny and warm with several hundred people in the immediate area. The plaza is the location of the Hornblower boat tour attraction, fast food outlets, retail shops, and a zip line attraction.

The August summer date is considered “high season” where tourist attendance reaches several hundred visitors at any time during the day. Visitors were described as adults, children, babies in strollers, elderly, including some using walkers and in wheelchairs, young people, male, female, and of varying nationalities. As a UNESCO World Heritage Site, Niagara Falls attracts people from within Canada and from countries around the world, including the United States, Mexico, Asia, South Africa and South America. Officer Seaward described Mr.

Bracken’s position as just west of the ice cream shack near the Hornblower ticket sales line at a time that a tour bus company arrived, with some 250-500 people creating a very long ticket line 8-10 people wide. [9] The officers attended the Grand View plaza in response to a 10:55 am complaint call by Ms. Dianne Rivet, a manager of a plaza food vending business. She was unable to get her ice cream cart in place given the presence of a sign-carrying protestor whom she did not want to interact with. Officer Dobbin attended the scene as his officers noted that Mr.

Bracken had requested to speak with a supervising officer. He arrived at 11:20 am, first observing Mr. Bracken standing close to the roadway with a large sign; Exhibit 2 depicts Mr. Bracken, his location and sign that reads: “TRUMP Is Right Fuck China Fuck Mexico” in large bold letters. There was a van, noted as associated with Mr. Bracken that was parked in the middle of the road blocking lanes of traffic. Officer Dobbin conducted observation of Mr. Bracken for some 45 minutes with Officer Seaward observing him for 30 minutes before preparing the

Part 3 summons, as did Officer Skeoch before he proceeded to take witness statements. [10] The officers described Mr. Bracken as being “highly agitated”, “bouncing on his feet”, “sweating profusely”, “irrational”, “highly erratic” and “screaming in people faces”. He was “abrasive”, “loud” and “purposeful” in his interaction with people and the officers. On a scale with a low of ‘0’ to a high of ‘10’, his tone of voice was initially 5 or 6, elevating to 8 during his interaction with the officers and the public, especially as people appeared to disagree with his message. A number of people approaching Mr.

Bracken were observed to give him a wide berth or take a different direction to avoid him. On cross-examination, Officer Dobbin noted “several” people but could not confirm the exact number of people trying to avoid Mr. Bracken, or the number of people Mr. Bracken was alleged to have followed, agreeing these numbers were not in the officer’s notes. [11] Mr.

Bracken’s language included: “fuck you”, “you asshole”, “you’re fucking stupid” and “you fucking goof” all directed at the officers and the public; he became more vocal as people disagreed with his statement and behaviour, telling people to “fuck off”, “fuck yourself” calling them “fucking idiots” and running around some people and placing his video camera close to their face, yelling at them at a close distance and preventing them from responding.

It was noted that while the officers were observing and endeavouring the keep the peace, officers Dobbin and Seaward intervened when one man, observed to be ‘shaking’ used his camera to record Mr. Bracken while a small boy (noted as his son) looked up at his dad. They intervened to have this man move on out of concern for a potential confrontation. Interspersed with his use of profanity, Mr. Bracken was talking about free speech, his Charter rights and his right to be there. Given the profanity directed at both the officers and Park visitors, and given the police concern for a possible altercation Mr.

Bracken was asked to leave the area, which he refused to do. [12] Officer Seaward testified that he took a statement from Mr. Noah Nicol, a Niagara Parks gardener who was working in the area that morning and who had come into contact with Mr. Bracken. He was observed as shaking and visibly distraught given Mr. Bracken’s behaviour. While Mr. Nicol was seated in the police car to provide his statement, Mr. Bracken was observed by Officer Skeoch to be circling the car and banging on the car window where Mr. Nicol was seated. Mr.

Nicol stated that he should be able to work free of harassment and profanity, “I don’t believe I should have to put up with this, my job is stressful enough”, also referencing his pride of public service and that the public should not have to endure this behaviour. Mr. Nicol’s statement was tendered to the court although given his absence as a witness the statement is hearsay and as such is not admitted for the truth of its content. Victoria Park as a public place:

[13] As the prosecution has characterized, Niagara Falls is considered a prime parks destination that draws millions of visitors annually, locally, nationally and internationally. The Niagara Parks are highly regulated to ensure the Parks are protected and preserved. That responsibility would go beyond protecting and preserving the physical resource to include preserving visitor’ experience and enjoyment of the Parks many attributes. Justice Ramsay described the park venue this way: The place in question is not a police station or a clerk’s office. On the other hand, it is not a city street either.

It is a provincial park. One would expect a measure of freedom of expression in such a place, as long as it is not inconsistent with its desired and historic use. Applying the analysis set out in the City of Montreal case, I doubt whether abusive or insulting language is protected speech in the Niagara Parks.

It seems to me that the historical and actual function of the park – a natural and tourist attraction – and other aspects of the place – its resort for peaceful enjoyment of nature and commercial attractions – suggest that the expression of abusive and insulting language undermines the values underlying the self-fulfillment to which the Parks are devoted, and does little to further democratic discourse and truth finding.

Most people do not go to parks with democratic discourse or truth finding in mind and abusive and insulting language is not an effective means to engage them” The Law : Niagara Parks Act (R.S.O. 1990,

Chapter N.3) prescribes the Niagara Park Commission’s governing authority, and through Regulation 829 limits on conduct of persons using the Niagara Parks. Niagara Parks Act , R.R.O 1990, Regulation 829 Conduct of Persons Using Parks: S.2(9) Subject to subsection (10), 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;

Interpretation Act R.S.C. 1985, c.1-21 Criminal Code , S.175(1)(

a) reads

(1) Every one who (

a) Not being in a dwelling-house, causes a disturbance in or near a public place, (

i) By fighting, screaming, shouting, swearing, singing or using insulting or obscene language, is guilty of an offence punishable on

summary conviction Cases Cited : 1 . R. v. Quan Phan Dinh, [2010] ONCJ 540, par. 35 & 36 2 . R. v. Phillips, [2016] par 18, 19 & 21 3 . Bracken v. Niagara Parks Police, [2016] ONSC 5615 4 . R. v. Summer, [2013] ONCA 147, par. 46 & 47 5 . R. v. Lohnes, [1992] S.C.R. 167, pp 2, 177,178 [14] On cross-examination officer Dobbin confirmed that he had spoken to Mr. Nicol and was aware of his statement and when asked if he (Mr. Bracken) had argued with Mr. Nicol officer Dobbin noted that Mr. Nicol had picked up some refuse left on the ground only to be berated by Mr. Bracken who identified the items as his property. Mr.

Bracken also cross-examined officer Dobbin in relation to his note-taking, and specifically the number of people it is alleged that he had followed, videotaped or that tried to avoid him. [15] The focus of Mr. Bracken’s Charter motion and the nature of his cross-examination prior to leaving the trial, limited as it was, might suggest that his defence would focus on the use of his sign, as political commentary. It might also be his contention that the absence of specific numbers in the officer notebook should raise reliability concerns regarding this part of the officer’s testimony.

Justice Ramsay’s decision distinguished between the sign and his alleged use of profane language. The officers testified that while the sign wording was a relevant factor it was Mr. Bracken’s erratic behaviour and ongoing use of abusive or insulting language that led to the charges. III FINDINGS: Regarding the officers’ notes (per par. 14): [16] I refer to R. v. Quan Phan Dinh in this regard. “… contemporaneous note-taking is crucial to allow officers to recall (evidence) with precision …”. R. v.

Dinh involved alleged impaired driving and a breath sample device that malfunctioned or failed due to an uncooperative driver. The evidence from two officers varied or was contradictory in relation to device calibration and officer and driver location. Given that case’s circumstances, contemporaneous note-taking was deemed crucial and found deficient.

[17] In R. v. Phillips, Justice of the Peace Coopersmith addresses the importance of detailed note-taking when undertaking “fairly repetitive” tasks. R. v. Dinh involves the roadside breath-testing machine calibration and speaks to the risk of “… blending of factual situations with the passage of time” that could lead to evidence reliability concerns. [18] R. v. Dinh and R. v. Phillips are distinguishable from the case at bar. Mr. Bracken’s case involves the testimony of three officers who provided specific, detailed and consistent evidence. I find that Mr.

Bracken’s case is not one that leads to the blending of factual situations with the passage of time. [19] I would characterize the circumstances of Mr. Bracken’s case as unique. The officers observed Mr. Bracken’s behaviour and the movement of Park visitors in that area over a period of time. T he profane language used, the strong and vulgar sign content, the erratic, aggressive and adversarial behaviour and the venue would distinguish this occurrence. There were public safety concerns given the potential confrontation.

The absence of note-taking in this regard does not undermine the reliability of the officers’ evidence. Issues : (

a) Count 1 : Did Mr. Bracken’s behaviour disturb persons using the Park on August 2, 2017? (

b) Count 2 : Did Mr. Bracken use abusive or insulting language or conduct himself in a manner that unnecessarily interfered with the use and enjoyment of the Park by other persons contrary to the Regulation? [20] Count 1 reads “Disturb other persons, contrary to section 2(9) (

a) of the Niagara Parks Act of Ontario ”. Regulation 829, s.2(9)(

a) relates to the use of abusive or insulting language or conduct that unnecessarily interferes with the use and enjoyment of the Parks by other persons. This

section clearly does not prescribe ‘disturbance’ as an offence, or specify how a person under the Regulation would cause a disturbance. As such I dismiss Count 1 as the charge has no statutory / regulatory foundation. [21] That said, and recognizing that this is not a

summary conviction court, I look to the Criminal Code for guidance on this matter. Criminal Code s.175(1) (

a) reads

(1) Every one who (

a) Not being in a dwelling-house, causes a disturbance in or near a public place, (

j) By fighting, screaming, shouting, swearing, singing or using insulting or obscene language, is guilty of an offence punishable on

summary conviction [22] R. v. Lohnes is a leading case interpreting s.175(1) (a), a Criminal Code case involving a disturbance with one neighbour shouting obscenities at another. The Supreme Court overturned the lower courts’ convictions on the basis that “There was no court finding that the conduct of the neighbour or anyone else was affected or disturbed by the language”. Also, “… convicting on the basis that “an ordinary reasonable individual would be disturbed by language of that nature being shouted in a public area”, absence evidence to that effect cannot be supported.

Justice McLachlin further notes: “The interference may be minor but it must be present. It may be proven by direct evidence or be inferred from the evidence of a police officer as to the conduct of a person or persons, pursuant to s.175(2)”. McLachlin J. (p.2) [23] McLachlin J. further states: “the enumerated conduct must cause an overtly manifested disturbance which constitutes an interference with the ordinary and customary use by the public of the place in question”.

Also, a ‘disturbance’ contemplated by s.175(1) (a) “involves more than mere mental or emotional annoyance or disruption. (p.177 & 178) [24] As the prosecution submits, R. v. Summer references the principle approach to statutory

interpretation in Canada, “namely the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intent of parliament”. This is buttressed by

section 12 of the

Interpretation Act R.S.C. 1985, c.1-21 which provides that every enactment “is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures the attainment of its object” [25] The object of the Niagara Parks Act and Regulations is to preserve and protect the Niagara Parks and prescribes prohibited conduct that when committed would undermine the value placed on the Parks and the public’s Parks experience. [26] The Oxford dictionary offers the following

definitions: Abusive : “extremely offensive and insulting” Insulting : “disrespectful or scornfully abusive”. Disturb : “to interfere with the normal arrangement, functioning, order or harmony”; “to interrupt peace or order, unsettle”; “to interrupt, hinder”; “to perplex, trouble, to be disturbed by strange behaviour” Unnecessarily : “in a way that is avoidable, needlessly” and ‘interfere’ as a situation without invitation or necessity”. [27] Mr. Bracken was aware of his unwanted conduct having been informed by the police, if not from the public’s negative comments or by their actions endeavouring to avoid him.

The evidence suggests some limited visitor support for Mr. Bracken’s message by giving

a ‘thumbs up’, while the opposite response would likely result in Mr. Bracken’s aggressive conduct and profanity. [28] In the context of a declaratory order, Justice Ramsay found Mr. Bracken’s sign wording, while obscene, was a comment on trade policy vis-à-vis China and Mexico, and not found to be “extremely offensive or insulting”. While the sign wording refers to two countries and not necessarily the citizenry of those countries, Mr.

Bracken’s language and conduct was directed at individuals, namely police officers and the visiting public, on a very personal level. [29] Regulation 829 is in place to limit the conduct of persons using the park. Grand View plaza is a prime destination point within the Parks, as evidenced by the number of visitors during the August high season. Mr. Bracken’s conduct generated a public complaint causing the police to attend and observe him for some 90 minutes.

Visitors were described as being held captive to listen to his “ranting” profanity while waiting in line to purchase tour tickets, or to otherwise use the Park. The officers experienced and observed first-hand Mr. Bracken’s use of disturbing language and behaviour directed at, and interfering with, Park visitors, vendors and an employee. Mr. Bracken’s loud, repetitious, abusive, extremely offensive and insulting language demonstrably detracted from their peaceful enjoyment. To return to the definition of disturb , Mr.

Bracken’s conduct ‘interfered with the normal arrangement, functioning, order and harmony’ of the Park, ‘interrupted peace’, was ‘unsettling’, ‘hindered’ Park use and was ‘perplexing, troubling and disturbing given his strange behaviour’. To apply Supreme Court Justice McLachlin’s perspective, speaking for the majority in R. v. Lohnes , Mr. Bracken’s conduct “caused an overtly manifested disturbance which constitutes an interference with the ordinary and customary use by the public”. (

c) Is Mr. Bracken’s form of expression protected by s.2(

b) of the Charter [30] S.2(

b) of the Charter protects all forms of expression, whether oral, written or pictorial. Freedom of expression is entrenched in the Charter to ensure that everyone can manifest thoughts, opinions, beliefs and indeed all experiences of the heart and mind however unpopular, distasteful or contrary to the mainstream. This guarantee is intended to protect both listeners and speakers and is not confined to political expression. [31] Free speech is a cherished Canadian right, but it is not without limits, as s.1 of the Charter recognizes. It is hard to understand that Mr.

Bracken’s alleged conduct could promote the principles and values underlying the freedom of expression Charter protected right. Mr. Bracken conducted himself in such a way that was unwanted, unnecessary or as Justice Ramsay stated that did little to further democratic discourse or truth finding. If Mr. Bracken’s sign carrying protest started out as a peaceful demonstration it escalated into a loud, disruptive, harassing and disturbing rant that went beyond his Charter protected rights, causing the police to intervene out of concern for public safety. Mr. Bracken’s form of expression does not attract s.2(

b) Charter protection . IV JUDGMENT: [32] The evidentiary burden rests with the prosecution to prove their case beyond a reasonable doubt; that burden of proof never shifts to the defendant. The defendant is presumed innocent and the Prosecution’s burden of proof is a high one. The defendant did not testify during his trial, and although he chose to not fully participate in his trial the court endeavoured to glean from his limited cross- examination and his Superior Court case how the he might have approached his defence. [33] Mr.

Bracken proffered no defence evidence or a due diligence or mistake of fact defence. He was well aware of his unwanted conduct. It’s hard to think of a venue where such behaviour would be welcomed, but certainly not in the Niagara Parks. [34] The Crown’s case could have been stronger with Ms Rivet’s and Mr. Nicol’s testimony; however, I find the officers’ evidence obtained through direct observation over a period of time, involving a number of visitors, and Mr.

Nicol in particular, to be persuasive that they were disturbed. [35] I have taken into account the trial evidence, exhibits, the prosecution’s submissions and the tendered case law in arriving at my judgment.

Shouting obscenities at both the police in earshot of 100s of people, and more particularly where directed repeatedly at Park users, such as “Go Fuck Yourself” is abusive and certainly insulting and falls within the meaning of the Regulation as prohibited conduct, unnecessarily interfering the use and enjoyment of the Park. [36] Considering the totality of the evidence before this court, I am satisfied that the prosecution has proven its case beyond a reasonable doubt that the elements of Count 2 have been made out, recognizing that the evidence supports that both named (Mr.

Nichol) and unnamed persons (several Park users) were disturbed and a conviction is registered. Also, it would be understandable if visitors whose first language is not English to have an elevated concern for their wellbeing when faced with Mr. Bracken’s aggressive behaviour and the disturbing tone of his voice.