Freedom of Speech and Calgary's Harassment By-Laws

Photo by Kristina Flour on Unsplash

On September 20, 2023 two men were taking a largely empty transit C train to the Million March for kids in Calgary, Alberta. While they were talking another passenger overheard their conversation and phoned the police. When the two men went to leave the train, uniformed Officers were waiting for them and they were ticketed. One of the men was also placed into handcuffs for the By-Law infraction. They were both issued summons to appear in November.

The Democracy Fund (TDF) took up their cause and supported them through the process. As of today November 14, 2023 all charges were dropped. The defendants were denied their day in Court and TDF's request for disclosure has been denied twice. The men were never informed of what they said that caused their summons only that they had made a passenger uncomfortable.

The By-Law in Question

Bylaw 54M2006 “Public Behavior” sets out to regulate public behavior. There were two major changes to the By-Law in 2022 and 2023. The provision in which these infractions come from are:

C.1 “harass” means to communicate with a person in a manner that could reasonably cause offence, intimidation or humiliation, including conduct, comment, or action that refers to the person’s race, religious beliefs, colour, disability, age, ancestry, place of origin, marital status, source of income, family status, gender, gender identity, gender expression, sexual orientation, and includes a sexual solicitation or advance; (18M2023, 2023 March 14)

Under the specific Section of harassment: HARASSMENT 7.1 No person shall harass another person in any public place

In the infographic here, it lays out some examples of harassment.

• Personalized attacks

• Insults or slurs

• Obscene behaviours or comments

• Behaviour designed to humiliate and intimidate

• Interference with someone’s use of a public space

The Transit By-Law 4M81 stipulates that

14. (1) No person shall, in or upon any transit vehicle, passenger shelter, transit station, the 7th Avenue transit corridor, transit way or any other transit property:

(c) engage in an activity which would molest or interfere with the comfort, convenience or quiet use and enjoyment of the transit system of any reasonable person; or

(d) behave in a manner that would cause a safety concern to any reasonable person.

Further implications

Observing the above By-Laws a case could be made that the conversation these men were having may have made someone feel uncomfortable and thus meet the threshold. However that in of itself is an incredibly low threshold. The actus reas of such a crime is so widely open, an individual Officer should have the foresight to see that a conversation between two people on public transit is hardly indicative of a crime. Yet despite this, city resources were wasted in confronting and applying restraints on an individual whose only crime was talking in public. The fact that the City failed to even follow proper disclosure procedures only highlights that, in my opinion, they wanted this to go away as quickly as possible. By-Laws like this are dangerous because they are highly subjective and prejudicial in nature. In the end, no one has the right to not be offended by something someone else says, especially when they are not even part of the conversation. It speaks to such a lack of fortitude and personal weakness. Perhaps the authorities should have questioned whether such weakness was becoming of the definition of a “reasonable person”.

It is deeply concerning that mere public conversations that some may find uncomfortable can result in the weaponization of Government resources against the citizenry. When the tattler in question notified authorities they should have been told to mind themselves and not waste Police resources on non-crimes. Instead these men had their rights violated and I hope that the TDF takes this issue as far as our legal proceedings will allow and punish the Government officials for having the audacity to think they can police public conversations.

The first thing my mom taught me was not to even whisper because the birds and mice could hear me. -Yeonmi Park, North Korea

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