On September 13, 2013, the Ontario Court of Appeal issued a decision, Detlor v. Brantford (City) allowing an appeal in part by an aboriginal group, the Haudenosaunee Development Institute (“HDI”). The Court held that two by-laws passed by Council of the City of Brantford (the “City”) represented an unjustified infringement to the freedom of expression guaranteed by Section 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”). Rather than quashing the by-laws, the Court used its discretion to sever the offending provisions finding the remainder of the impugned by-laws constitutional.
The HDI were unsuccessful in claiming that the by-laws were passed in bad faith and in contravention of the open meeting requirements of the Municipal Act. Also unsuccessful were claims that the by-laws infringed the right to equality under Section 15 of the Charter and that the by-laws were ultra vires under Section 91(24) of the Constitution Act which reserves legislative power over Indians and Indian lands to the federal government.
The HDI sought to control development on lands in and around the City, claiming that the Haldimand Proclamation of 1784 gave the Haudenosaunee people the right to possess the lands in perpetuity. The City took the position that the tribe surrendered the lands by sale between 1844 and 1846.
In an effort to assert their claim, the HDI began to require developers with existing development approvals to obtain HDI approval prior to commencing development and undertake archaeological and environmental assessments, pay administrative levies and make annual payments. When developers refused the demands, principals and supporters of the HDI blockaded access to construction projects on private property and stifled development in the City.
The City responded by passing two by-laws. The first by-law generally prohibited engaging in various activities such as blocking traffic, putting up signs, throwing things or interfering with development on designated streets and properties and deemed such interference a public nuisance. The second by-law generally prohibited unauthorized demands for an application or fees as a condition of development. One provision of the by-law provided that requests, demands, coercion, invitations, stipulations or requirements for fees or applications by the HDI as a condition of development were unauthorized.
Shortly after the by-laws were passed, the City sought an injunction to restrain the HDI from engaging in the activities prohibited by the by-laws. In response, the HDI applied to quash the by-laws. The lower court granted the City’s injunction and dismissed the application to quash. Leave to appeal the injunction was denied but the appeal of the dismissal of the HDI application to quash the by-laws proceeded to the Court of Appeal.
The HDI claimed that the by-laws should be quashed because they were passed following a closed meeting held without proper notice. In rejecting these arguments, the Court found that the meeting was properly closed for the purpose of obtaining advice that was subject to solicitor-client privilege. Although the HDI took the position that the privilege was waived by the presence of police staff that were not clients of the City solicitor, the Court found that Council and the police shared a common interest in the matter being discussed and therefore, the privilege remained in tact. The Court also noted that the HDI’s claim was undermined by its failure to request an independent investigation under the act to determine whether the open meeting requirements were met.
The HDI also claimed that the by-laws were passed in bad faith. In rejecting the claim, the Court found the hallmarks of bad faith, those being unreasonable and arbitrary action without the required degree of fairness, openness and impartiality, absent in this case. The Court noted that Council passed a resolution identifying the matter to be discussed in closed session, gave advance notice of the by-laws being considered, held the closed meeting for the purpose of obtaining the City solicitor’s advice and, neither the HDI nor the Haudenosaunee people were targeted for special treatment.
Canadian Charter of Rights and Freedoms
Freedom of Expression
The Court accepted that both by-laws limited freedom of expression guaranteed by Section 2(b) of the Charter. In determining whether the limit was justified, the Court found that the by-laws were passed to meet the pressing and substantial objective of preventing ongoing disruption to development activities in the City.
However, with respect to the first by-law, the Court found that the blanket prohibition relating to signs on, or adjacent to, designated streets overly broad and struck this restriction from the by-law. The Court upheld the remaining provisions and noted that a limit on the size or number of signs on public streets or near development sites would be justified.
With respect to the second by-law, the Court found the prohibition on unauthorized demands for a development fee through the use of coercive conduct justified. The Court did not indicate under what circumstances demands for an application or fee by a third party might be authorized. However, the Court did find the prohibition on non-coercive conduct intended to persuade or prompt discussion with developers regarding payments overly broad.
The by-law as drafted provided in part:
No person, unless authorized, shall request, demand, coerce, stipulate, require, invite or collect a fee for development.
The Court’s remedy was to sever the offending provisions of the by-law to provide the following revised language:
No person, unless authorized, shall demand, coerce, stipulate, require, or collect a fee for development.
The HDI also claimed that the purpose and effect of the by-laws was to discriminate against the Haudenosaunee people on the basis of ancestry. The HDI argued that by curtailing the manner in which they chose to interact with developers, there was a differential impact on them because they have a constitutional interest in carrying out the activities prohibited by the by-laws. The Court rejected this argument finding that the HDI did not have a constitutional right to engage in the tortious and coercive conduct prohibited by the by-laws and were free to advance their constitutional interests in a lawful manner.
The HDI argued that under Section 91(24) of the Constitution Act, the federal government has exclusive legislative power in relation to Indians and lands reserved for the Indians and therefore, both by-laws were ultra vires because in pith and substance they dealt with matters within federal power. The Court disagreed finding that the by-laws were enacted under provincial legislative power in relation to property and civil rights and that the by-laws which applied equally to all persons, were not in relation to Indians. In addition, the Court found that the by-laws did not touch on matters related to the status and rights of Indians but rather were laws of general application that applied to the day to day activities of Indians as members of the broader population.
The Court made clear that it was not deciding whether the Haldimand Proclamation of 1794 was a treaty which was a question being litigated in another forum. If that litigation determines that it was in fact a treaty, it may be that the by-laws infringe on treaty rights that are protected under Section 35(1) of the Constitution Act, 1982.