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"This is not about free speech" is a phrase you usually hear from the Man when it's trying to limit free speech.
That was a refrain that echoed in the Barrie city council chambers on Wednesday night as council reached its decision on the integrity commissioner's report regarding Member of Parliament John Brassard's complaint against Coun. Keenan Aylwin.
How could a decision by a government body to censure and literally censor a political statement made by an individual not be about free speech? It would be laughable if it weren't such an affront to our democracy.
Freedom of expression is a fundamental right. It is enshrined as a constitutional guarantee in the Charter of Rights and Freedoms at Section 2(b). That means it is the highest law of our land.
That's right, members of council, the Constitution of Canada is a higher authority than Barrie city council's code of conduct.
But they didn't want to hear it. In fact, when reminded that we have a constitution, Mayor Jeff Lehman responded by telling the public to bring a constitutional challenge to the courts.
That's not how it's supposed to work in our democracy. Individuals shouldn't bear the burden of litigating after the state violates their rights, particularly where state actors appear to have done no due diligence.
David shouldn't have to lawyer up and sue whenever Goliath decides he would rather trample on rights now and ask for forgiveness later. That's the erosion of our democracy in real time. Any limits that the government places on speech — such as with a code of conduct — must be reasonable under Section 1 of the Charter.
The bar is especially high when the speech at issue is political speech, as it is in this case.
As a government body, Barrie city council had a responsibility to ensure that its decision-making accorded with the Charter.
It didn't.
This wasn’t about how members of council felt about Coun. Aylwin’s Facebook post, how MP Brassard felt about the post, or even how the integrity commissioner viewed the post. Section 2(b)'s protection of speech is content-neutral. That means it protects speech even when it is offensive or unpopular.
This was about council’s obligation to balance Coun. Aylwin’s constitutionally protected freedom of expression — and the public’s right to hear this expression — with the code's regulation of ethical conduct.
They failed. Miserably. Embarrassingly. Egregiously.
And we, the common, will have to bear the cost if Mayor Lehman's challenge is accepted and council's decision is put to further scrutiny. Which I hope it is, for the sake of our democracy.
Maybe you can't fight city hall, but you can certainly judicially review it.
Sheetal Rawal
Cookstown
Lawyer and Founder, Delante Public Interest Advocacy Former program director, Canadian Civil Liberties Association
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