Executive Summary: Key Legal and Evidentiary Issues

• The Canadian Constitution Foundation (CCF) challenged Calgary’s Safe and Inclusive Access Bylaw (SIA Bylaw) on the basis that it exceeded the City’s statutory authority under the Municipal Government Act (MGA) and failed to comply with procedural fairness.

• CCF argued the SIA Bylaw was unintelligible, unreasonably broad, and was passed without adequate public notice or consultation, and that the City acted in bad faith.

• The Court applied the reasonableness standard of review, emphasizing the presumption of validity for municipal bylaws and the limited scope for judicial intervention absent clear statutory or procedural violations.

• Evidence showed the City followed required legislative processes, provided public notice, and acted in response to documented confrontations and hate incidents targeting the 2SLGBTQIA+ community.

• The Court found the SIA Bylaw’s definitions and prohibitions, particularly around “specified protest” and “engage,” to be intelligible and consistent with the City’s statutory mandate.

• CCF did not meet its burden to prove the bylaw was invalid, and the City’s actions were held to be within its lawful authority.

Background and context

The Canadian Constitution Foundation (“CCF”) is a national charity dedicated to defending the fundamental rights and freedoms of Canadians through public education, information, and litigation. CCF was contacted by concerned citizens after the City of Calgary (the “City”) passed Bylaw No 17M2023, Safe and Inclusive Access Bylaw (SIA Bylaw) on 14 March 2023. The SIA Bylaw was enacted in response to encounters and unrest towards members of the 2SLGBTQIA+ community (“Pride Community”) at events hosted at the City’s public libraries and swimming pools, including “Reading with Royalty” where drag queens or kings read stories to children. The City argued it had a positive duty under the Alberta Human Rights Act, RSA 2000, c A-25.5, and authority under the Municipal Government Act, RSA 2000, c M-26 (MGA) to provide safe access to its facilities and services.

Arguments and procedural history

CCF sought judicial review under Part 3, Division 2 of the Alberta Rules of Court, Alta Reg 124/2010, and a declaration of invalidity with respect to the SIA Bylaw under section 536 of the MGA. CCF claimed the SIA Bylaw was passed outside the permissible enabling sections under the MGA, violated natural justice, was unreasonably passed, and was unintelligible. CCF also applied to have the SIA Bylaw struck under the Constitution Act, 1867, Canadian Charter of Rights and Freedoms, and the Alberta Bill of Rights, RSA 2000, c A-14, but the Court limited CCF to public standing and limited the issues it could advance, as there was an appeal involving similar constitutional and Charter challenges (R. v. Heather, 2024 ABCJ 229). CCF was granted intervenor status in the Heather appeal.

The City argued that the SIA Bylaw was crafted in response to increasing protests and confrontations, and that it followed statutory provisions and natural justice in enacting the bylaw. The City maintained it acted within the scope of its authority under the MGA.

Judicial review and legal analysis

Justice S.G. Parker noted that the parties agreed on the standard of review and that municipalities are creatures of provincial legislation, able to pass bylaws only in accordance with the MGA or other relevant statutes. The Court applied the reasonableness standard of review, as affirmed in Auer v Auer, 2024 SCC 36 and TransAlta Generation Partnership v Alberta, 2024 SCC 37, and found that the SIA Bylaw benefited from a presumption of validity. The onus was on CCF to prove the bylaw was not reasonably within the scope of City Council’s authority.

The Court reviewed the evidentiary record, including the Certified Record of Proceedings, which showed the City provided public notice, allowed for written submissions, and debated the bylaw in open council meetings. The Community Services Report highlighted hate, transphobia, homophobia, and recent protests targeting the 2SLGBTQIA+ community, as well as the City’s desire to balance the right to protest with safe and inclusive access to facilities. The SIA Bylaw was read three times, with amendments, and passed with three councillors opposed. There was no evidence of irregularities in voting or procedure.

The Court found that the SIA Bylaw was on the legislative end of the spectrum of municipal decision making, and that the duty of procedural fairness did not require public hearings for this type of bylaw. The City’s Engage Policy CP2023-05, adopted in 2013, provided guidelines for public engagement, and the SIA Bylaw did not fall into categories requiring public hearings under the MGA. The Court held that the City was only required to afford a low level of procedural fairness, and there were no defects in the process.

On the substance, CCF argued the SIA Bylaw was unintelligible and could capture conduct not intended to be targeted, such as individuals wearing graphic T-shirts or having private conversations. The City responded that the bylaw was intended to remove protesters from entrances and within facilities to reduce confrontations, and was not intended to end all forms of protest. The Court analyzed the definitions of “specified protest” and “engage,” finding them to be intelligible and consistent with the City’s mandate. The bylaw was found to be justified, transparent, and enacted within the City’s authority under the MGA.

Policy terms and clauses at issue

The SIA Bylaw prohibits “specified protest” on publicly accessible property within 100 metres of an entrance to a recreation facility or library, and anywhere inside a recreation facility. “Specified protest” is defined as an expression of objection or disapproval towards an idea or action related to race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation by any means, including graphic, verbal, or written means, but does not include messaging at an event scheduled by a recreation facility. The bylaw also prohibits physically impeding or attempting to impede passage to or from an entrance. Offences are punishable by a fine not exceeding $10,000 or imprisonment for not more than one year, or both.

Outcome

Justice S.G. Parker found that the City acted within its statutory authority and that the SIA Bylaw was justified, transparent, and intelligible. CCF did not discharge its onus to prove invalidity. The application for judicial review was dismissed, and the SIA Bylaw remains in force. No specific amount was ordered or awarded, as the matter was a judicial review of bylaw validity, not a claim for damages or compensation. The City of Calgary was the successful party in this decision.