Constitutionality of police bylaw use questioned

Legal scholars are questioning the constitutionality of the Toronto Police Service’s use of bylaw infractions in Project Marie.

The operation saw the police issue 89 charges to people in Etobicoke’s Marie Curtis Park. Only one of the charges was criminal. The others were all municipal bylaw and Provincial Offences Act infractions.

A “fact sheet” police handed out at the park detailed that 78 people were investigated and that 71 charges were issued for “lewd behaviour,” which police later said was a bylaw infraction for engaging in sexual behaviour in a park. Other charges on the fact sheet include “being in park after hours” and “trespassing.”

Human rights lawyers and activists have decried the operation, saying it targeted the LGBT community.

While the police have said they did not target gay men, those investigated were predominantly men and the park is a known area where gay men congregate.

According to the police’s fact sheet, 76 of the people investigated were men and two were women.

The police said that not all people investigated were charged, but they did not respond to questions concerning the actual number of those facing charges.

Toronto lawyer Douglas Elliott, who has worked on landmark constitutional cases, says the bylaw charges could be subject to constitutional challenges in two ways.

Elliott says that if a bylaw was applied to one group selectively because of their sexual orientation, it would be a violation of s. 15 of the Charter, even if the bylaw itself was on its face a valid exercise in municipal authority.

“I don’t recall any massive bylaw enforcements against straight people at any of the various festivals that have taken place where people may be having romantic encounters with members of the opposite sex,” Elliott says.

Legal scholars say there could also be a line drawn between the Project Marie charges and a 1983 Supreme Court of Canada decision, Westendorp v. the Queen, which concerned a woman who was charged with a municipal bylaw infraction in Calgary for being on the street for the purpose of prostitution.

In that decision, the Supreme Court determined the City of Calgary bylaw was unconstitutional because it invaded the federal government’s jurisdiction over criminal law.

Kyle Kirkup, an assistant professor with the University of Ottawa Faculty of Law, says the argument could be made that the police’s use of bylaws to enforce what is in essence a criminal prohibition is unconstitutional.

“To use an indecency bylaw to target people in parks could be vulnerable to a constitutional challenge because the criminal law power is the exclusive jurisdiction of the federal government,” he says.

“I think that would be an interesting argument to pursue, that really the City of Toronto has dressed up a criminal prohibition in a municipal bylaw, which could be subject to a constitutional challenge,” he added.

Dennis Baker, assistant professor at the University of Guelph, says using provincial laws and municipal bylaws to “supplement” the Criminal Code is perilous.

“In my view, that is a dangerous proposition since those laws don’t have the same degree of procedural protections that we’d expect with a criminal prosecution,” he said in an email.

A spokesman for the Toronto Police Service declined to comment on questions concerning the constitutionality of the use of municipal bylaws in this operation.

Critics say the operation was reminiscent of the bathhouse raids in 1981, for which the police recently issued an apology.

Kirkup says Project Marie is just the most recent example of a long history of police targeting the LGBT community and that the operation is evidence that the most vulnerable members of the community are still being targeted by the criminal law even after human rights protections have been introduced.

 “You’ve seen over the past decade or so some attempts on the part of the Toronto Police Service to build better community relationships.

I think it is a fraught relationship because of this long history,” he says.

“For many, when you see things like Project Marie and the targeting of LGBT folks, you think well maybe this relationship of trust you’re trying to build has disappeared through a single act.”

Elliott says he expects the bylaw charges will be thrown out, as they have been in the past when the police have used “another legal procedure to criminalize gay people when their behaviour is not otherwise criminal.”

“I think we’re used to, in the gay community, these kinds of inflated allegations being trotted out by neighbours and police and all kinds of vague allegations of immoral and unseemly conduct being used as a cover for what is essentially a targeted attack on gay men,” he says.

“And I would have thought those days were long behind us, but apparently not.”