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Please complete our online questionnaire about a possible “bubble zone” by-law for the City of Ottawa. This questionnaire will remain open to the public until 9 am on 30 September 2025. Go to questionnaire.
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As Ottawa considers regulations to protect safe access to vulnerable social infrastructure, we are researching and monitoring developments in other Canadian cities. Recent examples of how other municipalities have addressed this issue include:
Calgary: The Safe and Inclusive Access By-law prohibits protests “objecting to an idea or action related to human rights” within 100 meters of every community center and library, from one hour before they open until one hour after they close, and further prohibits blocking access to these facilities.
Oakville: The Safe Access to Vulnerable Social Infrastructure By-law prohibits specified protest within 20 meters of every school, daycare, hospital and library. Specified protest includes actions to dissuade or obstruct access to the facility. The by-law further prohibits the display of graphic images within 150 meters of the facility.
Toronto: The Access to Social Infrastructure By-law establishes access zones of 50 metres around specific houses of worship, childcare centres, or community centres. Access Zones are established by application from the site operator and prohibit obstruction of access to the site, including expressions of disapproval or discouragement directed at persons accessing the facility.
Vaughan: The Protecting Vulnerable Social Infrastructure By-law prohibits organizing or participating in a nuisance demonstration within 100 metres of the property line of any vulnerable social infrastructure (such as a place of worship, school, childcare centre, hospital or congregate care facility). A nuisance demonstration is distinguished from a peaceful protest in that it causes a reasonable person to feel intimidated or unsafe or otherwise prevents them from safely accessing the facility.
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The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. (Section 1 of the Charter)
Four “fundamental freedoms” identified in Section 2 of the Charter:
- freedom of conscience and religion;
- freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
- freedom of peaceful assembly
- freedom of association.
Any limits that the City places on these freedoms - through a by-law, policy or by other means - have to be reasonable and justified under Section 1 of the Charter. According to the Department of Justice:
Section 1 effects a balance between the rights of the individual and the interests of society by permitting limits to be placed on guaranteed rights and freedoms. “Most modern constitutions recognize that rights are not absolute and can be limited if this is necessary to achieve an important objective and if the limit is appropriately tailored, or proportionate.” (Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 SCR 610, at paragraph 36).
The values and principles which guide the Court in applying section 1 include the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society (R. v. Oakes, [1986] 1 SCR 103 at page 136).
(see: Charterpedia: Section 1)
Courts have also found that a person exercising their freedom of expression in a public place must respect and cannot interfere with the functions of that place, underscoring the general principle that one’s rights are always circumscribed by the rights of others. (Committee for the Commonwealth of Canada, 1991 1 SCR 139)
A municipal by-law will need to balance the freedom of protesters to gather and express themselves with the freedoms, rights, and needs of residents seeking to use vulnerable social infrastructure like places of worship, care homes and daycares, and others – recognizing not only the importance of the right to peaceful protests in a free and democratic society but also the impact that protests or obstructive activities can have on the health and well-being of individuals seeking access to these places and using vulnerable social infrastructure.
What are your initial thoughts on balancing rights? Take our quick poll.
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The Oakes test comes from a Supreme Court of Canada decision, R. v. Oakes, [1986] 1 SCR 103. This case raised important issues around reasonable limits on rights and freedoms as well as the interpretation of Section 1 of the Charter:
- The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The Oakes decision establishes a process (“the Oakes Test”) for evaluating the reasonableness of any limit on Charter rights and freedoms and would apply to any by-law placing restrictions on protest activities. Under the Oakes Test, the City of Ottawa would have to demonstrate:
- The by-law’s objective must be pressing and substantial. It must be sufficiently important to justify limiting a Charter freedom.
- There must be proportionality between the by-law’s objective and the means used to achieve it:
- The limits imposed by the by-law must be rationally connected to the by-law’s objective.
- The limits must minimally impair the right or freedom, and not more than is reasonably necessary to accomplish the objective.
- The benefits of the infringements must outweigh its consequences.[i]
This is part of the framework that will be used to guide policy development and decision making related to protecting vulnerable social infrastructure.
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