Bubble legislation, a municipal bylaw which establishes a protest-free buffer zone around communal buildings, is facing its first constitutional challenge, after the Canadian Civil Liberties Association (CCLA) filed a suit against the City of Vaughan.
The city, just north of Toronto, was the first in Canada to pass a law controlling protests, in May 2024. The Protecting Vulnerable Social Infrastructure bylaw prohibits “anyone from organizing or participating in any and all nuisance demonstrations within 100 metres of the property line” of places of worship, schools, childcare centres, hospitals and group-care facilities. Infractions carry a maximum $100,000 fine.
The CCLA is asking the court to strike down the bylaw under Ontario’s Municipal Act, and argues that it violates demonstrators’ Charter rights to free expression, peaceful assembly, and association. The bylaw, according to the CCLA, seeks to limit dissent and protest and deliberately cause a chilling effect.
For months, members of the Jewish community have pushed for bylaws like Vaughan’s, saying the measures these bylaws provide are a small ask given the level of animus and rising number of antisemitic attacks targeting the Jewish community.
Bubble zone bylaws designed to protect vulnerable community spaces, like synagogues, have been adopted or are being considered by municipalities in the Greater Toronto Area (GTA), including Toronto, Oakville, Brampton, and Mississauga, as well as in Hamilton, Ottawa, and Calgary.
The past 20 months, since the Oct. 7, 2023 Hamas attack on Israel and the subsequent war in Gaza, have seen surges in vandalism and mischief, including at a number of synagogues and Jewish-owned businesses.
Last year, a protest outside Thornhill’s Beth Avraham Yoseph of Toronto (BAYT) synagogue tested Vaughan’s bylaw, after other demonstrations there earlier that year resulted in arrests. A chaotic scene unfolded, with protesters kept to one side of Clark Avenue — across the street from the synagogue, though within 100 metres — for most of the hours-long event. Demonstrators at one point marched along the residential sidewalks, with police and counter-protesters following closely, while the event took place inside. In March 2024, before the bylaw was passed, and again last Dec. 9, these protests outside BAYT happened when it was hosting Israeli real estate events.
Rabbi Daniel Korobkin, of BAYT, called the Dec. 9 protest a failed test of the bylaw, which requires onsite York Region Police and city bylaw enforcement officers to determine when protests are “peaceful gatherings” or are deemed “nuisance demonstrations.” Peaceful protests are allowed within 100 metres of vulnerable buildings, and law enforcement are to make “a case-by-case assessment” on “whether a reasonable person would be intimidated by a demonstration.”
Korobkin says he’s counting on the City of Vaughan to “aggressively fight back” against the “outrageous” lawsuit.
“The repercussions [if the bylaw is defeated in court] are not just to the Jewish community, but they are [to] any ethnicity, to any culture, and ultimately to all Canadians who uphold the views of free speech and the freedom to disagree and to have their voice heard,” he said.
“If this bubble legislation is defeated, it will represent yet another step backwards for the free and democratic Canada that people for generations have grown up in. This is… a battleground that really means everything for the future of [a] free and democratic Canada,” he said.
“If this bubble legislation is not upheld very, very strongly,” he says, “the only remaining Jews will be the ones who have been intimidated into submission to renouncing the State of Israel as having any right to exist, and the Jews being a diaspora class who will basically assimilate into whatever culture they find themselves in.”
Another protest and event related to Israeli real estate took place outside of and at BAYT, on March 25, and City of Vaughan staff closed roads and sidewalks ahead of the planned demonstration. Korobkin asked community members not to attend to counter-protest, and there was no chaotic protest scene that evening. “This time, the mayor’s bubble legislation worked perfectly,” Korobkin later wrote in an email.
Vaughan Mayor Steven Del Duca told The CJN there were “a lot of lessons I think we do have to learn” from the BAYT protest.
Del Duca was not available for an interview but wrote in a statement that the bylaw’s focus is safety.
“It was designed to prevent protests that are not peaceful, and intimidate and incite hatred or violence. It does not prohibit peaceful gatherings, protests or demonstrations, including activities that are part of a labour union strike. Every resident — regardless of background — deserves to feel safe, respected and welcome in all public and communal spaces.”
Del Duca wrote that Vaughan, the first Canadian municipality to enact such a bylaw, would defend it in response to the CCLA court challenge, and called on Prime Minister Mark Carney “to follow through on his platform commitment by introducing legislation that makes it a criminal offence to willfully obstruct access to places of worship, schools, and community centres—and to criminalize the intentional intimidation or threatening of those attending services or gatherings at these locations.”
Del Duca urged “national action… to avoid a patchwork of municipal rules and ensure consistent protection for all Canadians.”
Carney made promises about federal support for safe access zones in April, during the federal election campaign. Now, Justice Minister Sean Fraser says the government is moving toward “new criminal provisions” on the file, according to a report by The Canadian Press June 28.
In Alberta, a Calgary bylaw limiting protests within 100 metres of city-owned community centres and public libraries also faces a legal challenge. A group called the Canadian Constitution Foundation (CCF) launched a provincial court case, citing a lack of jurisdiction from the city to enact the bylaw and calling it unreasonable, while additionally attempting to have the case heard by the Supreme Court of Canada.
Toronto City Councillor James Pasternak helped that city’s bylaw pass in May after more than 19 months and countless hours of debate and political maneuvering at council. The Toronto bylaw’s restrictions, which came into force July 2, are narrower than in Vaughan, specifying a 50-metre distance from vulnerable building entrances, and a fine of up to $5,000 for violations.
Pasternak points out that courts have upheld British Columbia and Ontario bylaws protecting people’s access to abortion clinics without harassment, and which prohibit demonstrations near the homes of clinic staff.
“They [the abortion clinic and provider access bylaws] have never been declared unconstitutional by the Supreme Court of Canada. In fact, the Supreme Court of Canada was so comfortable with the B.C. Superior Court ruling that they didn’t even want to hear the appeal,” Pasternak said.
“The bubble zones do not infringe free speech. They do not infringe the right to protest, and they do not infringe the right to picket,” he said.
“These are legal remedies to extend Charter rights to those who want to enter their place of worship or their faith-based school or another vulnerable institution. They protect Charter rights. They do not take away Charter rights.”
Pasternak attended one of the protests outside BAYT to lend support, and called it a “disgrace,” with “protesters… chanting… screaming at us to go back to Europe, calling for worldwide intifada, calling for the destruction of Israel.”
He calls bubble zone bylaws a “minimum” measure the city can provide, and says they are “a tool in the toolbox that we could get to give police” at a time when “the rule of law has broken down in our society.”
“If police and bylaw enforcement can keep these mobs away from entrances based on the bylaws, then the goal is achieved that way. Those who want to pray in their faith or pick up their kids from a daycare, or go to some kind of cultural event, they have rights too.”
Dan Goudge, a lawyer with Stockwoods LLP, is representing the CCLA in the Ontario court filing that seeks to have the Vaughan bylaw declared unconstitutional.
The lack of definition of what constitutes “intimidating expression”, Goudge says, “grants police and bylaw officers an immense amount of discretion to determine what in their view is intimidating speech [or not],” with infractions subject to fines.
“It captures effectively any form of expression that a bylaw officer or police officer in their own view is likely to cause a person to be intimidated,” encompassing “a huge range of conduct that is uncertain and unsettled,” he said.
“It creates a chilling effect on speech and protest where any person may not know whether or not their speech is onside or offside the bylaw, and so they’re taking a $100,000 risk anytime they go out to express their views.”
He says the bylaw goes beyond prohibiting expressions of hate speech, threats, or incitement to violence, which police can already enforce under the Criminal Code.
“It gives police and bylaw officers the discretion to determine what is intimidating speech, without giving them any guidance on what constitutes intimidating speech.”
While the legal action is focused on the Vaughan bylaw, Goudge says the CCLA “has been closely monitoring the bylaws passed in other municipalities and it has not found any of them to pass constitutional muster at this point.” Further litigation is possible in the future, he said.
“The Vaughan bylaw which was both the first of these bylaws to be passed, and has really started this trend across Ontario of different municipalities enacting similar bylaws… is a clear example of what’s wrong with this type of legislation, and how it infringes on fundamental freedoms… with those infringements not being justifiable in a free and democratic society.”
Another Toronto city councillor, Josh Matlow of St. Paul’s, says he voted against the bylaw that passed council in May because he saw it as a performative measure, and anticipates constitutional challenges against the Toronto bylaw.
“The reality is, Toronto’s version of a bubble zone bylaw neither protects basic Charter rights [nor] anyone’s safety in the community,” he said.
“I believe where there are laws [they] should be enforced by the police, and frankly, the laws that exist today should be more effectively enforced,” he said. “That is the core issue that we should focus on” rather than “be distracted by a bubble bylaw.”
“It’s ineffective, it’s not real, and it really does more for the politicians voting for it than anyone in the community,” he said. “I was not going to go along with that.”
The focus should be addressing what happens when protest activity “crosses the line toward criminal behaviour, and targets people with harassment, intimidation, violence, or hate,” he said.
“That should be effectively enforced… whether it be on a bridge, in front of a business, in a park, or on our streets.
“There should not be a contest between upholding one’s Charter rights to peaceful expression and peaceful assembly and effectively enforcing the laws of the land. They don’t contradict each other.”
Federal laws would also change the proposition, he acknowledges.
“If Prime Minister Carney moves forward with legislation as he’s promised, to give the police more meaningful tools to ensure that anyone can enter their place of worship without ever being impeded… that will have teeth.”
