Constitutional group warns Ontario town its election rules may violate Charter

The Canadian Constitution Foundation is warning the Town of Aylmer, Ont., that its municipal election rules may violate the Charter by restricting where candidates can campaign and even how public buildings can appear in their social media content.

CCF counsel Alexander Surgenor sent a letter to the town on Aug. 7 challenging provisions in Aylmer’s By-Law 28-26 and supplementary guidance issued to municipal election candidates on July 31.

The organization argues the restrictions may violate Section 2(b) of the Charter of Rights and Freedoms, which protects freedom of expression.

One of the CCF’s concerns is a prohibition preventing candidates from establishing campaign booths in public parks, including during privately organized events for which organizers have obtained a permit or rental agreement.

The CCF calls the restriction “overbroad and unreasonable,” pointing to Supreme Court of Canada and Ontario Court of Appeal decisions recognizing public parks as places where freedom of expression is protected.

“An aspect of freedom of expression is the ability to address people in places where crowds are known to congregate,” the letter states, quoting the Ontario Court of Appeal’s 2018 decision in Bracken v. Niagara Parks Police.

The group is also challenging Aylmer’s rules governing the appearance of municipal property in election campaign material.

According to the town’s guidance cited by the CCF, deliberately featuring a recognizable municipal ***et as part of a campaign presentation can constitute prohibited use of a corporate resource.

The restriction covers a lengthy list of public property, including Town Hall, Old Town Hall, the police and fire stations, municipal water towers, a pool, splash pad and the Palmer Park bandshell.

The CCF argues that interpretation could severely restrict candidates’ ability to produce campaign material for social media simply because recognizable public property appears in it.

“Public parks and public buildings belong to the public. Aylmer cannot use its election rules to arbitrarily restrict how and where candidates communicate with voters,” Surgenor said in a statement announcing the challenge.

The CCF acknowledged that municipalities can legitimately restrict some campaigning activities and the use of government resources during elections, but argues Aylmer has gone too far.

“While some limits on where candidates for municipal office may campaign and the use of certain corporate resources are reasonable and constitutional, these limits go too far in restricting expression,” Surgenor wrote.

The organization has given Aylmer until Aug. 20 to revise its candidate guidance to comply with its interpretation of the Charter.

If the town does not make the requested changes, the CCF says it will “consider our next steps,” raising the prospect of a potential legal challenge.