Alberta's Municipal Anti-Bullying Laws are Deeply Flawed

One of the easiest ways for a municipal politician to keep his constituents happy is to give them what they want. Sometimes this means enacting popular yet dubious bylaws.

Perhaps this is the impetus behind the Town of Airdrie's push to amend its Public Behaviour Bylaw to prohibit bullying. After all, nearly everyone will rally behind politicians who enact laws to protect children from harm, regardless of those laws' faults.

And Airdrie is not alone. Many other municipal governments in Alberta have already enacted similar bylaws. For instance, Consort, Grand Prairie, Hanna, and Rocky Mountain House each already prohibit bullying. Oyen's Town Council has discussed it. There are likely many others.

Each of these bylaws is similar. Bullying will not be tolerated at any place in town to which the public has access. In some municipalities, bullies can be fined up to $1,000 plus costs, and be imprisoned for six months on default of payment. These are significant penalties.

Regardless of their goal, each of these bylaws is flawed. They are redundant and viciously subjective, they make some acts illegal that they shouldn't, and they are outside of the jurisdiction of any Alberta municipality.

Consort's bylaw considers "harassment of others by the real or threatened infliction of physical violence and attacks" and the "extortion or stealing of money and possessions" as bullying. But harassment, extortion, and theft are already illegal. How will enacting yet another law solve the problem when there's an apparent lack of will to enforce current laws?

Grand Prairie's bylaw defines bullying as an "objectionable or inappropriate comment, conduct or display" directed at an individual "which causes or is likely to cause physical or emotional distress". Simply put, this is vague and hopelessly subjective. By relying on words like "objectionable" and "inappropriate" and requiring those enforcing the law to find the line between behaviours that are likely to cause emotional distress and those that are not, this bylaw will inevitably function as a proxy for the personal views of those enforcing it. This could easily make all sorts of otherwise excusable behaviours illegal. For example, a fine could be issued for a single hurtful comment uttered in anger even though "bullying" is generally understood to mean repeated hurtful behaviour.

Rocky Mountain House's bylaw, like the others, applies in all locations that the public has access, including schools, public parks, recreational facilities, and even sports grounds. Don't taunt the umpire at a baseball game in Grand Prairie--even in jest--because if it could be construed as likely to cause emotional distress and you could be fined for single offhanded remark. And while in Hanna, it's best to avoid verbally taunting your opponents if you are playing in the game.

At their core, these bullying bans are unadulterated attempts to restrict freedom of expression and are therefore outside of municipal jurisdiction. Alberta's Municipal Government Act lists three municipal purposes, none of which grants municipalities the power to enact laws for the sole purpose of restricting expression. Further, the Province of Alberta cannot delegate to municipalities the authority to restrict expression. Under the Constitution Act, 1867, provincial laws may only incidentally restrict expression provided those laws are otherwise within provincial jurisdiction.

But it's not all bad. There is some good in these bylaws. Each demonstrates that bullying is not acceptable and should not be tolerated, and issuing fines may be a quick and efficient means to curb hurtful behaviour. And to be clear, no one endorses or excuses real bullying. It can have devastating and lasting effects, particularly on children.

Regardless, the flaws in these bylaws cannot be ignored. Each needlessly duplicate other laws, some make excusable and non-reoccurring acts illegal, and all overstep municipal and constitutional authority. Think of the problem this way. What these bylaws do--they should not. What they should do--they cannot. Relying on bad laws to prevent bullying is similar to believing that two wrongs somehow make a right.

This piece was first published in the Huffington Post on September 24, 2013.

Bylaws Made in Secret, Good Government, and Economic Freedom

Last July 16, Calgary city council voted to enact a bylaw to ban the distribution and sale of shark fins in Calgary.

Ald. Brian Pincott brought the bylaw to council supported by a petition containing thousands of signatures. Ald. John Mar admonished Calgary’s Chinese-Canadians saying they may need to give up some of their traditions, such as shark fin soup. Coverage by some media outlets juxtaposed images of Chinese restaurants and mutilated sharks. As a result, few people outside of Calgary’s Chinese community have questioned the good intentions behind council’s decision. But more of us should.

Council justifies the proposed bylaw on two grounds. First, sharks are “apex predators” that accumulate toxins such as mercury in their bodies. Shark fins therefore contain dangerous levels of mercury. Second, some 70 million sharks are allegedly caught each year, stripped of their fins, and thrown back helpless into the ocean to die a painful death. So shark fins are therefore cruel and unethical.

These two justifications may seem innocuous, initially. Although Alberta’s Municipal Government Act is silent regarding sharks, it does give municipalities the authority to pass laws for human safety, health, and welfare.

So is the proposed bylaw about protecting humans from toxins like mercury? If sharks are contaminated with mercury, why would council ban only the fins and not the entire shark? Why is the practice of finning sharks and not fishing sharks the focus of the bylaw? Also, what about tuna? Tuna is an ocean dwelling apex predator that accumulates mercury, and it’s more regularly consumed by Calgarians than shark fins. If human health is truly council’s concern, the bylaw would be about the regulation or banning of mercury in foods, not just shark fins.

The human health justification appears to be a contrivance designed to divert attention from the fact that council has no authority to enact legislation protecting sharks.

Toronto had a similar ban until November 2012 when a judge ruled the bylaw was outside of Toronto’s authority. Even though Calgary is a different city, in a different province, and functioning under different legislation, the legal principles relied upon by the Ontario judge would similarly strike down Calgary’s proposed bylaw. Like Toronto’s, Calgary’s ban is simply not about protecting human health — it’s about the preservation of a marine animal over which council has no jurisdiction.

Of course, Calgary’s city council could not have known in July about the legal status of municipal shark fin bans before the judge struck down Toronto’s bylaw in November — or could they?

On July 16, hidden behind closed doors, council was given legal advice regarding the proposed bylaw. That advice is currently unavailable because council directed that it remain confidential under the Freedom of Information and Protection of Privacy Act. That seems odd.

Upon exiting their private meeting, council resolved to ask the provincial and federal governments to enact shark fin bans. Why? Perhaps the city’s legal department told council that the proposed ban is outside the city’s authority. If that’s the case, council knew their ban was potentially illegal prior to Toronto’s bylaw being stuck down.

What’s disturbing about this scenario is far more than shark finning. If city council was told that banning shark fins may be outside of their authority, and yet continued efforts to enact the ban while keeping that unfavourable legal advice hidden, what else are they capable of? And even if council was not initially aware that the ban may be outside their authority, they became aware after Toronto’s bylaw was struck down.

This should trouble every Calgarian, not just the Chinese community. Don’t be misled — this ban is about far more than shark fins. Calgarians should consider whether they can trust a council that keeps secrets while seeking to enact legislation it knows may exceed its authority.

The real issues are good government and the freedom to earn an honest living. A Calgary restaurant owner assured me that she purchases shark products not from China but only from Spain — a country that regulates its shark industry to prevent overfishing and cruelty. Throughout the EU, the whole shark is harvested. The media’s gory portrayal of floundering mutilated animals is simply inaccurate in her case. She is serving an ethical and sustainable food product to her customers. It would be unjust if council’s overly broad ban stripped this facet of her livelihood away.

This piece was originally published by the Calgary Herald on February 6, 2013 and Troy Media on February 7, 2013.