What free speech means on a township Facebook page

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Editor’s note: The Rustler does not ordinarily publish AI-written articles. This legal backgrounder is a specific exception. AI was used to research and write an examination of Canadian court decisions and legislation, with sources linked for readers. Its purpose is to explain the legal record and its possible relevance to the council debate. This differs from The Rustler’s regular reporting based on human observation, interviews and editorial judgment. It illustrates a useful role for AI in an in-depth research project.

Free speech protects the right to criticize council. Whether that gives someone a right to use council’s Facebook page is a harder question.

Russell Township’s Sept. 28 decision to restrict social-media comments brings that question close to home. Councillor Charles Armstrong challenged the removal of a comment about a Township post marking Bisexual Visibility Day. Administration disputed his account and described comments involved as discriminatory. Council then voted to restrict comments across its platforms.

“Violence is not the mere absence of civility,” Ontario’s Court of Appeal said in a different municipal dispute in 2017. That ruling is a useful starting point. Rude criticism and threatening behaviour cannot simply be treated as the same thing.

The case involved Fredrick Bracken, who protested with a megaphone outside Fort Erie’s town hall. The town banned him from municipal properties for a year. Staff had felt unsafe, but the court found the evidence did not establish violence or threats. It threw out the ban.

That does not mean councils must tolerate every kind of abuse. In another case, the appeal court upheld a Niagara Parks rule against personal attacks that interfered with other people’s enjoyment of the park. But it threw out a trespass notice telling Bracken not to return with his political sign. A rule can be lawful and still be used wrongly.

The lesson from bus ads

The Canadian Charter of Rights and Freedoms is part of the Constitution. It protects free expression against government interference, while allowing limits that government can justify.

One of the strongest cases began with bus advertising. In 2009, the Supreme Court struck down restrictions that kept political messages off British Columbia transit advertising space. A student organization and teachers’ union wanted to use space already available to advertisers.

They were not asking government to build them a billboard. They wanted to use an existing one without an unjustified ban on their message. The ruling helps explain why removing certain views from an open discussion raises free-speech concerns.

Closing comments for everyone is a different question. Governments do not generally have to create a place for every public debate. The Supreme Court reinforced that distinction in its 2021 Toronto council-size ruling. It is much harder to establish a right to a particular government-run outlet than a right to speak without government interference.

The bus-ad ruling also said government need not keep its property available for the same expressive use forever. It did not decide whether a township could close Facebook comments. If a closure limits expression protected by the Charter, government must justify that limit.

Treating everyone alike does not automatically settle the issue. In 1993, the Supreme Court rejected Peterborough’s blanket ban on posters on public property, including utility poles. Concerns such as litter did not justify that complete ban. An online forum presents different questions, but shutting everyone out is not, by itself, a legal defence.

What the online cases actually decided

In 2023, minister Steven Guilbeault agreed to unblock Ezra Levant on Twitter and not block him again while Guilbeault remained an MP. A court order recorded the settlement and awarded Levant and Rebel News $20,000 in legal costs.

Guilbeault did not admit breaking the law. The judge did not decide whether blocking Levant violated the Charter. A settlement can resolve one dispute without creating a rule for every council.

A separate case challenged former justice minister David Lametti’s deactivation of his X account. He reactivated it and promised to preserve it and transfer records. The Federal Court refused a temporary order in February 2024 without deciding the broader free-speech question. Court records show a notice ending the case was filed that June.

Neither case established a general right to comment on government accounts. The rulings on buses, posters and protests offer guidance, but they do not settle the question of a township shutting down Facebook comments.

Private companies are different. The Charter generally restrains government, rather than requiring every business to host public comments. Other laws and contracts can still apply. Facebook’s own moderation and a township’s decisions on Facebook are separate actions.

An elected official’s mixed personal and public account can be harder to classify. How it is used and who operates it matter. Calling it “personal” does not, by itself, settle the question.

Being offended does not settle the law

Armstrong also cited Ward, the Supreme Court’s 2021 case involving comedian Mike Ward’s mockery of a young public figure with a disability. Ward won a 5–4 decision rejecting a Quebec discrimination complaint. The majority warned against protecting a right not to be offended. The dissenting judges emphasized the disability-related humiliation and harm to a child.

That was a civil human-rights case, not a criminal prosecution. It did not decide what belongs on a township’s Facebook page.

Ontario’s Human Rights Code also protects expression of opinion in a specific provision. That provision concerns public notices announcing or encouraging discrimination banned by the Code, such as denying service because of race. Its protection for opinions limits that particular rule. It does not give everyone a right to post on a municipal page.

Nor must a township necessarily wait for a comment to become criminal before enforcing a reasonable conduct rule. But threats, harassment and unlawful hate speech have legal tests. Simply calling something “offensive” or “discriminatory” does not prove it meets them.

Removing one comment is also different from banning its author for months. A ban shuts out future comments that may be entirely lawful.

Russell’s policy allows moderation, warnings and possible six-month access restrictions. Yet its response chart also directs staff to leave some rants, jokes and satire standing when removal is not justified under the policy.

The missing facts remain essential. What did each removed comment say? Which rule was used? Was anyone blocked? What exactly did council direct staff to do?

Without the comments and full decision record, there is no sound basis to declare either that the Township broke the law or that every restriction was justified.