Bubble Legislation Gains Ground – But Significant Gaps Remain
- Mark Sandler
- 6 days ago
- 5 min read
In the aftermath of the October 7 atrocities, the Canadian Jewish community has been faced with extraordinary levels of antisemitism.
In Dr. Casey Babb’s recent article, “A Pogrom Brewing in Canada,” he provided examples of how Jews have been targeted in our “backyards”:
A Jewish retirement home in Ottawa
An Ottawa public school with a large Jewish student body
Jewish neighbourhoods
Montreal’s Holocaust Museum
A Winnipeg community centre
A Montreal school for students with intellectual disabilities and autism-spectrum disorders
Synagogues in multiple locations
A Jewish girls school in Toronto, hit with gunfire three separate times
Multiple shootings at a Montreal Jewish school
The firebombing of two synagogues in or near Montreal
Uncovered plots to terrorize Jews in their community institutions
Jews understandably feel unsafe in their community spaces. And with good reason.
I have frequently reported to you about efforts to introduce bubble legislation in various municipalities in Ontario. Such legislation has been enacted in Vaughan, Brampton, and outside Ontario, in Calgary. Bubble legislation imposes limitations on certain activities, usually relating to protests or demonstrations, in close proximity to vulnerable social infrastructure, such as places of worship. Such legislation represents one tool to enable Jews and other identifiable groups to access and use their otherwise vulnerable spaces without fear.
In an earlier editorial, I shared with you submissions I made to the Town of Oakville and to the City of Toronto in support of such legislation. I also made an oral deputation to the Oakville Town Council. I am pleased to say that Oakville Town Council approved its version of municipal bubble legislation this past week. Although I believe that the language could have been improved upon, the approval represented a positive development in protecting vulnerable social infrastructure, including the local synagogue.
The Oakville Town Council extended the bubble bylaw to places of worship and premises used on a temporary basis to host religious ceremonies or services. It deferred consideration of the bylaw’s application to other forms of vulnerable social infrastructure for one year, to allow time for the federal government to act on its election commitment to introduce protective legislation.
The Council also requested that the Attorney Generals of Ontario and Canada introduce stronger legislation respecting obstruction of access and intimidation at places of worship, schools and other vulnerable infrastructure. (In my view, federal criminal law legislation, which requires proof of criminal conduct, is very different than bubble legislation designed to prevent criminal targeting of vulnerable institutions, rather than addressing criminal conduct after the fact.)
This week, a Joint Committee of Ottawa’s municipal government considered the feasibility of bubble legislation. I provided written submissions to the Joint Committee, and then made a five minute oral deputation. The deputation stretched into a 45 minute question and answer session, as the Joint Committee members were fully engaged in the issue. The Joint Committee ultimately voted 14-2 to direct Staff to develop a vulnerable infrastructure bylaw within a nine-month timeline, incorporating features that our community can fully support. The Joint Committee also appropriately turned down a motion to defer development of such a bylaw pending action by the provincial or federal governments or the resolution of outstanding constitutional litigation.
Bubble legislation is on Toronto City Council’s agenda this coming week. Last week, I was invited to address councillors on the legality of such legislation. A number of councillors or their staff attended the session. I prepared a detailed legal analysis explaining why bubble legislation, properly crafted, does not unconstitutionally violate freedoms of speech and assembly.
Several days ago, the City publicly disclosed the draft legislation prepared by Staff. On one hand, it is encouraging that bubble legislation is being brought forward for debate and consideration. This represents progress from the Council’s earlier position. There are also some positive features of the draft legislation. On the other hand, the legislation, as currently crafted, does not meet the needs of vulnerable communities, including the Jewish community.
What is lacking in this proposed draft? Why is it still deficient? I have explained why in a detailed analysis provided to City Council. In brief, it places the burden on the owners of each vulnerable social space (including each synagogue) to apply to the City’s General Manager to create an access zone, within which certain activities are prohibited.
The preconditions for granting an access zone are also onerous, if not unworkable and require, for example, that the institution applying for protection has already been the victim of targeted activity within the last 90 days. Bubble legislation is supposed to prevent intimidation, harassment and reasonable fear for the community’s safety and well-being, not only respond after-the-fact. It is too early to say how City Council will vote on the draft legislation and any amendments to it.
At best, we will have in Ontario a patchwork of municipal bubble bylaws, each differently worded and in some jurisdictions, not enacted at all. It is time for the provincial government in Ontario and across the country to introduce bubble legislation that makes municipal bylaws unnecessary.
Much has been said about how bubble legislation purportedly violates the Canadian Charter of Rights of Freedom, unduly interfering with freedom of speech and assembly. Unfortunately, much of that discussion fails to acknowledge the strongest argument in favour of the legislation’s constitutionality.
The British Columbia Court of Appeal, that province’s highest court, addressed the constitutionality of provincial bubble legislation designed to protect locations relating to the provision of abortion services. Ontario has similar legislation. The Court unanimously upheld the legislation providing compelling reasons that have application to proposed bubble legislation to protect vulnerable community social infrastructure in the wake of unprecedented levels of antisemitism and other forms of hatred.
The Supreme Court of Canada declined to hear an appeal from the decision of the British Columbia Court of Appeal. I have been surprised to see little or no reference made to Canada’s most authoritative decision on point by government lawyers or by opponents of the legislation. Municipal and provincial governments would be well advised to craft legislation modelled on the language in the British Columbia legislation. Close adherence to that language would provide greater assurance that new legislation would survive Charter scrutiny.
I would like to see the Ontario government take the lead in introducing this legislation as a priority item, instead of forcing each municipality to wrestle with the issue. This approach would be consistent with the Ontario government’s stated support for its Jewish community.
It’s time.
About the Author
Mark Sandler, LL.B., LL.D. (honoris causa), ALCCA’s Chair, is widely recognized as one of Canada’s leading criminal lawyers and pro bono advocates. He has been involved in combatting antisemitism for over 40 years. He has lectured extensively on legal remedies to combat hate and has promoted respectful Muslim-Jewish, Sikh-Jewish and Black-Jewish dialogues. He has appeared before Parliamentary committees and in the Supreme Court of Canada on multiple occasions on issues relating to antisemitism and hate activities. He is a former member of the Ontario Human Rights Tribunal, a three-time elected Bencher of the Law Society of Ontario, and recipient of the criminal profession’s highest honour, the G. Arthur Martin Medal, for his contributions to the administration of criminal justice.