by Rob De Luca
In December 2024, Toronto’s City Council moved to require the City Manager to develop a new public demonstrations by-law. If the by-law roughly contemplated in the City’s motion is proposed and passed, the by-law would limit demonstrations in certain public spaces, such as streets and sidewalks. The “bubble zones”, as they are often called, would specifically apply to public spaces if the public spaces are near or connected to “vulnerable institutions”, including religious institutions (such as places of worship and religious schools). As discussed further below, public consultations on the potential proposal are currently ongoing.
While a handful of municipal institutions have recently adopted similar measures to the one potentially proposed, the measures have yet to face significant judicial scrutiny.
Bubble Zones as a Charter Issue
The City of Toronto’s potential proposed by-law would directly engage Charter rights and freedoms.
City Council’s motion has identified some of the potential Charter interests in issue. Specifically, the City’s motion proposes the development of a draft by-law that would place an “emphasis on protecting vulnerable institutions such as places of worship, faith-based schools and cultural institutions, that support[] the City’s commitment to keeping Torontonians safe from hate and protects Charter rights that address impacts of demonstrations that target people based on their identity as prohibited under the Ontario Human Rights Code”.
Read broadly, the City’s Charter-related purposes may include an intent to protect individuals and protected associations from unlawful discrimination on the basis of religion (such as protection against hate speech directed at places of worship, via public property) and, more generally, to protect and promote the rights of “vulnerable institutions” to exercise the fundamental freedoms enumerated under the Charter. This latter exercise may include, but is not necessarily limited to, the freedom of “vulnerable institutions” to engage in communities of religious expression and association without unreasonable interference that might be facilitated by direct or indirect state action (e.g., interference that may be facilitated by protesters or counter-protesters using public spaces).
However, both the City’s motion and its more recent survey and public consultation materials are spare on details. They do not, for instance, specify what would be included under the umbrella of “vulnerable institutions”. Unfortunately, both the motion and the public consultation materials are also silent on the additional Charter rights and freedoms that would very likely be engaged by any “bubble zone” by-law – the rights of protesters themselves. Because all relevant Charter rights and freedoms must be considered in any adequate consultation, they are worth discussing here.
First, bubble zones intentionally restrict freedom expression and assembly by limiting protesters’ right to use public property to speak to their chosen audience. Communicating directly to one’s target audience is often central to any protest. The fact that a lawful protest or counter-protest may provoke or even enrage others does not remove the expression from Charter protection. See, e.g., Fleming v. Ontario, 2019 SCC 45, para 66. While the Charter’s guarantee of freedom of expression does not include a right to a captive audience, the use of bubble zones to restrict the time and place of protests, and to protect specific audiences from acts of protest, is no trivial limit on freedom of expression.
Second, and relatedly, any proposed restrictions on expression would not be limited to speech with little substantive content. Protest and expression in any Canadian jurisdiction is already restricted in numerous ways, with or without bubble zones. Among other things, the Criminal Code prohibits protesters from uttering threats or engaging in violence against others, including against the vulnerable institutions that would be the subject of any City by-law. Canada’s Criminal Code also criminalizes hate speech in certain contexts, such as by prohibiting non-private statements that wilfully promote hatred against an identifiable group or that willfully promote antisemitism by condoning, denying or downplaying the Holocaust. Similarly, the Ontario Human Rights Code prohibits discrimination and harassment based on religion (specifically, “creed”) and other protected grounds.
Bubble zones operate to prohibit expression that is not already prohibited by these and similar restrictions. One inevitable consequence of the foregoing is that bubble zone policies almost invariably curtail protests that would otherwise be protected “expressions of the heart and mind, however unpopular, distasteful, or contrary to the mainstream” (Irwin Toy Ltd v Quebec (AG), [1989] 1SCR 927, p. 968).
For these and related reasons, governments defending bubble zones in other contexts have sometimes simply conceded that the policy or legislation in issue limits or engages the Charter right to freedom of expression. See, e.g., R. v. Spratt, 2008 BCCA 340, para 28 (noting, in a leading case involving a bubble zone that served to protect access to abortion, that the government’s concession on this point was “unsurprising”). As recognized by these government concessions, the communication of ideas to others, including those who may vehemently disagree, forms the very heart of the freedom of expression guarantee. Denying protesters the right to use an otherwise public space to communicate their ideas is a clear limit on this guarantee.
Thus, the difficult issue raised by “bubble zones” is usually not whether the protesters’ Charter rights have been “engaged” or “limited” by the zones – they usually have been – but whether the limits are reasonable.
The use of bubble zones to protect access to abortion in Canada provides a helpful illustration. Canadian courts have upheld appropriately designed access to abortion bubble zones. The zones continue to be used in several jurisdictions. Courts have typically reasoned that while such zones engage the Charter rights of protesters, they have been carefully designed to ensure that the weighty, Charter-laden aims of the zones – ensuring women and their care-givers have unimpeded and safe access to health service providers – do not overwhelm these countervailing Charter rights and freedoms.
In the above-mentioned case of Spratt, for instance, the bubble zone in question was found to be a reasonable limit on protesters’ Charter rights because: the zone was designed, in part, to resolve the documented problem of protesters physically interfering with clinic access and to otherwise provide users of the clinic with the opportunity to avoid anti-abortion protesters, if they so choose; the size of the bubble zone was relatively small (30 metres at its widest point) and consistent with these purposes; and the purposes of the bubble zone legislation were of sufficient weight as to justify the admitted limit on the rights of protesters.
In arriving at this conclusion, the British Columbia Court of Appeal relied, in part, upon the respondent’s important submission that individualized policing of the zone between lawful and unlawful expression was impracticable and ineffective in the known and well-documented circumstances:
[80] … [The respondent] says the evidence in this case demonstrated that the line between peaceful protest and virulent or even violent expression against abortion is easily and quickly crossed. To try to characterize each individual approach to every woman entering the clinic is too difficult a calculus when the intent of the legislation is to give unimpeded access to those entering the clinic. Therefore a clear rule against any interference is the best way to achieve the ends of the legislation. The respondent refers to the words of the Supreme Court of the United States in Hill v. Colorado, 530 U.S. 703 (2000 United States Supreme Court) where Justice Stevens, delivering the opinion of the Court, said this at 729:
… The statute seeks to protect those who wish to enter health care facilities, many of whom may be under special physical or emotional stress, from close physical approaches by demonstrators. In doing so, the statute takes a prophylactic approach; it forbids all unwelcome demonstrators to come closer than eight feet. We recognize that by doing so, it will sometimes inhibit a demonstrator whose approach in fact would have proved harmless. But the statute’s prophylactic aspect is justified by the great difficulty of protecting, say, a pregnant woman from physical harassment with legal rules that focus exclusively on the individual impact of each instance of behavior, demanding in each case an accurate characterization (as harassing or not harassing) of each individual movement within the 8-foot boundary. Such individualized characterization of each individual movement is often difficult to make accurately. A bright-line prophylactic rule may be the best way to provide protection, and, at the same time, by offering clear guidance and avoiding subjectivity, to protect speech itself.
Unlike the bubble zone litigated in Spratt, the City’s current proposal, such as it is, currently lacks the specifics and evidence that would be required to evaluate the reasonableness of the City’s anticipated limits on the rights of protesters. To take an obvious unknown: the nature and extent of any limit on the Charter rights of expression and assembly can be profoundly affected by the size of the bubble zone chosen and the precise institutions to which it will apply. A 10-metre zone designed to provide unimpeded physical access to places of worship would be different in severity and kind to a 200-metre zone designed to insulate a wider swath of institutions from acts of public expression. While the City has elected to ask individuals for their opinions as to the appropriate size of any bubble zone, and as to which institutions should be considered vulnerable institutions deserving of protection, it is difficult to see how most individuals would have the evidence required to arrive at Charter-sensitive answers to the questions posed.
The City’s Public Consultation Process
The Charter considerations canvassed above suggest that the City’s current public consultations cannot be considered a full public consultation on the issues raised. The ongoing public consultations are nevertheless an opportunity for interested residents to voice their opinions on the potential proposal.
On April 23, 2025, the City held its first public consultation on the proposal, wherein third-party consultants described the potential proposed by-law and solicited written comments by way of a webinar chat. A second public consultation is being held on April 30, 2025.
As part of its consultations, the City is also soliciting both survey responses and written comments. The survey, contact information for written comments (under “Have Your Say”), and additional information, is available at:
The deadline for public submissions to the City’s survey is approaching: May 1, 2025.
The City’s consultation process, including its survey questions, has been criticized by some civil society groups. These criticisms have also included substantive concerns with the City’s proposal to date.
The Canadian Civil Liberties Association’s letter to the City is available here.
Progress Toronto’s letter to the City is available here.
Rob De Luca is a Research Associate at the David Asper Centre for Constitutional Rights.