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Acquitted for Speaking Up

By Jack Taylor

Retired Edmonton firefighter, Dale Malayko, was acquitted October 20 by the Provincial Court of Alberta in response to the Justice Centre for Constitutional Freedoms’ defense that he acted within his constitutional rights. The street preacher was accused of ‘permitting a noise that disturbs the peace of another’ while he stood on a wooden box handing out free Bibles and sharing the good news of Jesus. Two constables from Edmonton’s Police Service arrived at the corner of Whyte Avenue and 104th Street on the evening of June 28, 2019 and ticketed Malayko in response to a business owner’s complaint.

Lawyer James Kitchen stated that “this ruling affirms that the right to free expression protects the ability of individuals to address people in the places they congregate, such as streets, and to use moderate amplification to do so.” The street corner of concern has a high level of traffic and is commonly used by street performers and others interested in reaching passersby. “This is a victory for free speech and a reminder that attempted state censorship is not justified by arbitrarily claiming that someone’s amplified message is ‘noise’ or is ‘disturbing.’” The constitution still guarantees freedom of conscience and religion in addition to the freedom of thought, belief, opinion and expression including freedom of the press and other media of communication.

John Carpay, President of the Justice Centre for Constitutional Freedoms, notes that peace officers have frequently handed out tickets in Edmonton to citizens expressing their beliefs in public. In 2015, 53-year-old Warren Schacher was ticketed in the same general area as Malayko. Carpay noted then that “The government, including police, have a legal obligation to protect the peaceful expression of offensive and unpopular speech. Neither government nor police have any right to suppress speech on grounds of some finding it to be “offensive.” Those charges were withdrawn.

In 2016, Nehemia Smeding was ticketed in the same area and the charge was stayed. Malayko was also ticketed in 2016 and in 2017 on two occasions for similar offenses. Further tickets in 2018 and 2019 were defended. The primary defense seems to be a Supreme Court ruling in 1989 protecting “all non-violent expressive activity, without discrimination based on content, however unpopular, distasteful, or contrary to the mainstream.”

Vancouver Police intervened on August 22 with street preacher Dorre Love and detained him for an incident where a complainant ended up with a broken leg after the individual had grabbed Love’s microphone. Love had been preaching for two months and was accused of homophobic rhetoric and possible ‘hate’ speech. The 42-year-old has been officially charged with assault from the incident. This specific act is not covered under the constitution.

In a written submission (March 2, 2020) a brief history of street preaching notes that “open-air, public preaching… is a method of informing the public about religious ideas and beliefs and attempting to persuade members of the public about the truth of those ideas and beliefs.” Stuart Blythe (Open-Air Preaching: 2018) is cited when he notes that while the practice isn’t common in 21st Century Canada “it is a practice which can claim a long history, supported by biblical antecedents and historical examples.” Mary Anne Trasciatti in her work Athens or Anarchy notes that soapbox oratory has been a part of “cities’ cultural environment and ‘provided political education and entertainment for people of limited means, recruited members for labor, suffrage, antiracist, and other movements, and attempted religious conversions.’”

Carpay also noted in his defense that the Supreme Court in 1992 “held that the purpose of freedom of expression serves to protect minority beliefs which the majority regard as wrong or false. The view of the majority has no need of constitutional protection; it is tolerated in any event.” He highlights that “the role of the police is to protect all citizens from criminal behaviour, not to protect those who adhere to majority opinion from being exposed to minority views which the majority considers offensive.”

It is clear from the rulings that airports, public sidewalks and other public locations are open for the sharing of ideas and that this is a basic right of citizens. Charter rights under section 2 (b) supersede other issues such as by-laws dealing with public spaces. The Supreme Court’s findings are clear: “Unquestionably, the dissemination of an idea is most effective when there are a large number of listeners, is often to be found in places that are state property. One thinks immediately of parks or public roads which, by their very nature, are suitable locations for a person wishing to communicate an idea.”

Churches are enlarging their footprint and their voice on the internet as a way to remain in the public arena but that doesn’t mean that the original spaces for discussions and dialogue must be ignored. We aren’t children needing to raise our hands to gain permission to speak. The permission has been given.


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