The main staircase of the Hamilton Public Library Central Branch Credit: Joey Coleman / The Public Record

Hamilton’s public library is updating its facilities booking and rental policy to reflect recent court rulings outlining how public institutions should distinguish the line between hate and controversy in a manner compliant with the Charter of Rights and Freedoms.

In recent years, controversies have erupted at other public libraries in Canada as controversial speakers and organizations rented library spaces for events and public talks.

The Hamilton Public Library will operate on the assumption that the Charter applies to its decision making in room bookings. The Courts have not definitely ruled if the Charter applies to room rentals, which are not a “core function” of public libraries.

Circulation of materials for loan is clearly a core function of public libraries prescribed and funded by government legislation, there is no dispute the Charter applies to public libraries in these functions.

“The question of whether libraries are governed by the Charter in all of their activities cannot be definitively answered”, writes lawyer Wade Poziomka of Ross & McBride LLP in a 15-page legal brief commissioned by the Hamilton Public Library Board.

“There is a sound basis for saying that the Charter probably does apply to the operations of the HPL generally.”

Distinguished Visiting Scholar at Ryerson University James L. Turk contributed to the brief.

Ontario’s Divisional Court ruled the decision of the Ottawa Public Library to revoke a rental agreement was not subject to judicial review.

The Court found that rental was a private event and the rentals was not a core function of the library. Therefore the agreement was private in nature and its cancellation not subject to judicial review. The Court made no findings regarding the Charter.

The Canadian Bar Association provides a good summary of Weld v Ottawa Public Library, 2019 ONSC 5358 here.

Turk’s view of Weld is the Divisional Court ‘has taken an overly narrow view of the core
functions of a library’. While the decision will be ‘persuasive’, the question of if the Charter applies to public library rentals in other circumstances is not settled.

Can the HPL deny a booking for a public talk by a controversial speaker? This is the unanswered question.

The legal memo notes the Library must be careful in exercising prior restraint of speech in its decision making. The memo recommends adding the following to HPL policy “Refusing access to library space will not be denied except where there are reasonable
grounds to believe that the proposed activity/use of the space is contrary to the law and/or would interfere with the public’s use of the library”.

The legal memo states the HPL “should consider explicitly stating that it will not rent space to groups or events that HPL has reasonable grounds to believe are likely to engage in hate speech as proscribed by the Criminal Code”.

The Hamilton Public Library Board voted Wednesday to receive the memo. The Chief Librarian will return to the Board with an amended Policy on Partnerships, Programs & Space at a future meeting.