COLEMAN: User Names as Political Expression During Online Meetings and the Charter

Screen capture of some of anti-mask mandate messages expressed using the name feature during the HWDSB's March 15 debate on masking

Some observers of tonight’s school board meeting changed their names to various statements against mask mandates.

Freeyourface, No Mask4Me, SayNO 2FaceDiapers, and Smiling Faces over Masks were just some of the statements.

The staff and trustees of the Hamilton-Wentworth District School Board could see the names, much in the way they could read placards if this were an in-person meeting with people sitting in a physical public gallery.

Does using the “user name” to a political message constitute expressive activity that enjoys protection under the Charter of Rights and Freedoms in this era of electronic meetings?

People routinely bring signs and placards expressing their political viewpoints to in-person public meetings. This enjoys Charter protection, as per the Ontario Superior Court in Gammie v. Town of South Bruce Peninsula, 2014 ONSC 6209.

The open meeting regulations in Ontario’s Education Act are similar to the Municipal Act, and Gammie applies to public meetings of school boards.

Mere attendance at an in-person meeting is expressive activity. Politicians change their demeanour when being observed by an audience.

Similarly, many people watching a live stream signals public interest to politicians.

People have a Charter right to attend meetings. They can be removed for disruptive behaviour, and using the name feature to express non-offensive messages does not disrupt an online meeting.

Is the MS Teams name feature a platform for expressive activity?

In Greater Vancouver Transportation Authority, 2009 SCC 31, the Supreme Court of Canada overturned a ban against political advertising on public transit. The Supreme Court that public transit agencies are an arm of government bound by the Charter. In creating advertising space, they created a platform for expression and could not ban political messages.

This case is foundational to Section 2(b) Charter challenges against local governments.

It is not the intention of the HWDSB to provide a platform for expressive activity when using Microsoft Teams to conduct meetings.

The video and microphones of observers are disabled. The chat feature is turned off.

People are invited to share their names in the name field. That is its sole purpose.

People using it for political statements does not create a platform.

Ultimately, the HWDSB acted prudently.

No disruption, no removal.

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