The Borderland Pride Decision: Can Freedom of Expression save McQuaker?

On December 19, 2024, the Corporation of the Township of Emo (“Emo Township”) and its incumbent Mayor Harold McQuaker (“Mayor McQuaker”) filed its notice of application for judicial review of the Human Rights Tribunal of Ontario’s (“HRTO”) decision dated November 20, 2024. The decision held that Mayor McQuaker and the Emo Township discriminated against Borderland Pride - a Non-Government Organization (“NGO”) focused on supporting and promoting the 2SLGBTQ+ community in the Borderland region - when it refused to grant its request for a proclamation declaring June as Pride month in the Emo Township. Mayor McQuaker was ordered to pay Borderland and the Emo Township $5,000 personally, and Emo Township was ordered to pay Borderland $10,000. Additionally, the HRTO ordered Mayor McQuaker and Emo Township’s Chief Administrative Officer to complete the eLearning Module titled “Human Rights 101” published by the Ontario Human Rights Commission (“OHRC”).

This widely reported decision has become a hotbed of contention among right-leaning conservative factions as an assault on free speech. In addition to providing an overview of the Borderland decision and the application for judicial review, this article will briefly discuss the merits, if any, of escalating public opinion that the Borderland decision is an illegitimate attack on the freedom of expression rights and protections under the Canadian Charter of Rights and Freedoms (the “Charter”).

The Borderland Decision

Facts

The Respondent, Emo Township, is a municipality with a population of approximately 1,330. Its municipal council consisted of Mayor McQuaker and four councilors. On May 13, 2020, the council voted against Borderland Pride's request for a resolution or proclamation declaring the month of June as ‘Pride Month’”. Mayor McQuaker and two other councilors voted against granting the proclamation. In the wake of the vote, McQuaker remarked “there’s no flag being flown for the other side of the coin...there’s no flags being flown for the straight people”. The other two councilors who voted against the request cited the absence of a policy dealing with such proclamations. The municipal council also declined to vote on Borderland Pride’s request for the display of an 2SLGBTQ+ rainbow flag for a week in the month of June^[1]   on the basis that the municipal building did not have a flagpole.

Borderland Pride filed an application with the HRTO against Emo Township, Mayor McQuaker and the four councilors, alleging discrimination in services based on sexual orientation, gender identity, gender expression, creed and family status, contrary to the Human Rights Code^[2]. The claim of discrimination was based on Emo Township’s refusals.

Before the decision on its merits, the Tribunal dealt with several preliminary issues.^[3] For example, it confirmed that NGOs are “persons” within the meaning of section 34 of the Code and  have standing to bring an application in their own right.  The Tribunal affirmed its previous decision in Pride Hamilton v Hamilton Police Services Board^[4]  and rejected Emo Township’s argument that the Legislature’s use of the words “a person” in section 34(1) versus the words “[a] person or organization” in section 34(5) evidenced its intention to limit a corporation to commencing an application under section 34(5) on behalf of “another person” and not in its own right.

The Tribunal found that that Mayor McQuaker and Emo Township had discriminated against Borderland on the basis of sexual orientation, gender identity and gender expression, based on the following facts^[5]:

• Borderland “is identified by the sexual orientation, gender identity and gender expression of the sexual minorities it represents and supports.”
• Events and celebrations that recognize 2SLGBTQ+ people in communities are usually called “Pride” celebrations. They include such activities as government declarations of a Pride Week or Pride Month, Pride festivals and Pride parades.
• Borderland Pride made two requests of Emo Township: (1) that the council adopt or enact the attached proclamation, declaring the month of June as “Pride Month” and “affirming [the Emo Township] community as a place of welcome, inclusion, and safety for 2SLGBTQ+ people” and (2) that the council “fly or display an 2SLGBTQ+ rainbow flag for a week of [their] choosing in the month of June.”
• Issuing proclamations is a service the Township had offered for several years.  Emo Township had received four such requests between April 2019 and April 2020, including Borderland’s 2019 and 2020 requests.”
• Borderland’s proclamation and flag requests were considered at the May 12, 2020 municipal council meeting^[6] via Zoom (“the council meeting”).  However, the resolution that was tabled only included the proclamation of Pride Month. The resolution did not explicitly include Borderland’s request for flying or displaying the Pride flag because Emo Township did not have a flagpole.
• At the council meeting, three of the five councilors suggested that the vote on the proclamation be delayed until the implementation of “flags and proclamations policy”. The motion to delay was denied and the resolution was called and defeated by a vote of three (3) to two (2). Mayor McQuaker and two other members (the Personal Respondents”), Councilors Boven and Toles voted against it.
• Shortly after the Borderland Pride vote, Mayor McQuaker remarked, “There’s no flag being flown for the other side of the coin...there’s no flags being flown for the straight people.”
• Later in the meeting, Mr. Toles submitted a resolution proclaiming Pride Month in similar language to the 2019 proclamation that was passed unanimously, but it was not seconded^[7].

The Tribunal focused its assessment on two aspects of the council's consideration of Borderland’s requests, namely: (1) the decision to exclude the flag flying request from the resolution and (2) the subsequent vote on for the proclamation of Pride Month.

Tribunal Reasoning

In relation to the vote on the proclamation, the Tribunal held that Mayor McQuaker’s statement that “there’s no flag being flown for the other side of the coin...there’s no flags being flown for the straight people”  was “on its face dismissive of [Borderland’s] flag request and demonstrated a lack of understanding of the importance to [Borderland] and other members of the 2SLGBTQ+ community of the Pride flag.”^[8] Additionally, the statement was held to be “demeaning and disparaging of the 2SLGBTQ+ community” and “therefore constituted discrimination under the Code.” Importantly, the Tribunal found that the remaining Personal Respondents did not discriminate against Borderland by voting against the proclamation. This finding was based on the fact that both councilors wanted to delay the vote on Borderland Pride’s requests until the implementation of a flags and proclamations policy. 

The Tribunal held that the council's failure to vote on the request to display or fly the Pride flag was not discriminatory. Specifically, the Tribunal stated that “no evidence was presented that the narrow reading of the flag request occurred for any discriminatory reason”.

Certain aspects of the Tribunal’s decision warrant cause for pause and reflection.

The Tribunal appears to have concluded that Emo Township discriminated against Borderland solely on the basis of Mayor McQuaker’s discriminatory statement (the Tribunal held that the other four votes were not discriminatory). This conclusion could be explained by the principle that “the protected characteristics need not be the only or primary factor but simply that they were a factor in the respondent’s actions.” 

However, it is not clear why the Tribunal did not consider Mayor McQuaker’s statement in its analysis of whether the decision to exclude the flag flying resolution from the council vote was discriminatory. Is it not arguable that the statement “no flags being flown for straight people” supports an inference that Mayor McQuaker was also referring to the flag flying request, especially given the Tribunal’s recognition that the absence of a flagpole did not preclude the display of a flag? That said, the Tribunal did state that it was deprived of evidence related to discussions that took place prior to the vote, noting that the relevant portions of the audio recording of the council meeting were “distorted and unintelligible.”

After finding that Mayor McQuaker had made a discriminatory statement, the Tribunal considered whether Mayor McQuaker could claim immunity under section 448(1) of the Municipal Act.^[9] The Tribunal agreed that this section served an “important public policy purpose”^[10] as “it allows municipal councillors to consider matters that come before them and debate matters in council chambers without putting their own assets at risk.”^[11] However, the Tribunal held that Mayor McQuaker, having been found to have discriminated against Borderland, acted in bad faith^[12] and therefore he could not avail himself of the benefit under the section. The Tribunal was careful to point out that “there may well be circumstances in which a breach of the Code may have occurred in ‘good faith’^[13]” but this case was not one of those cases.  The Tribunal did not elaborate on why this particular breach of the Code amounted to bad faith but merely stated that discrimination “is by definition arbitrary, unreasonable, partial and unfair.” One could speculate that it was the apparently deliberate and/ or intentional nature of Mayor McQuaker’s statement that gave rise to the finding of bad faith.

Remedy

In determining the appropriate remedy, the Tribunal was primarily guided by its two earlier decisions on this point, Hudler v. London (City)^[14] and Oliver v. Hamilton (City) (No. 2)^[15].The Tribunal was also persuaded by the expert evidence of Dr. Emily Saewyc^[16]on the impact of discrimination on 2SLGBTQ+ community. Dr. Saewyc’s, who testified on behalf of Borderland, gave evidence that established that discriminatory statements made by public or political figures tacitly encouraged others to imitate that discriminatory speech. Dr. Saewyc cited longitudinal qualitative research which concluded that “anti-LGBTQ rhetoric” expressed by President Trump and other members of his cabinet “visibly increased the amount of hate and violence publicly expressed by others who were strongly affiliated with Trump’s views.”

The monetary awards for injury to dignity, feelings and respect were consistent with the awards in Oliver and Hudler. Emo Township was ordered to pay $10,000, while Mayor McQuaker was ordered to pay $5,000 personally^[17]. Although consistent, these awards were granted over 20 years ago. While beyond the scope of this article, this decision highlights an important criticism that has been leveled at the HRTO in relation to its awards for general damages. Specifically, that the range of general damages awards has remained more or less constant in nominal terms since the year 2000.^[18] The argument is that the HRTO, by failing to systematically adjust the size of past awards for inflation, is resulting in the steady erosion of the real value of awards. Not only to adequately compensate those adversely impacted by discrimination but also to convey the importance of equality rights for 2SLGBTQ+ individuals^[19].

Borderland also sought public interest remedies including orders that Emo Township: (i) retroactively proclaim June 2020 as Pride Month; (ii) proclaim June as Pride Month for future years; and (iii) fly the rainbow flag at its offices. In declining to grant the retroactive proclamation of Pride Month, the Tribunal adopted the reasoning of the then Ontario Board of Inquiry (“the Board”) in Oliver^[20] : that a week that has passed into history cannot be honoured^[21]. The Tribunal declined to order Emo Township to proclaim June as Pride Month in future years stating that “the Tribunal has generally declined remedies that raise potential freedom of expression concerns, such as apologies”.^[22]

The Response to the Borderland Decision

While the Borderland decision was hailed as a victory for 2SLGBTQ+ advocates and their allies, conservative factions have expressed outrage at its implications for free speech. Conservative media outlets have denounced the decision as the “Tyranny of Pride”, a “demonstration of force and a display of political power”, and  an example of how “wrong thought when it comes to the woke agenda” will result in demonization and even financial penalty.”^[23] Mayor McQuaker has expressed similar sentiments and refused to comply with the Tribunal’s orders and filed an application for judicial review.

The Application for Judicial Review

The application^[24] was filed on behalf of Mayor McQuaker and  Emo Township. It requests that the Tribunal's decision be quashed on the basis that it is “incorrect in law” and “unreasonable”.  It also requests that Borderland’s application be dismissed and, in the alternative, that Borderland’s application be remitted to the Tribunal for reconsideration with guidance and direction from the Divisional Court on important issues of law.

The grounds of the application are numerous. They touch and concern all aspects of the decision including the Tribunal’s findings on discrimination, bad faith, the applicability of section 448(1) of the Municipal Act and whether Borderland Pride has standing. For example, the application asserts that the Tribunal was unreasonable in finding that Mayor McQuaker discriminated against Borderland Pride. It also asserts that the Tribunal wrongly attributed McQuaker’s statement (made after the vote) to be indicative of a discriminatory vote, noting that this raises “broader public interest concerns” that the “proximate conduct of councilors, unrelated to a municipal vote, can then be used to infer discrimination in relation to those councilors’ voting.” The application also states that the Tribunal failed to consider legal or other important issues such as privilege afforded to councilors for the view expressed during meetings, together with freedom of expression. This is unsurprising, given that the decision has aroused a contentious public debate regarding the extent to which the Code can encroach on the right to freedom of expression.^[25]

As previously mentioned, the Borderland decision only mentioned freedom of expression when it declined to order future proclamations. This was a significant departure from the decision in Oliver. Not only did the Inquiry Board order the Mayor in Oliver to proclaim Pride Week in June 1995 upon request, but also stated that the Mayor, or any person in that position, “must be guided by the Ontario Human Rights Code when responding to requests for proclamations”.^[26]

It remains to be seen how McQuaker’s application will argue that freedom of expression has been unjustifiably violated. However, the Hudler decision may offer some insights on what should not be argued. In Hudler, the Respondent argued^[27] that the term “services” under the Code should be “read down” to exclude “pure speech” (such as proclamations and civic declarations) as anything beyond would encroach on freedom of speech. The Inquiry Board disagreed, stating ^[28] that interpreting “services” to include speech or other expressive conduct instead attaches legal consequences to the exercise of that speech in a manner that is discriminatory based on a protected ground.  The Inquiry Board emphasized that the freedom of expression is not absolute and is subject to “such reasonable limits prescribed by laws as can be demonstrably justified in a free and democratic society” under section 1 of the Charter. The Tribunal also cited the Supreme Court of Canada’s (SCC) interpretation of section 15(1) of the Charter in Egan v Canada^[29], as prohibiting governmental discrimination on the basis of sexual orientation:

To sum up with respect to the Charter arguments relating to “services”, here we have a case where a governmental actor is asking me to read restrictively a word in the Code so as to insulate from scrutiny its actions, which I have found to be discriminatory on a basis prohibited by both the Code and the Charter, because absolute freedom of expression, which is nowhere guaranteed in the Charter, precludes the attaching of legal consequences to expressive activity. I cannot accept this argument.

The question of whether McQuaker’s statement rose to the level of discriminatory speech is potentially fair game. McQuaker said “there’s no flag being flown for the other side of the coin… there’s no flags being flown for the straight people”. One might be tempted to argue that the statement was a microaggression: a typically insensitive, unintended, unconscious expression of biased or prejudiced attitudes and conduct.^[30]

It is argued that microaggressions fall within a “contested space^[31]” which would not be considered criminal nor discriminatory but can be described as “profoundly injurious to those who are the target or subject of that [speech]”.^[32] There is a consensus^[33] that microaggressions fall within the elusive boundaries of free expression. Speech within this contested space has proven to be a firmly embedded thorn in the side of adjudicators^[34] as it is difficult to objectively establish that the speech had an adverse impact on the marginalized community.

That said, the Inquiry Board’s decision in Oliver suggests that this may not be an issue where such statements are made by elected political figures exercising a prerogative of their mandate. In Oliver, the Mayor of Hamilton cited four reasons for his denial of the Pride proclamation request: (i) that “it will cause [2SLGBTQ+] movement more harm than good”, (ii) concern for “vulnerable and sensitive members” of the city,(iii) his belief that there would not be a “City consensus to support the proclamation” and (iv) his feeling that “the timing of [the request] was not right.” The adjudicator found that the Mayor’s actions suggested that he attempted to protect the group from the reaction of homophobic members of the community but noted that paternalism, however benign, is discriminatory if it results in the denial of an opportunity available to all other citizens.

Arguably, Mayor McQuaker’s statement is more egregious because it expresses concern for “straight” members of Emo Township to the exclusion of 2SLGBTQ+ individuals. McQuaker’s  statement echoes the “all lives matter” rhetoric that arose in response to the Black Lives Matter movement in the aftermath of George Floyd’s murder while in police custody in 2020.  Such statements are particularly insidious. They undercut an indispensable dimension of the principle of substantive equality that underpins Section 15 of the Charter and the Code, namely, its focus on those groups who have historically suffered disadvantage - in this case, 2SLBGTQ+ people rather than heterosexuals. Moreover, McQuaker’s statement evidences that his refusal to grant the proclamation was a misguided quest for neutrality where the whole point of the Pride proclamation was to target the disadvantage experienced by the 2SLGBTQ+ community. As Douglas Judson, lawyer and director of the Borderland Pride, put it:

"The point of Pride Month is to affirm and stand in solidarity with a vulnerable and marginalized group in the community … We also don't have soup kitchens for rich people because we don't need them."^[35]

The judicial review application is expected to be heard during the next sitting of the Ontario Divisional Court in the Northwest region. Coincidentally, the next sitting takes place during Pride Month, the week of June 16, 2025. Based on the previous decisions on this issue, Mayor McQuaker, as it relates to the finding of discrimination against him, likely has an uphill battle. Whether he can effectively rely on freedom of expression is even more dubious.

In a press release published on its website on May 13, 2022 Borderland Pride expressed their “extreme disappointment” in the council’s decision stating that the council’s decision “is the wrong message for community leaders to send to their young people.”

The Borderland decision firmly re-establishes that (1) “the equality of LGBTQ2 people is the law of the land and the human rights obligations of public officeholders and municipalities are well-established”^[36]  and (2) in the eyes of the law, community leaders play an important role in fostering acceptance, support and inclusion for the 2SLGBTQ+ and other marginalized communities, especially in smaller rural areas.  It also serves as a reminder to community leaders to reign in their personal biases in exercising their discretion on behalf of the communities they serve.

About the Author

Tamara J. Sylvester (one/they/them) is a lawyer working in the Human Rights Services Office at Toronto Metropolitan University. In addition to conducting investigations into human rights and sexual violence complaints at the University, one provides education and training on the University’s human rights and sexual violence policies. One is also a member of OBA’s SAGDA Executive. (tjsylvester@torontomu.ca).

Acknowledgments

The author would like to express their gratitude to the following individuals:

• Jose Garcia-Bonilla [he/him/his], lawyer, OBA SAGDA Section editor
• Rachel Allen [she/her/hers], lawyer, OBA SAGDA Section editor

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.