Street Church wins constitutional victory

 

FOR IMMEDIATE RELEASE

– December 7, 2009 –

Judge Rules Calgary Preacher Acted in Good Faith

Calgary Bylaws Ruled Unconstitutional

For years, Street Church Ministries has been fighting to have its rights restored. In 2005 and 2006 the ministry applied for, and received, permits to hold church services in Triangle Park. In 2007, the ministry had its permit revoked, allegedly due to noise concerns. The ministry repeatedly claimed that it had never once received a single ticket for exceeding acceptable noise levels. The ministry also repeatedly pointed to written statements by attending officers that, they had "found the ministry to be in compliance with the issued park permits". Today’s ruling by Judge A. A. Fradsham has vindicated the ministries claims to innocence.

Judge Fradsham stated, "While finding that the accused acted in good faith, I am concerned by the actions of certain City officials." He further wrote that "the City’s attempts, through Bylaw Officers and police officers to limit the scope of the efforts by the accused to minister to his congregants, fall precariously close to being excessive and, to any reasonable observer, an abuse of power."

In reference to the City Bylaws that were deemed of no force or effect and unconstitutional, Judge Fradsham found that some of the bylaws were "impermissibly overboard or vague". The judge further found that these bylaws "infringed the accused’s right of freedom of religion". He also found that the bylaws "infringed the accused’s right of freedom of expression".

"There are at least eight violations of my Constitutional rights and 2 Bylaws and one provincial law declared to be of no force or effect because of those violations. Hopefully our city officials will take note of this outcome and perhaps this will mean that the City will deal with us differently in the future", stated Artur Pawlowski of Street Church Ministries.

Judge Fradsham finished his 91 page decision summary with this statement, "Does the evidence support a finding of abusive conduct by City of Calgary Bylaw Officers or Police Officers?" The answer? "Yes…"

After years of battling with the City of Calgary to have their rights restored, Street Church Ministries is grateful to have received such a landmark decision and victory for freedom of religion, and freedom of expression.

"We fought and we won. Today, when I heard the words of the Judge, ‘I find the accused not guilty of all charges’, I thought of all the countless conversations I had with so many different people, telling them the stories of the City’s abuse of power, and now we have the courts telling us that we were right from the very beginning. This is truly amazing and a great blessing. This is not only our victory, today’s ruling is a victory for all Canadians. Democracy is something that we should all cherish and hold dear. For these rights, our forefathers bled and died all around the world. Now as their successors, we have a responsibility to continue to stand for those rights, since that is what made our country glorious and free. In this growing recession, with so many hurting people, let’s join our efforts together to help and save as many Calgarians as possible, and please, let’s stop wasting tax payers money on these kinds of battles", proclaimed Pawlowski.

The ministry is inviting all interested parties to join them in a victory champagne (sparkling apple juice) celebration at the steps of City Hall this Wednesday at noon. For more information, please contact Street Church at 403-607-4434 begin_of_the_skype_highlighting              403-607-4434      end_of_the_skype_highlighting.

Greater details of what Judge Fradsham found based on evidence presented to him

To give you a greater understanding of what took place during this eight day trial, we will try to give you a sampling of quotes from witnesses and responses from the judge.  For the sake of reference, we will as often as possible include paragraph numbers from the judge’s decision summary.

Regarding "Stunting"

 [82] I do not accept Constable Ellerby’s testimony that he "simply happened" on the accused and his activities.  I found it implausible that the officer would have spent the amount of investigation time that he did on such a matter, and take photographs, unless this was part of a targeted investigation.

[83] Further, I do not accept that the evidence before me supports the constable’s conclusion that operators of motor vehicles were distracted by the activities of the accused.  I reject the constable’s testimony that those activities distracted or startled any motor vehicle operators.

[84] Finally, I reject the constable’s statements that the accused, by his activities, was creating a danger.

Regarding "Placing material on the ground"

Regarding Officer Basso’s testimony that Street Church, on June 18, 2007, while feeding the homeless, was [86] "basically they were blocking the entire sidewalk" later on the judge found that Officer Basso’s testimony changed to indicate that in fact the material was only blocking "part of the sidewalk while leaving room for people to pass through" and therefore not blocking pedestrian traffic.

[92] I accept Officer Basso’s description (as modified on cross-examination) about the placement of the boxes of food.  Pedestrian traffic flow was not significantly impeded.

Regarding testimonies in support of Street Church Ministries

While the judge rejected certain testimony from certain officer’s relating to this case, in stark contrast, the judge accepted Maurice Boyer, and Louis Formaz-Preston’s testimonies.

[117] I accept Mr. Boyer’s testimony.

[119] I accept Mr. Formaz-Preson’s Testimony.

Regarding the revocation of Street Church’s park permit in 2007

The testimony of the Parks Operations Manager for the City of Calgary was so confusing that there were moments that Michael Kenny himself was puzzled, mixing events, dates and even years, but the comments from Judge Fradsham will say it the best:

[127] Mr. Kenny significantly altered his testimony when he was cross-examined.  I am concerned about the reliability of his recollection, and I give his testimony little weight.

In [132] the judge found a violation in the City’s own procedures in processing permit applications relating to Street Churches later repeated attempts to receive permits (applications were rejected directly at the counter and were not forwarded to the proper department)

Judge Fradsham also expressed a very interesting concern regarding the fairness of laws.  He stated in [149] that there can be no crime or punishment unless it is with accordance with law that is certain, unambiguous and not retroactive.

He also indicated that fairness is crucial in a "free and democratic society".

Once again relating to materials being placed on the ground the judge was clear that the bylaws were overly vague and broad. [221] Everything from the sole of a pedestrians shoe to a briefcase placed on the ground while its owner awaits the arrival of a bus, to indeed the stand used for a speaker could be captured… The term "material" is both vague and overly broad.

In [223] the judge stated … potential for abuse of the law, as seen in this case, outweighs the possible benefits…

In relation to omitting unnecessary noise

In [228] the term "unnecessary" is, at best, vague, offering no intelligible standard, and at worst, overbroad.

Relating to Freedom of Religion

Amplified Sound

In [235] the choice by the accused to use amplified sound…is a behaviour…undertaken "as a function of his…spiritual faith."

Feeding the Homeless and church attendees

In [237] the efforts of the accused to bring food to the homeless and other congregants was also a function of his religious beliefs.

In [239] …the state-imposed burdens of…requiring the accused to apply for City permits to use a sound amplification system in a park or to place material on a street, or the act of ticketing him while he was saying grace, were not only capable of interfering with the religious practices of the accused, they actually did so.

Regarding placing objects on the ground

In [245] …under the bylaw , any preacher on a sidewalk without a permit from the City could not have a religious conversation with a colleague, or could not pause to chat with a group of people sitting on a park bench, because the preacher, by his physical presence on the sidewalk , would have some form of "material" on the street.  As a further example, absent a permit, a group singing Christmas carols could not stop on a sidewalk, in front of a residence and certainly could not place, on a sidewalk, any case from a guitar or other musical instruments as these things would be "material".

In [246] …In short the bylaw offers no precision and no guidance to those trying to comply with it and to those charged with the duty of enforcing it…

In [247] …I also find that the negative effects of the bylaw (i.e., creating an infringement on the accused’s religious activities, precluding him from even temporarily placing tables of food or boxes of food on a sidewalk, though they created no significant impediment to pedestrian traffic) outweighs the objective of the Street Bylaw.

Regarding the permit application process

In [251] …as seen here, the permit process, in the absence of clear rules and policies, can become arbitrary.

In [252] A public park offers a site for gathering of people.  Some of those gatherings may take on a religious nature, including, for example, church picnics with multiple generations of a single family interacting with others in a religious context.  Someone may play music over a radio.  Another may use a megaphone to gather congregants for a pre-meal grace.  Without a permit, these activities, entirely conducive to the users’ purpose for being in the park, would be prohibited.

In [253] the judge confirmed that Triangle Park was a place of criminal activity, drug trafficking industry and [266] states that the accused’s intent was to restore the park to its original condition and purpose.

Regarding freedom of expression

[260] Here I find that the accused’s expression occurred in the context of social activism – that is, attempting to minister to the homeless, to drug addicts, and to individuals allegedly engaged in criminal activity – and in the context of attempting to influence political decision making.

Regarding stunting

In [301] …The actions of the accused… did not constitute a stunt…

In [303] … I rejected the officers testimony that the actions of the accused distracted or startled any operators of motor vehicles and that the actions of the accused created a danger.  Further I find that a gathering, such as that described in these circumstances, is unlikely to distract, startle or interfere with users of the highway.

Based upon the judge’s findings and all presented evidence the accused Artur Pawlowski was found not guilty of all charges.

These few items, presented above, are just a sample of the 91 page decision summary.  If we were to go through every officer’s testimony, every one of the officers testified one thing and then significantly changed their testimony under cross-examination.