January 14, 2020

Penalizing 911 callers via new municipal ordinances is shooting the messenger, lazy public policy, and an abuse of power by cities and any government that uses its legal tools to criminalize what amounts to a nuisance for governments. It’s part of the overall trend today in Canada to over-criminalize, adding new but often redundant offences that do nothing to solve the problem at hand, and often amount to unconstitutional over-reaching by municipal councils and provincial legislatures.

People have the right to be left alone, so the arrival of screaming Amber Alerts on our telephones is an exception to the rule, arguably justified by scaled efforts to prevent tragedy. It’s too soon to tell whether mandatory participation in a public rescue operation is a constitutional intrusion on our private lives that holds up under the scrutiny of judicial review. People also have the right to speak their mind, even when it’s mighty annoying to the government officials who receive the misdirected complaint.

Now, there are limits. Pernicious 911 calls can lead police on wild goose chases and sometimes miscarriages of justice. Mississauga City Council insists that one such limit is calling 911 operators to complain about the new Amber Alert system. So they proposed an ordinance that creates a penalty for “frivolous and vexatious” 911 calls — a description is far broader than its original purpose. But Mississauga is not alone: the council report [] sets forth the many other cities and provinces that do the same. Some have jail terms.

The Mississauga Corporate Report offers no alternatives to the punitive measure proposed. It also lacks the research and evidence that would illuminate the nature of the so-called problem. Is this merely annoying for 911 operators? Did they not anticipate that when they alarmed everyone with an unsolicited Amber Alert call that they would receive a corresponding increase in confused 911 responses? Is there any significant qualitative or quantitative research to back up the anecdotal assertions? Is all this not better managed through a budgetary and staffing approach, depending on the cost? Is this a public safety issue or really all about mental health — of both caller and operator?

Like many of Canada’s public services, for 911 calls the constitution permits a patchwork of policies across Canada. The federal government has jurisdiction over new crimes (Criminal Code), RCMP and broadcasting (CRTC requires minimal 911 functionality for all telephones, wireless and VOIP services), but so do the provinces (administration of criminal legal system; provincial policing) and municipalities with their own police service. It’s the latter who have been the worse culprits at criminalizing 911 nuisance calls. A local councillor or mayor can look tough, get some media coverage, but cost the municipality not a cent. (It takes one to know one: I was guilty of that kind of grandstanding during my provincial political career, to my later regret).  

The typical efforts undertaken to unify an approach on this subject may come up at the annual Federal-Provincial-Territorial Justice Ministers Meetings, but the perspective offered is always that of the police, who are the first to admit that their expertise is limited to security. There are no voices at those tables knowledgeable about mental health, public health, and free speech in public forums.Meanwhile, we already have a well established crime on our books that gets at the heart of these 911 nuisance ordinances already: obstruction of justice. If someone knowingly misleads the police via a 911 call, or otherwise tries to deliberately interfere with 911 operations, then that’s a crime. We don’t need a dozen or so additional quasi-crimes that fine people who may have zero ability to pay the fines, with varying codes of misconduct and new penalties for police to go forth to enforce. 

Most importantly, these ordinances are a misuse of the profound legal powers entrusted to legislators. To create a new offence in the wake of the still early days of Amber Alerts is a knee jerk reaction that may chill callers from using the 911 system when they should. And it’s a disproportionate over-reaction to a manageable phenomenon. We all have technological and communications nuisance in our lives: unsolicited calls from all over the globe seeking to sell me something or trying to defraud me into giving out personal information, all via phone, email, and text. For the police to combat the nuisance with a new municipal crime is a misuse of government power. All workplaces and telephone services have had to adjust to our modern mobile communications tsunami, without the ability to pick up legal sledgehammers to strike the nuisance gnat.

Michael Bryant is the Executive Director at the Canadian Civil Liberties Association and was the 35th Attorney General of Ontario.