Calgary judge sides with City in dispute with street preacher
Published: Wednesday, February 23, 2011
Artur Pawlowski and his supporters gather outside of the Calgary Courhouse in 2008. Photograph by: Archive, Calgary Herald
Saying the citizens of Calgary are entitled to a healthy environment, including noise control in city parks, a Calgary judge has sided with the City of Calgary in a dispute with a street preacher.
Court of Queen’s Bench Justice Robert Hall, in his decision released on Wednesday, quashed not guilty verdicts against Artur Pawlowski who had been acquitted after originally breaking city bylaws by using an amplification system in parks to get his religious messages to drug addicts and the homeless.
"As Mr. Pawlowski has admitted the use of a sound amplification system on April 13, 2007, and April 27, 2007, and as the use of such a sound amplification system violated (a section) of the Parks and Pathways Bylaw, the city’s appeal is allowed in regard to the charges stemming from these instances," Hall wrote.
"And based on the admissions made by Mr. Pawlowski that such activities did indeed occur, the accused is convicted if the charges in relation thereto."
The judge then imposed the specific bylaw penalties.
Pawlowski was found not guilty by provincial court Judge Allan Frasham on Dec. 7, 2009, of all of the primary charges relating to the incidents at Simmons and Triangle parks, west of city hall, in April 2007.
The five charges relating to city bylaws and two charges under provincial traffic safety regulations related to placing material on the street and using amplification in a public park without a permit.
Pawlowski did not dispute that he was involved in the activities that led to the charges, but argued the restrictions resulted in infringements of freedom of religion and freedom of expression.
His lawyer, Michael Bates, also argued the bylaws were vague or overly broad and that they were contrary to the Charter of Rights and Freedoms.
Pawlowski, who started Street Church in 2005, said using a sound amplification system made a huge difference, allowing him to reach 50 or 100 people, instead on one at a time.
He also argued that it was no different than transistor radios, iPods or cellular phones, which also amplify sound.
However, City lawyer Ola Malik argued that the loudspeakers led to numerous complaints from members of the public, it did not violate his Charter rights, and it had to take action.
"I am . . . satisfied that the intention of the bylaw is not to restrict the use of such items as hearing aids, cellphones, iPods or transistor radios within a park, none of which affect the safety, accessibility and enjoyment of the parks by the general public," Hall wrote.
"The only reasonable interpretation of this section, when viewed in harmony with the scheme and object of the bylaw, is that it is intended to prohibit noise amplified to such an extent as to interfere with the enjoyment of the park by other users."
The judge said he did not think the city has abused its powers, but was faced with balancing the concerns of the public with the wishes of Pawlowski.
Calgary judge sides with City in dispute with street preacher
The City of Calgary has won its appeal against street preacher Artur Pawlowski, who had been acquitted at trial for using an amplification system in parks to get his religious messages to drug addicts and the homeless.
Court of Queen’s Bench Justice Robert Hall, in his decision released on Wednesday on the summary conviction appeal, quashed the not guilty verdicts against Pawlowski for the infractions that occurred nearly four years ago.
The judge imposed the specified penalty under the bylaws, which amounts to $50 each for the two amplification charges.
However, he upheld acquittals on several other charges related to Pawlowski feeding the poor and having equipment on city streets.
Pawlowski said he intends to first appeal the fact that, he claims, the city filed its appeal late. Depending on what happens then, he will apply for leave to the Alberta Court of Appeal -the highest level for a summary case involving so-called lesser charges.
"At the end of the day, we were vindicated on most charges and we will be fighting the others. We won’t be paying these fines," Pawlowski said.
"It was never about money. We have spent hundreds of thousands of dollars in legal fees for our rights and I understand the city has spend over $1 million."
City lawyer Ola Malik said the critical issue for the city has always been finding a balance between competing rights.
"The Street Church says it has the right to do things for others and to be free of intrusion," Malik said. "For us, how do you balance competing rights of the public? Justice Hall found an appropriate balance."
Pawlowski was found not guilty by provincial court Judge Allan Frasham on Dec. 7, 2009, of all of the primary charges relating to the incidents at Simmons and Triangle parks, west of City Hall, in April 2007.
The five charges under city bylaws and two charges under provincial traffic safety related to placing material on the street and for use of amplification in a public park without a permit.
Pawlowski did not dispute that he engaged in most of the impugned behaviour that led to the charges, but argued the prohibitions of those behaviours resulted in infringements of freedom of religion and freedom of expression.
His lawyer Michael Bates also argued the bylaws were vague or overly broad and that there was an abuse of process by the city contrary to the Charter of Rights and Freedoms.
Pawlowski, who started Street Church in 2005, said that when he used a sound amplification system it made a huge difference, because he was then able to impact 50 or 100 people, instead of one at a time.
He also argued that it was no different than transistor radios, iPods or cellular phones, which also amplify sound.
However, Malik argued that the loudspeakers led to numerous complaints from members of the public.
The judge said he did not consider that the city has abused its powers but was faced with balancing the concerns of the public with the wishes of Pawlowski. He said the citizens of Calgary are entitled to a healthy environment, including noise control in city parks.
