City of Edmonton v. Malayko

The Justice Centre for Constitutional Freedoms (jccf.ca) is representing Dale Malayko, a life-long Edmonton resident and a retired firefighter who was ticketed for peacefully expressing his opinions on a public sidewalk.

Mr. Malayko stands accused of “permitting a noise that disturbs the peace of another”. The ticket is being challenged as a violation of Charter-protected free expression.

Dale Malayko is part of a centuries-old tradition of “street preaching’, whereby individuals stand atop a small box placed on the ground and speak impromptu regarding religious subjects, in this case various Bible teachings including the “good news” of Jesus Christ. Unlike street performers, Dale doesn’t hope for money from passersby. Instead, he offers free Bibles to those who want them.

One of the spots Dale regularly speaks at is the corner of Whyte Avenue and 104th St NW. This location is a high traffic, inner-city intersection that is commonly frequented by street performers due to the consistently high amount of pedestrian traffic. It’s also very loud due to constant car traffic, buskers, and musicians. Dale stands on a small wooden box when he speaks. The box contains four small holes, one in each side, in which are mounted small speakers connected to a wireless mic. The volume is not set high.

In the early evening of June 28, 2019, Dale and a colleague were preaching at the corner of Whyte and 104th when they were approached by two Edmonton Police Officers (EPS), Constable Ian Strutynski and Constable Blackwood. Constable Strutynski issued a “noise complaint ticket” to Dale after a business owner on the street complained.

EPS officers have a long history of issuing tickets to Dale and other street preachers which a Crown prosecutor later determines are not justified by the facts and/or the law. In fact, the Justice Centre has previously represented Mr. Malayko in 2016 for a similar issue.

The City has, however, decided to prosecute this latest ticket. The matter was heard October 20, 2020 in Edmonton Provincial Court. The Justice Centre represented Dale pro bono and argued that the issuance of the ticket is a violation of freedom of expression, and that Dale is not guilty because he was peacefully expressing himself in a manner and place that is protected by the Constitution. The Justice Centre argued that using noise bylaws to stifle and silence lawful speech in public is an abuse of government power which harms the sacrosanct right of free speech.

The Provincial Court of Alberta agreed and acquitted Mr. Malayko, finding him not guilty of the charge. On Tuesday, October 20, 2020 the Provincial Court ruled that Mr. Malayko’s street preaching is not in fact “a noise that disturbs the peace of another” and threw out the ticket.

“This ruling affirms that the right to free expression protects the ability of individuals to address people in the places they congregate, such as streets, and to use moderate amplification to do so,” states Justice Centre lawyer James Kitchen.

“This is a victory for free speech and a reminder that attempted state censorship is not justified by arbitrarily claiming that someone’s amplified message is “noise” or is “disturbing”, concludes Mr. Kitchen.

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