Edmonton man ticketed for peaceful public expression is acquitted by the court


EDMONTON: The Justice Centre for Constitutional Freedoms is pleased with a decision today in the Provincial Court of Alberta, which acquitted Dale Malayko, a retired Edmonton firefighter, of a City of Edmonton bylaw ticket issued to him for peacefully expressing his opinions on a public sidewalk. Mr. Malayko was accused of “permitting a noise that disturbs the peace of another”. The Provincial Court of Alberta found Mr. Malayko not guilty of the charge during a one-day trial.

Mr. 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 most street performers, he doesn’t ask for money from passersby. Instead, he offers free Bibles to those who want them.

Mr. Malayko regularly speaks on a busy corner of Whyte Avenue. This location is a lively, busy intersection that is commonly frequented by street performers due to the consistently high amount of vehicle and pedestrian traffic. Mr. Malayko 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.

In the early evening of June 28, 2019, Mr. Malayko and a colleague were preaching at the corner of Whyte Avenue and 104th Street when they were approached by two Edmonton Police Service (EPS) constables. The constables issued a “noise complaint ticket” to Mr. Malayko after a business owner on the street complained.

EPS has a long history of issuing baseless tickets that are not justified by the facts to Mr. Malayko and other street preachers, all of which have previously been dropped by City prosecutors. The City decided to prosecute this latest ticket.

The Justice Centre represented Mr. Malayko pro bono and argued that Mr. Malayko was not guilty of permitting a “noise that disturbs the peace of another”, because he was peacefully expressing himself in a manner and place that is protected by the Constitution. 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.