This weekend, Canadians of all ages will be carving pumpkins into jack-o-lanterns, watching scary movies, and venturing into haunted houses for the annual celebration of all things that go bump in the night, Halloween. But in light of the “2016 Great Clown Scare”, one particular Halloween tradition – wearing costumes– is becoming a source of concern.
What is this creepy clown movement and how does it tie into Canadian Constitutional law you ask?
This past August, two clowns approached a boy near his apartment complex in South Carolina, attempting to lure him into a seemingly abandoned house in the woods. Instead of being a disturbing but isolated incident, the boy became patient zero in a global outbreak of people dressed as clowns seeking to unsettle, scare, or even hurt others. In the last few months, clown sightings in incongruous places have occurred across North America, Europe, Australasia, and South America. Since the first sighting, there have been reports in 44 American states; prompting even McDonald’s to reduce the profile of their mascot of over 50 years, Ronald McDonald.
In Arizona there was a robbery with armed men dressed as clowns. In another incident in Michigan, a hotel was held up at gun point. In Kentucky, a woman reported that a clown came out of the woods while she was on an evening walk, and attempted to assault her and drag her into the woods. Many more sightings have been nothing more than that, sightings. Clowns popping up across the country, standing near schools intending to scare others.
In Canada, at least 7 provinces and 1 territory have reported sightings. In Edmonton a school went into lockdown for over 90 minutes after a violent threat over social media. Even as recently as Oct. 25th, a woman in central alberta posted on facebook about a sighting. These instances and others have prompted schools in Fort McMurray and Prince George to ban clown outfits, even for Halloween.
But is this ban constitutionally permitted? What are the legal ramifications of this behaviour? Police can charge many of these people under criminal offences such as mischief, trespass, and harassment. However many of these people intend to scare but don’t actually engage in any criminal activity. Section 2(b) of the Canadian Charter of Rights and Freedoms establishes that the freedom of expression protects any act intended to convey meaning. Though unsettling, it is completely legal to wear a clown costume without engaging in criminal activity.
What about banning clown costumes in schools? Section 93 of the Constitution gives every province the power to pass laws in relation to education. Provinces delegate local governance to school boards, which require schools to impose a dress code. If a school imposes a clown costume ban, a student could complain to the local adjudicative body that hears dress-code complaints, ie school boards, human rights tribunals and courts. The body would need to balance the rights and interests of an individual student against that of the public. The Supreme Court has not heard a case that challenges a non-religious dress code complaint under section 2(b), so it would be impossible to say for sure whether or not a clown costume would be protected under the section.
A few thoughts on where this came from
Some people have cited the remake of Stephen King's classic, “It,” as the reason for all this clown chaos. Others have have suggested that it is not a coincidence that the clown craze is occurring so close to the American election. One Sociologist specializing in mass hysteria said the current clown scare is a result of two rising forces in the US: “social media, and a fear of otherness, whether it arrives in a white Mercedes or a refugee boat.”
Whatever the reason for this influx of unsettling clowns, one thing is for sure, 2016 has given us many more reasons to be coulrophobic. Though the majority of these sightings have sought to unsettle and scare, not to hurt, keep an eye out and be careful as you venture out for trick or treating this year!
Your humble and a bit scared servant,
 Andrew Russell, “‘Creepy Clown’ sightings: Why the epidemic is spreading across Canada and the U.S.”, Global News (07 October 2016), online: <http://globalnews.ca/news/2990008/creepy-clown-sightings-why-the-epidemic-is-spreading-across-canada-and-the-u-s/>
 Clark Mindock, “'Killer Clown' Sightings Global Map 2016: Timeline Of The Creepy Phenomenon Of Threats, Arrests, School Closings And False Alarms”, IBT. (10 October 2016), online: <http://www.ibtimes.com/killer-clown-sightings-global-map-2016-timeline-creepy-phenomenon-threats-arrests-2429124>
 Elle Hunt, “'Clown sightings: Ronald McDonald keeps low profile amid creepy craze”, IBT. (12 October 2016), online: <https://www.theguardian.com/culture/2016/oct/12/clown-sightings-ronald-mcdonald-keeps-low-profile-amid-creepy-craze>
 John Steckroth, “Embassy Suites in Livonia robbed at gunpoint by man wearing clown mask”, Click On Detroit. (06 October 2016), online: <http://www.clickondetroit.com/news/embassy-suites-in-livonia-robbed-at-gunpoint-by-man-wearing-clown-mask>
 “Police investigating report of a woman attacked by man in clown mask in Winchester, Ky.”, WDRB. (01 October 2016), online: <http://www.wdrb.com/story/33293981/police-woman-attacked-by-man-in-clown-mask-in-winchester-ky>
 Paige Parsons, “Suspect arrested after lockdown at Harry Ainlay High School, 'creepy clown' causes social media scare”, Edmonton Journal. (05 October 2016), online: <https://www.google.ca/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=edmonton%20clown%20lockdown>
 Danielle Nerman, "No more clowning around: Creepy costumes banned at Fort McMurray public schools" (24 October 2016), online: <http://www.cbc.ca/news/canada/calgary/clown-costumes-banned-fort-mcmurray-1.3818802>
 “What is a School Dress Code?”, FindLaw Canada online: <http://constitutional.findlaw.ca/article/what-is-a-school-dress-code/>
 Mathew Teague, "Clown sightings: the day the craze began", The Guardian (08 October 2016), online: <https://www.theguardian.com/culture/2016/oct/05/clown-sightings-south-carolina-alabama>