Charter Rights And Occupiers: A Judgment From The Bench

The limits to occupation

"On Monday, Justice David Brown of the Ontario Superior Court of Justice issued a lengthy decision weighing the various rights and interests in play. Ultimately, Justice Brown found that the City of Toronto was entitled to enforce its trespass bylaw and to require the occupiers to vacate St. James Park between midnight and 5 a.m., and to remove the structures they have built there.

His decision likely will figure heavily in other cities confronting this issue."

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"Justice Brown acknowledged that the protesters in Toronto’s St. James Park are engaging in activity protected by the Charter of Rights. Contrary to those who make much of the fact that the Charter nowhere mentions the right to “occupy public parks,” Justice Brown correctly noted that our civil liberties are not defined by specific activities, but the meaning that they hold. Thus, it is not the right to “occupy” that is at issue, but whether by such occupation the protesters are expressing political opinions (freedom of expression), living out sincerely held convictions (freedom of conscience) and attempting to form a common front to influence public discourse (freedom of assembly and association). The Charter guarantees everyone the ability to fashion their expressive and associational activities as they wish. If the protesters believe that their message relies on a particular physical structure (say, a “tent city”) then that structure becomes part and parcel of the Charter-protected activity. If the protesters believe that their message relies on prolonged occupation, then their desire to remain in the park indefinitely (or, at least, longer than the City might wish) is similarly protected.

But that, of course, is not the end of the story. The Charter’s rights and freedoms are protected only to the extent of such “reasonable limits” as are imposed by law. No right or freedom is absolute — that is the price of a civilized society."

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"Justice Brown seemed particularly persuaded by the non-protesters who explained the impact on them of having St. James Park rendered virtually off-limits (although it should be noted that these were anecdotal reports and the protesters disputed that characterization). Strikingly, he spoke of the need to keep urban parks as “oases of tranquility” rather than “battlegrounds of competing interests.”"

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"...the protesters have a difficult argument in the idea that the Charter guarantees them an exclusive right to control the extent and degree of their occupation of a public space designed to be open to and used by all. The decision confirms their right to occupy, but imposes limits on it."

And soooo, sanity prevails:

Canadian Occupy protests on the ropes

"Authorities in Quebec City and Calgary have removed Occupy protesters' tents — all of the tents in Quebec City and the ones that sat empty in Calgary Monday night — but despite the City of Toronto's victory in court Monday, authorities there have yet to make their move.

At 11:30 p.m. Monday, a half hour after Olympic Plaza in downtown Calgary had legally closed for the night, bylaw officers began dismantling any tent that didn't have a person inside.

Tickets were issued to the dozen or so people still living in the park space."

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"While police were there to back up bylaw, Bruce said there would be no arrests for those opting to continue to stay at the park.

"We're going to ask them to remove them. If they don't, we'll charge them," he said. "This is exactly what we said we'd be doing.

Loaded to near-capacity was a large Budget moving truck, filled with the unoccupied tents and any materials found inside them.

When the truck left, there was just eight "lived in" tents, a warming tent and an information tent left behind."

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"In Quebec City, officials tore down the remaining tents at the downtown Occupy encampment. The park was cleared by 7:30 a.m. and police say no arrests were made.

City spokesman Jacques Perron said the camp was dismantled in the early morning because many of the protesters were absent.

“It avoided confrontation and it allowed us to clear the entire area,” he said.

Meanwhile in Montreal, Mayor Gerald Tremblay on Monday asked occupiers to leave.

He had originally told protesters they could stay as long as they complied with fire department rules.

However, Tremblay said safety could no longer be guaranteed on the site after a local paper reported on a series of violent altercations at the encampment over the weekend."

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"In Toronto, a judge on Monday upheld the city's eviction order for the protesters camped out at St. James Park.

Some occupiers masked their faces with bandanas, barricaded their ragged, nylon tents with wooden skids, chained themselves to yurts, and bellowed anti-establishment rhetoric as the sun set."

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"Hours after the judge upheld the eviction order, St. James Cathedral, which owns a chunk of the greenspace, ordered them off the church's land. Protesters had considered the property a possible source of sanctuary should police move in.

On Tuesday, the protesters plan to march with labour leaders to Nathan Phillips Square at 4 p.m., where a rally is planned."

Of course, we'd have to have unions involved this way. And hah!! Even the churches are pissed off. Too bad, so sad.