Occupy may have a good case to stay

Whether Occupy Toronto protesters should keep their long johns handy begins with a single question.

Is pitching a tent in a public space a constitutionally protected activity?

While it’s unlikely a lone Torontonian unconnected to a protest could set up camp in St. James Park without running afoul of a city bylaw or provincial trespassing statute, the occupiers may be on more secure legal ground.

When the City of Toronto served them with an eviction notice Tuesday, five of the protesters invoked the Charter of Rights and Freedoms, arguing their rights to freedom of expression, conscience, peaceful assembly and association are violated by prohibiting them from setting up tents or using the park between 12:01 a.m. and 5:30 a.m.

Ranjan Agarwal, a Toronto lawyer with expertise in public and constitutional law, believes they have a good chance of success on Friday because the Supreme Court of Canada has extended a high degree of protection to political speech and because public encampment is a key component of their message.

“This is very different from the G20 protest or some of the other protests we’ve had around the World Trade Organization or poverty, because the very method they’re using is an occupation,” he said. “If they’re allowed in the park during the day but can’t put up a tent, that isn’t much of an occupation anymore, is it?”

If Justice David Brown agrees the occupiers’ Charter rights have been infringed, the burden shifts to the city to justify why those rights should be restricted and to demonstrate that evicting them is the least intrusive option.

Deputy Mayor Doug Holyday believes the city has a solid case, telling reporters Wednesday that setting up camp in a park “isn’t proper.” When occupiers didn’t “dissipate” over time, he said, the city moved to evict them using a bylaw passed by “a democratically elected council.”

Suggesting the occupation has gone on long enough isn’t an unreasonable position, but “constitutional rights don’t stop after a month” and the city must provide some “reasoned justification,” for the eviction notice, said David Schneiderman, a University of Toronto law professor.

If the city has to clear the park to prepare for winter, they “should ask the protesters to accommodate them,” he said. “Have they done so?”

As for residents who feel the occupiers are interfering with their use of the park, Schneiderman says there are others. “It’s not like it’s the only park.”

Origin
Source: Toronto Star