Friday, November 18, 2011
The Canadian Charter of Rights and Freedoms names as fundamental freedoms for everyone:
- (a) freedom of conscience and religion;
- (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
- (c) freedom of peaceful assembly; and
- (d) freedom of association.
These section 2 rights, like other rights, are qualified by section 1: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
This constitutional balancing is now occurring over the Occupy Toronto encampment at St. James Park.
The city issued a Notice under the Trespass to Property Act, prohibiting tents and presence in the park during the night, and stating that failure to remove tents and "debris" immediately would mean that the City would have it removed. The Notice was challenged in Batty v. Toronto, and Judge David Brown in the Superior Court of Ontario quickly entered an interim stay order, reasoning in part that:
The protesters have encamped in the Park for a month. They are now being asked to leave within a day. They have come before this Court, as members of the public, asking the Court to adjudicate on their rights. In these circumstances I think the most appropriate way to balance the interests of all concerned is to maintain the status quo for a very short period of time and require the parties to proceed to an early adjudication of this proceeding.
The hearing was set for today and being tweeted live on the cbc website here. From such reports, it seemed as if Judge Brown was not sympathetic to the Charter rights arguments, including a distaste for extended drumming as protected expression.
The Canadian Civil Liberties Association was also given time to argue as an intervenor. The CCLA's Factum (brief) argues that the erection of tents and the presence during night hours are expressive and "are inextricably linked to the message conveyed by the protesters," citing several non-Supreme Court of Canada cases. Given this expressive activity, the burden is on the City to demonstrate that its actions constitute a reasonable limit on the right. Further some "measure of inconvenience must be accommodated in a free and democratic society to ensure that these rights are protected." As for the possibility of a permit, the CCLA argues that the discretionary nature of the permit guidelines render the regulations overbroad and the scheme restricts more speech than necessary (the "minimally impairing" test).
While Judge Brown's interim order stated he would "try to release my reasons for decision no later than 6 p.m. this coming Saturday, November 19, 2011," it is now reported that he has extended this time until Monday.