Mr. Justice David Brown of the Ontario Superior Court has made his ruling: He decided Monday that the Charter of Rights and Freedoms does not prohibit the City of Toronto from issuing a trespass order forcing the residents of Occupy Toronto to remove their tents and vacate the park between the hours of midnight and 5 a.m. Is this decision “correct”? Would the opposite conclusion be more correct? Or less correct? Do these questions make sense?
The “fundamental freedoms” enshrined in the Charter include freedom of expression. There is no doubt, based on previous jurisprudence, that the city’s trespass order infringes the occupiers’ freedom of expression, as Judge Brown held. But that does not end the matter.
Section 1 of the Charter reads: “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.” The courts have interpreted this section to mean that Charter rights can be violated if the violations are “reasonable limits” that can be “demonstrably justified.” What does that mean?
In an early (1986) Charter case, the Supreme Court of Canada established a several-part “test” for determining if a violation was a “reasonable limit.” Many judgments, including this one upholding the trespass notice, come down to a balancing of the interests on both sides of the question. The crucial passage of Judge Brown’s decision is this:
Turning, then, to the final branch of the proportionality analysis, has the city demonstrated that there exists proportionality between the deleterious effects of the measure it adopted by issuing the trespass notice and its salutary effects? I have no hesitation in concluding that the evidence shows that there is proportionality. In seeking compliance with two provisions of the parks by-law, the trespass notice would have the effect of ending the protesters’ monopoly of a public park in downtown Toronto and requiring them to share it with the rest of the public. The protesters have ample means left to express their message, including continued use of the park (but no structures or “midnight hours”) and other Torontonians can resume their use of the park. In my view, such a result would more than meet the test for proportionality of deleterious and salutary effects.
Is this “balancing” reasonable?
Of course, the city provided Judge Brown with evidence that some people living near St. James Park had their use of the park limited or eliminated by the Occupy Toronto presence. On the other hand, it is evident that one of the essential ingredients of all the Occupy movements is “occupation.” Thus, the decision clearly deals Occupy Toronto a potentially fatal blow.
There could easily have been real compromises that would strike a much fairer balancing of the interests at stake. For example, the Occupiers could be ordered to vacate a third of the park. That would allow plenty of room for all of the activities that the city argued were being prevented by Occupy Toronto.
The Oakes test requires minimal impairment of Charter rights; yesterday’s decision maximally impaired the rights of Occupy Toronto.
While the Charter has had some positive consequences, it has not lived up to its promise. Most importantly, Section 15 of the Charter provides for “equal benefit of the law” to all. However, in the quarter century that the Charter has been in effect, federal and provincial laws have continually been changed to economically benefit the 1 per cent at the expense of the 99 per cent. All studies indicate that economic inequality has gotten much more severe in the time of the Charter than it was previously.
Monday’s court ruling and virtually all of Canadian jurisprudence should convince us that fundamental economic change will not be accomplished through the courts. The “Occupy” movements are the first significant protests in decades to raise the general issue of economic inequality in our society. It is to be hoped that such movements will continue to grow, regardless of any court decisions.
Peter Rosenthal is a lawyer with Roach, Schwartz and Associates and is also adjunct professor of law and professor emeritus of mathematics at the University of Toronto.