A man sits in a tent at St. James park in the "Occupy Toronto" movement in Toronto, November 15, 2011. (REUTERS/Mark BlinchMARK BLINCH/Reuters
Freedom of political speech is what distinguishes Canada from, say the Egypt of 2010, but that shouldn't mean the right to set up tents and lavatories for months on end in public parks and squares. Tahrir Square was a beautiful thing – unless you live across the street.
That, or something like it, is what Abie Weisfeld and his friends found out after setting up a Peace Camp (seven tents, a literature table, a banner) off and on from 1983 to 1988 on Parliament Hill to protest the government's policy on cruise-missile testing.
"It is easy to understand the desire of the government to remove what was described in letters of protest to it as an 'eyesore,' a 'blemish,' a 'blot' and a 'mess,' the Federal Court of Appeal said in 1995, sensibly, after Mr. Weisfeld challenged RCMP attempts to remove him.
Not every protester has fared as badly as Mr. Weisfeld. The Falun Gong, a Chinese spiritual group, won at the British Columbia Court of Appeal last year when it challenged Vancouver's 2006 attempt to remove a meditation hut it had set up on a sidewalk outside the Chinese embassy. The city had argued, reasonably, that they could protest all they want – without the hut. The court, though, said the structure was a legitimate part of the protest. "There was no evidence the location was subject to a competing use."
It's good to live in a country where the courts protect the right to dissent. Good, but a little ridiculous at times. A constitutional right to build an eyesore on public property? Worse yet, the Quebec Court of Appeal ruled that a Montreal strip joint that used a loudspeaker to blare its music and commentary to the community could not be stopped by a city noise bylaw because to do so was an unjustified infringement of its freedom of expression. (Thankfully, the Supreme Court begged to differ.)
Funny that in the U.S., land of the First Amendment, the judges don't bend over backward quite so far to accommodate occupiers. "Even protected speech is not equally permissible in all places and at all times," a New York State Supreme Court judge said this week in a ruling that used just four pages to evict protesters.
Those who establish tent cities on public property dedicated to political speech act as if they had a monopoly on the constitution. They don't. "The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy," the U.S. Supreme Court said in 1965. And it hadn't seen the mess Occupy Vancouver has made in front of the art gallery.
The key question in Canadian cases has been whether the protest (or noise) can be accommodated without spoiling things for other people. A massive encampment of tents in a neighbourhood park or public square spoils things for others. Feeding, defecating, dying, the whole human comedy or tragedy unfolding around the clock in places usually reserved for quiet contemplation, relaxation and play – the Occupiers are occupying other people's space. And they have no right to it.