If it has achieved nothing else, the Occupy Toronto protest has set off a fascinating debate on freedom of expression and its limits.
The Occupy protesters argue that their encampment is vital to their right to free expression. They say that pitching their tents and staying in the camp, rather that just marching down the street for a few hours, is a physical illustration of their passionate argument that society must be reformed from top to bottom.
"The permanent nature of the encampment expresses the seriousness of my concerns and provides a permanent space to allow the voices of the participants to be heard both through the media and involvement with the community," one of the occupiers argued in a petition to court. "The encampment itself is a symbol of direct democracy to me."
The question, of course, is what to do when his right to protest runs up against the right of ordinary people to enjoy St. James Park. If protesters can take over any public park, occupy it indefinitely and enjoy the unlimited protection of the Charter of Rights and Freedoms, then, "Where do I ride my bike?" asked Mr. Justice David Brown when he grilled a lawyer for Occupy in court last week.
His ruling, delivered on Monday, accepts that the Occupy camp is a form of expression covered by the Charter. That, at least, is a small victory for the protesters. But he also says the rights in the Charter are not absolute, and that "individual action must always be alive to its effect on other members of the community."
"The Charter does not permit the protesters to take over public space without asking, exclude the rest of the public from enjoying their traditional use of that space, and then contend that they are under no obligation to leave. By taking that position and by occupying the park, the protesters are breaking the law."
He says that, though they claim to be involved in an exercise in participatory democracy, they are disregarding the rights of others – the essence, you might say, of undemocratic behaviour. The Charter, he says, does not "remove the obligation on all of us who live in this country to share our common urban space in a fair way."
The court has spoken and the protesters' demand for Charter protection has failed. Even if they appeal, it is hard to imagine a higher court overturning Judge Brown's thorough and intelligent judgment.
The city treated Occupy with fitting restraint. Though the St. James camp inconvenienced local residents, it has not become a serous threat to public health or safety.
Mayor Rob Ford was careful not to give the protesters a deadline to vacate the park or to say how he would clear them out if they refuse to respect the court order. That is not only sensible, it is politically smart. His critics would love to paint him as a bully who runs roughshod over the right to protest.
He has confounded them by addressing the issue in the calmest of tones, taking pains to note that the protesters have been peaceful so far and that he hopes they leave of their own accord. "We've asked the protesters to leave as soon as possible and we appreciate their co-operation," he said on Monday.
Police have been similarly prudent. They have had a good relationship with the protesters till now and they were pointedly low key when they escorted bylaw officers to the park on Monday as the officers handed out eviction notices.
Thanks to the ruling of Judge Brown, it is now clear that, under the law, the right to free expression does not give unlimited licence to occupy.
Marcus Gee