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Evicting Occupy Toronto protesters would be violation of rights, lawyer argues

City of Toronto by-law officers are escorted by Toronto Police as they post eviction and trespass notices in the Occupy Toronto camp at St. James Park on Nov. 15, 2011.

Deborah Baic/The Globe and Mail/Deborah Baic/The Globe and Mail

In a bid to allow Occupy Toronto protesters to stay at St. James Park, the lawyer representing protesters argued Friday that an eviction would violate Charter rights.

"What's novel... Is the importance that the location plays in the message," lawyer Susan Ursel told a packed courtroom Friday morning. "It is a manifestation of what they are trying to create in the world."

The city and protesters are at a standoff over the right to occupy St. James Park, where hundreds of tents and protesters have gathered since mid-October. Toronto's occupation began about a month after the original Occupy protest began in New York City, near Wall Street. Protesters there were told to leave Tuesday, as were many campers worldwide this week.

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The hearing lasted all day Friday at the Toronto courtroom, where a metal detector was setup and three police officers waited outside the room's doors. Late in the afternoon city lawyer, Darrel Smith, finished arguing that an eviction would not violate Charter rights.

The notice handed out Tuesday said people must leave the park between 12:01 a.m. and 5:30 a.m.

"The notice is not draconian. It is fair," Mr. Smith said, noting the protesters didn't apply for a permit. "I think when you cut through it all, all the things they're trying to do, can be done without sleeping over."

He argued that only 20 to 30 protesters are sleeping at the park a night and there are no protest activities going on during that time, so stopping them from sleeping over does not violate their rights. Protesters claim the number of people sleeping over is much higher, likely exceeding 100.

Mr. Smith said a decision to let the protesters stay would set a precedent.

"It would be a terrible precedent if any individual or group of individuals could claim that it's a matter of conscience, they want to express their freedom of expression, by occupying a park," he told reporters outside the court. "Where would it end?"

Toronto's Charter-challenge was brought by five protesters shortly after they were told to leave. They say the city's attempt to use the Trespass to Property Act would violate rights of freedom of conscience, expression, peaceful assembly and association and that the camp is linked with the message they are trying to convey.

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In court, Ms. Ursel said one of her clients says the encampment is a "physical manifestation of my political beliefs."

Judge David Brown had many questions for Ms. Ursel, even suggesting her clients have not truly been evicted from the park.

"It's not an eviction notice when I read it," he said. "The notice says you can use the park for political expression but don't pitch tents or be there during midnight hours."

But Ms. Ursel said the encampment aspect is central to the message. The judge further asked how he should balance the rights of protesters with the community, who have submitted concerns about not being able to use the park. He said he's been presented with evidence that it will cost between $20,000 and $35,000 to re-sod the grass in the park, which has been damaged from the encampment. Judge Brown also mentioned nearby residents who feel they can't use the park any more.

Court also heard from a lawyer representing the Canadian Civil Liberties Association, who said the public has to tolerate inconvenience and economic loss to ensure free speech. The lawyer, Jill Copeland, also said the city bylaw needs to be more specific.

After the hearing, Occupy spokesperson Anna Crooke, gave a statement but didn't answer most reporters' questions.

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"We've had our day in court, thanks to the power from the people behind us and the communities who support this movement," she said, adding there are rallies and a march planned for the weekend. "Everyone just has to wait for the decision on Monday."

Late Thursday, Judge Brown of the Ontario Superior Court said he won't be delivering his decision until Monday morning, rather than Saturday. The delay reduces the chances of a heated weekend as the protesters can remain at the park until the judge's decision is released.

Mr. Smith said if the judge rules to uphold the city's decision Monday, city staff will arrange to have the tents removed and police would be available if necessary. He said he wasn't sure of a possible timeline.

The city began offering shelter and other services to protesters on Thursday, shortly after the adjacent cathedral's reverend said the church will respect the ruling and not become a safe haven for protesters.

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