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Toronto's protesters have the right to stay put Add to ...

Just as Occupy protests sprang up in cities all over the world, so cities are now clamping down on the constitutional rights of protesters. Camped out in public (and semi-private) spaces, the protesters scored a pretty big public relations victory. They’ve highlighted how corporate power and economic inequality have distorted democracy’s ideals. Is it time to send them home? Well, it’s not clear whether cities can do so with impunity.

Though the situation on the ground differs in various locales across Canada, these comments are confined to the City of Toronto and the protest at St. James Park, adjacent to St. James Church, which is part owner of the property along with the city. Unlike the situation in Lower Manhattan’s Zuccotti Park, owned by Toronto-based Brookfield Office Properties, there’s no question that the city has constitutional obligations that it must respect. Reports even suggest that St. James Church doesn’t wish to see the protesters evicted.

Without question, the protesters are exercising their constitutionally protected freedoms of association, assembly and expression. Although they’ve been criticized for not having a unified and coherent message, it’s reasonably clear that they do have a message and that it’s mostly about corporate power. This is why they’ve chosen to occupy downtown public space close to Bay Street.

The structure of analysis under our Constitution requires that the city justify its actions. According to the letter accompanying eviction notices handed out on Tuesday, city manager Joe Pennachetti complained that the protesters have “appropriated” the park “to the exclusion of all others,” that there’s unspecified “damage” being done to the park, and that protesters are interfering with “necessary winter maintenance.” The eviction notice, however, makes reference only to the following bylaw offences: “installing, erecting or maintaining a tent, shelter or other structure,” and “using, entering or gathering in the park between the hours of 12:01 a.m. and 5:30 a.m.”

These bylaws aren’t intended to restrict constitutional rights, but they have the effect of doing so in these circumstances. Indeed, the invoked bylaws go to the heart of the Occupy protest. Why has the city now determined that enforcement of these bylaws is appropriate? At what point did the exercise of constitutional rights become intolerable? The city has simply issued an ultimatum without seemingly taking into further account the protesters’ objectives and their preferred means of expression. This is not a carefully calibrated assessment of the protesters’ rights and the city’s obligation to preserve public property but an outright ban.

If the city had public health and safety concerns in mind or the enforcement of noise bylaws, we should expect protesters to respect these sorts of concerns. And our courts typically wouldn’t stand in the way of their enforcement. But, apparently, this isn’t the case at St. James Park. The city has unilaterally determined that the protests simply can’t continue.

Real reasons for the eviction might be those mentioned in Mr. Pennachetti’s letter: the exclusion of others from the park and preventing necessary winter maintenance. There appears to be little evidence that the protesters are preventing others from entering the park, though space available for dog walking etc. will be more circumscribed and there must be alternative locales for these sorts of non-constitutional activities. Nor does it appear that the protesters are being unco-operative. Has the city asked them to make way for the most immediately necessary park maintenance? Failure to do so shows an indefensible disrespect for constitutional rights.

Canadians shouldn’t fear the exercise of democratic rights – they should encourage it. If the protesters have taught us anything, it’s that democracy isn’t confined to episodic elections but can be lived, if one is committed to do so, on a daily basis.

David Schneiderman is a professor of law at the University of Toronto.

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