As part of the global “Occupy Wall Street” movement throughout October and November, many Canadian municipalities found their parks occupied by protesters. With little public space available in these cities’ downtown or financial districts, protesters set up camps often in the only park space that can accommodate large gatherings. Batty v City of Toronto(1)marked the first in a series of court rulings in the “Occupy municipalities” movement, applying the Canadian Charter of Rights and Freedom(2)within the municipal context.
The Occupy Toronto Ruling: Batty v City of Toronto
On October 15, 2011, protesters began to occupy St. James Park, a 3.2-acre park located about three blocks east of the City’s financial core.(3)
On November 15, City of Toronto staff served many protesters with a notice under the Trespass to Property Act,(4)stating that protesters were prohibited from erecting tents or other structure on the park and from using the park between 12:01 a.m. and 5:30 a.m.(5)
The protesters immediately began an application challenging the constitutional validity of the City’s trespass notice.(6)At approximately 5:45 p.m. on November 15, the Ontario Superior Court granted the protesters an interim stay order requiring the City to refrain from enforcing the notice or taking any steps to evict the protesters until the hearing of the application and the release of those reasons.(7)
In essence, the issue was whether the City, by issuing the trespass notice, had violated the protesters’ rights under Section 2 of the Charter by infringing their freedoms of conscience, expression, peaceful assembly and association.(8)
After hearing the application on November 18 and 19, with supplementary email submissions filed on November 20, the Court released its decision on November 21, dismissing the protesters’ constitutional challenge.
Reasonable Limits on Freedoms Justifiable
In a nutshell, Justice Brown held that the structures and tents erected by the protesters in St. James Park constituted a mode of expression protected by section 2 of the Charter.(9)The City’s trespass notice required the protesters to stop erecting tents and to stop remaining in the park between midnight and 5:30 a.m. Thus, the City’s enforcement infringed the protesters’ section 2 freedoms by restricting the protesters’ expressive activity, assembly and association, as well as the manifestation of their beliefs.(10)
However, Justice Brown upheld the City’s trespass notice. The Court found that this infringement was justified under Section 1 of the Charter as “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.(11)The City infringed the protesters’ guaranteed freedoms, but was justified in doing so.
What Constitutes “Reasonable Limits” by the City?
Section 1 of the Charter requires the reasonable limits to be “prescribed by law” and to be “demonstrably justified in a free and democratic society”.(12)
The Court in Batty confirms that limits contained in municipal by-laws satisfy the “prescribed by law” requirement as their adoption is authorized by statute.(13)The City relied upon its Parks By-law in Chapter 608 of the Toronto Municipal Code as authority to invoke the enforcement mechanisms of the Trespass to Property Act.(14)Under this analysis, the Court rejected the protesters’ argument that the Parks By-law was overbroad and vague.(15)
The Court then applied the Oakes test to ascertain whether or not the limit can be demonstrably justified in a free and democratic society.(16)First, the reasonable limits must have a pressing and substantive objective; and second, the measure chosen by the City to achieve that objective must be proportional to the objective.(17)
Applying the Oakes test Justice Brown concluded that the trespass notice was constitutionally valid.
First, by ordering the protesters to take down their structures and vacate the park during the midnight hours, the City’s objective was to balance fairly the different uses of public parks. This objective carried sufficient importance.
Second, the measures taken also met the three aspects of the proportionality test:
1. The limiting measures met the rational connection test:(18)The City issued the trespass notice, asking the protesters to “share the park with other people in Toronto and to afford the neighbouring community some peace and quiet during the midnight hours”.(19)
2. The measures must impair the freedom as little as possible.(20)Highlights under this analysis include the following:
(a) The City was not imposing an absolute ban on the protesters’ political expression or associational activities. Protesters could continue to protest in the park for close to 19 hours a day.(21)
(b) The Court flatly rejected the argument that a less intrusive means for the City would be to redirect the non-protesting public to other parks. If every protest group possesses a constitutional right to occupy a park of their choice, the result would be a “tragedy of the commons” rather than greater popular empowerment.(22)
(c) Aside from issue of aboriginal rights and interests, municipalities have no constitutional obligation to consult with the protesters before enforcing its by-laws.(23) As Justice Brown held, whether “a municipality should consult with those who occupy public spaces before seeking to limit their use of those spaces is a matter of political prudence”.(24)
(d) That the City did not include a policy providing more details in which an exemption permit from the Parks By-law would be issued does not render the by-law constitutionally invalid.(25)
3. The measures’ deleterious effects must be proportional to their salutary effects:(26)The City met this test. The protesters had other means to express their message, including continued use of the park under terms, while other Torontonians could resume use of the park.
Accordingly, the City as the authority representing the greater community was entitled to reopen the park to the rest of the city by enforcing its law.
Injunctions Granted to Vancouver and Calgary
Shortly after the Batty decision, courts in British Columbia and Alberta heard similar applications from the City of Vancouver and City of Calgary. In Vancouver (City) v O’Flynn-Magee,(27)the British Columbia Supreme Court granted Vancouver’s application for a statutory interlocutory injunction. In Calgary (City) v Bullock (Occupy Calgary),(28)the Alberta Court of Queen’s Bench also granted Calgary’s application for an injunction. Protesters were ordered to comply with local by-laws and remove all tents and structures from Art Gallery Land in Vancouver and Olympic Plaza in Calgary.
Concluding Remarks: Obligation to Share Urban Space Fairly
Justice Brown began his decision in Batty by asking: how do we live together in a community and how do we share common space? The Charter‘s preamble, he suggested, reminds us that we are not unconstrained free actors but are all subject to the “rule of law”.(29)
In Batty, Justice Brown noted that “the expression of those questions has assumed a specific form the creation of an encampment” in St. James Park.(30)In effect, the protesters argued that the Charter sanctioned their “unilateral occupation of the Park” indefinitely, because of the importance of the message and the way in which they convey it”by taking over public property”.(31)
Justice Brown prefaced his remarks by stating that the Charter does not “remove the obligation on all of us who live in this country to share our common urban space in a fair way.”(32)The Charter does not allow us 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 no obligation to leave.”(33)Common sense still must play a very important role in balancing the competing rights.(34)
(1) 2011 ONSC 6862 [Batty] (dated November 21, 2011).
(2) Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
(3) Batty supra note 1 at paras 3 & 24.
(4) RSO 1990, c T21.
(5) Ibid at para 4.
(6) Ibid at para 6.
(7) Ibid at para 7.
(8) Charter supra note 2, s 2.
(9) Batty supra at para 72.
(10) Ibid at para 75.
(11) Ibid at para 124; Charter supra note 2, s. 1.
(12) Batty supra note 1 at para 81.
(14) Ibid at para 82.
(15) Ibid at paras 83-90.
(16) Ibid at para 79, citing R v Oakes,  1 SCR 103.
(17) Batty supra note 1 at para 79.
(18) Ibid at paras 97-99.
(19) Ibid at para 97.
(20) Ibid at paras 100-121.
(21) Ibid at para 104.
(22) Ibid at paras 112-113.
(23) Ibid at paras 114.
(24) Ibid at para 115.
(25) Ibid at paras 116-121.
(26) Ibid at paras 123.
(27) 2011 BCSC 1647 (dated December 1, 2011).
(28) 2011 ABQB 764 (dated December 6, 2011).
(29) Batty supra note 1 at para 1.
(30) Ibid at para 3.
(31) Ibid at para 10.
(32) Ibid at para 14.
(33) Ibid at para 15.
(34) Ibid at para 13.