In a decision delivered a few minutes ago, Ontario Superior Court Justice David Brown has ruled that the eviction notice the City of Toronto issued last week is valid, and will stand. In other words: the City is within its rights to enforce the eviction, and if they do so Occupy Toronto must leave the park. From his ruling:
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. Such civil disobedience attracts consequences. In this case the civic authority which represents the Toronto community now seeks to enforce the law. It wishes to re-open the Park to the rest of the city to enjoy as was done before. That is what the City sought to do by serving the Trespass Notice last week. For the reasons which I will set out below, I conclude that the Trespass Notice is constitutionally valid. The City may enforce it. I dismiss the application.
The judge came to his decision after weighing arguments over the weekend, following a hearing Friday during which counsel representing Occupy Toronto and the City of Toronto made their respective cases, as did a lawyer representing the Canadian Civil Liberties Association, which had been granted intervenor status in the case.
More details and the full text of the ruling is after the jump.
Friday’s hearing began with Susan Ursel, counsel for Occupy Toronto, arguing that the camp at St. James Park was protected under the Charter of Rights and Freedoms: “We submit that the physical camp…is a manifestation of [the protesters’] exercise of conscience,” she told the court. Fleshing out this idea, Ursel read from an affidavit written by one of the Occupiers, in which they stated that the camp was “a symbol of the seriousness of my commitment and the permanence of my concern.” She added that a physical camp was a necessary element of the protest in this case, as it has been serving as a demonstration of the creation of a new social model—the kind of model for which Occupiers are advocating.
Judge Brown questioned Ursel extensively, challenging many of her arguments as the morning progressed. “It’s a tightly packed city, people are living on top of each other,” he said, while describing the merits of sharing space with non-Occupiers, and referring to noise and other complaints the City passed along to the court from neighbourhood residents. “This is a matter of proportionality,” he went on, explaining that his decision would be based on an assessment of the significance of the physical camp to the Occupiers as a form of expression balanced against the impact the camp was having on the surrounding community, and on the City as it tried to maintain the park.
Jill Copeland, lawyer for the CCLA, reinforced Occupy Toronto’s messages, contending that any “desire to avoid inconvenience or unease” doesn’t constitute a justifiable reason to limit expression, nor do aesthetic considertions like park maintenance. “If the City’s position is that there should be no cost or inconvenience” to neighbours in political protest, she said, they are mistaken. Copeland also argued that since the City can grant a permit to allow camping in parks (an exception from the bylaws that typically prohibit it) at its sole discretion, and since no guidelines for that decision-making process is publicly available, it failed the minimal impairments test with regard to reasonable limits on freedom of expression. (Essentially: for a measure that limits Charter rights to be reasonable and demonstrably justified, it must “be carefully tailored so that rights are impaired no more than necessary.”)
The City’s lawyer made his arguments in the afternoon. Darrel Smith opened by remarking that “it’s important to cut through the hyperbole…this is a proportional response.” He claimed that since the Occupiers were not actually protesting—for instance, waving signs or holding rallies—overnight, sleeping overnight in the park didn’t in and of itself constitute a form of political protest. (He also claimed that only 20–30 protesters were sleeping in the park on any given night, though a much larger number of tents have been put up.) In other words, the City’s position is that there are no section 2 Charter rights being infringed upon at all with an eviction notice, since no expression takes place overnight. “They are essentially using the Charter to try to justify a de facto expropriation of the park,” Smith went on. The City, moreover, had shown tremendous restraint in waiting a month before sending out the eviction notices, he said. “They’ve had five weeks…to make that part of their point.”
The full text of Judge Brown’s decision: