Occupy Toronto and limitations on the right to protest

Batty v City of Toronto [2011] ONSC 6862 (21 November 2011)

Summary

In Batty v City of Toronto, the Ontario Superior Court of Justice considered an application challenging the constitutional validity of a Trespass Notice issued to a group of protestors on the basis it violated the protestors’ rights under the Canadian Charter of Rights and Freedoms. It was ultimately held that the Notice was constitutionally valid under s 1 of the Charter, which provides that the rights and freedoms set out therein are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The protestors' application was therefore dismissed.

Facts

Since 15 October 2011, the applicants and other protestors had camped overnight in St. James Park as part of the ‘Occupy Toronto’ movement and the broader global ‘Occupy Movement’, concerning various economical, social and environmental issues. The Protesters did not ask for permission from those who used or lived in or around the park to conduct their protest.

On 15 November 2011, the City of Toronto served the Protestors with a Notice under the Trespass to Property Act, R.S.O. 1990. The Notice prohibited Protesters from installing, erecting or maintaining a tent, shelter or other structure and using, entering or gathering in the park between 12.01am and 5.30am. If they did not comply with the Notice, then the City would remove such tents, shelters or structures.

On 15 November, an interim order was granted preventing the City from enforcing the Notice and from restraining the applicants and any other persons from installing, erecting or maintaining any structure. The Protesters then commenced proceedings challenging the validity of the Notice.

Argument

The Protesters argued that the Notice, and any action taken to enforce it, violated their constitutional rights under the Charter – in particular, their rights of freedom of conscience, expression, peaceful assembly, and association – and that the Act was contrary to the Charter.

The Respondents, the City, sought orders allowing them to enforce the Notice so as to have the Park return to the full use of all citizens. The Respondents relied upon parks by-laws and the enforcements mechanisms of the Act to support its application for enforcement of the Notice. The City filed affidavits on behalf of 11 citizens of Toronto which outlined how their enjoyment of the Park had been infringed since the arrival of the Protesters.

Decision

The Court recognised that the Protesters act of camping out and taking over the Park was activity that did engage the rights of freedom of expression and peaceful assembly under s 2 of the Charter. The Court stated that “the applicants are engaged in conduct expressing political and social messages” and that “the structures which the Protesters have erected in the Park are an important part of the manner by which they are expressing their messages”.

The key question then became whether the curtailment of the Protesters’ rights under ss 2(a) to (d) of the Charter could be ‘justified’ as a reasonable limit prescribed by law, in accordance with s 1 of the Charter. In determining whether the Notice was ‘justified’, the Court adopted the two-step test set out in R v Oakes (1986) SCC 46. Under this test, a limitation on rights must be “designed to achieve an objective of sufficient importance to warrant overriding the constitutionally protected right or freedom” and must also be “proportional to the objective”.

Applying Oakes, the Court held that the Notice was a reasonable limitation on the Protesters’ rights, being issued under parks-by-laws, having the important purpose of “enabling all to share a common resource and ensuring that the uses of the parks will have a minimal adverse impact on the quiet enjoyment of surrounding residential lands”, and being rationally connected and proportionate to that purpose. In the Court’s view, the Notice attempted to “balance, in a fair way, the different uses we wish to make of our public parks so, at the end of the day, we all get to enjoy them”.

Relevance to the Victorian Charter

Sections 14, 15 and 16 of the Victorian Charter of Human Rights mirror ss 2(a)-(d) of the Canadian Charter, while s 7 of the Victorian Charter correlates closely with the limitations provision under s 1 of the Canadian Charter.

The decision in Batty is timely and relevant given the continuation of various ‘Occupy Movements’ around the world, particularly in parts of Australia. If a Victorian protestor were to rely on ss 14, 15 and 16 of the Victorian Charter in defending or objecting to a notice removing them from a public space, then the decision is Batty is likely to provide important guidance to Victorian courts in weighing the interests of protestors against those wanting to enjoy public spaces. However, any decision would turn on the facts of each particular case and much would depend upon what impact the enforcement of protestor's various rights would have on others.

The decision can found online at: http://canlii.ca/en/on/onsc/doc/2011/2011onsc6862/2011onsc6862.html

Wayne Harrison is a Summer Clerk and Daniel Creasey is a Senior Associate & Pro Bono Coordinator (Melbourne) with DLA Piper