Canada: Is There A Constitutional Right To "Occupy" With Tents?

Last Updated: November 18 2011
Article by Derek J. Bell and Ranjan K. Agarwal

As municipal officials across the world begin to flex their muscle and take steps to dismantle tents, yurts, and similar structures established in connection with the local variant of the Occupy Wall Street movement, it seems inevitable that a major question is going to be raised at some point in the Canadian courts:

says Derek J. Bell

You can protest every day if you like, but you don't have a constitutional right to sleep in St. James Park.

Municipal officials may not be able to shut down the Occupy protests entirely, whether in Toronto, Vancouver, London or Corner Brook, Newfoundland, without running into some serious constitutional problems. However, does the constitution stand in the way of efforts to take down the "tent cities" that have cropped up in Canadian cities? The answer to this has to be an unequivocal no, and this is for two reasons.

No Charter Rights Would Be Infringed

First, there are really only two constitutional rights that are potentially engaged by any efforts to take down the tents: section 2(b) of the Charter, which protects freedom of expression, and section 2(c) of the Charter, which protects freedom of peaceful assembly. One could try to invoke other rights, such as freedom of association, but in all likelihood a constitutional challenge would principally engage 2(b) and 2(c).

For section 2(b) to be engaged, the activity at issue – pitching tents and living in them – would have to, itself, be "expressive activity". While the courts have typically given an expansive interpretation of what constitutes "expression" (going so far as to say that hate speech is still expression), there are still limits. Most particularly, the activity must be "expressive" in that it must "attempt to convey meaning in a non-violent form": R. v. Sharpe, [2001] 1 S.C.R. 45. While an argument can be made to say that protestors pitching tents are conveying meaning (and my colleague Mr. Agarwal has made a valiant effort in this regard), the evidence from the ground does not bear this out. At the very highest, one could say that the permanence of the occupation is the meaning being conveyed: "we're not going to leave until our demands are satisfied". But this too proves too much: what meaning is conveyed by pitching tents, as opposed to merely staying in the park in a sleeping bag or sitting on a bench? I suggest that there is nothing "expressive" in pitching a tent, unless the protest is really against houses or something similar, such that the symbol of the "tent" has expressive meaning.

Moreover, when one considers the purposes behind the freedom of expression guarantee, it becomes even clearer that pitching a tent does not constitute expression. The first goal of section 2(b) is to foster the seeking and attaining truth, which is viewed to be an inherently "good" activity. While that may well be a goal fostered by the Occupy Toronto movement generally, it is difficult to see what truth is being attained by the pitching of tents, although based on some reports, it sounds as though many Occupy protestors are finding their own "truths" in some of the tents. The second goal – participation in political and social decision-making – is again something that the Occupy movement could embrace, but it is not clear how living in a tent furthers that participation in any way. The last goal – self-fulfilment and human flourishing – also seems difficult to identify in relation to pitching a tent and any expressive content associated with that tent.

Section 2(c) – freedom of assembly – is more difficult to dismiss because it has been so infrequently litigated. On the few times that the courts have engaged on section 2(c), the courts have said that "freedom of peaceful assembly is geared toward the physical gathering together of people": Roach v. Canada, [1994] 2 F.C. 406 (C.A.) at p. 436; R. v. Normore, 2005 ABQB 75. It is at least arguable that removing tents (but leaving the people there in the park) would not inhibit the "physical gathering" of people at all. The protestors could continue to stand in the park, protesting to their heart's content, but they wouldn't be able to have a nap in their tent nearby.

Any Infringement Would be Justified

But I will allow for the possibility that a court could find that taking down the tents would constitute an infringement of either section 2(b) or 2(c) of the Charter, or both. There is at least an argument, as Mr. Agarwal points out, that if the effect of the law is to effectively make it impossible to exercise the freedom of expression or the freedom to assemble, then there is perhaps an arguable case for saying that 2(b) or 2(c) is engaged.

But even if there was an infringement, the Charter contains a provision in section 1 that says that all of the rights are guaranteed "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The courts have interpreted this clause to mean that there must be (a) a sufficiently important objective served by the law; (b) a rational connection between the law and the objective of the law; (c) minimal impairment, in that the law can impair the right no more than is necessary to achieve the objective; and (d) proportionate effects, in that the salutary benefits of the law outweigh the deleterious effects on the Charter rights.

It is difficult to generalize on the law that would be engaged in all of the different cities, because there are different facts in play on the ground of each, and different laws on the books in each of the cities. For example, in Toronto, the protestors are located in land that is owned by the City in part, and privately owned by the local church (who is not asking for an eviction) in part. In New York the protestors were on wholly private land. In other cities the protestors may be on wholly public land. Some cities may have ordinances against public camping, but others will not. A city could pass a specific by-law or regulation to deal specifically with the Occupy protestors. So it is difficult to generalize.

But assuming that there is some law that is being violated by the protest – whether it is public camping, zoning bylaws, loitering, or otherwise – then it is highly likely that the application of that law to the Occupy protestors would be upheld under section 1 of the Charter.

The reason why is because the limitation would really be nothing more than a "time, manner and place" restriction, and if the municipality is doing nothing more than taking down tents, then it is only limiting the "manner" of the expressive activity, and if the court were to accept that pitching a tent was expressive, at the minimum, it would have to acknowledge that such expression really is secondary to the expression that takes place outside of the tents. In other words, if the protestors are left in the park, and allowed to fully vocalize their concerns in whatever way they see fit, but are simply not allowed to retire to their tents when they are not vocalizing their concerns, this really would be a minimal intrusion upon any constitutional rights.

No doubt any justification would point to public health and safety concerns, citing recent drug overdoses in Vancouver and Toronto, and general dilapidation concerns, and if these concerns were proved with evidence, it is difficult to see how a court would not view there to be a pressing and substantial objective (Although strictly speaking, the Court is supposed to consider the legislator's objective of the law itself, which was probably passed eighty years ago, not the reasons for applying the law in the case at hand. Notwithstanding that, I am certain that these facts would be raised by the City).

In short, there is a clear path for the municipalities to remove these "tent cities" without offending the constitution. But like everything in politics, a lot depends on how well the government balances different interests. An outright prohibition of any Occupy protests would likely be struck down. But allowing the protestors to arrive daily, protest in whatever (non-violent) manner that they see fit, and then requiring them to go home at night? I can't see how a court would strike down that law as unconstitutional.

says Ranjan K. Agarwal

The 99-percent are meaningfully expressing themselves by "occupying" our parks—as long as they remain peaceful, the Charter will protect them.

The goal of the Occupy Wall Street movement, which has spread to over 20 Canadian cities, is to create a "democratic awakening" to protest corporate influence, income inequality and the lack of accountability for the global financial crisis. Unlike other similar protests against the G20 or the World Trade Organization, the tool of this movement is to literally occupy public squares and parks. The movement's expression is not just the words used at rallies or the signs held by demonstrators—it is the very act of occupying public spaces. That particular form of expression is constitutionally protected under both section 2(b) of the Canadian Charter of Rights and Freedoms (freedom of expression) and 2(c) of the Charter (freedom of peaceful assembly). Unless municipalities can demonstrate rampant violence or widespread health concerns, it's difficult to see how they can justify shutting the protests down completely. They can police the movement, and arrest demonstrators for violent acts or drug use, but they'll have a hard time getting the courts' blessing to sweep the parks.

Freedom of Expression and Peaceful Assembly

There is no dispute that the Occupy protestors have the fundamental freedom of "thought, belief, opinion and expression". The Supreme Court's definition of expression is necessarily broad: "Activity is expressive if it attempts to convey meaning" (R v. Keegstra, [1990] 3 SCR 697). Arguably, there is nothing expressive in occupying a park or public space. That reasoning ignores the raison d'être of the movement: to literally occupy public spaces in a show of grassroots democracy. The movement's expression is not in the speeches the demonstrators make, the rallies they hold or the signs that wave, but in the fact that they are occupying public squares and parks. The overnight tents make it obvious that the public space has been occupied, and conveys the meaning that the demonstrators will not relent until there is a "democratic awakening". If the demonstrators were simply sleeping on benches or protesting during the day, their actions might be less expressive. The tents, libraries, kitchens and medical centers demonstrate that this movement is not a protest or a street march or a rally but it is, in fact, an occupation.

More importantly, this type of expression is likely political expression, "the single most important and protected type of expression" (Harper v. Canada (AG), 2004 SCC 33). Political speech is at the core of our democracy because it allows people the right to discuss and debate ideas. The Occupy movement has clearly fostered a debate about income inequality and the global financial crisis given the attention it has had by politicians, media and average citizens.

Even if the Occupy movement isn't expressing anything, it is difficult to believe that the demonstrators' right to do so isn't covered by section 2(c) of the Charter, which guarantees everyone the fundamental freedom of freedom of peaceful assembly. There is very little jurisprudence on section 2(c) but the plain meanings of the words are clear: the government cannot make laws or take action to infringe otherwise "peaceful assembly" without violating the Charter. The occupation of parks and squares is likely an assembly and, for the most part, has been peaceful. It's hard to see how municipalities could argue that disassembling the tents isn't an infringement of section 2(c).

Bylaws Infringing the Protestors' Rights are Not Justifiable

If a court found the Occupy movements to either convey meaning or to be peaceful assemblies, the government may be able to use municipal bylaws and ordinances to shut the protests down if those laws are justifiable limits under section 1 of the Charter. Every municipality has a different law or ordinance that it intends to rely on. The challenge for most municipalities is that they likely do not have a "no Occupy" by-law. So, municipalities seem to have three options: (a) rely on existing by-laws, which are aimed at health and safety or prohibit camping; (b) obtain a court injunction for a specific remedy, like allowing fire personnel to access the parks under threat of contempt for protestors opposing the injunction; or (c) pass a specific by-law aimed at these movements.

To date, municipalities seem to be relying on two arguments to justify either an injunction or sweeps: the Occupation movements present a threat to health and safety and the public spaces are needed for other public events. Victoria is arguing that the protestors should be forced to leave "for reasons of public health and safety and so that it can be prepared for Christmas activities". Vancouver was seeking an injunction to remove the tents because of apparent violence, the presence of drugs and alcohol and the overdose death of a protestor. In London, Ontario, the police forcibly removed tents so the city could "prepare the park for events".

Even if one accepts that the existing by-laws at issue are sufficiently important and there is a rational connection between the law and its objective (which is required under section 1 of the Charter), it's hard to see how these laws are a minimal impairment on the protestors' freedoms. If there is violence or illegal drug use, the police have sufficient powers to investigate and arrest any offenders. If, like in Vancouver, protestors aren't allowing police to extinguish fire pits, the police have the power to arrest demonstrators for that violation. In response, in Vancouver, the protestors have agreed to cooperate with fire personnel, proving that there are less intrusive ways of dealing with individual issues than shutting down the protests.

If municipalities passed Occupy-specific by-laws, the Supreme Court is likely to be critical of a law that runs roughshod over legitimate expression or assembly in the name of "keeping the peace". In Dupond v. Montreal, [1978] 2 SCR 770 (which pre-dated the Charter), the City of Montreal banned parades and public gatherings for 30 days. The majority of the Supreme Court upheld the by-law as being within the City's law-making powers. But the dissent carefully distinguished between laws focused on "health or sanitation or education" and those focused on "a naked concern for the public peace and about anticipated violence", the latter being outside the City's purview. Though Dupond is about federalism and comes before the Charter, it suggests that a court would be very wary of infringing protestors' rights unless the municipality could demonstrate a real health and safety concern and that no other means were possible for ensuring safety or security other than a widespread sweep. And "Christmas is coming" isn't going to cut it in cities with multitudes of green space.

The key difference between the Occupy movement and other social protests is that the demonstrators here have it as their goal to occupy our public squares. That fact alone gives their expression meaning. As long as they stay peaceful, local governments will have the burden of demonstrating that existing or new by-laws are a reasonable limit on the protestors' Charter rights. Unless the municipalities can demonstrate that the parks have become so unsafe or violent that the only remedy is to shut them down, the protestors have an arguable case. The 99-percent should be prepared to settle in for a long winter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Derek J. Bell
Ranjan K. Agarwal
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