As spring weather returns across the Province, there has been some speculation about the possible resurgence of the “Occupy” movement, and the return of protestors to public spaces. If the Occupy protests resume, how should local governments respond if public, civic spaces are the site of encampments or permanent protests?
Thirty years ago, the Canadian Charter of Rights and Freedoms was enacted. With the rise of the “Occupy Wall Street” movement in the Fall of 2011, several local governments in British Columbia had the difficult task of finding a balance between respecting the Charter rights of Occupy protestors, while ensuring the safe and responsible use of public space for everyone. At issue in the ensuing court proceedings was whether local governments could enforce bylaw provisions that prohibited erecting tents or camping overnight in public parks, when such enforcement would effectively ban the protest and potentially infringe upon the protestors’ Charter rights.
Section 2 of the Charter sets out fundamental freedoms particularly relevant to protestors, including:
- Freedom of conscience and religion
- Freedom of thought, belief, opinion and expression
- Freedom of peaceful assembly,
- Freedom of association
Freedom of expression, and associated freedoms such as peaceful assembly, are considered fundamental in Canadian society, and cannot be infringed without clear justification. However, section 1 of the Charter allows the courts to save legislation that would otherwise violate Charter rights if it can be “demonstrably justified in a free and democratic society.”
When bylaws are challenged for infringing upon Charter rights, the courts must engage in a balancing act, weighing individual rights against the interests of the state or the public at large. The factors considered in this balancing act are set out in the case of R. v. Oakes  1 S.C.R. 103, commonly known as the “Oakes” test.
Case law has shown that freedom of expression is not absolute. It does not protect violence, nor does it protect forms of expression that are incompatible with the public places in which they are carried on. As an example, in the decision of R v. Breeden, 2009 BCCA 463, the court considered the freedom of expression rights of a silent protestor standing inside a courthouse wearing signs with antagonistic messages. The messages were found to be intimidating to courthouse staff and the public conducting business in the courthouse, and therefore could not be protected under the Charter. The form of expression was held to be incompatible with the purpose of the place where the protest was occurring.
In the Occupy Vancouver decision, Vancouver (City) v. O’Flynn-Magee et al. 2011 BCSC 1647, the court did not engage in a full Charter analysis, however, Justice MacKenzie considered some of the factors that must be weighed in deciding whether the City’s bylaws should be enforced against the protestors. Justice MacKenzie stated at paragraph 65 of the decision:
“The City has a right to regulate the use of its land, including the type and length of use of public lands. The defendants have chosen to protest at the Art Gallery Lands, but it is in the public interest to allow a variety of users access to public lands. Although Occupy Vancouver may not intend to exclude other groups, the very nature of its protest by the positioning of tents throughout the entire north plaza prevents others from using this public space…”
In Vancouver, the court upheld the public interest in open access to public space, and the promotion of health and safety in respect of public spaces, over the rights of protestors to continue their occupation. The court granted the injunction that resulted in ending the protest.
Whether a local government chooses to take action to end a protest is discretionary, and the decision is often political in nature, however, when a local government does take legal action to effectively end a protest, it is important to remember that the goal of enforcement is not a denial of Charter rights. Rather, it is a balancing of rights – balancing the freedom of expression rights of the protestors against the rights of other members of the public to use and enjoy the space that is being occupied.