The “Occupy Wall Street” movement spread to Canada in mid-October with protests and occupations beginning in a number of cities around the country on October 15, 2011. CCLA is concerned that a number of cities have recently started to suggest that protestors must leave and are considering taking various forms of action to put an end to the protests. All Canadians have the right to expression and to peaceful assembly in public spaces and protests are an important and meaningful manifestation of these rights. Any limitations placed on these rights must be tied to a compelling and pressing objective and must be narrowly tailored in a way that restricts rights as little as possible. CCLA is concerned that the actions of some cities do not meet these requirements and that, in some instances, city officials may not be paying sufficient attention to constitutionally protected rights.
Each situation is unique, and it is impossible to generally assert what a constitutional standard would allow without examining the facts in each case. City officials must work with protestors in each city to try to resolve concerns about health, safety, and peaceful enjoyment of city property by all members of the public. In any case where a city is concerned about protest activities, dialogue with protestors should be the first step. There are many examples of instances where protestors and city officials have managed to work together to ensure that rights to expression, to peaceful assembly and to protest have been respected while addressing concerns voiced by city officials about health and safety, and ensuring that public space is available for other, pre-planned events. For example, protests in Halifax voluntarily left their protest site in order to accommodate two pre-planned ceremonies organized by the City. They agreed to temporarily relocate and will return to their site once the events are over. Along similar lines, protestors in a number of cities have taken steps to comply with various health and safety requirements to ensure that emergency crews can access sites if circumstances so require.
Despite what appear to be several positive examples, CCLA is concerned about some municipalities’ demands that protestors leave sites and threats that have been made to begin charging individuals with trespass or by-law infractions. Such action was taken in London, Ontario when the City warned protestors in an open letter that they could face trespass charges if they continue to stay in the park overnight. In Québec City the City has sent an eviction notice to protestors and the Mayor issued an order that police, fire department and other city workers seize materials they said represented a fire hazard, with threats that tents and permanent installations would be removed next. In Victoria, British Columbia, the Mayor has threatened to shut down the camp, set a deadline of noon on Monday, November 7, 2011 for the protestors to vacate and threatened that those who don’t comply will be fined. Where resolution of disputes cannot be achieved through negotiation, the matter should be referred to a court so that all those involved can be heard by an impartial and independent adjudicator. Public spaces belong to the public, and City officials should not unilaterally issue “eviction notices” or start ticketing where members of the public are exercising constitutionally protected rights. Moreover, CCLA is deeply concerned about the enforcement of municipal by-laws that may place considerable restrictions on expression and peaceful assembly. Many of these by-laws may not comply with the Canadian Charter of Rights and Freedoms and, if challenged, could be struck down as unconstitutional. Using the existence of largely unconstitutional laws to threaten individuals who are peacefully exercising their democratic rights is entirely unacceptable.
CCLA has prepared some resources that may be helpful for protestors in understanding their rights. Please note that each situation is unique and you should consult a lawyer for questions about your specific circumstances and geographic location.