Should governments be removing Occupy protesters from their camps?
That’s been a key question as cities began issuing orders to clear the various sites that have sprung up across Canada.
The moves to clear the camps raise obvious constitutional questions. In a recent written debate between two Bennett Jones LLP lawyers, the pair argued the constitutional issues.
On the one hand, partner Derek Bell said that while removing the protesters could be an infringement to provisions protecting freedom of expression and freedom of peaceful assembly under the Charter of Rights and Freedoms, those sections of the Constitution don’t necessarily uphold the right to exercise those freedoms while staying in tents.
“What meaning is conveyed by pitching tents, as opposed to merely staying in the park in a sleeping bag or sitting on a bench?” Bell asked.
But firm associate Ranjan Agarwal has a different view. “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,” he wrote.
“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.’”
Both arguments are reasonable. Certainly, Bell makes a good point that the tents aren’t necessarily integral to the message protesters are expressing and that, even if they are, other concerns, such as public health and safety, likely provide for an argument for reasonable limits on the rights to expression and association.
Agarwal, meanwhile, has tapped into the sentiment that there appears to be something different about the Occupy protests. “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,” he wrote.
Agarwal made particularly strong arguments rejecting the notion that the concerns about the camps raised so far could provide a reasonable limits justification for removing the protesters.
In Victoria, for example, authorities raised the argument for taking down the camps in order to prepare for Christmas activities. Agarwal was quick to shoot down that justification given that “‘Christmas is coming’ isn’t going to cut it in cities with multitudes of green space.”
Beyond the legal issues, which the Superior Court was to consider this weekend in relation to Toronto’s bid to remove protesters based on the Trespass to Property Act, those dealing with the issue across Canada should be ready to compromise.
The Occupy protesters have a legitimate message that they can link to the use of tents, and their actions don’t represent a huge burden on the public, especially since they’ve been non-violent.
But if there are legitimate health and safety concerns, the protesters should be willing to allow authorities into the parks to deal with them. If they do so, cities across Canada should let them stay and continue to have their say.
— Glenn Kauth
