Batty v. City of Toronto

In a decision released November 21, 2011, Justice David Brown of the Ontario Superior Court of Justice upheld the eviction notice served on Occupy Toronto protesters.

Occupy protesters have been camping in St. James Park since the middle of October. The Occupy Toronto protest is part of the global Occupy movement that began in New York City in September and seeks to raise awareness about economic inequality and corporate greed.

On November 15, 2011, the City served Occupy Toronto protesters with a Notice under the Trespass to Property Act. The Notice requires protesters to take down their tents and other structures and to stay out of City parks between the hours of midnight and 5:30 a.m. Occupy Toronto obtained a temporary injunction preventing the City from evicting protesters until the Notice could be challenged.

On Friday, November 18, Occupy Toronto and the City appeared before Justice Brown to make submissions concerning the constitutionality of the Notice and City bylaw. Occupy Toronto maintained that the Notice and bylaw breached s. 2 of the Canadian Charter of Rights and Freedoms which guarantees freedom of expression, peaceful assembly, association and conscience.

Justice Brown held that the structures erected by the protesters in the park formed part of the manner of expressing their political message and therefore engaged s. 2 of the Charter. Since the Trespass Notice would impact and restrict that expressive activity, assembly and association, as well as the manifestation of their conscientious beliefs, he concluded that the enforcement of the Notice would infringe the applicants’ fundamental freedoms under s. 2.

However, he upheld held the Notice and bylaw under s. 1 of the Charter, which provides that the rights and freedoms set out in the Charter are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." In determining whether a breach of Charter rights can be "saved" under s. 1, a court must apply a two-step test, which was set out by the Supreme Court of Canada in R. v. Oakes. First, the court must conclude that the impugned law or government action has a pressing and substantial objective. Second, the means chosen to achieve the objective must be reasonable and demonstrably justified. This second step requires the government to demonstrate that the measures taken to achieve the objective are rationally connected to the objective; that the measures impair "as little as possible" the right or freedom in question; and that there is proportionality between the impact of the measures and the objective.

In this case, Justice Brown held that the violation of protesters' rights under s. 2 was a reasonable limit under s. 1 of the Charter. He noted that the objective of the parks by-law, which the Trespass Notice sought to enforce, was "an attempt 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." The by-law's regulation of the erection of structures in public parks and the use of parks during the midnight hours was therefore, he concluded, a pressing and substantial objective.

He also held that the Trespass Notice and by-law were reasonable under the second step of the s. 1 test. The by-law restrictions were rationally connected to the objective and minimally impaired Charter rights. In this regard, the Judge rejected the applicants' claim that requiring them to dismantle their tents and stay out of the park at night constituted an absolute ban on their freedom of expression:

Compliance with the Trespass Notice would alter the Protesters’ use of the Park – no structures, and absence during the midnight hours – but would not evict the protest from the Park. The Protesters would continue to be allowed to protest in the Park for close to 19 hours a day – hardly an absolute ban on their expressive activities.

He also rejected the argument that the by-law was overbroad, noting that the protesters had not sought a permit under the by-law and the argument was therefore "hypothetical". Finally, the Judge concluded that there was proportionality between the impact of the measures and the objective. In this respect, he held:

...the Trespass Notice would have the effect of ending the Protesters monopoly of a public park in downtown Toronto and requiring them to share it with the rest of the public. In seeking compliance with two provisions of the Parks By-law, the Trespass Notice would have the effect of ending the Protesters monopoly of a public park in downtown Toronto and requiring them to share it with the rest of the public. The Protesters have ample means left to express their message, including continued use of the Park (but no structures or “midnight hours”), and other Torontonians can resume their use of the Park. In my view such a result would more than meet the test for proportionality of deleterious and salutary effects.

In the result, the Judge concluded that the Trespass Notice was constitutionally valid and could be enforced by the City.

You can read the decision here.

SGM's Jill Copeland and Daniel Iny represented the Canadian Civil Liberties Association which intervened in the case in support of the Occupy Toronto protesters. The CCLA's factum is here.