January/February 2012
43
Human Rights Law
Starting in mid 2011, several cities across the world experienced the “Occupy Movement”,
which is directed primarily at social and economic inequality. In many Canadian cities “Occupy
Canada” protestors set up camps, usually on public land. In some locations, officials have threatened
to evict the protestors, citing public safety and health concerns. In others, officials have pointed to
bylaws that prohibit overnight camping in public parks, or have attempted to address shelter and
homeless issues faced by some of the protestors. How might the Canadian Charter of Rights and
Freedoms (“Charter”) apply to the Occupy Movement?
First, it is important to note that each situation needs to be legally evaluated on its own merits.
However, there are some generally applicable legal principles. The Charter provides Canadians with
freedom of expression and freedom of peaceful assembly (sections 2(b) and 2(c)) in public spaces.
In addition, Charter section 7—the right to life, liberty and security of the person—has been used
to successfully challenge a no-camping bylaw in Victoria (see: Victoria (City) v Adams, 2009 BCCA
563). It is important to note that the ruling in that case was based on several important findings of
Occupation and the Right to Protest
Linda McKay-Panos
Column: January/February 2012
44
Human Rights Law
fact, including that a significant number of people had no choice
but to sleep outside, because there was no room at the homeless
shelter.
Charter section 1 provides that there can be legal limitations
on these rights, but they must be tied to a compelling and pressing
objective and must be tailored narrowly in a way that restricts these
rights as little as possible.
Some of the limitations on freedom of expression found
by courts to be constitutional include criminal laws dealing with
the incitement of hatred, obscenity laws, counselling suicide,
and defamation laws. The common limiting factor in these legal
limitations is harm. It is therefore necessary, in certain situations,
to place limits on what people can say or do in order to protect
the safety of others. There is no evidence that the speech made
by Occupy Movement protestors has been hateful, obscene,
defamatory (truth is a defence) or sufficiently harmful to justify its limitation. Thus, it is difficult
to imagine that evicting protestors on these bases would be considered a reasonable limitation on
freedom of expression.
Some of the reasonable limitations on freedom of peaceful assembly include laws that protect
public health and safety, such as those dealing with breaches of the peace, rioting, or causing a
disturbance, and laws that protect parks from damage or harm, or that ensure that public spaces
are available for public use and enjoyment. In order to recognize one of these limitations, the court
would need evidence that harm or damage had occurred. For example, if there were less restrictive
means than banning camping in the public space, then these would need to be used in order for the
law to be found constitutional. Some examples of less restrictive means could include requiring the
campers to take down tents every morning or to respect ecologically sensitive areas. Protestors could
be required to obey existing bylaws that prohibit littering in parks and also prohibit various kinds of
environmental damage.
Calgary officials have responded to some members of the Occupy Movement by offering to fast
track access to housing for those who are homeless (see: CTV Calgary, 4 November 2011 “Occupy
Camp Could be Gone Soon” online: http://calgary.ctv.ca/servlet/an/local/CTVNews/20111104/CGY_occupy_tents_
111104/20111104/?hub=CalgaryHome). Yet, some of the protestors are not homeless. These are camping
in or occupying public space to express their concerns about a variety of issues. City officials must
then balance the Occupy Movement members’ rights with the public’s right to use and enjoy public
spaces. Several cities have said that they will evict protestors or charge them with trespassing or other
bylaw violations. However, since public spaces belong to members of the public, and the public is
exercising constitutionally protected rights, many of these bylaws or other actions taken by authorities
may not be constitutional. The Canadian Civil Liberties Association has said that using “largely
Some of the limitations on
freedom of expression found by
courts to be constitutional include
criminal laws dealing with the
incitement of hatred, obscenity
laws, counselling suicide, and
defamation laws. The common
limiting factor in these legal
limitations is harm.
Column: January/February 2012
45
unconstitutional laws to threaten individuals who are peacefully exercising their democratic rights
is entirely unacceptable” (Cara Zweibel, “CCLA Concerned about Possible Evictions of ‘Occupy’
Protestors” November 7, 2011 online: http://ccla.org/our-work/fundamental-freedoms/freedom-of-assembly)
It has been suggested that the solution to the issue of
balancing protestors’ rights to public spaces should not be addressed
by “negotiations” with the police, but rather by dialogues between
protestors and politicians, who have access to power and who can
actually effect the desired social and legal changes (Trevor Farrow,
(2003) “Negotiation, Mediation, Globalization Protests and Police:
Right Processes; Wrong System, Issues, Parties and Time” 28
Queen’s Law Journal 665 at 703). Perhaps officials wishing to move
the protestors out of the public spaces should agree to engage in
dialogue that could result in change.
Linda McKay-Panos, BEd. JD, LLM
is the Executive Director of the
Alberta Civil Liberties Research
Centre in Calgary, Alberta.
Human Rights Law
Perhaps officials wishing to move
the protestors out of the public
spaces should agree to engage
in dialogue that could result in
change.