Freedom of Expression: Occupying Public Space Part One

For weeks now, we have been inundated with the details of the Occupy movement. We know where they are, what they are protesting about, and in this age of technology, we can watch them on our computers. We can also watch the City authorities walk in circles as they try to avoid clashing with the protesters. Some cities have not avoided harm: Occupy Oakland is a good example. But other cities, like Calgary, have tried to give the Occupy movement a wide berth. Unfortunately, patience is now wearing thin with the municipal authorities, the press, and the public, as Occupy Calgary refuse to leave the public space provided to them. This has all the ingredients of a classic Western show-down. 

On the one hand, we have the Charter right of s. 2(b) freedom of expression and on the other, municipal by-laws prohibiting camping in public parks. Up to now, the City has not enforced the by-law and allowed the Occupy movement to inhabit the public space (Canada Olympic Plaza in downtown Calgary). But as the authorities begin to consider ending the occupation, the show-down between the Charter and the City looms. 

This conundrum is, of course, typical Charter fodder: a fundamental freedom is violated and the government must establish the intrusion is justifiable in a free and democratic society under s. 1 of the Charter. In this, our Charter differs dramatically form the American Constitution as our rights are guaranteed yet limited under the Charter : no rights are absolute, yet the s.1 analysis is rigorous. The analysis requires the right to be minimally impaired by the legislation, to be proportionately restrained, and the limit must have a rational connection to the valid legislative purpose of the law. It is a balancing act, which may lead to legislative death but it can also lead to legislative discourse between the Courts and the government. This dialogue can assist in re-framing legislation, which fulfills its objective, but in a Charter friendly manner.

Thankfully, we Canadians are not protest-shy and there are legal precedents to help guide the Occupiers and the Municipal landlords. Join me in tomorrow's post, as I navigate us through the legal side of the issue by looking at Ottawa and Vancouver.