The Occupy Movement and The Government's Right to Allocate Public Space

Justice can move at a dizzying pace: since Friday, the Occupy movements in Victoria, Vancouver, and Toronto have been ordered by the Courts to obey municipal law and take down their tents. The issue, at least according to B.C. Supreme Court Justice Schultes who granted the Victoria injunction, is the government's right to allocate public space. 

In his oral reasons for granting the extraordinary injunctive remedy, Schultes concluded the City of Victoria, by requesting the order, was "within its rights to mange public spaces in the public interest" and is "free to come to the conclusion that any encampment, wherever and however situated in the square, is not in keeping with the best public use of that space." 

In a previous post from November 4 on Creating A Positive Out Of A Negative, I suggested that the BC Supreme Court in Victoria (City) v. Adams created a Charter right to shelter. Adams involved very specific evidence of a lack of shelter beds for the homeless, causing the homeless to erect a Tent City in a public park. In that case, the Court found an infringement of s.7 right to life, liberty and security of the person as a result of the lack of shelter. In the Court's view, the case was not about property rights. Nor was it about the right to camp in public spaces. It was about human dignity and self-fulfillment of the homeless, who had no alternative but to sleep in temporary shelters in a City park.

How does the Occupy movement situation differ? Although homelessness and poverty does appear to be a theme in the Occupy movement, it is certainly not the reason why all of the members are living in tents in a public space. Certainly the movement would be unable to produce the same kind of evidence as in Adams, which was persuasive in its breadth and depth. Does that mean the case is all about property rights, which is not Charter protected?

Schultes's reasons may provide an answer. By framing the issue as one of public allocation, Schultes was no doubt referring to the Supreme Court of Canada Committee for the Commonwealth of Canada case decided in 1991. There, the members of the Committee were handing out their propaganda at an airport contrary to airport regulations. The Committee members argued their s.2(b) freedom of expression rights were infringed. Although the Court agreed the freedom was infringed, they were split on various issues of the case. One of the issues discussed was the special use, if any, of governmental property as public space.

According to the Court, public space should not be treated like private property as the government held the property for the benefit of the public. Indeed, in Adams, Madam Justice Ross found the public included the homeless. However, the SCC cautioned on a formulistic view of a "public forum" analysis and preferred a contextual approach involving the balancing of the interests of the individual and the interests of the government. Thus, in Chief Justice Lamer's (as he then was) view when expression is restricted in a public place, the legal analysis must examine the

interest of the individual wishing to express himself in a place suitable for such expression and that of the government in effective operation of the place owned by it".

As it is public lands, Lamer, C.J. found it is the "citizens above all who have an interest in seeing that the properties are administered and operated in a manner consistent with their intended purpose."

What does this mean for the Occupy movement? This means as stated by Justice Brown, in granting injunctive relief to the City of Toronto, that "protestors 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" too. Therefore, the right to freely express oneself does not include exclusive use of the space chosen to do it. In other words, there is room in the sandbox for everyone.

In the end, isn't that a good thing? The more the merrier and the more who will hear the message to be conveyed.