Judge Rules Against Occupy

Occupy Toronto'/ St. James Cathedral at sunset, November 16, the day after the eviction notices. (photo: Graeme Bacque ‎)

Judge Brown ruled against 'Occupy Toronto' today, arguing that rights of local residents to use to use the park trumps the right to protest in this case, and that it is the city who decides park use.

The decision also includes pages of affidavits from local residents who feel that thier right to use the park (espeically to walk dogs) has been infringed. In my opinion, appears to set aside charter rights to protest in favour of pure NIBMY-ism. Nothing is included from local residents who support Occupy or from the many residents of the City of Toronto who support the protest.

Here are some excerpts from the 54 page document:

"

 REASONS FOR DECISION 

I. Overview: Occupy Toronto’s encampment in St. James Park 

A. The question posed 

[1] How do we live together in a community? How do we share common space? These questions have elicited quite different answers in different political communities at different times over the centuries. In our Canadian community we have crafted an understanding which has drawn on long strands tracing their roots back to both secular and religious sources. In the realm of political and civic relationships we have articulated that understanding most recently in the Canadian Charter of Rights and Freedoms. The Charter’s Preamble makes two points: as a consequence of the “supremacy of God”, we all must bring humility to our dealings with our fellow citizens; as a consequence of “the rule of law”, we all must live subject to some rules – we are not unconstrained free actors. 

[2] Now, of course, some dissent from that last point of view. Anarchism has a long political history. But, Canada has not chosen anarchism. Instead, when we collectively adopted the Canadian Charter of Rights and Freedoms some 30 years ago, we embraced, in a constitutional way, a political philosophy which places great emphasis on the liberty of the individual - as can be seen from the various rights and freedoms set out in sections 2 through 15 of the Charter – 

...

B. The question answered 

[8] Four of the applicants filed affidavits which described part of the message of the Protesters as advocating the reform democracy - render it more participatory, “direct”, “horizontal” and ground it on “consensus-based decision making”. As well, their message expresses a fundamental disagreement with the structure of the global economy. Those are most legitimate issues to raise in the public forum. The Protesters have every right to voice their critiques of the current political, economic and financial systems and to seek to bring others over to their point of view. 

[9] Although proclaiming a message of participatory democracy, the evidence, unfortunately, reveals that the Protesters did not practise what they were preaching when they decided to occupy the Park. Specifically, they did not ask those who live and work around the Park or those who use the Park – or their civic representatives – what they would think if the Park was turned into a tent city. 

[10] The Protesters now say, in effect, that the Charter did not require them to ask; that the Charter sanctions their unilateral occupation of the Park– which they intend to continue for an indefinite period of time – because of the importance of their message and the way in which they convey it – by taking over public property. 

[11] With the greatest of respect to the Applicants and the Protesters, they are mistaken. 

[12] The Charter offers no justification for the Protesters’ act of appropriating to their own use – without asking their fellow citizens – a large portion of common public space for an indefinite period of time. 

[13] The Charter does not remove the need to apply common sense and balance to the way we deal with each other in our civic relationships. The Charter does not remove common sense from the process of trying to figure out how to balance the competing rights which now characterize our contemporary Canadian polity. On the contrary, the Charter speaks of “reasonable limits” on guaranteed freedoms, thereby signaling that common sense still must play a role – indeed, a very important role – in that balancing exercise. 

[14] Nor does the Charter remove the obligation on all of us who live in this country to share our common urban space in a fair way. 

[15] The Charter does not permit the Protesters to take over public while at the same time re-iterating that those rights and freedoms are not absolute. Indeed, the first section of our Charter reminds us that individual action must always be alive to its effect on other members of the community: it states that limits can be placed on individual action as long as they are “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. 

[15] The Charter does not permit the Protesters to take over public space without asking, exclude the rest of the public from enjoying their traditional use of that space, and then contend that they are under no obligation to leave. By taking that position and by occupying the Park the Protesters are breaking the law. Such civil disobedience attracts consequences. In this case the civic authority which represents the Toronto community now seeks to enforce the law. It wishes to re-open the Park to the rest of the city to enjoy as was done before. That is what the City sought to do by serving the Trespass Notice last week. For the reasons which I will set out below, I conclude that the Trespass Notice is constitutionally valid. The City may enforce it. I dismiss the application. "