Freedom of Expression, the ‘Occupy’ Movement, and the Dismantling of Tents: A Case Comment on Batty v City of Toronto

A unique feature of the Global Occupy Movement which dominated headlines during the fall months was its ability to harness new forms of online social media to raise awareness, voice political critiques, and to provide some unity to an otherwise disjointed protest. It is perhaps by virtue of this virtual existence that the movement gained speed, spreading quickly with little regard for borders over a couple of months. But it was precisely the physical, permanent manifestation of this virtual existence that was recently contested in Batty v City of Toronto, 2011 ONSC 6862 [Batty], in which the City, somewhat ironically given the movements 99% message, maintained that it could “no longer permit the appropriation of St. James Park by a relatively small group of people to the exclusion of all others.”

On October 15th, protesters taking part in the Occupy Toronto movement began encamping overnight in St. James Park. On November 15th, exactly one month later, City of Toronto officials served the protesters with notices of eviction under the Trespass to Property Act, imposing two limitations on the continued use of the park. The first was a prohibition against installing, erecting, or maintaining tents or structures in the area; the second was a requirement that the park be vacated between the hours of 12:01 a.m. and 5:30 a.m. In response, four protesters commenced an application in the Superior Court challenging the validity of the trespass notice on the basis that it violated their Charter-protected freedoms of conscience, expression, peaceful assembly, and association.

“How do we live together in a community? How do we share common space?” begins a 54-page decision rife with rhetorical flourish that concludes by upholding the validity of the trespass order as a reasonable limit on the applicants’ s. 2(b) freedom of expression. The case is significant for highlighting how the law seeks to facilitate the public expression of private ideas in a way that strikes a balance between protecting the use and enjoyment of public property while ensuring that rights to expression are not rendered meaningless. The balance struck in Batty suggests that when private expression implicates public property, conditions may be imposed which splice the content of messages from the duration of them and which hold that exclusivity of expression cannot be a fundamental attribute of the expression itself.

Section 2(b) Analytic Framework—A mile wide but an inch deep?

The analytic approach adopted by the Supreme Court of Canada (“SCC”) to assessing violations of s. 2(b) involves a consideration of whether the applicants’ conduct or messages have expressive content, whether the method or location of expression removes the prima facie protection afforded to it, and whether government action and legislation infringes the protection either in purpose of effect. At the threshold level, Brown J. easily came to the conclusion that the encampment of St. James Park by the protesters constitutes a political message and thus has expressive content. The threshold inquiry rarely poses a credible hurdle for applicants since the SCC has held that the forms of expression protected by s. 2(b) are infinitely varied—“even the physical act of parking a vehicle might constitute protected expression if the vehicle was parked in an attempt to convey meaning.”

The final two stages of the s. 2(b) test were also easily met. The protesters were not expressing their message through violent means and the conditions imposed by the trespass notices clearly infringed freedom of expression by their very purpose. Thus, the case turned on whether or not the infringement could be justified under s. 1 of the Charter. Such an outcome is typical in freedom of expression cases and is the natural result of how the s. 2(b) test has been framed. The low threshold that must be met by claimants challenging infringements of s. 2(b) reflects an affirmation by the courts of the importance of this basic freedom and a preference for a particular allocation of the burden of proof between claimants and the government. In other words, the qualified marketplace of ideas model which informs the s. 2(b) jurisprudence operates in a way that relieves claimants of the responsibility of showing that their messages (or forms of expression) are worthwhile and instead requires the government to show that infringements of the freedom are reasonable and justified. Thus, much of the analytic work shifts to s. 1.

Section 1—Reasonable Limits and ‘Battlegrounds of Competing Uses’

Applying the Oakes test, Brown J. found that the regulation of structures in public parks and the use of parks during midnight hours is a pressing and substantial objective since “without some balancing of what people can and cannot do in parks, chaos would reign; parks would become battlegrounds of competing uses, rather than oases of tranquility in the concrete jungle.” Further, the measures chosen were rationally connected to the objective since they simply asked “one group of the public to let go of their monopoly over the use of the Park and share [it] with other people in Toronto.”

Next, the measures were found to impair the guaranteed freedom as little as possible. The court accepted that the encampment of the park was an integral element of the message being conveyed as a manifestation of a political commitment to a horizontally democratic, grassroots process. Brown J. quoted the affidavit of the applicants which described the encampment as a “symbol of the evolution of humans from the nationalist rhetoric of our forefathers, to a true unification of all humankind.” Nonetheless, the court held that compliance with the trespass notice is entailed minimal impairment because it does not amount to a total eviction of the protesters from the park.

Finally, the court found there to be adequate proportionality between the deleterious and salutary effects of the measure. This conclusion was supported by a description of the negative effects of the encampment on the serene park grounds (“the occupied areas are largely covered with grass and are gently undulating. They are also well treed, with mature trees”) and affidavits of residents and nearby business owners. Thus, the conditions imposed on the protest struck the appropriate balance relating to private expression in public places and were thus “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Implications—Duration, Exclusivity, and the Dismantling of Tents

On its face, the current s. 2(b) approach seems to suggest that so long as a particular message or mode of expression is not violent, courts will not inquire into the merits of it. It is up to claimants to decide what their message is and to convey it in a way that they deem appropriate. Thus, the Federal Court of Appeal held in Weisfeld v Canada, [1995] 1 FC 68 (FCA), that “expression goes beyond words. People may choose to amplify or dramatize their messages in many ways: a sandwich board, a soapbox, a megaphone, a flag, a banner, a placard, a picture, a petition….” Nonetheless, what Batty highlights is that there are limits on the leeway that a group will be granted to define the precise scope and content of their message.

Despite the deferential approach of courts to protecting wide range of expression, courts can and will impose limits on how the message is defined. On the facts at hand, the court denied the applicants’ position that it is an essential part of their freedom of expression to be able to determine for themselves when leaving the encampment would be consistent with their message. In other words, the content of the message could be spliced from the duration of that message since how a group frames their particular message (ie. as a “prolonged” message) is not determinative in the final analysis.

Further, groups are prevented from defining their message in such a way as to require exclusivity in their use of public property. Brown J. held that finding otherwise would allow “any protest group to come along, assert that monopolizing a particular piece of public space [is] an important part of their political message, and the City would be powerless to object.”

Finally, to the degree that compliance with the trespass notices was held to minimally impair the applicants’ freedom of expression, courts have latitude to splice the mode of expression from the content of the expression. Although the court accepted that the encampment was itself part and parcel of the message conveyed by the protesters, a prohibition on erecting any structures in the park did not undermine the content of the message being conveyed in a way that was disproportional. Overall, the case suggests that despite the low threshold at the s. 2(b) stage, it is inevitable, given the implication of public property and interests, that the courts will inquire into the precise nature of the message at the s.1 stage, even though that is not explicitly what the test sets out to do.

A final point of reflection may be worth mentioning. On December 21st, the final three tents were dismantled at the Occupy Winnipeg site, the location of the last protest site in a major Canadian city. The dissipation of the movement immediately following enforcement of the trespass notices begs the question: were the measures ‘minimally impairing’? It is interesting to note how a movement so virtual could be dismantled so quickly with the physical dismantling of tents.

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