Occupation and the right to protest.

• Author: McKay-Panos, Linda
• Position: 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 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...