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Occupy goes to court

“Time, place and manner that’s what this case is about,” Justice David Brown said Friday, part way through six hours of mind-bending legal arguments on the fourth floor of 361 University, where four Occupy activists put their case for an injunction against the city’s attempt to evict St. James’ tent city.

The compelling issue here, in case you’ve missed it in the gang-up on Occupy, is the Charter of Rights and where it does and doesn’t don’t cover particular kinds of political expression. And more particulary, whether constitutional guarantees to expression over-ride a municipal by-law. Yikes.

In a blitz of case references, Susan Ursel, lawyer for occupiers Bryan Batty, Lana Goldberg, Dave Vasey, Anne Crooke and Mari Reeve-Newson, and city counsel, Darrel Smith battled it out, and engaged with the judge in a competition of legal memory.

The injunction bid follows last Tuesday’s notice from the city advising campers they were in violation of the Trespass to Property Act and ordering structures and tents dismantled and the vacation of the park from midnight to five-thirty in the morning.

So what was said? No question the judge was much more quarrelous with Ursel than the city’s Smith, at one point calling one of her arguments “nonsensical”. But he attempted to mitigate later saying, “it’s rash for anyone to take any comfort from anything I’ve said today.”

Still, who knows what he’ll find compelling this weekend as he crafts the ruling, due 9am Monday morning, which will decide the fate of the St. James village.

Here is a shortform selected paraphrase of some of the key arguments and exchanges. URSEL: The encampment is the physical manifestation of protesters exercise of conscience and this expression is protected by section 2 under the Charter of Rights and Freedoms. Expression goes beyond mere words, and freedom of conscience is a broadly interpreted right. The camp is a sign of permanence and central to conveying the strength of protesters’ belief.

JUDGE: There are lots of communes, like Rochdale, etc, so what with this?

URSEL: Protesters are trying to model conflict resolution and community building and create a discussion centre for social change.

JUDGE: Why didn’t they seek a permit? Is it part of their ideology that they don’t think structure of government are legitimate. Some signs at the protest have anarchist symbols, so maybe they don’t recognize current structures.

URSEL: The camp has many points of view, not just that one. And the park’s department’s Richard Ubbens in documents said they don’t give permits for after-midnight use.

JUDGE: If I was to beat a drum all night – does the timing of my activist attract section 2 protection? The word “eviction” has been used, but it’s not an eviction notice – it just says don’t erect tents and don’t use the park at night.

URSEL: The city’s action infringes section 2 and makes the expression of the encampment impossible. The city is substituting its view of how protesters should express themselves for how protesters actually want to.

JUDGE: Residents want to lie on the grass and have no noise in the middle of the night – isn’t that pressing and substantial? Afer all, we’re living on top of each other in this city.

URSEL: Occupiers want to have dialogue and cooperation. There needs to be an opportunity to weigh out protesters rights and neigbours. We have to use the standard of proportionality

JUDGE: Does the city have a specific duty to dialogue as a precursor to enforcing laws?

What’s the precedent for that? In a few years there will no parks left if we accommodate all protets. I’m not seeing a principal basis for the location the neighbors are screaming.

URSEL: That’s were dialogue comes in. There are deleterious effects to rights with a city ban and no proportionality between a ban and the complaints of neighbors.

JUDGE: Here is the harm: 1) complaints of neighbors and busines owners 2) the need for winter maintenance in the park 3) the grass is denuded and that it will cost $30,000 to re-sod. Who pays for that?

URSEL: This is public use of parks for Charter purposes. The protesters are open to negotiating these issues.

JUDGE: They talk about horizontal democracy but they haven’t gone to neighbors to talk to them about this.

URSEL: The public is welcome, there’s an outreach committee, a website, they’re taking care of pathways.

JUDGE: I know, there are committees all over the place.

JILL COPELAND, lawyer with the Canadian Civil Liberties Association: The desire to avoid inconvenience or avoid economic costs or non-urgent maintenance are not justifed in impeding the use of Charter rights.

SMITH: The city’s notice was not draconian it was measured. It doesn’t prevent protesters from leafletting or demonstrating. It only limits them from living in tents. How does not sleeping overnight infringe on the right to assembly? They don’t assemble in the night.

SMITH: Protesters talk of dialogue but they sought no permission in setting up and now they seek an order allowing them to stay as long as they want. They are using the Charter to justify an appropriation. We did a balancing act. They’ve had their five weeks in the park and now they can have 19 hours a day. That is reasonable and appropriate.

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