Occupy protests & the Falun Gong precedent

Can tents be considered speech?

As Occupy Toronto gets a slightly bumpy ride in court from Superior Court Justice David Brown, I’ve been waiting for just one legal analyst, amateur or professional, to stumble across what appears to me to be the best, highest-level judicial treatment of the Charter issues that the Occupy movements raise. The case, Vancouver v. Zhang, is all of a year old, and involved a unanimous decision of the B.C. Court of Appeal.

I’m no lawyer, but Zhang seems awfully instructive. The BCCA was presented with a question of crucial importance to the Occupy situations: can a non-artistic structure, in itself, have protected expressive content? Falun Gong protesters had erected a “meditation hut” and a billboard in front of the Chinese consulate on Granville Street. The City Engineer ordered it torn down as an admittedly minor, hypothetical sort of traffic “obstruction”, and the city argued that removing a structure didn’t unduly restrict the protesters’ free-expression rights. City officials weren’t making a political distinction between types of speech, the lawyers contended; they simply had an inflexible mandate to smash any structure that was on city property without a permit.

By the time the case reached the Court of Appeal, the structures were long gone. But the city’s argument got bulldozed by the Court. Its key Occupy-relevant finding was that a structure can, in fact, be Charter-protected content in itself:

[T]he billboard and meditation hut were “part and parcel of the manner” in which the Falun Gong participants chose to express themselves and as deserving of protection. …The structures at issue support the values of democratic discourse and self-fulfillment. The messages posted on the structures express the practitioners’ opposition to some actions of the Chinese government, and the hut expresses their commitment to the practice of meditation as part of their religious identity. The messages have a political nature. “Political expression is at the very heart of the values sought to be protected by the freedom of expression guaranteed by s. 2(b) of the Canadian Charter”…

We have heard many commentators, including lawyers (albeit, I think, ones who don’t specialize in the constitution), assert as a matter of fact that the state, in exercising its right to regulate the use of public property, can force Occupy protesters to seek forms of expression other than tents and billboards and other Occupational paraphernalia. Like it or not, this just isn’t so. Within reason, forms as well as content enjoy the extremely formidable protection that the “fundamental freedoms” in the Charter guarantee. (Further warning: if tents are “expressive” in themselves, it may not matter whether anybody’s actually sleeping in them.)

This protection, as any well-bred schoolchild knows, can disintegrate if the protesters are breaking a law—but the government has a duty to show that the law in question is intended to fulfill an important objective, and that it does so in a rational way that impinges minimally upon the rights of the protesters. The City of Vancouver did not, as it turned out, score 100% on the good old Oakes test.

Yes, said the Court of Appeal, protecting the general usability and attractiveness of the streets of Vancouver is a pressing and substantial objective for government. Yes, the bylaw is a rational way of pursuing that objective. But the city’s policy was unnecessarily arbitrary, said the judges. The law precluded any use of public space for protest, subject only to City Council’s right to make exemptions: the result was an ad-hoc system with no stated standards or guidelines.

Had the Council instituted what might be called a “Political Structure Policy,” as it did policies for commercial and artistic expression, as part of its regulatory scheme, my conclusion might well be different. But they chose to maintain a complete ban and, effectively, to rely on prosecutorial discretion and Council’s power to direct the use of that discretion, to ensure the right to freedom of political expression was not infringed in an individual case. In so doing, I am persuaded, they rendered s. 71 [the structure bylaw] unconstitutional and of no force or effect. They reached beyond that which is permitted to them when political speech is the right sought to be exercised.

Zhang isn’t binding outside B.C., but it does show how senior judges anywhere in Confederation, armed with the full panoply of constitutional precedent, are likely to think through the Occupations. Obviously the BCCA has created a pretty strict test. (Our municipalities have to have “political structure policies” now?) Most city governments are moving slowly against the Occupy protesters: I would suggest it is because they fear they could not pass a test like this, should they choose to break their local Occupy butterflies on the wheel of the law. Moreover, even constructing a policy of the sort the court demanded here would probably be a pretty huge, expensive hassle.

This, in turn, probably provides a hint at why middle-class Canadians might sense an insalubrious slothfulness in their elected representatives when it comes to Occupiers. “The protesters are breaking the law!”, our instincts tell us. “Why can’t we just clear them out?” It’s because there is really more legal peril in the clearing-out than there is in the protests. And, by the way, you and I can agree that this is in general a good thing about Canada, even if we don’t particularly like hippies.

[UPDATE, afternoon of Nov. 19: a reader points out that Occupy Vancouver is citing Zhang in current arguments before the B.C. Supreme Court.]

Occupy protests & the Falun Gong precedent

  1. Anyone know the equivalent case law for the U.S.?

  2. We are all God’s children, even the dirty hippies, which means we have inalienable rights to speech/assembly and, also, there are no laws against stupidity. There is quite a bit of fascism within Canada and authorities justify their behaviour by citing nonsensical health and safety concerns. 

    Up The Arsenal! 

    Adam Smith ~ Virtue is more to be feared than vice, because its excesses are not subject to the regulation of conscience

    • I’m not one of god’s children, do I still have those rights?

  3. Good article.  If I heard one more time that these people were just camping, I was going to scream.  We really need to do a bit more reading on civil disobedience (including passive protest) and the critical role that it plays in a democracy. I know that a local Halifax magazine is going to do a series on past peaceful protests in Halifax to show that there is a very long rich history of protest that has taken many different forms.  

    • So, Krista, tell us what they’re doing. More importantly, tell us what public policy changes would be required for them to stop.

      *watches tumbleweeds roll by*

      Hmmm, sounds a little bit like they are just camping.

      • No, but they are apparently making people like you nervous. LOL

      • Whether or not you understand what a protest is about, or frankly, whether or not a group of protesters has a set of specifically stated goals, is pretty much completely immaterial to a discussion of the appropriate limits on their right to protest.

        • It’s not as immaterial as all that. The protest must have expressive content to receive protection, and the structures must have some connection to that content. In Zhang, the meditation hut was deemed protectable because it was part of a religious message. So FACLC’s question is not entirely beside the point.

          • S’hard dancing on the head of a pin, innit…..

          • Well, fine, it’s not COMPLETELY immaterial, but the lack of a list of policy changes that would get the protesters to stop protesting is hardly important, is it?  I don’t see any evidence that the Falung Gong protesters had a list of demands that they wanted implemented in order to bring their protest to a halt.  I’m quite CERTAIN they had no demands to make of the City of Vancouver.

            It’s true, one can’t just be “camping”, and I’m not sure tents themselves should be considered “expressive content”, but FACLC’s comment seems to suggest that if a group of protesters doesn’t have a list of concrete demands that they want implemented then they’re “just camping”, and I think that’s ludicrous.  

            It’s pretty clear that the OWS protesters are protesting against the over-concentration of wealth and power in the hands of a tiny minority, and against what they view as the undue influence of corporations and the wealthy on politics.  To my mind it’s clear that they’re expressing a political point of view, and I don’t think one is obligated to develop a list of proposed remedies to a perceived injustice in order to garner constitutional protection for one’s protests against said perceived injustice.

            Now, whether or not the tents themselves are protected as a form of expression is another question entirely.  However, I do think that arguably ”occupying” an area (peacefully, and without undue negative impact on others of course) could conceivably be construed as a form of expression, and I could see a judge arguing that if that form of expression is valid and to be protected, one can hardly argue “You have a right to express yourself in this way, but only if you’re willing to get pneumonia and/or freeze to death”.  Or, I could certainly see a judge ruling that the tents aren’t protected too, because they are merely structures, and not in any way a “form of expression”.

            So, yes, the question of whether or not the tents count as a form of expression, or have some “expressive content” is certainly not beside the point.  However, that also wasn’t the point that FACLC was making either.  What FACLC was saying was that if the protesters don’t have a list of what “public policy changes would be required for them to stop” then they must be “just camping”.  Which again, I think is ludicrous.

    • Not just camping. Squatting, doing drugs, other stuff. That better? 

      • Well, they’re halting all west coast shipping in Dec….you find that funny too?

  4. “The protesters are breaking the law!”, our instincts tell us. “Why can’t we just clear them out?” It’s because there is really more legal peril in the clearing-out than there is in the protests. And, by the way, you and I can agree that this is in general a good thing about Canada, even if we don’t particularly like hippies.”

    Could any self respecting journalist of written thus and kept a straight face/line pre-charter? Probably not!

    Good of the court to recognize the rather obvious distinction between me parking my tent in a park and claiming i have the right to live wherever i so choose and a form of political protest.

     ”Freedom is not free”! I read on one occuper tepee tent wall. One shouldn’t have to seek an exception from a bylaw in order for that fundamental truth to be evident. Life under the charter may not be perfect and someimes it seems as if the whole top heavy structure might one day topple over; but it is a damn sight better then being subject to the arbirary whims of public sentiment and official caprice.
    It is quite a bit less of a direct line from hippies are dirty let’s ban them out of our parks [ some of which our officials never set foot in anyway] to let’s round up all the hippies and put them behind bars or on reserves then we might think.
    Good article CC.

    • Nice Complisult.

  5. If the courts determine that the Occupiers have “an expressive right” to remain put, we’re going to live to regret it. Enshrining the right to civil disobedience in law might elicit cheers from the usual suspects. But I doubt they would be so charitably inclined to towards defending the “democratic rights” of protesters who were aligned with a cause for which they had no sympathy. 

    • Gosh, like say anti-choice people or tea-baggers?

    • Enshrining the right to civil disobedience in law might elicit cheers from the usual suspects.

      Why?  The right to civil disobedience is already pretty well enshrined in law.  All we’re talking about here is what are the reasonable limits that can be imposed on that right.

    • As often occurs with things Charter related, the question will be “what is reasonable”.  If anti-abortion protestors, for instance, want to stage long-term protests that is OK with me and possibly with courts as well.  It’s unlikely they’d be allowed to do it directly outside of abortion clinics or in a manner that intimidates women seeking abortions (same as it is now, in fact).

  6. History shows that there is no shortcut to
    long-term change. But the Occupy movement has
    found their voice and that voice not be silenced.  61% of
    Canadians polled, support these protesters. It takes time for the public to think, understand and
    eventually learn to identify with their own best interests as opposed to the interests
    of the 1%. In time, a coherent political
    program will emerge into a
    force to be reckoned with. It’s long overdue.

    • I wonder about that 61%, or specifically, how you can parse the question.  I support the OWSers too, at least as far as the right to gather and my own desire to see the barons of finance brought to heel for their shenanigans.  But just because I (and many others) hate crony capitalism does not mean we want to make the OWSers platform (what little is coherent) the law of the land.

    • You are totally out to lunch and in the wrong country – nothing but a bunch of bullies.  Looking forward to seeing some arrests now that Mayor Moonbeam is safe from the polls.

      “Today at Occupy Vancouver the people moved from the eternal process of the general assembly to the exciting world of direct action. The Run on the banks action marks an escalation on an occupation that’s been busy building infrastructure. This was not an official occupy Vancouver action but an offshoot as stated on occupy Vancouver’s twitter account. Now that it’s become clear that the rain will not scare away the die hards, autonomous groups can disperse their actions outside the camp and disrupt the corporate death machine.
      But the cherry on top was the Occupation of TD AKA Toronto Dominion bank right next to the Vancouver Art Gallery camp. A home stereo was cranked to the max and the people rocked out on top of teller desks and furniture. The police quietly moved in and occupied the spots where tellers once stood to protect their corporate masters. Finally the group decided to move out en-masse and avoid arrest.”

       http://www.youtube.com/watch?v=WleEyZBrLX8&feature=related 

      • You keep using that word (bully) I do not think it means what you think it does.

        • I am sure those tellers at the TD Bank felt threatened.  TD was the first bank in the DTES to reach out to those that had never had a bank account, were cashing their welfare/disability cheques at high fee pay-day loans and/or getting robbed by keeping cash on them.

          • Their whole run on the banks thing is idiotic, if you really parse it.  Like you’re better off keeping your cash in a mattress rather than investing it.  Way to promote financial literacy, folks.

  7. Looks like the judge in Toronto has his own take on things.  The municipalities better get crackn’ on  “political structure policies”. 

    “In a written ruling, Justice David Brown rejected Occupy’s request for an injunction on the basis that the makeshift tent village is a protected form of protest under the Charter of Rights and Freedoms.

    “Anarchism has a long political history,” the judge wrote. “But, Canada has not chosen anarchism.”

    The Charter emphasizes personal liberties, he added in the 54-page ruling, but “reminds us that individual action must always be alive to its effect on other members of the community.

    Brown said it came down to the protesters’ rights to the park not trumping those of the people who live and work around it.

    “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,” he wrote.

    “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.

    “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.

    “With the greatest of respect to the applicants and the Protesters, they are mistaken.”

    http://www.thestar.com/news/article/1090158–city-can-dismantle-occupy-camp-judge-rules

    • AKA, the only allowable forms of protest are those that will not get noticed.

      • Occupy Vancouver costs are estimated to be $1 million – money that could have gone to the needy. 

        A 23 year old died and lay for 12 hours in one of those tents before someone noticed she was dead.

         

        • One million dollars will barely get you into the top 1%, and the odds of that money going to the needy, considering that it’s provincial money that pays for welfare and the like, not city money, are pretty much near zero anyway.

          And how long does a homeless person typically lay before someone notices they’re dead?

          And finally, what relevance does either of those factoids have?

    • If you own a farm, or are just occupying one, do not bet it on this ruling surviving an appeal.

      • Wouldn’t think of it – here is a lawyer using some of your points in today’s G&M
         
        “Of course, the city provided Judge Brown with evidence that some people living near St. James Park had their use of the park limited or eliminated by the Occupy Toronto presence. On the other hand, it is evident that one of the essential ingredients of all the Occupy movements is “occupation.” Thus, the decision clearly deals Occupy Toronto a potentially fatal blow.
         
        There could easily have been real compromises that would strike a much fairer balancing of the interests at stake. For example, the Occupiers could be ordered to vacate a third of the park. That would allow plenty of room for all of the activities that the city argued were being prevented by Occupy Toronto.
         
        The Oakes test requires minimal impairment of Charter rights; yesterday’s decision maximally impaired the rights of Occupy Toronto.”
         
        http://www.theglobeandmail.com/news/opinions/opinion/it-wasnt-necessary-to-order-occupy-toronto-to-fold-its-tents/article2244026/
         
         
        Still like the NP pundit’s suggestion from a few weeks ago – loud speakers at Occupy locations with Stephen Harper playing piano and singing Beatle’s tunes 24/7   :-)

  8. The right to claim structures as part of a political statement is rather nuanced in that ruling.  It would be more accurate to state that the city by-law ran afoul of the charter because of its blanket prohibition on erecting structures for political speech.  The ruling probably doesn’t even help the Occupy protesters very much due to the following citation: “[35]           The question is not whether the form of the expression is compatible with the function of the street, but whether free expression in the chosen form would undermine the values the guarantee is designed to promote … To answer this question, the following factors should be considered:
    (a) the historical or actual function of the place; and
    (b) whether other aspects of the place suggest that expression within it would undermine the values underlying free expression.” 
    Occupying the whole park for their protest infringes on the rights of others to use it for their free expression.

    • I have mixed feelings about Colby’s argument here.  Of course there are similarities between the Occupy case and the Falun Gong case.  Duh.  But never underestimate the ability of jurists to distinguish cases on their facts.  And there are some factual differences which could prove to be important when the Occupy Vancouver case goes to full trial (i.e., post-injunction).  The Falun Gong case had to do with use of a sidewalk, and, initially, whether the proper use of a sidewalk was being unduly impeded and restricted by the protest structures.  Also, the Falun Gong people weren’t really carrying out an occupation per se.  They were more concerned with having permanent and prominent structures in place to publicize their beef with the Chinese government. 

  9. Somewhat related, I really got a chuckle out of a sign I saw online from one of the Occupy protests today:

    If they enforced banking regulations the way they enforce park rules we wouldn’t be in this mess in the first place!

    LOL

    • So what banking regulations in Canada have we failed to enforce?

      • It was a sign from the U.S. OWS protests in NY actually, but regardless, I wasn’t really pointing to it as a highly accurate description of the situation (though I think in the U.S. it arguably could be, though I suppose even there it was more a situation of there not being any regulations to break) so much as just a clever sign.

        That said, I’d be willing to bet that many more people are gong to go to jail for camping in public parks than went to jail for almost destroying the world economy. And I’m certain that none of even the worst of the financial offenders was ever pepper-sprayed or hit with a baton, lol.

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