Will charter protect Occupy protesters from eviction?

A judge's ruling that temporarily thwarted the City of Toronto’s plans to boot Occupy protesters out of a downtown public park has raised some questions regarding the rights of people to set up camp in a public space.

Justice David Brown, who granted a temporary stay on eviction notices on Tuesday, will hear arguments from lawyers for the city and protesters on Friday, leaving municipal officials, for the time being, powerless to clear their own park. He is to make his decision on Monday.

At issue are the rights of the city to enforce its bylaws and remove protesters, who have been camping in the park for over a month, versus the protesters' constitutional rights of freedom of expression, assembly and association.

"Public authorities, governments, including municipal ones, are obliged to respect those rights and freedoms and to limit those rights and freedoms only when they can reasonably justify it," David Schneiderman, a professor of constitutional law at the University of Toronto, told CBC News.

Section 1 of the Charter of Rights and Freedoms guarantees those rights "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Schneiderman points that while the city has an obligation to take measures in defence of the public interests, it must be "reasonable in the circumstances."

Ultimately, the burden shifts to the city to justify the measures that it's taken — in this case, issuing eviction notices — and determine if that’s "proportionate or is this overkill? Are there other alternatives?"

The charter comes into play because the city bylaws — that prohibit erecting tents and structures and camping overnight — effectively ban the protest, Schneiderman said.

"The bylaws, thought not intended to stifle expression, have the effect of doing so and that’s good enough to trigger constitutional analysis," he said.

What makes things complicated, according to Robin Elliot, a professor of constitutional law at the University of British Columbia, is that there are "no set rules about these issues."

"I think probably most would have said that these protesters would have a constitutional right to enter these kinds of properties for the purpose of expressing their views on a matter of public interest. The problem obviously arises when they pitch their tents and stay indefinitely," Elliot told CBC News.

At that point, Elliot says, it becomes tricky, as the countervailing interests of the public at large, local businesses, regular park goers and those who may want to use the property for their own expressive purposes, come into play.

"All those kinds of interests, they’re legitimate, and get put on the other side of the ledger against the interests that these protesters have in being able to continue to make protests," he said.

"At some point I think judges will say: 'Your interest was the most important when you first went on that property, but it is no longer."

Protesters also face "time, place and manner restrictions," meaning they can't just protest at any time of the day, or in any public space they like.

"You can’t go into the prime minister’s office just to make your views known," Elliot said.

As well, not everyone can just pitch a tent in the park to sleep. 

"Hypothetically if we had a right to housing in our Constitution, one could pitch a tent on a public space. We don' t have that in our Constitution so it’s not the case you can pitch a tent and sleep there," Schneiderman said.

But the protesters do have a message and "there’s no question that they are exercising their constitutional rights and the city has an obligation to respect that."