Is There A Constitutional Right To 'Occupy' With Tents?

As municipal officials across the world begin to flex their muscle and take steps to dismantle tents, yurts, and similar structures established in connection with the local variant of the Occupy Wall Street movement, it seems inevitable that a major question is going to be raised at some point in the Canadian courts:

No, says Derek J. Bell

You can protest every day if you like, but you don't have a constitutional right to sleep in St. James Park.

Municipal officials may not be able to shut down the Occupy protests entirely, whether in Toronto, Vancouver, London or Corner Brook, Newfoundland, without running into some serious constitutional problems. However, does the constitution stand in the way of efforts to take down the "tent cities" that have cropped up in Canadian cities? The answer to this has to be an unequivocal no, and this is for two reasons.

No Charter Rights Would Be Infringed

First, there are really only two constitutional rights that are potentially engaged by any efforts to take down the tents: section 2(b) of the Charter, which protects freedom of expression, and section 2(c) of the Charter, which protects freedom of peaceful assembly. One could try to invoke other rights, such as freedom of association, but in all likelihood a constitutional challenge would principally engage 2(b) and 2(c).

For section 2(b) to be engaged, the activity at issue – pitching tents and living in them – would have to, itself, be "expressive activity". While the courts have typically given an expansive interpretation of what constitutes "expression" (going so far as to say that hate speech is still expression), there are still limits. Most particularly, the activity must be "expressive" in that it must "attempt to convey meaning in a non-violent form": R. v. Sharpe, [2001] 1 S.C.R. 45. While an argument can be made to say that protestors pitching tents are conveying meaning (and my colleague Mr. Agarwal has made a valiant effort in this regard), the evidence from the ground does not bear this out. At the very highest, one could say that the permanence of the occupation is the meaning being conveyed: "we're not going to leave until our demands are satisfied". But this too proves too much: what meaning is conveyed by pitching tents, as opposed to merely staying in the park in a sleeping bag or sitting on a bench? I suggest that there is nothing "expressive" in pitching a tent, unless the protest is really against houses or something similar, such that the symbol of the "tent" has expressive meaning.

Moreover, when one considers the purposes behind the freedom of expression guarantee, it becomes even clearer that pitching a tent does not constitute expression. The first goal of section 2(b) is to foster the seeking and attaining truth, which is viewed to be an inherently "good" activity. While that may well be a goal fostered by the Occupy Toronto movement generally, it is difficult to see what truth is being attained by the pitching of tents, although based on some reports, it sounds as though many Occupy protestors are finding their own "truths" in some of the tents. The second goal – participation in political and social decision-making – is again something that the Occupy movement could embrace, but it is not clear how living in a tent furthers that participation in any way. The last goal – self-fulfilment and human flourishing...