TORONTO - Even the lovely judge appears exasperated by the Occupy Toronto encampment.
And hopefully, that irritation will translate Monday into Justice David Brown lifting his temporary injunction and allowing the city to move in and clear the tents from St. James Park.
At an all-day hearing Friday, Occupy Toronto lawyer Susan Ursel argued that dismantling the makeshift camp violates the protesters’ constitutional rights of expression, association and assembly and the tents are an integral “physical manifestation” of their freedom of conscience that must be protected under the Charter.
She asked Brown to issue a permanent injunction so the camp can stay there indefinitely and despite neighbourhood objections, she insisted the city has no grounds to interfere.
But the judge seemed far more sympathetic to area residents who have watched in dismay as their peaceful park has morphed into a loud, smelly, garbage-strewn squatters shanty town.
“It’s obvious they don’t want people in the park when other folks are trying to sleep and when you cover the park with tents, others can’t enjoy the park,” said Brown, a self-described long-time urban dweller. “You’re saying those objections are not pressing and substantial? I don’t understand it.”
The wonderful thing about this no nonsense judge is that he’s saying aloud what so many of us are thinking.
“It’s not an eviction,” Brown insisted at one point. “You can use the park for political expression but ditch the tents and not during the midnight hours.”
But Occupy Toronto argues that they’ve established a mini-utopia in the mud and we have no right to mess with it. “It is an experiment and example of the kind of inclusive, respectful and honest society that Canada could indeed become,” argued Humber College student Bryan Batty in his affidavit.
But before we all start singing Kumbaya, why does their new community get to supersede and inconvenience the one that’s already there?
That’s a question the judge had trouble with as well. He pointed to residents’ who have filed their own sworn statements complaining that they can’t use the park anymore and that the noise and stench emanating from the month-old campsite has become intolerable. One man said the tree he’d planted in memory of his late wife was being destroyed by protesters using it as a place to lock their bikes.
Tough luck, it seems. Occupy Toronto says residents should just use other parks instead.
But where does that end?, the judge rightly demanded. Does the public get excluded from every park where a protest group decides to set up camp? Too bad, so sad? “I don’t see where the logic stops,” Brown said.
And why St. James Park? he continued. What’s the connection between an anti-capitalist protest and a neighbourhood park at Church and King streets? Why not in front of City Hall or the Court of Appeal?
Ursel tried to argue that the park is within the financial district. The impatient Brown quickly that shot down as untrue: Bay Street is many blocks away. So why? he asked again.
“Why not?” was the feeble reply from the Occupy Toronto lawyer.
Undeterred, Ursel insisted the city was required to talk to protesters before issuing the eviction notice. “To what end?” asked the judge. “Their bottom line is: ‘Ain’t going to go anywhere.’ What does the talking get to?”
City lawyer Darrel Smith explained that there’s no legal duty to engage in consultation before enforcing a municipal bylaw. And while Occupy Toronto complains about the lack of dialogue, they never tried to chat before pitching their tents in a city park. “They simply showed up,” he said, “and from their affidavit, they will choose when to leave.”
In the meantime, Smith told the court, neighbours are complaining about harassment. There’s been $25,000 damage to the park’s grass. There are open fires, hazardous wires, tanks of gas and propane on site that pose a danger to health and safety. The city has exercised patience for five weeks but the time has come to disband this tent city.
“They are using the Charter to justify expropriation,” Smith charged. “We’re not limiting their rights to protest, they just can’t sleep there overnight.”
So occupy this, boys and girls: It looks like it’s time to pack up your sleeping bags and go home.
Brown will release his decision Monday morning.
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