Occupy Movement Loses Injunctions

Following my post earlier this week about the injunction obtained in New York, lawyers for the movement brought their own respective motions in B.C. and Ontario.

Associate Chief Justice Anne MacKenzie of the B.C. Supreme Court ruled on Friday that the protesters must leave the Vancouver site by tomorrow, and a similar injunction was granted in Victoria.

I attended the motion in Toronto on Friday, where the judge has reserved his decision until Monday. Justice Brown was extremely accommodating to members of the media, allowing non-disruptive recordings of the proceedings and the use of electronic equipment, including social media. Given the limited seating in the court house I was situated in the jury box, and I may be one of the first in Ontario to live tweet from a juror’s seat.

Justice Brown also offered to have his registrar email a copy of his decision on Monday directly to members of the media. I will have a copy posted once available on my personal site.

Omar Ha-Redeye at the Occupy Toronto legal tent

From my observations this past week, the biggest problem with the occupy movement is not the constitutional issues, it is the lack of accurate information. But in the land of the blind, the woman or man with the iPad is Queen/King (to paraphrase Erasmus). Individuals in the park have conflicting and often inaccurate about the emerging situations, and rely on updates from mainstream media. Even the General Assembly, the protesters’ mechanism for consultation and organization, obtain their information largely from media rather than counsel or any form of amorphous leadership.

An example of this was that the applicants on Friday were situated at the wrong court room for the hearing. Nobody had notified them that the room had been changed at the last minute until I pointed it out to them.

A more pertinent example would be the scarcity of affidavit evidence before the court demonstrating that there is local business and community support for the movement to offset similar materials filed by the City (at midnight the day before the hearing) from neighbours complaining about the situation. Occupy representatives have been on the news with me talking about their cooperation with local business associations, but the judge only heard about the negative financial impact. Supporters have been rallying for a public petition, but submissions before the court would have had a much stronger impact.

Counsel for the protesters emphasized heavily the role of dialogue and discourse in her argument for minimal impairment, but Justice Brown responded, “They talk about horizontal democracy but I don’t see evidence that they’ve gone out to the neighbours. It’s a two-way street, democracy, not a one-way street.” But politicians have been invited to meetings, and breaking news on Friday indicated that meetings with politicians at all three levels of government were underway with some representatives. Nobody in the court room seemed to know about it.

Justice Brown noted that despite their environmentally-friendly goals, the protesters were inadvertently creating damage to the grass in the park and the roots to the trees. Protesters reading live tweets immediately responded with a willingness to re-sod the park and perform environmental maintenance. But none of these submissions would have been before the court, and I responded to them that I couldn’t pass my iPad to the judge to do so.

The closest semblance to centralization and organization that Occupy Toronto has is the General Assembly, which now has a website up and even posts minutes of their public meetings (which any visitors can attend and observe). The openness and transparency of the movement in many ways mirrors the type of change some of them would like to see in our government.

An explanation of an injunction at Occupy Toronto

The lack of organization though might also be their greatest strength. It will be interesting to see how Justice Brown words his order, because even if he excludes the specific individuals named as applicants from protesting in a similar fashion in the future, there would be enormous challenges of enforceability on other members of the movement who may just move to a different location and call themselves by a different name.

Either way, the protests will not end if an eviction is allowed on Monday. The city was adamant that they were not significantly curtailing expression, because they were only seeking removal of the tents and no protesting from midnight-5 a.m. Protests will continue, and will likely relocate to “safe sites” that have already been identified and set up in advance. We may be seeing the beginning of a much larger movement, one that could impact our generation the way the civil rights movement did before us.

Comments

  1. I doubt that the Occupy movement will have a long-term impact unless it figures out (a) what it wants, more specifically than a more egalitarian society, and (b) how it can get there. In the meantime one recalls how ‘Doonesbury’ had it a week or two back: “What do we want? Nothing! When do we want it? Now!” That is not how the civil rights movement or the ’68 protests in Europe or here made their marks.

    Interesting discussion (including some rebuttals in comments) here.

  2. I don’t see a copy of the ruling by Justice Brown on Omar’s site or on CanLII; in the meantime, the CBC has posted it in PDF (I’ve shortened it because of the length of the URL):

    http://bit.ly/txZsgU

  3. John, I agree. But that will take time.
    Connie, thanks for posting the link. I was tied up with my talk at LSUC this morning, several media interviews, and a visit to the park. I’m putting it up now.

  4. That reasoning’s a bit faulty. I can’t see how rational connection and minimal impairment can coincide. It’s either:

    a.) you accept that this order will end the protest and hence achieve the pressing and substantial objective of facilitating access to the park by others [para. 91], but then you fall prey to overbreadth and ‘absolute ban’ [para. 104 et seq]; OR

    b.) you accept that this will not prevent the protest, but in which case there’s no rational connection because the protesters will continue to occupy 19 hours/day, and non-protesters who visit the park will continue to experience a “face a chilly and somewhat intimidating reception.”

    Can’t have it both ways and this is, after all, a limitation on political speech. Time, manner and place restrictions have always been a real mess, but here I don’t see how you can get around the fact that the medium is the message.

    — Best, Tamir