November 15, 2011
Occupy Toronto protesters were granted a temporary reprieve Tuesday evening following a last-minute court injunction against the city’s plans to evict them from St. James Park.
The emergency court ruling capped a tense day for protesters, who had spent most of the time discussing how they would resist the city’s plans to forcibly remove them at midnight.
But rather than clashes with riot police in the park, the movement’s next battles will be fought by lawyers in court.
Justice David Brown ruled the city must allow the 24-hour occupation against social inequality and corporate greed to continue, at least for a few more days.
Brown will hear arguments from Occupy Toronto and the City of Toronto on Friday, and he will make a decision on the encampment’s future by 6 p.m. Saturday.
Until then, current campers may stay but no new tents can be erected.
As the judge left the courtroom Tuesday evening, the protesters in attendance wiggled their fingers in the air — a silent sign of agreement — and hugged.
They later announced plans to hold an “Evict Ford” rally on Saturday.
The legal dispute will pit the protesters’constitutional rights to freedom of expression and assembly against the city’s obligation to clean and maintain the park for the general public.
The city argues the protesters’ Charter rights do not extend to erecting tents and camping overnight in a public park, which contravenes city bylaws and is damaging the park.
But Occupy Toronto’s lawyer Susan Ursel said the tents are in fact part of the protest. “To dismantle the encampment is to abridge that expression,” she said, quoting Marshall McLuhan’s “the medium is the message.”
The protesters also dispute the city’s claim that they are using the park to the exclusion of others.
Brown will decide not who’s right and who’s wrong, but whether the protesters’ Charter rights trump municipal bylaws, said Riali Johannesson, a criminal defence lawyer.
“They’re clearly in breach of those bylaws; the real question is whether those laws are valid.”
Brown has been called upon to rule on high-profile civil rights issues before.
Prior to the 2010 G20 summit in Toronto he was the judge on a case brought by the Canadian Civil Liberties Association against the Toronto Police Service regarding the use of the so-called “sound cannons” against protesters. His ruling was a compromise: the police could use the device, but only in a way that was not detrimental to people’s health.
Whatever Brown rules on Saturday, the formal eviction notices — hand-delivered Tuesday morning by police and bylaw officers — represent the city’s first attempt to put a stop to the encampment, which has made its home at St. James Park since Oct. 15.
The eviction letter, written by city manager Joe Pennachetti, is a notice under the Trespass to Property Act which calls on protesters to remove any tents, structures, equipment and debris from the park, and bars them from entering or using the park between 12:01 a.m. and 5:30 a.m.
The park has taken a beating since the protesters set up camp, and some local businesses say they have suffered as much as 30 per cent in lost sales.
But protesters argue for what they achieved at the park, including a library, daily educational workshops and the feeding and sheltering of more than 100 of the city’s homeless.
“The irony of it is we’ve been inviting a dialogue with the city from the beginning,” said Bryan Batty, a Humber College business student and member of several Occupy Toronto committees. “That’s what the movement has been about: trying to create solutions through dialogue, not dictating solutions. . . . It’s unfortunate they’re not interested in talking.”
Mayor Rob Ford, who has called the encampment “illegal” and refused to visit, was not available to comment Tuesday.
Deputy Mayor Doug Holyday told a news conference that the Ford administration has shown great patience with the protest, but the Occupy camp-out is “over”.
He and Councillor Norm Kelly, the parks committee chair, cited the physical decline of the park as the primary reason for acting now.
Holyday said he hoped the protesters would leave the park peacefully, and would not allow them to relocate to another city-owned park.
“I know that’s probably a tall order but that’s what we’re still hoping for. We’ve given these people every opportunity to protest and they’ve been there for a whole month.”
Meanwhile, Occupy organizers scrambled to reverse a mass call-out for support, according to organizer Taylor Chelsea. A major rally scheduled for 11 p.m. Tuesday had been cancelled, Chelsea said, adding organizers told supporters not to come to the park via phone, social media sites and texting.
If more protesters descended on the park, it would “serve against our purpose” of obliging the injunction, she said. Rather, they discussed the injunction, and organized strategies for “the next step.”
Still, a few hundred protesters showed up at the park to lend their support. But the mood was more celebratory than angry or defiant as people cheered and discussed the upcoming “raid.”
“If it’s tonight, we’ll be ready. If it’s later, we’ll be more ready,” a volunteer facilitator said.
The protesters outlined the plan should the police come to evict them. A three tier system, based on colour, will distinguish those who are willing to be arrested for “non-violent resistance” and those that are not.
Some protesters covered their faces with bandanas and wore goggles.
In response to the eviction notices, 14 councillors signed an open letter to Ford and Pennachetti opposing any eviction until council can meet to discuss the issue later this month.
“The last thing Toronto residents want, whether or not they support the protesters, is to see a repeat of the experience we all went through during the G20,” said Councillor Josh Matlow, who met with some of the protesters on Tuesday. “There’s some young people here that would like to see their city be part of the change they’re asking for. . . . If we find a peaceful resolution, maybe that’s what change can look like.”
Conspicuously absent from the list of opposition councillors is Pam McConnell, a staunch member of council’s left whose ward includes St. James Park.
McConnell said Tuesday was a dark day for her after three weeks in which she acted as a go-between for City Hall and the protesters in a rare show of collaboration by the Ford administration. Pennachetti had heeded suggestions for a city outreach team and more, she said.
“Today they decided they’d rather go into conflict mode rather than resolution mode and I think it’s an opportunity missed,” McConnell said. “The forces that want boots and batons won out today, but this is not over — I will not have a riot in my ward.”
McConnell said she will continue talking to all sides and remains optimistic she can help find a “win-win-win” solution that doesn’t include forced eviction.
But patience for the Occupy protests appears to be wearing thin across North America.
The eviction notices in Toronto were delivered only hours after police and protesters clashed in New York City when the NYPD forcibly removed the Occupy Wall Street encampment in a pre-dawn raid. A court later ruled the eviction was justified.
Last Wednesday, the Occupy encampment in London, Ont., was the first Canadian protest to be dismantled, followed by Regina and Halifax.
The most violent confrontations have occurred in Oakland, Calif., where police used tear gas, flash bombs and mass arrests to remove protesters. Police have twice cleared the Occupy Oakland encampments, only to have protesters return.
Councillor Michael Thompson, a member of the police services board, said it’s time to dismantle the encampment.
“The people involved with Occupy Toronto have had a chance to express their views and concerns,” he said. “The continuity of occupying the park cannot be indefinite.”
Social worker Doug Hatlem, a regular at the occupation, said even if the city succeeds in court it will not stop the occupation.
“They’ll have to jail more than they did at the G20,” Hatlem said. “They can take away our tents, but they can’t stop the movement. We’re too big to jail.”
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