Occupy protests & the Falun Gong precedent

Can tents be considered speech?

As Occupy Toronto gets a slightly bumpy ride in court from Superior Court Justice David Brown, I’ve been waiting for just one legal analyst, amateur or professional, to stumble across what appears to me to be the best, highest-level judicial treatment of the Charter issues that the Occupy movements raise. The case, Vancouver v. Zhang, is all of a year old, and involved a unanimous decision of the B.C. Court of Appeal.

I’m no lawyer, but Zhang seems awfully instructive. The BCCA was presented with a question of crucial importance to the Occupy situations: can a non-artistic structure, in itself, have protected expressive content? Falun Gong protesters had erected a “meditation hut” and a billboard in front of the Chinese consulate on Granville Street. The City Engineer ordered it torn down as an admittedly minor, hypothetical sort of traffic “obstruction”, and the city argued that removing a structure didn’t unduly restrict the protesters’ free-expression rights. City officials weren’t making a political distinction between types of speech, the lawyers contended; they simply had an inflexible mandate to smash any structure that was on city property without a permit.

By the time the case reached the Court of Appeal, the structures were long gone. But the city’s argument got bulldozed by the Court. Its key Occupy-relevant finding was that a structure can, in fact, be Charter-protected content in itself:

[T]he billboard and meditation hut were “part and parcel of the manner” in which the Falun Gong participants chose to express themselves and as deserving of protection. …The structures at issue support the values of democratic discourse and self-fulfillment. The messages posted on the structures express the practitioners’ opposition to some actions of the Chinese government, and the hut expresses their commitment to the practice of meditation as part of their religious identity. The messages have a political nature. “Political expression is at the very heart of the values sought to be protected by the freedom of expression guaranteed by s. 2(b) of the Canadian Charter”…

We have heard many commentators, including lawyers (albeit, I think, ones who don’t specialize in the constitution), assert as a matter of fact that the state, in exercising its right to regulate the use of public property, can force Occupy protesters to seek forms of expression other than tents and billboards and other Occupational paraphernalia. Like it or not, this just isn’t so. Within reason, forms as well as content enjoy the extremely formidable protection that the “fundamental freedoms” in the Charter guarantee. (Further warning: if tents are “expressive” in themselves, it may not matter whether anybody’s actually sleeping in them.)

This protection, as any well-bred schoolchild knows, can disintegrate if the protesters are breaking a law—but the government has a duty to show that the law in question is intended to fulfill an important objective, and that it does so in a rational way that impinges minimally upon the rights of the protesters. The City of Vancouver did not, as it turned out, score 100% on the good old Oakes test.

Yes, said the Court of Appeal, protecting the general usability and attractiveness of the streets of Vancouver is a pressing and substantial objective for government. Yes, the bylaw is a rational way of pursuing that objective. But the city’s policy was unnecessarily arbitrary, said the judges. The law precluded any use of public space for protest, subject only to City Council’s right to make exemptions: the result was an ad-hoc system with no stated standards or guidelines.

Had the Council instituted what might be called a “Political Structure Policy,” as it did policies for commercial and artistic expression, as part of its regulatory scheme, my conclusion might well be different. But they chose to maintain a complete ban and, effectively, to rely on prosecutorial discretion and Council’s power to direct the use of that discretion, to ensure the right to freedom of political expression was not infringed in an individual case. In so doing, I am persuaded, they rendered s. 71 [the structure bylaw] unconstitutional and of no force or effect. They reached beyond that which is permitted to them when political speech is the right sought to be exercised.

Zhang isn’t binding outside B.C., but it does show how senior judges anywhere in Confederation, armed with the full panoply of constitutional precedent, are likely to think through the Occupations. Obviously the BCCA has created a pretty strict test. (Our municipalities have to have “political structure policies” now?) Most city governments are moving slowly against the Occupy protesters: I would suggest it is because they fear they could not pass a test like this, should they choose to break their local Occupy butterflies on the wheel of the law. Moreover, even constructing a policy of the sort the court demanded here would probably be a pretty huge, expensive hassle.

This, in turn, probably provides a hint at why middle-class Canadians might sense an insalubrious slothfulness in their elected representatives when it comes to Occupiers. “The protesters are breaking the law!”, our instincts tell us. “Why can’t we just clear them out?” It’s because there is really more legal peril in the clearing-out than there is in the protests. And, by the way, you and I can agree that this is in general a good thing about Canada, even if we don’t particularly like hippies.

[UPDATE, afternoon of Nov. 19: a reader points out that Occupy Vancouver is citing Zhang in current arguments before the B.C. Supreme Court.]