11/18/2011 01:47 EST | Updated 01/18/2012 05:12 EST

Can Mayor Ford Legally Evict Occupy Toronto?

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As Occupy Toronto was given City of Toronto eviction notices citing provincial anti-trespass laws, Occupiers responded by claiming constitutional rights to freedom of assembly and freedom of expression. At the end of the day, a stay of eviction was granted, but the basic questions remain unanswered: Do the protesters have a right to be there? Does the City of Toronto (or any city in Canada) have a right to kick the Occupy protesters out?

It's a question about what our constitutionally guaranteed freedoms actually mean and the answers are... fuzzy. But, there are some things we can say with certainty -- the protesters do have rights of freedom of expression and freedom of assembly under section 2(b) of the Canadian Charter of Rights and Freedoms that protect their protest.

These rights were definitely being exercised on the day the protest started in St. James Park. They're the same rights that let you stop traffic when you march in protest down the street. It may not be legal in any other circumstance to block traffic and take over a public street, but traffic laws can't stop that kind of expression or peaceful assembly when you're making a political statement. In those cases, the Charter is the only law that matters.

In fact, use of a public space for political speech is exactly the kind of thing these rights were made to protect. But there is also a section of the Charter (section 1, actually) which places a "reasonable limit" on the exercise of rights, including fundamental freedoms. That means that a government can infringe these rights in certain circumstances. For example, you probably can't stop traffic on a major street for a month, even if you are making a political statement (I say probably because I'm sure there's a constitutional scholar who could find exactly the facts in which you could do just that). Courts attempt to balance the rights being infringed against the purpose of the government in infringing them, in order to determine whether the reasonable limit has been reached.

In a leading case, the court said that while a city ban on any amplified noise entering Montreal streets (in this case, from a strip club) was a violation of freedom of expression rights, the ban was, nevertheless, a reasonable limit on that right in a free and democratic society. After all, while people have a right to express themselves on a public street, cities have a right to make and enforce laws that protect values such as safety, health, cleanliness and the right of all to enjoy the use of public spaces. That's where Mayor Ford's best argument for his power to evict may come from. It isn't that there's an anti-trespassing law. It's that the law, as it is enforced, is arguably a reasonable limit on the protesters' freedom of expression. And it's debatable, because, whenever they infringe a fundamental right, laws have to achieve "pressing and substantial" aims, without going too far.

Intriguingly, Ontario Superior Court Justice David Brown, the judge hearing the case, suggested at Tuesday's hearing that the 24/7 element of the occupation was "integrally linked" with the Occupy message. Viewed this way, preventing overnight camping is an outright ban on the form of expression that Occupy has chosen. That's harder for the city to justify, but the question of reasonable limits still exists.

The first day they set up shop, the protesters' rights were the strongest they could be. It would be impossible to argue that the moment they arrived, the protesters had reached any reasonable limit. But with each public complaint and passing day, the case for Mayor Ford stepping in and "reasonably limiting" those rights has grown stronger. Now, one month in, the question for the court to answer is whether the protests have already crossed the line, or whether the line still lies far off in the distance.