Does the Occupy Movement Have Injunctionitis?

Yesterday, Chief Justice Neil Wittmann of the Alberta Court of Queen's Bench released his judgment on the City of Calgary's application for an injunction against Occupy Calgary. This action was the last of a number of Canadian cities attempts to remove the Occupy movement from public spaces. Both the City of Toronto, in Batty v. City of Toronto, and the City of Vancouver, in City of Vancouver v. O'Flynn-Magee, were legally successful in doing so. Now, the City of Calgary can be added to that list as Justice Wittmann allowed the injunction against the Occupy Calgary movement with an order they remove their tents by Friday.

In my previous two postings found here and here, I explained the three step legal test for granting an injunction and the exceptional circumstance where Charter values lie at the core of the request. Where a case involves Charter violations, the injunction application, and the three part test, must be analyzed within the Charter context, even though application is not a directly a Charter claim. Such was the situation in the City of Calgary v. Bullock (Occupy Calgary) and in the O'Flynn-Magee case.

As previously discussed, even if the Charter provides the context for an injunction application, the Court weighs this against the public interest in enforcing valid laws, particularly where the laws are being disobeyed. It is worthwhile, however, to recall that the "public interest" is represented by both the City, as the "protector" of public interest, and by Charter claimants, who identify violations of society's fundamental rights and request the government to respect those rights for all of us.

In the end, the court must balance all of these competing views to determine the just and appropriate decision, whether it be a traditional Charter claim or an injunction application in the Charter context. Although different in aspect, what these cases do share is the finding of violations of s.2(b), freedom of expression, under the Charter.

Despite this finding, as required by our Charter under s.1 and in so many of our legal tests, it is the balancing between government and individual rights which results in the courts' upholding the government's right to allocate public space. Read my previous posting on this issue at The Occupy Movement and The Government's Right to Allocate Public Space.

Thus, in the Calgary decision, the possibility of applying for and receiving a permit to stay in the public area is the appropriate and reasonable method for allocating public space, which makes the City's legislation restricting the Occupy Calgary s.2(b) Charter rights just and appropriate in a free and democratic society.

What the next steps will be for the Occupy movement will remain to be seen but ultimately, it is the public interest, and who can protect it appropriately, that seems to be the winner.