Trespass Notice to Occupy Protestors Constitutional

Today Justice David Brown of the Superior Court of Justice ruled that the City of Toronto’s decision to evict the “Occupy Toronto” protestors who have been camping in St. James Park for a number of weeks passes constitutional scrutiny.  The decision can be found here.  [Note that the decision is not in a format for easy cut/paste so I will fill in many of the quotes in this blog post once it is published in a better online source].  In reaching its decision the court ultimately engaged in a two-step process.  First the court considered whether the eviction of the protestors was being done in breach to a protected Charter right, namely those fundamental freedoms protected under s. 2:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Contrary to submissions made by the City, the court did find that the taking over of a public park does engage s. 2 Charter rights.  Justice Brown held at para. 70:
To be filled in
The court went on to find that the Tresspass Notice would infringe s. 2 fundamental freedoms:
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The law prescribes that there are circumstances where a Charter right may be infringed however the infringement is justifiable given the totality of the circumstances.  This is set out in s. 1 of the Charter:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The next step was for the court to conduct an analysis to see if the infringement is justified.  The Supreme Court set out the test for this determination in a case called R. v. Oakes.  After going throught the various steps in the Oakes test, Justice Brown ultimately held at para. 124 “that the limitations resulting from the enforcement of the Trespass Notice on the applicants’ section 2 freedoms are ‘reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’ “.  Therefore, the trespass notice is deemed to be constitutional.


This blog post was written by Toronto Criminal Lawyer Adam Goodman.  Adam can be reached at 416-477-6793 or by email at

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