Tuesday, November 29, 2011

U of T Prof Thinks "Free Speech" Is About Being Allowed to Crap in the Park

David Schneiderman, a U of T law professor, is terribly upset about the abridgement of free speech in the land. Oh, not, of course, the free speech that's been trampled on by Section 13, the state censorship provision of Canada's federal "human rights" code. No, Professor S. is concerned about how Occupy Toronto squatters' "free speech" was violated by the judge who ordered them out of the park they had thoroughly trashed:
Though lauded among press and pundits, Justice Brown’s ruling is decidedly disappointing in terms of its contribution to Canada’s developing free speech practice. Protesters were exercising constitutional rights under the Charter, even by physically staying put in the park, Justice Brown rightly held (a proposition that the city had resisted).

Because constitutional rights are not absolute, but can be reasonably limited, much of the judge’s focus appropriately was on the question of whether the governmental restrictions — prohibiting structures and use of the park overnight — were well-tailored to serving the purpose of sharing a common resource with minimal disruption to those living nearby. In cases such as this one, Justice Brown was inclined to apply a deferential standard of review. This was an inquiry that would give the city some room to manoeuvre.

But there was little if any scrutiny of the measures. They were just fine. It was, instead, the protesters who were blameworthy. They are described as “rigid,” “absolutist” and “unilateralist,” exhibiting “not what one would call a sharing attitude.” Justice Brown, nevertheless, was required to ask whether there were alternatives to ejecting the occupiers from the park.

Here again, it is the occupiers who were being unreasonable. They employ several methods to convey their political message, Justice Brown concluded, including signage, web postings and demonstrations and marches. They remain free to engage in those expressive activities for up to 19 hours a day in St. James Park. From this perspective, the government’s response is measured. In the course of his reasons, Justice Brown redefines and reprioritizes the principal means the occupiers have chosen to convey their message, which is (wait for it) . . . to occupy.

Justice Brown could have imagined other ways to accommodate the constitutional rights of occupiers while taking into account the interests of the park’s neighbours — allocating a part of the park for protest purposes, requesting protesters to remove tents that were not occupied, or insisting that noise bylaws overnight be respected, to name a few. He preferred to do none of this. The judicial role mostly was abdicated in order to apply what Brown called “common sense.”

The city policy represents a “reasonable balancing of the rights of all who wish to use the park,” writes Justice Brown. The “rights” of neighbours are never quite specified. There are no property rights in the Canadian Constitution. The right to be free from physical insecurity and threats surely is important and is usually protected by the Criminal Code, not municipal park bylaws. Dog walking, we know, is not a constitutionally guaranteed activity. Freedom of expression is written into the Constitution. This must mean that it receives some sort of priority.

Instead, Justice Brown prefers that solicitude be given to dog walkers. They should not be expected to go to an alternative park because, if the occupiers are correct, the “next protest group espousing a political message” will occupy that park. A hypothetical slippery slope provides cover for the subordination of constitutional freedoms...
Anyone who thinks "free speech" is about allowing squatters to sh*t in a park for as long as they want but has nary a qualm about Section 13 obviously hasn't a clue about what constitutes"free speech"--or about freedom in general.

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