Court File and Parties
Ontario Court of Justice
Between:
Suzanne Smiley
— And —
The City of Ottawa
Before: Justice of the Peace B. Mackey
Heard on: June 26, 2012
Reasons for Judgment released on: July 16, 2012
Counsel:
- Daniel Nugent, for the applicant, Suzanne Smiley
- Mathieu Charron, for the respondent, The City of Ottawa
JUSTICE OF THE PEACE B. MACKEY:
1: PREAMBLE
1In the autumn of 2011, an Occupy Ottawa demonstration led to an ongoing encampment on the grounds of what is known as Confederation Park, a property managed by the National Capital Commission (NCC), a federal agency, on behalf of the Federal Government.
2Confederation Park is 2.63 hectares in size and a feature of Confederation Boulevard, the Nation's Capital ceremonial and discovery route. It opened in 1967 as part of Canada's centennial celebrations and is located at the corner of Elgin Street and Laurier Street in Ottawa. It is across from the Ontario and Superior Courts of Justice and near Ottawa City Hall. It is down the street from the Cenotaph, the National Arts Centre, the British Embassy, and the House of Commons and Senate of Canada. The NCC uses event permits in order to: safeguard public interest; protect the land; ensure that laws and regulations are respected; and, ensure that the use and the actual event are compatible with the site's purpose and nature. Examples of events requiring permits include: music festivals; sporting events; weddings; work or community picnics with tents or other approved structures; parades; and, fundraisers.
3This protest was widely considered to be similar in nature to others aptly named 'occupy' movements as the protesters physically occupied a public space often through the use of tents and other built structures. The occupation required temporary washroom facilities, heating sources such as fires or propane, electrical outlets and inspections from local authorities regarding fire and health concerns and security and police issues, to name a few of the city resources.
4On November 23, 2011, the applicant of this Charter motion, Suzanne Smiley, took part in this occupation. According to Miss Smiley, her involvement was over a two day or 48 hour period of time during which she herself never set up a tent or other structure in the park. She was there to support the movement and its cause.
5During this time, the City of Ottawa, through the Ottawa Police Service, gave warning to the participants that their time was up in the park, given a number of community and service concerns, and they would have to leave the location. Failure to remove their dwellings and vacate the property would result in a Provincial Offences Act (POA) charge under the Trespass to Property Act. The Ottawa Police Service would facilitate this order.
6She was personally given a directive under the TPA to vacate Confederation Park at 3:25 A.M., on November 23, 2011, and upon her refusal was escorted from the park and given a notice of infraction under Part 1 of the POA. The specific charge is failing to comply with a directive given under the TPA.
7Suzanne Smiley identified herself in court as a single grandmother raising a grandchild. She noted that she is an Outreach Worker with the Jewish Family Services who works with mental health issues. She indicated that her involvement was to open a dialogue on mental health and housing issues.
8Miss Smiley indicated to the Court that she felt the need to support the overall Occupy Movement and agreed with its mantra regarding 1% versus 99%. The issue appears to be one of wealth and power distribution with 1% having and controlling more than their share. The a priori question regarding where this 1% calculation came from, and its validity, remains unanswered.
9This is a Charter motion wherein Miss Smiley contends that her rights to freedom of expression and peaceful assembly have been infringed. She seeks dismissal of the TPA charge against her.
2: VARIOUS ISSUES BEFORE THE COURT
2.1: Jurisdiction
10It was agreed by both parties that this Court has the necessary jurisdiction to grant the remedy sought by the applicant should the court so decide.
2.2: Documentation
11The applicant submitted the case indexed as R. v. Behrens (OCJ-Provincial Offences Court) dated 2001.
12The respondent submitted three (3) cases: Victoria City v. Thompson (BC Supreme Court) dated 2011; Calgary (City) v. Bullock (Alberta Court of Queen's Bench) 2011; and, Batty v. Toronto (City) (Ont. Superior Court of Justice) 2011.
13The Behrens case (R. v. Behrens, 2001) dealt with trespass and the authority of the Speaker of the Ontario Provincial Legislature. The justice in the Provincial Offences Court found that the individual rights of the defendants on
