Unsolicited Legal FAQ for Occupy Vancouver
Tuesday, November 8, 2011 by David Eby
There's been lots of chat and considerable misinformation on the Occupy Vancouver Twitter feed about the state of the law. Consider this an unsolicited legal FAQ on some key protest legal issues.
This is general legal information and a good dose of speculation. Those in legal jeopardy should consult a lawyer and provide the lawyer with all the background facts his or her lawyer will need to advise appropriately.
Is there a right to have political structures like tents?
Yes. The B.C. Court of Appeal held in the Falun Gong case that a complete prohibition by the City of Vancouver on structures with expressive political meaning was unconstitutional. The City's redrafted bylaw is now subject to a second constitutional challenge as too restrictive and not being rationally connected to the stated goals of public safety and public access to property.
Does that mean that the Occupy Vancouver tents are legal?
Not necessarily. Key to the Falun Gong decision was that the Falun Gong were not blocking the sidewalk and that the structure presented no structural safety issues. Without commenting on the obvious challenges of making this case, the Occupy Vancouver tents would need to be demonstrated to be presenting no or limited public safety issues, and not unduly restricting pedestrians and/or other uses of public space in order for them to meet the fact pattern of the Falun Gong case where the structures were permitted by the Court.
If OV can't demonstrate that the tents aren't a risk and aren't restricting access to public space, does that mean that OV has to remove all their tents?
A situation like that would mean that the Court, on an injunction application, is very unlikely to refuse the City's request that the tenters be removed. This injunction can be enforced by police. Refusal to adhere to the injunction, including returning to the site after an initial arrest, could result in criminal contempt of Court findings, which could result in imprisonment. See Cameron Ward's comments on that process here. This was the exact mechanism used to detain and imprison activists around the Sea to Sky Highway expansion. In short, OV would have to remove all the tents or have the tents removed for them, or, ultimately, face jail.
However, for many reasons, including likely political support for some of the goals of the Occupy movement generally, as well as a strong desire to avoid an unnecessary confrontation, the City is willing to go beyond their bare constitutional requirements and appears willing to permit political structures on the site that could interfere with some other uses of that public space, including permitting various organizational structures like the "media tent" and "food tent" and so on. The core concern from the City appears to be the residential tents.
In summary, and without wishing to impose my own views on OV, there appears to be a clear choice for OV right now between some compromise and continuing to hold the site (negotiation), or no compromise and arrest(s) as a political statement (City injunction process).
What would likely charges be?
Most of the charges those arrested at OV would face after the injunction would be related to criminal contempt of Court. This would likely be a last resort by the City, as the City would have to ask for these kinds of charges. The penalties for contempt are serious and usually involve jail for people who refuse to refrain from returning to a disputed site.
"Assault by Trespass" charges are restricted for those who actively resist being removed from a site. Passive resistance (going limp and being carried off site) does not qualify under the case law for these charges, and these charges are not common. (Section 41(2))
"Mischief" is always a popular charge, and involves preventing an individual from using his or her property. (Section 430)
"Assault Police" is very common in the melees around mass arrests, and is a very serious charge. Legal Observers often go a long way to disputing allegations of assault police when the "assault" is demonstrated not to have taken place through video. (Section 129)
"Breach of the Peace" is also very common in protests. This is not a chargable offence, so there is never a trial or formal criminal record; however, it is an arrest power that allows police to arrest those breaching the peace or those imminently about to breach the peace, and hold them until the breach is resolved, but not longer than 24 hours. (Usually a period of one to four hours, including processing at the jail.) (Section 31)
This is general legal information and a good dose of speculation. Those in legal jeopardy should consult a lawyer and provide the lawyer with all the background facts his or her lawyer will need to advise appropriately.
Is there a right to have political structures like tents?
Yes. The B.C. Court of Appeal held in the Falun Gong case that a complete prohibition by the City of Vancouver on structures with expressive political meaning was unconstitutional. The City's redrafted bylaw is now subject to a second constitutional challenge as too restrictive and not being rationally connected to the stated goals of public safety and public access to property.
Does that mean that the Occupy Vancouver tents are legal?
Not necessarily. Key to the Falun Gong decision was that the Falun Gong were not blocking the sidewalk and that the structure presented no structural safety issues. Without commenting on the obvious challenges of making this case, the Occupy Vancouver tents would need to be demonstrated to be presenting no or limited public safety issues, and not unduly restricting pedestrians and/or other uses of public space in order for them to meet the fact pattern of the Falun Gong case where the structures were permitted by the Court.
If OV can't demonstrate that the tents aren't a risk and aren't restricting access to public space, does that mean that OV has to remove all their tents?
A situation like that would mean that the Court, on an injunction application, is very unlikely to refuse the City's request that the tenters be removed. This injunction can be enforced by police. Refusal to adhere to the injunction, including returning to the site after an initial arrest, could result in criminal contempt of Court findings, which could result in imprisonment. See Cameron Ward's comments on that process here. This was the exact mechanism used to detain and imprison activists around the Sea to Sky Highway expansion. In short, OV would have to remove all the tents or have the tents removed for them, or, ultimately, face jail.
However, for many reasons, including likely political support for some of the goals of the Occupy movement generally, as well as a strong desire to avoid an unnecessary confrontation, the City is willing to go beyond their bare constitutional requirements and appears willing to permit political structures on the site that could interfere with some other uses of that public space, including permitting various organizational structures like the "media tent" and "food tent" and so on. The core concern from the City appears to be the residential tents.
In summary, and without wishing to impose my own views on OV, there appears to be a clear choice for OV right now between some compromise and continuing to hold the site (negotiation), or no compromise and arrest(s) as a political statement (City injunction process).
What would likely charges be?
Most of the charges those arrested at OV would face after the injunction would be related to criminal contempt of Court. This would likely be a last resort by the City, as the City would have to ask for these kinds of charges. The penalties for contempt are serious and usually involve jail for people who refuse to refrain from returning to a disputed site.
"Assault by Trespass" charges are restricted for those who actively resist being removed from a site. Passive resistance (going limp and being carried off site) does not qualify under the case law for these charges, and these charges are not common. (Section 41(2))
"Mischief" is always a popular charge, and involves preventing an individual from using his or her property. (Section 430)
"Assault Police" is very common in the melees around mass arrests, and is a very serious charge. Legal Observers often go a long way to disputing allegations of assault police when the "assault" is demonstrated not to have taken place through video. (Section 129)
"Breach of the Peace" is also very common in protests. This is not a chargable offence, so there is never a trial or formal criminal record; however, it is an arrest power that allows police to arrest those breaching the peace or those imminently about to breach the peace, and hold them until the breach is resolved, but not longer than 24 hours. (Usually a period of one to four hours, including processing at the jail.) (Section 31)
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Thanks, David. Great work, as always.
Wow! David that's a great post and advice. I suggested much the same in emails to them last night. This is what I said:
"Hi Guys,
I've got an idea for you which comes from my feeling that it's vitally important that you stay there. What you're doing is so important and will become more so as our economy and society deteriorates--which it's going to do before it gets better.
The media and the politicians are beating the drums now for the tents to be taken down. They are hypocrites so they all swear that they support your right to protest, some even say that they agree with you and this is just a matter of safety. So my idea is to turn that against them leaving nothing for them to argue against you. It is somewhat radical but please give it some thought.
What I suggest is that you agree to take down the living tents. But negotiate to keep your infrastructure, the press, media, first--aid, library, food tents and stage. These are open and provide no opportunity to have ODs or other safety issues.
You could possibly then erect one large tent where your volunteers could stay overnight to provide security for the rest of the infrastructure.
This way you maintain a continuity of presence that would not be possible if you have to start over every day. Also if the city moves against you, you probably won't get it back.
...
I follow this closely and think you guys have been doing a great job. ...
Patrick C."
Unfortunately, I didn't hear back and I think that's unfortunate because I think it's much more important to the issues that they stay there and keep the focus on our inequalities.
However whatever happens it will all come up again because things are getting worse not better.