Calgary (City) v. Bullock (Occupy Calgary), 2011 ABQB 764

Court of Queen ’ s Bench of Alberta Citation: Calgary (City) v.

Bullock (Occupy Calgary), 2011 ABQB 764 Date: 20111206 Docket: 1101 15728 Registry: Calgary Between: The City of Calgary Applicant - and - James Bullock, Paul Teveres, Brent Gordon Talbot, Chelsea Pratchett, Christopher David Beggs, David Lewis Wollf, Derrick Justin Frank, Tavis John Ford, Aaron Eugene Doncaster, Teran Dane Wyer, Alana Dawn Marie Erikson, Vanessa Marie McNally, John Doe, Jane Doe and Other Persons Operating as “ Occupy Calgary ” in Calgary, Alberta Respondents _______________________________________________________ Reasons for Judgment of the Honourable Chief Justice Neil Wittmann _______________________________________________________ [ 1 ] The Applicant City of Calgary seeks an order: (

a) Abridging time for service of its originating application and affidavits;

(

b) Enjoining the Respondents from their continuing breaches of City of Calgary Bylaw 20M2003; (

c) Providing that the Respondents shall immediately remove all tents, structures and other material from Olympic Plaza; (

d) Enjoining the Respondents from erecting tents or other structures and from camping in any other park or on any property owned by the City, except where it is expressly allowed or they have been granted a permit to do so by the City that has not expired or been revoked; and (

e) Providing that the Calgary Police Service shall enforce the provisions of this order if requested to do so by the City. 1. Background [ 2 ] The City of Calgary is the owner of the lands located at 222 8 th Avenue SE, in Calgary, Alberta. The lands are known as Olympic Plaza. Olympic Plaza is a park within the meaning of City of Calgary Bylaw 20M2002 , the “Parks and Pathways bylaw”. [ 3 ] On October 15, 2011, a group of individuals collectively styled “Occupy Calgary” set up a number of tents on the grassy portions of Olympic Plaza.

Though the number of individuals and the number of tents have varied over time, the Occupy Calgary encampment has been continuous. [ 4 ] On November 14 2011, a Public Notice was posted by the City of Calgary on the pillars and poles around the perimeter of Olympic Plaza. The Public Notice indicated that the City would commence enforcement of the Parks and Pathways Bylaw at 9:00 a.m. on November 15, 2011. On November 15, 2011, a number of City of Calgary Bylaw Enforcement Officers distributed Warning Notices to individuals they identified as being part of the Occupy Calgary encampment.

They also posted Warning Notices on unoccupied tents by way of a zip tie. The Warning Notices indicated that tents and structures must be removed within 24 hours or they would be impounded. [ 5 ] Notwithstanding the issuance of the Warning Notices, the City took no immediate steps to impound the tents and structures erected by the Occupy Calgary group at Olympic Plaza.

Instead, on November 18, 2011, the City made an offer to the Occupy Calgary group: in exchange for the removal of tents and structures from Olympic Plaza, the city would set up and pay for a series of public forums for a dialogue on issues identified by Occupy Calgary, and would allow Occupy Calgary to maintain a presence in Olympic Plaza during normal operational hours of 6:00 a.m. to 11:00 p.m.

The City received no affirmative reply by its deadline of 5:00 p.m. on November 21, 2011. [ 6 ] At 11:30 p.m. on November 21, 2011, City Bylaw Officers attended at Olympic Plaza, impounded unoccupied tents and issued summonses to the individuals present in the park at that time, for entering or remaining in a park when closed, or for camping in a park, contrary to s. 4(2)(

a) and s. 9(a), respectively, of the Parks and Pathways Bylaw. Despite the issuance of these summonses, the encampment at Olympic Plaza remains. 2. Legislation [ 7 ] Sections 3 , 7 and 8 of the Municipal Government Act, R.S.A. 2000, c.M-26 set out municipal purposes, jurisdiction and powers under bylaws. Those sections provide: 3 The purposes of a municipality are (

a) to provide good government, (

b) to provide services, facilities or other things that, in the opinion of council, are necessary or desirable for all or a part of the municipality, and

(

c) to develop and maintain safe and viable communities. 7 A council may pass bylaws for municipal purposes respecting the following matters: (

a) the safety, health and welfare of people and the protection of people and property; (

b) people, activities and things in, on or near a public place or place that is open to the public; (

c) nuisances, including unsightly property; ... (

f) services provided by or on behalf of the municipality; ... (

i) the enforcement of bylaws made under this or any other enactment, including any or all of the following: (

i) the creation of offences; (ii) for each offence, imposing a fine not exceeding $10 000 or imprisonment for not more than one year, or both; (iii) providing for the imposition of a penalty for an offence that is in addition to a fine or imprisonment so long as the penalty relates to a fee, cost, rate, toll or charge that is associated with the conduct that gives rise to the offence; (iv) providing that a specified penalty prescribed under

section 44 of the Provincial Offences Procedure Act is reduced by a specified amount if the penalty is paid within a specified time; (

v) providing for imprisonment for not more than one year for non-payment of a fine or penalty; (vi) providing that a person who contravenes a bylaw may pay an amount established by bylaw and if the amount is paid, the person will not be prosecuted for the contravention; (vii) providing for inspections to determine if bylaws are being complied with; (viii) remedying contraventions of bylaws. 8 Without restricting

section 7 , a council may in a bylaw passed under this Division (

a) regulate or prohibit; (

b) deal with any development, activity, industry, business or thing in different ways, divide each of them into classes and deal with each class in different ways; (

c) provide for a system of licences, permits or approvals, including any or all of the following: (

i) establishing fees for licences, permits and approvals, including fees for licences, permits and approvals that may be in the nature of a reasonable tax for the activity authorized or for the purpose of raising revenue; (ii) establishing fees for licences, permits and approvals that are higher for persons or businesses who do not reside or maintain a place of business in the municipality; (iii) prohibiting development, activity, industry, business or thing until a licence, permit or approval has been granted; (iv) providing that terms and conditions may be imposed on any licence, permit or approval, the nature of the terms and conditions and who may impose them; (

v) setting out the conditions that must be met before a licence, permit or approval is granted or renewed, the nature of the conditions and who may impose them; (vi) providing for the duration of licences, permits and approvals and their suspension or cancellation for failure to comply with a term or condition or the bylaw or for any other reason specified in the bylaw; (c.1) establish and specify the fees, rates, fares, tariffs or charges that may be charged for the hire of taxis or limousines; (

d) provide for an appeal, the body that is to decide the appeal and related matters.

[ 8 ]

Section 554 of the Municipal Government Act provides: 554(1) When (

a) a structure is being constructed in contravention of an enactment that a municipality is authorized to enforce or a bylaw, (

b) a contravention of this Act, another enactment that a municipality is authorized to enforce or a bylaw is of a continuing nature, or (

c) any person is carrying on business or is doing any act, matter or thing without having paid money required to be paid by a bylaw, in addition to any other remedy and penalty imposed by this or any other enactment or a bylaw, the municipality may apply to the Court of Queen’s Bench for an injunction or other order.

(2) The Court may grant or refuse the injunction or other order or may make any other order that in its opinion the justice of the case requires. [ 9 ] Under its powers pursuant to ss. 7 and 8 of the Municipal Government Act , the City of Calgary passed the Parks and Pathways Bylaw. The Parks and Pathways Bylaw, in s. 4 provides that all city parks, with certain exceptions not relevant here, are closed to the public between the hours of 11:00 p.m. to 5:00 a.m., and that no person shall enter or remain in a park when it is closed.

In s. 9, the Parks and Pathways Bylaw prohibits camping or erecting any tent or structure in a park, except by permit. 3. The Evidence [ 10 ] Grant Lyons is a fire investigator with the City of Calgary Fire Department. At 1:30 a.m. on November 16, 2011, Mr. Lyons was called to Olympic Plaza to investigate a fire that had occurred in a tent in the Occupy Calgary encampment.

His examination revealed that a candle had caused the tent to ignite, resulting in serious burns to two members of the Occupy Calgary group, both of whom were transported to the Foothills Hospital for treatment of their injuries. [ 11 ] Stephanie Barnett is an Event Coordinator with the Recreation department of the City of Calgary. It is Ms.

Barnett’s evidence that a number of events are scheduled to be held in Olympic Plaza in the coming months, including the opening of the outdoor skating rink on November 23, a religious procession on December 4, a New Year’s eve event on December 31, 2011 and Hockey Day in Calgary on January 1, 2012. Ms. Barnett says that a number of elementary schools are scheduled to participate in “Sing & Skate” events in December, but many have expressed concerns about the presence of the Occupy Calgary group in Olympic Plaza at the time of the events.

The organizers of Hockey Day in Calgary have also expressed concern about the presence of the Occupy Calgary group. [ 12 ] Bashir Jamal is a Manager within the Parks business unit of the City of Calgary. He says that the presence of the Occupy Calgary group has disrupted the regular fall maintenance of Olympic Plaza.

His estimate of total and projected costs incurred by the City of Calgary as a result of the Occupy Calgary encampment, for items such as security, staff overtime, portable toilets and site reclamation and repairs, is $53,343.87. [ 13 ] Christopher Beggs is a Respondent and a member of the Occupy Calgary group. He asserts that the encampment represents a message of protest against global capitalism, the unjust concentration of wealth in society and the influence of the most wealthy upon government. Mr.

Beggs swears – and the City concedes – that the tents set up by the Occupy Calgary group form a part of the group’s message. They are, in effect, a form of expression protected under s. 2(

b) of the Canadian Charter of Rights and Freedoms . Mr. Beggs calculates that the Occupy Calgary group takes up approximately 7.6% to 8.2% of the space at Olympic Plaza and does not block any pathways or facilities. He further swears that Occupy Calgary has demonstrated an ability to coexist with previous public events at Olympic Plaza. [ 14 ] Michael Belanger is also a Respondent and member of the Occupy Calgary group. He asserts that the broad remedies sought

by the City represent unreasonable limitations upon his freedom of expression and assembly, and further that he has attempted and continues to attempt to obtain legal counsel to challenge this application. [ 15 ] Janet Bacon is not a named Respondent, but identifies herself as a member of the Occupy Calgary group. She has assisted in erecting the encampment and has provide food and financial support to the group.

She says that the encampment is not unsightly and does not obstruct others from using the park. [ 16 ] In addition to the foregoing evidence which has been provided by way of affidavit, the Respondents Chelsea Pratchett, Tavis Ford and Aaron Doncaster have filed Statement of Defence in Form 11.

The Court recognizes that the Respondents have not had the assistance of counsel in preparing a response to this Application, but it is nevertheless necessary to note that the Statement of Defence is the proper pleading to respond to an action brought by way of a Statement of Claim, not to an action commenced by way of Originating Application under Rule 3.8(1).

In any event, the position taken by the Respondents in the Statement of Defence is that the encampment is a peaceful presence that does not block pathways and uses only a small portion of Olympic Plaza, and that any requirement to obtain a permit would place an undue burden on their Charter right of free expression. In their Statement of Defence, they ask for an adjournment that would allow them to challenge the Park and Pathways Bylaw as unconstitutional. 4. Parties Served, and the Abridgment of Time [ 17 ] This matter was heard on December 2, 2011.

At that time, the City provided Affidavits of Service indicating that the named Respondents Talbot, Pratchett, Ford, and Doncaster had been served with the Originating Application on November 23, 2011. In addition, the City served a number of members of the Occupy Calgary group who were not named personally in the Originating Application: Herbert Hubert, Sarah Scout, Richard Hazen, Brandon Kelley, Henyk Szydlowski, Ryan Gilmartin, Mark Gilmour, Lance Eagle Speaker, Leon Cross Mountain and Jaccqueline Slat.

The Affidavits of Service filed by the City indicate that a number of other individuals refused to identify themselves. The City also attempted to serve members of the Occupy Calgary group by delivering the Originating Application to nine tents located at Olympic Plaza. [ 18 ] Initially, the Occupy Calgary group appeared to be represented by an individual named Ben Christensen, who is not a named Respondent but identified himself as a member of the Occupy Calgary group.

In response to concerns that were raised in the Belanger affidavit and the Pratchett, Ford and Doncaster Statement of Defence about adequate service, the abridgment of time, obtaining legal counsel and the proposed constitutional challenge to the provisions of the Parks and Pathways Bylaw, the Court suggested that the members of the Occupy Group consider applying for an adjournment. After a brief adjournment to consider the Court’s suggestion, it appears that the members of the Occupy Calgary group divided on the question of whether they wanted Mr. Christensen to represent them.

A survey of the Occupy Calgary group present was conducted, indicating that the named Respondents Bullock, Talbot, Pratchett, Beggs, Wollf, Frank, Ford, Doncaster, Erikson and McNally did not wish to seek an adjournment. Nor did Hubert, Scout, Kelley or Szydlowski, who were not named but had been served. No other member of the Occupy Calgary group sought an adjournment or contested the City’s application to abridge time for service. The matter was therefore allowed to proceed. 5. Occupy Toronto and Occupy Vancouver [ 19 ] Similar encampments have been set up by groups in Toronto and Vancouver.

Those groups have already come before the superior courts of Ontario and British Columbia. In both cases the orders that have issued effectively put an end to the encampments, but the different ways in which the matters came before these courts resulted in two very different decisions. [ 20 ] Batty v. City of Toronto , 2011 ONSC 6862 came about as the result an application commenced by the Occupy Toronto group, challenging the constitutional validity of a Trespass Notice issued by the City of Toronto on November 15, 2011.

An interim injunction was issued by Brown J. that same day, requiring the City of Toronto to refrain from enforcing the Trespass Notice and restraining the Occupy Toronto group from installing additional tents or structures in St. James Park. Notices of Constitutional Questions were then served by the applicants upon the provincial and federal Attornies General, and the Canadian Civil Liberties Association was granted leave to intervene in the hearing of the matter which took place on November 18 and 19, 2011.

The Occupy Toronto group was represented by counsel. [ 21 ] After a thorough review of the considerable amount of evidence put before him – which included affidavits from 11 residents and two business owners living and working in the vicinity of the park– Brown J. concluded that the enforcement of the Trespass Notice would infringe the applicants fundamental freedoms under s. 2 of the Charter . It was then necessary to determine whether this

infringement could be justified under s. 1 of the Charter. That analysis requires a court to consider (

a) whether the limit imposed uponthe Charter right is prescribed by law, and (

b) whether the limit can be demonstrably justified in a free and democratic society. [22] In considering this second requirement a court will apply the Oakes test, which is described in RJR-MacDonald Inc. v.Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199, at para 60: In Oakes, supra, this Court set out two broad criteria as a framework to guide courts in determining whether a limitation is demonstrablyjustified in a free and democratic society.

The first is that the objective the limit is designed to achieve must be of sufficient importanceto warrant overriding the constitutionally protected right or freedom. The second is that the measures chosen to achieve the objectivemust be proportional to the objective.

The proportionality requirement has three aspects: the measures chosen must be rationallyconnected to the objective; they must impair the guaranteed right or freedom as little as possible; and there must be proportionalitybetween the deleterious effects of the measures and their salutary effects. [23] Brown J. concluded that the Trespass Notice was a constitutional limit prescribed by law within the meaning of s. 1 of theCharter.

Applying the Oakes test, he concluded that the regulation of the erection of structures in public parks and the use of parksduring the midnight hours is a pressing and substantial objective because it is necessary to balance the competing interests of peopleusing city parks; in the alternative, chaos would reign. Brown J. further concluded that the Trespass Notice and the resulting removal ofthe Occupy Toronto encampment was proportional to this objective.

In his view it was rationally connected because the Trespass Noticesought to ensure that the Occupy Toronto group would relinquish their “monopoly” over the use of the park and share it with other users.It amounted to a minimal impairment because it did not amount to an absolute ban on the Occupy Toronto group’s right to convey itsmessage, or even to use the park to convey its message. Finally, Brown J. concluded with respect to proportionality, at para. 123: I have no hesitation in concluding that the evidence shows that there is proportionality.

In seeking compliance with two provisions of theParks By-law, the Trespass Notice would have the effect of ending the Protesters monopoly of a public park in downtown Toronto andrequiring them to share it with the rest of the public. The Protesters have ample means left to express their message, including continueduse of the Park (but no structures or “midnight hours”) and other Torontonians can resume their use of the Park. In my view such a resultwould more than meet the test for proportionality of deleterious and salutary effects. [24] In City of Vancouver v.

O’Flynn-Magee, 2011 BCSC 1647, the City of Vancouver brought an application for a statutoryinterlocutory injunction requiring the Occupy Vancouver group to comply the provisions of Vancouver’s City Land Regulation bylaw.MacKenzie A.C.J. noted at para.23 that while the Occupy Vancouver defendants were not challenging the constitutional validity of theVancouver bylaw at the interlocutory stage, they did contend that their Charter rights were “engaged” and that the bylaw was“constitutionally suspect”.

Noting that Charter arguments have complex factual foundations, MacKenzie A.C.J. held, at para. 26: Although constitutional challenges and other complex arguments may be relevant to the dispute, at the interlocutory injunction stage,pending a trial on the merits, the public interest suggests that the statutory regime or status quo be maintained. [25] As a result, the decision in City of Vancouver does not focus upon the alleged infringement of s. 2 rights and whether thatinfringement is justified under s. 1, but instead upon whether the City of Vancouver met the test for an interlocutory statutory injunctionas set out in Maple Ridge (District) v.

Thornhill Aggregates Ltd., (BC CA), 54 B.C.L.R. (3d) 155 or alternatively the test in RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 111 D.L.R. (4th) 385 (S.C.C.). Noting thatthere was some uncertainty in the law of British Columbia as to the appropriate test, MacKenzie A.C.J. described the Thornhill test atpara. 30: Thus, the onus is on the City to show that there has been a clear breach of the by-law.

If it does, the court will grant the injunction unlessthere are exceptional circumstances that permit it to use its narrow discretion to deny it. [26] Applying this test, MacKenzie A.C.J. concluded that the Occupy Vancouver encampment constituted a clear breach of thebylaw and found no exceptional circumstances to justify a refusal of the statutory interlocutory injunction. MacKenzie A.C.J. went onthe apply the test from R.J.R.-MacDonald Inc., which requires the Court to consider whether the applicant has (

a) demonstrated a fairquestion to be tried; (

b) would suffer irreparable harm if an injunction is not granted and; (

c) whether the balance of convenience favoursthe granting of an injunction. She concluded that the City of Vancouver’s application constituted a serious question to be tried, noting indoing so that the constitutional validity of the bylaw was not an issue because it was not a part of the City of Vancouver’s case. Shepointed out that irreparable harm in the context of the RJR-MacDonald test refers to the nature, rather than extent, of the harm suffered

and concluded that an award of damages could not properly compensate the public “for the irreparable harm in terms of the use of publicproperty”. Finally, MacKenzie A.C.J. concluded that the balance of convenience favoured the City of Vancouver. She pointed out thatwhile Occupy Vancouver may not have intended to exclude the use of the park by other groups, the positioning of its tents throughoutthe park prevented others from using the space, and further that the City of Vancouver had an obligation to regulate its parks to maintainsafety and as such could be liable for the activities occurring there. 6.

Occupy Calgary: The Relief Sought [27] This is not an application to challenge the constitutional validity of the Parks and Pathways Bylaw, though it appears that atleast some members of the Occupy Calgary group would like to do so. This is an application for injunctive relief pursuant to s. 554 of theMunicipal Government Act. [28] Injunctive relief sought pursuant to s. 554 of the Municipal Government Act is statutory, not equitable, in nature. In MapleRidge District v. Thornhill Aggregates Ltd., [1998] B.C.J.

No. 1485 (C.A.) the British Columbia Court of Appeal held, at paras. 7 and 9: The source for the injunction in the case under appeal is statutory, and not equitable. Factors that might be considered by a court in anapplication for an equitable injunction will be of limited, if any, application to the grant of a statutorily based injunction... ... Where an injunction is sought to enforce a public right, the courts will be reluctant to refuse it on discretionary grounds.

To the extentthat the appellants may suffer hardship from the imposition and enforcement of an injunction, this will not outweigh the public interest inhaving the law obeyed. [29] This is consistent with the approach taken by the courts of this Province in respect of relief sought under s. 554 of theMunicipal Government Act. The test recently applied by Rawlins J. in Pawlowski v. Calgary (City), 2008 ABQB 267 was the one set outby the Alberta Court of Appeal in Alberta (Attorney General) v.

Plantation Indoor Plants Ltd. (1982), 1982 ABCA 1 , 34 A.R.348 at para. 13: ... the history of the matter must clearly demonstrate, as it does here, an open and continuous disregard of an imperative public statuteand its usual sanctions which is unlikely to be thwarted without the intervention of the court. See also Parkland (County) v. Barakat Industries Ltd., 2004 ABQB 822. [30] To this I would add that it is open to the Court to deny statutory injunctive relief where there are exceptional circumstancesthat would warrant doing so: Vancouver (City) v.

Maurice, 2002 BCSC 1421; aff’d: 2005 BCCA 37, at para. 34; O-Flynn-Magee, supra,at para. 30. A number of members of the Occupy Calgary group have given evidence to the effect that their rights under s. 2 of theCharter of Rights and Freedoms will be infringed in the event an injunction is issued that would enforce the Parks and Pathways Bylawand result in the removal of the encampment. A violation of the Respondents’ s. 2 Charter rights that is not saved by application of s. 1would constitute a special circumstance that would preclude granting the injunction.

It is therefore necessary to determine whether therelief sought by the City would result in a violation of the Respondents’ Charter rights.

Section 2 and

Section 1 of the Charter

Section 2 of the Charter of Rights and Freedoms provides: 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. [31] The City of Calgary has conceded that the Occupy Calgary encampment constitutes expressive activity that falls within thescope of s. 2(

b) The City has further conceded that the effect of injunctive relief requiring the dismantling of the encampment will be torestrict the Respondents’ expression. [32]

Section 1 of the Charter provides: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limitsprescribed by law as can be demonstrably justified in a free and democratic society. [33] When a right under s. 2 of the Charter has been infringed, it is necessary to determine whether that infringement is a“reasonable limit prescribed by law” that “can be demonstrably justified in a free and democratic society”. 7(

a) Prescribed by Law [34] An action taken by a municipality pursuant to a municipal bylaw is one that is prescribed by law within the meaning of s. l:Montreal v. 2952-1366 Quebec Inc., 2005 SCC 62 , [2005] 3 S.C.R. 141; Greater Vancouver Transportation Authority v.Canadian Federation of Students - British Columbia Component, 2009 SCC 31 , [2009] 2 S.C.R. 295. 7(

b) Reasonable and Demonstrably Justified [35] The criteria for determining whether a limit prescribed by law to a Charter right is reasonable and demonstrably justified wereset out in R. v. Oakes, (SCC), [1986] 1 S.C.R. 103. The Oakes test is succinctly laid out in Hogg: Constitutional Law of Canada, 5th ed. (Toronto: Looseleaf) at p. 38-18: 1. Sufficiently important objective: The law must pursue an objective that is sufficiently important to justify limiting a Charter right. 2. Rational connection: The law must be rationally connected to the objective. 3.

Least drastic means: The law must impair the right no more than is necessary to accomplish the objective. 4. Proportionate effect: The law must not have a disproportionately severe effect on the persons to whom it applies. [36] In undertaking a s. 1 analysis, Courts will typically first consider the importance of the objective, and group the latter threecriteria under the broad heading of “proportionality”. 7(

c) Importance of the Objective

[37] The municipal objectives set out in s. 3 of the Municipal Government Act include the provision of services, facilities, or otherthings that, in the opinion of council, are necessary or desirable for the municipality, as well as developing and maintaining safe andviable communities. One of the things the City of Calgary has done in furtherance of these objectives has been to establish nearly 4000parks throughout the city. These parks are an essential part of the fabric of the community.

Exercising some control over the competingdemands for these parks, maintaining them in good condition, and taking measures to ensure their essential safety, are importantobjectives. As Brown J. noted in Batty, at para.91, absent regulation of the competing demands for city parks, chaos would reign. 7(

d) Proportionality [38] It is necessary for the City to demonstrate that the closure of city parks between 11 p.m. and 5 a.m., and the prohibition ofcamping or the erection of tents or structures within city parks are limits proportionate to the effect of limiting the Respondents’constitutionally protected rights under s. 2. In determining proportionality, it is necessary to consider whether these provisions of theParks and Pathways Bylaw are rationally connected to the objective; whether they impair the guaranteed rights as little as possible; andwhether there is proportionality between deleterious and salutary effects of the measures. 7(d)(

i) Rational Connection [39] I have no difficulty in concluding that prohibiting the erection of structures and camping within city parks, and the closure ofparks between 11 p.m. and 9 a.m., are limits rationally connected to the objectives of providing and maintaining open access andregulating competing demands to a safe system of city parks. 7(d)(ii) Least Drastic Means, or Minimal Impairment [40] The next step of the Oakes test is to ask whether the enforcement of the provisions of the Parks and Pathways Bylaw wouldimpair as little as possible the Respondents’ s. 2 rights.

This step is frequently described as the “minimal impairment test”. It is often themost contentious and difficult part of a s. 1 analysis. It is described in RJR-Macdonald, at para. 160, as follows: The impairment must be “minimal”, that is, the law must be carefully tailored so that rights are impaired no more than necessary. Thetailoring process seldom admits of perfection and the courts must accord some leeway to the legislator.

If the law falls within a range ofreasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailorobjective to infringement... On the other hand, if the government fails to explain why a significantly less intrusive and equally effectivemeasure was not chosen, the law may fail. [41] Though the minimal impairment test may appear to grant the court a wide authority to imagine any number of alternatives toan existing legislative scheme and thereby rule it unconstitutional, it is actually subject to two important limiting factors.

The first is thatthere must be a measure of deference to the choices made by the legislating body in the course of determining whether those choicesamount to the least drastic means. As the British Columbia Court of Appeal pointed out in Vancouver (City) v. Zhang, 2010 BCCA 450,at para. 67: “the By-law must be looked at as part of an entire regulatory scheme in which a general prohibition is necessary because theCity could not foresee every encroachment or obstruction”. [42] The second, as pointed out by McLachlin C.J. in Hutterian Brethren of Wilson Colony v.

Alberta, 2009 SCC 37 ,[2009] 2 S.C.R. 567, at para. 54, is that “the minimum impairment test requires only that the government choose the least drastic meansof achieving its objectives. Less drastic means which do not actually achieve the government’s objective are not considered at thisstage”. [43] The question, then, is whether there are alternatives to the limits imposed by the Parks and Pathways bylaw that would, in theabsence of those limits, also satisfy the objectives of exercising control over competing interests in the parks, properly maintaining them,and ensuring their safety.

Here, it should be noted that there is a permit application process whereby it is possible to obtain permission tocamp or erect structures in a city park, so the limit cannot be described as absolute. The permit requirement allows the City to knowwhere encampments or structures are located and to consider safety, security and open access issues that arise when one group of peopleseek to use city parkland to the exclusion of others.

It should also be noted that the effect of enforcing the bylaw would only be topreclude camping, the erection of structures, and presence in Olympic Plaza between the hours of 11 p.m. and 5 a.m. The City has madeit clear that the Occupy Calgary group is welcome to remain in the park during regular hours and indeed has no means by which it may

prevent them from doing so. [ 44 ] The Occupy Calgary group has not proposed any alternatives to these limits that would meet the City’s objectives. Nor can I imagine any alternative to the general prohibition with the exception of the permit scheme that has been implemented by the City and is enshrined in the Bylaw. A permanent encampment is not conducive to park maintenance or security. Even where the permanent encampment does not occupy the entirety of a park, or does not obstruct pathways, it amounts to exclusive use of a portion of the park and inhibits use by others.

It prevents the City from granting exclusive use of the park by permit to those other groups or organizations that may apply. The presence of individuals in city parks during the hours that those parks are closed raises a host of security and maintenance issues. It is important to note that the City is under a duty to take reasonable care to ensure the safety of its parks.

The mandatory closure of parks overnight is surely a component of the exercise of the City’s duty in this regard and one for which I can imagine no reasonable alternative. [ 45 ] The limits imposed by the Parks and Pathways Bylaw meet the test of minimally impairing the rights of the Respondents. 7(d)(iii)Proportionate Effect [ 46 ] In the final stage of the Oakes analysis, it is necessary to ask whether the limit imposed upon the Respondents’ Charter rights is proportionate to the public benefit conferred by that limit.

The public benefit does not consist solely of the removal of a number of tents from certain portions of Olympic Plaza. The public benefit that comes with the limits imposed by the Parks and Pathways Bylaw is nothing less than a working system of municipal parks. Absent those limits, the City has no ability to balance the competing interests of all of its citizens in its parks and would be seriously hindered in its ability to provide parks that are properly maintained and safe. The deleterious effects upon the Respondents’ Charter rights are limited.

They may not camp in Olympic Plaza, or be present there between the hours of 11 p.m. to 5 a.m. They are free to communicate their message at that location, outside of those hours, so long as they do not erect structures in the park. In my view the public benefits of the relevant portions of the Parks and Pathways Bylaw outweigh the negative effects upon the Respondents’ Charter rights. 8. Conclusion [ 47 ] The evidence clearly shows that the Occupy Calgary group has established an encampment at Olympic Plaza in violation of the provisions of the Parks and Pathways Bylaw.

That tents have been erected there, and that members of the Occupy Calgary group remain in the park during the hours that it is closed, is not disputed by the Respondents. Warnings and summonses have been issued by the City of Calgary, but the encampment remains. There is, to paraphrase, an open and continuous disregard of the Parks and Pathways Bylaw and its usual sanctions. [ 48 ] The City, having conceded that the enforcement of the Parks and Pathways Bylaw would infringe upon the Respondents’ s. 2 Charter rights, makes it necessary to consider whether that infringement is justified under s. 1 .

In my view, action taken to enforce the Parks and Pathways bylaw withstands Charter scrutiny. The Parks and Pathways Bylaw is constitutionally valid and there are no special circumstances that would warrant a refusal by this Court to enforce its provisions. [ 49 ] In the course of the hearing of this matter, a number of members of the Occupy Calgary group took issue with the City’s evidence regarding damage done to Olympic Plaza and costs incurred by the City to date.

I think it is appropriate to add that there is very little evidence that the Occupy Calgary group itself has caused damage aside from some wear and tear to the turf upon which they have erected their tents. Aside from the tent fire incident, there was no evidence of injuries, nor was there evidence of violence. I appreciate that there is significant public interest in this matter.

The citizens of Calgary should know that the Occupy Calgary group at Olympic Plaza has been benign. [ 50 ] It is also appropriate to point out that this application pursuant to s. 554 of the Municipal Government Act was not the only means the City of Calgary might have employed in clearing the Occupy Calgary encampment. The City might have directed its bylaw officers to proceed with the removal of the remaining tents in the absence of a Court Order.

Had any member of the Occupy Calgary group resisted the efforts of a City of Calgary bylaw officer, he or she may have been subject to a charge of obstruction under s. 129 of the Criminal Code . In obtaining an Order from this Court directing that the encampment be removed, it is hoped that criminal charges will be avoided. As a result of the manner in which the City has chosen to proceed, refusal on the part of members of the Occupy

Calgary group to comply with the terms of this Order will likely result in the imposition of civil remedies for Contempt of Court, absent obstruction or other criminal conduct. [ 51 ] Many of the values and rights we cherish today have been the subject of debate and fierce protest in years past. Society does not easily change for the better, and it is often necessary for individuals with strong views to take extraordinary steps to make their voices heard. The Occupy Calgary group has been, if not entirely organized, certainly passionate and peaceful.

The City of Calgary has also exercised restraint in the manner in which it has dealt with the group, up to and including the way in which it acted in the conduct of this proceeding and the remedy sought. I hope that in the days that follow the granting of this application, both sides continue to act in a measured, conscientious and peaceful manner. [ 52 ] In the result, it is hereby ordered that: (

a) Time for service of the Originating Notice and Affidavits is abridged; (

b) The named Respondents and all other members of the Occupy Calgary group are hereby ordered to remove all structures, tents, shelters, objects and things owned, constructed, maintained, placed or occupied by them which are located the lands located at 222 8th Avenue SE, in Calgary, Alberta and known as Olympic Plaza, by 2 p.m on Friday, December 9, 2011. (

c) In the event that the named Respondents and all other members of the Occupy Calgary group fail to comply with the terms of this Order to remove all by 2 p.m. on Friday, December 9, 2011 Bylaw Officers of the City of Calgary are hereby authorized to remove all structures, tents, shelters, objects and things owned, constructed, maintained, placed or occupied by them which are located the lands located at 222 8th Avenue SE, in Calgary, Alberta and known as Olympic Plaza, to be safely stored and to be returned to their owners upon request and adequate proof. (

d) Anyone who interferes with the enforcement of this Order by City of Calgary Bylaw Officers may be arrested by officers of the Calgary Police Service and brought before this Court to show why they should not be cited in contempt. [ 53 ] Counsel for the City is directed to prepare the Order pursuant to Rule 9.2(1) and to submit the Order to the Court for signature. The remaining provisions of Rule 9.2 are therefore not applicable. Heard on the 2 nd day of December, 2011. Dated at the City of Calgary, Alberta this 6 th day of December, 2011. Neil Wittmann C.J.C.Q.B.A.

Appearances: Colleen Sinclair Lise Olsen for the Applicant, City of Calgary Ben Christensen (not counsel) for some Respondents Other Respondents: self represented Grant Stapon, Q.C. J. Bolton for the Calgary Police Service