Occupy Montreal protestors defend right to public space

City bylaws allow occupation, authorities “tolerate” overnight stays

As Occupy Montreal enters its fifth day, protesters have found an unlikely ally: the City of Montreal bylaws. While parks in Montreal are subject to regulations that explicitly forbid overnight stays, rules regarding public spaces, such as Square Victoria which protesters are occupying, are much less clear.

The hundreds of protesters occupying Square Victoria as part of the global Occupy movement have stressed this distinction in order to justify their stay.

The City of Montreal is divided into 19 boroughs, each with its own set of laws. Square Victoria falls under the purview of the Ville-Marie borough council.

While there is nothing in the City’s regulations that outlaws overnight stay, several bylaws could potentially be used to disturb the protest. Section I of the Règlement du conseil d’arrondissement 24-069 prohibits the “occupation of public domain” and defines “occupation” as “the presence of an installation on the ground without a permit.”

According to Jean Hétu, a professor at the Université de Montréal’s Faculty of Law and an expert on municipal law, the tents set up in the square could be considered an “occupation” by city authorities.

Despite the lack of a permit, the Montreal Police (SPVM) has allowed the occupation to continue.

An SPVM officer explained the situation to The Daily.

“We’re tolerating, as long as they don’t cause any problem,” he said.

Authorities around the world have been left puzzled as to how to deal with the Occupy protests that have so far enjoyed broad popular appeal.

At a meeting Tuesday with the city council, the mayor of Montreal, Gérald Tremblay, described the protests as “worldwide” and “legitimate.”

Other cities, such as New York, are having their own issues surrounding the protests.

New York City mayor Michael Bloomberg has sought to maintain an impartial tone between Canadian real estate company Brookfield Properties, which owns Zuccotti Park – the site of the Wall Street occupation – and the occupiers who have taken it over. While the mayor has repeatedly stressed the right of the protesters to peaceful assembly, he has also expressed concerns for residents around Zuccotti Park.

“The longer this goes, the worse it is for our economy,” he said on October 14, during his weekly appearance on WOR Newstalk Radio 710.

Meanwhile, Brookfield has struggled to maintain a positive image. Despite reports of an attempt by Brookfield to evict the protesters on October 14, Andrew Willis, a spokesman for the company, denied the allegation.

“There was no attempt at eviction,” he said to The Daily.

Speaking to the events of October 14, Willis explained that Brookfield merely sought to “clean a portion of the square.” However, a set of stringent rules, prohibiting the use of tents and sleeping bags, were later imposed on the occupiers.

According to Ruthann Robson, professor at the City University of New York School of Law, the legality of the new set of rules is dubious.

“This could be subject to litigation. If there is writing on those tents, then it becomes a First Amendment issue,” she explained. In the United States, the First Amendment protects freedom of speech.

Protesters in New York have used the legal ambiguity of their camping zone to their advantage. According to Robson, the private ownership of Zuccotti Park curtails the authority of the city, and allows protesters greater flexibility in exercising their First Amendment rights.

According to Robson, Brookfield owns and manages Zuccotti Park in exchange for zoning incentives and the use of bigger office spaces.

In Montreal, the designation of Square Victoria as a public space gives the protesters considerable leeway as well.

“Public spaces,” Hétu said, “have to be made available to the public.”

Although there is a regulation against overnight stays, he explained that a protester “can cite the Charter and some judge might rule in favor of it,” in reference to the Canadian Charter of Rights and Freedoms.

According to Hétu, the case is not without precedent. In 2008, the Supreme Court of British Columbia ruled that homeless people were allowed to set up tents in public spaces. While the decision of the court did not take free speech into account, it illustrated that the municipal bylaws can be trumped by constitutional concerns.

However, Hétu warned that free speech was not without limit.

“If there is urination and some degradation of public property, then this could become a public health issue,” he explained.