On July 2, Justice Koehnen of the Ontario Superior Court granted an interlocutory injunction to enjoin protesters to remove the encampment from the Front Campus of the University of Toronto (University of Toronto (Governing Council) v. Doe et al., 2024 ONSC 3755). In its extensive reasons, the Court squarely addresses the principal wrong posed by the encampment: it constituted a private appropriation of the University’s lands, to the exclusion of the University and other members of the public.
Prior to the ruling, some commentators had invoked Charter arguments, suggesting that these would alter the outcome of a trespass claim in the context of the encampment cases. The Court’s analysis gives little succor to these views. Although invited to determine whether the Charter applies to the U of T, Koehnen J. declined to do so because a notice of constitutional question had not been served. Nevertheless, in obiter he conducted an analysis in the alternative, concluding that “the Charter does not apply to the University” and that even if it did apply, it would “not protect trespass” and any limitation of the protesters’ freedom of expression “would be justified under section 1.”
In this post, I offer some further elaborations upon the essentially sound conclusions in two aspects of Koehnen J.’s obiter. First, does the Charter impinge at all on the University’s entitlement to invoke trespass law? Second, if the Charter does apply, would it militate against granting relief to the University? Despite the plethora of public law and policy-based arguments raised, they would not, I suggest, alter the nature of the encampment disputes as a private law matter. And even if it were not a purely private dispute, there is little reason to think that the Charter should countenance the unilateral privatisation of a “public space”.
Common Law Trespass and the Charter
It is trite that at common law, a private landowner has the right to exclude non-owners and to a remedy through a trespass action. As the Supreme Court has held, it is not for a court to “essa[y] to legislate as to what is and what is not a permissible activity” within a private property (Harrison v. Carswell, [1976] 2 S.C.R. 200, at p. 217; and, more recently, R. v. S.A., [2014] 9 W.W.R. 39 (Alta. C.A.), at para. 105).
Nonetheless, some commentators seem to suggest that the Charter constrains even a private landowner’s exercise of its right to exclude. Writing at ABlawg on enforcement actions by the University of Calgary, Jennifer Koshan and Jonnette Watson Hamilton claimed that even in the case of “private property” (that is, privately-owned property), the Charter is relevant because it would apply given the University’s “reliance on powers of compulsion under trespass legislation” (emphasis added).
However, this contention is unorthodox, to say the least. It is well established that the Charter does not apply in litigation between private parties. Rather, the Charter applies to the invocation of a common law rule “only in so far as the common law is the basis of some governmental action” (RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at p. 599 (emphasis added)). Trespass statutes, such as Alberta’s Petty Trespass Act and Ontario’s Trespass to Property Act, merely supplement the common law remedies available to landowners, such as injunctive relief, by imposing liability for provincial offences and fines. Where the underlying right being protected is a private property right, it is unclear why a private landowner would become a governmental actor simply by relying on trespass legislation.
As Miller J.A. has pointed out, the trespass statute “does not create any substantive property rights,” but merely “functions as an enforcement mechanism for rights that come from other sources” (Bracken v. Fort Erie (Town) (2017), 137 O.R. (3d) 161 (C.A.), at para. 70). That is, it bolsters protection for the underlying property right, without augmenting the owner’s pre-existing entitlement to exclude (see Stewart v. Toronto (Police Services Board), 2020 ONCA 255, at para. 88). It strengthens the landowner’s powers to enforce its own private rights, but creates no duty to do so.
All this is to say, it is problematic to reason that: (1) a landowner has relied upon a statutory provision, (2) therefore the Charter must apply to an underlying dispute between private parties. In truth, irrespective of whether a landowner relies upon trespass legislation, the owner must be engaged in governmental action in order for the Charter to apply (see Committee for the Commonwealth of Canada v. Canada, [1999] 1 S.C.R. 139, at p. 245).
On this point, the Supreme Court has long maintained that universities are non-governmental entities and thus not directly subject to the Charter (McKinney v. University of Guelph, [1990] 3 S.C.R. 229). Admittedly, in Alberta, the situation is more complicated. As a matter of positive law, the Alberta Court of Appeal held that the regulation of “freedom of expression exercised by students on University campus property” is “governmental in nature” and engages the Charter (UAlberta Pro-Life v. Governors of the University of Alberta (2020), 441 D.L.R. (4th) 423 (Alta. C.A.), at paras. 128, 136 and 148).[1]
By contrast, in Ontario, as Koehnen J.’s decision recognises (para. 231), the courts have rejected the application of the Charter to universities (see Lobo v. Carleton University, 2012 ONCA 498). Nonetheless, it was argued that circumstances had since changed so that Ontario universities are now subject to the Charter (para. 233). Hence, it is necessary to examine the arguments advanced for the application of the Charter to the U of T.[2]
Unpacking the “Emerging Consensus” on Charter Applicability
During the U of T injunction proceedings, it was urged that an “emerging consensus” supported the view that the Charter applies to universities. The source of this putative “emerging consensus” appears to be a special issue of Constitutional Forum, in which various commentators contended that the Ontario government’s 2018 campus free speech directive effectively conscripts universities to advance designated purposes of the Ontario government. The directive triggered the application of the Charter, they claimed, because the universities are now implementing a government program or policy (see Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 44).
More recently, these commentators argued that Bill 166, the Strengthening Accountability and Student Supports Act, “settled” “the question of whether the Charter protects protest on university campuses,” by requiring post-secondary institutions to develop policies to “address and combat racism and hate.” Indeed, some assert it is “difficult to argue” otherwise.
While Koehnen J. did not explicitly address this putative “consensus”, he found no evidence that these developments from the Ontario government “have changed the University’s autonomy” or that U of T relied “on anything in the 2018 Directive or Bill 166 to justify its request for an injunction” (para. 237). In other words, as the private owner of the campus lands, the University exercised its own judgment in initiating trespass proceedings and was not merely carrying out a governmental program.
But beyond Koehnen J.’s observations, the rationales underlying this “consensus” warrant further unpacking: (1) that the campus free speech directive amounts to an exceptional intrusion upon the autonomy of the university;[3] and (2) that the directive is an ideologically or political motivated contrivance.[4] Both claims, I suggest, merit a sceptical response.
A threat to institutional autonomy?
First, it is questionable whether the Ontario free speech directive is truly so exceptional as to transform universities into governmental agents. Take the assertion that it “constitutes an impermissible form of compelled expression and association with a governmental conception of what is free.”[5] While the directive certainly implies an underlying conception of freedom, it hardly differs in this respect from other kinds of state action taken to safeguard rights and promote the common good. Under labour and employment legislation, for instance, employers may be compelled to inform their employees about their rights and to bargain in good faith with a duly elected union. Elections laws may compel a third-party advertiser to identify itself in all of its advertising. In none of these instances can it be seriously concluded that there is an unconstitutional “association with a governmental conception” of employment rights, labour rights, or political expression.
Likewise, these commentators arguably overstate the directive’s intrusiveness on institutional autonomy, especially when compared with other regulations applicable to universities. Needless to say, universities are not sovereign enclaves immune from governmental regulation. Human rights codes and labour and employment laws “operat[e] in relation to the internal affairs of the University just as [they] operat[e] in relation to any other institution” (Pearlman v. University of Saskatchewan (2006), 273 D.L.R. (4th) 414 (Sask. C.A.), at para. 84; Dickason v. University of Alberta, [1992] 2 S.C.R. 1103). Meanwhile, professional regulators present various constraints on the self-governance of post-secondary institutions (Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772, at para. 14). Yet, no one suggests that private employers, or universities, are now subject to the Charter.
As a salient illustration, consider University of British Columbia v. Berg, [1993] 2 S.C.R. 353, where the Court upheld a human rights complaint against UBC. In that case, a graduate student alleged that the University discriminated against her by depriving her of a “rating sheet” used for faculty evaluations; this sheet was akin to an academic transcript that “presents the student’s record of achievements”—an academic function core to any university’s autonomy. Nonetheless, the Court held that the anti-discrimination provisions of the BC Human Rights Act applied to “the educational and recreational services of the School generally,” including the provision of the rating sheet and, notably, to those “necessary adjunct[s] to the educational process which has brought the university and its students together” (pp. 387-88).
As Berg indicates, the state may legitimately regulate the incidents of the educational relationship in order to uphold (externally imposed) human rights standards. This, it can be argued, is precisely the purpose of Ontario’s free speech directive: to implement protections for a fundamental right, viz. freedom of expression, by regulating the relations between members of the campus community. Manifestly, the adoption of human rights codes or employment standards does not bring universities under the Charter. The unmet burden is to explain why Ontario’s directive would be any different.
An ideological contrivance?
Second, the “emerging consensus” has been fuelled by the perception that Ontario’s free speech directive is ideologically driven. The reasoning seems to be that, given the directive’s political valence, it is designed to subject the universities to an ideological agenda; accordingly, the universities become governmental actors amenable to Charter scrutiny.[6]
Once again, the reasoning here is deeply contestable. Indeed, it recalls one court’s observation that: “Almost anything a government does is open to the characterization of being politically motivated” (Ontario (Attorney General) v. Dieleman (1994), 20 O.R. (3d) 229 (Sup. Ct.)). It is unclear what the sting of an accusation of “political motivations” is supposed to be.
This kind of opposition, centred around a critique of political motivations, seems to rest on a suspicion of government in general—a pattern that some observers have detected in past opposition to other types of state action designed to promote human rights.[7] The critique is not new, nor does it single out Ontario’s directive as inherently distinct from other governmental efforts to implement human rights standards in various domains.
Some commentators seem to think the directive goes further, by conscripting universities to serve a “symbolic” or partisan agenda. But the mere fact that a measure is symbolic, or has a political valence, says little about whether it transforms a private entity into a governmental actor. After all, the Supreme Court has recognised that human rights law has an expressive function, communicating values rooted in political morality (see Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, at pp. 923-24).[8] In truth, the directive can be regarded as a specialised form of human rights law, which aims to uphold and communicate a key value on university campuses: the significance of lawful expression and free inquiry. It is a distortion of perspective to view a measure as opposed to rights, or as purely partisan, simply because it fails to accord with the critic’s preconceptions about those rights.
If the putative “emerging consensus” that universities are Charter-bound rest on the above two arguments, that consensus may be ill-founded. At a minimum, more is needed to show why the free speech directive should be distinguished from other regulations, such as human rights and employment law, that already apply on university campuses. It was for good reason, then, that Koehnen J. concluded that the directive did not render U of T subject to the Charter.
Private Appropriation of Public Spaces
Even if the Charter applied to the U of T, would it perforce follow that the eviction of the encampment protesters is unconstitutional? Some commentators seemed to believe that the characterisation of the Front Campus as a public and not private space would strengthen the protesters’ entitlement to encamp and occupy the space. But Koehnen J.’s answer to this, in obiter, is that it would not: even if the trespass notice limited the protesters’ expressive rights, it was a reasonable limit under s. 1 (para. 246). To see why this is an eminently sensible conclusion, we may consider the principles, already immanent in our legal system, that regulate the concept of “public property” or “public space”.
Much of the discourse surrounding the encampment cases presuppose a conflict between the individual interests of the protesters and the collective (or institutional) interests of the University. For many commentators, the land in question is “public property,” so that the key question is simply whether the University can establish a sufficiently weighty interest of its own to justify denying the protesters’ rights to access that public property.
Yet this framing, reflecting the standpoint of “subjective rights”,[9] overlooks the way in which individual rights—as expressions of justice in community—are intrinsically conditioned by the rights of other members of the community.[10] That is, a person’s rights must be understood as part of an overall scheme of just and rightful relations between persons (i.e., what is objectively rightful). Put simply, the scope of each person’s rights must be reconciled with “the competing claims and entitlements of others.”[11]
This very concern animates Koehnen J.’s reasons, for he rightly regarded the encampment as a private appropriation of a “quasi-public” space, Front Campus, that is open to all:
[The protesters] do not have the unilateral right to decide how Front Campus can be used by their exercise of force, occupation or intimidation. …
It is the very fact that Front Campus is a quasi-public space that makes it so important to manage its use in an orderly way. When we have a public or quasi public spaces, who gets to determine what that space is used for? Is it the legal owner of the space (whether that be a private entity or a public entity) or is it anyone who, in the words of Justice Brown, has become “the stronger, by use of occupation and intimidation”?
The protesters’ conduct is inconsistent with freedom of expression. At the end of the day, the only people who are allowed onto Front Campus are those who agree with (or at least who do not openly disagree with) the protesters’ beliefs. If the property truly is a quasi-public space, why should one ad hoc group of people get to determine who can use that space for a period of over 50 days? [paras. 179, 188, 194 (emphasis added)]
Taking the claim of a “quasi-public” space on its own terms, it would follow that, if the protesters (as members of the public) have a right to access and use that quasi-public space, then other members of the public have an equal right to do the same. Crucially, the semi-permanent occupation of this space amounts to a derogation of the rights of the public. While the encampment occupies the space, other members of the public are inhibited from engaging ordinary uses of the space (e.g., picnicking, running, graduation ceremonies, summer camps, and other forms of expressive activity) (para. 27).
As Koehnen J. recognised, the s. 1 limitations analysis under the Charter is robust enough to reflect the need to reconcile the protesters’ rights to use the public space with the equal rights of other members of the public.[12] Understood in this way, the expressive rights of the protesters are not necessarily limited by the University’s own private, collegiate purposes. Rather, the eviction of the encampment is justified in order to secure the rights of the public—the University is justified in maintaining fair and equal terms of access to a “quasi-public” space (paras. 248, 251). Regrettably, much of the commentary on the enforcement actions of universities tends to focus on the safety risks (or lack thereof) posed by protesters, to the exclusion of the equal standing of all members of the public to access these spaces.
Public nuisance and public space
In this regard, Koehnen J.’s reasoning is well supported by a longstanding area of the common law: public nuisance. As has been rightly stated, “references to the common law tradition” are not otiose under the Charter, and “the Charter does not oblige departing from this tradition in any substantive respect” in conducting the s. 1 inquiry (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at pp. 928-29, per Gonthier J. (dissenting, but not on this point)). The tort of public nuisance is apposite here, precisely because it discloses how our legal system realises and protects the equal rights of everyone to access and use public spaces.[13] This conception of equality in relation to public spaces, I suggest, is consonant with the limitation of rights in a “free and democratic society.” Even if the University’s lands were “public property,” these principles militate against any license for (semi-)permanent occupation of a public space.
Briefly stated, the law of public nuisance protects “public rights,” which are rights to access and use public spaces (e.g., highways, navigable rivers), that are held equally by each member of the public.[14] Under the law, each individual’s right is limited by the co-equal right of all others to access and use the space. A “public nuisance” is an interference with a public right, often occurring when one user exceeds the scope of his entitlement to the public space, thereby effectively depriving another of her co-equal right to use the space. Such an interference is actionable if it causes “special damage” to the plaintiff, but for present purposes, the essential point is that the scope of each person’s right must be compatible with that of every other person’s right to access and use the same space.
To illustrate the application of this idea, consider a somewhat antiquated example involving public rights of navigation in a harbour. In Denaby & Cadeby Main Collieries Ltd. v. Anson, [1911] 1 K.B. 171 (C.A.), some shipowners asserted a right to permanently moor a coal hulk (a floating coal depot) in a public harbour. In denying the claim, the court considered that the permanent occupation of the harbour waters (and for purposes unrelated to navigation) deprived the public of its rights to use the harbour. In truth, it was “pro tanto an exclusion of the public” and tantamount to the private appropriation of a public space:
These lands actually belong to the nation, and the use to which they are to be put is decided by the [public] authorities … But this fact does not weaken in any way the rights of property in the lands which are possessed and used by the State, nor is a Court justified in being less vigilant in maintaining and enforcing those rights of property in the case of public lands than in the case of those in the hands of private owners. Indeed, if there be any difference, it is not unnatural that we should be disposed to exercise greater vigilance to prevent the filching by private individuals of property that should belong to all, because the danger is greater in such cases than in cases where individual owners are there to defend their own property. [pp. 200, 203; emphasis added]
While temporary occupation for navigational purposes is permitted, the court reasoned that a “fixed floating shop” fell outside the ordinary uses of the harbour.[15] Despite the advantages of selling coal in the harbour, this essentially private taking of harbour space was not compossible with the rights of all: “if that establishes a right to appropriate public lands for private uses, every successful shopkeeper could make out an equally good case” (p. 203). And strikingly, the court noted, it must be more viligant to defend public property than private property, because it is “property that should belong to all.”
Moreover, the court held that the shipowners could not justify their private appropriation by claiming that their actions produced some benefit to the public. It was erroneous to balance “encroachments upon public rights” against “real or supposed advantages accruing thereby to some section of the public” (pp. 205-06). Absent legislative authority, the court affirmed, “[e]ach member of the public is entitled to enjoy to the full each of the rights of the public” (p. 207 (emphasis added)).
Accordingly, the scope of rights in relation to public spaces is determined differently than purely private rights. Unlike private rights, a public right is intrinsically limited by the co-equal rights of all others to access and use the same space.[16] Since public property belongs to all, no one is entitled to appropriate it to his or her private purposes and deny others their lawful entitlement to access and use the space.
A Charter right to (semi-)permanent occupation?
Returning to the Toronto injunction, the principles of public nuisance confirm a core plank of Koehnen J.’s reasoning: the protesters are not entitled to appropriate the University’s land—whether that land is private or public property. Far from bolstering the protesters’ defence, the characterisation of Front Campus as a “public space” undermines it. In our legal system, no private person is entitled to unilaterally withdraw a public space from public use, for all members of the public have an equal right to access and use it.
As Koehnen J. rightly observed, the protesters, through their prolonged occupation of this “quasi-public space” and their control of access by other members of the public, had effectively subordinated the lands to their private purposes and excluded the public (see paras. 13, 126, 179-81, 248). It is no answer to say, as the protesters did, that the encampment space remains notionally open for “community hours.” By purporting to control access to the encampment space, the protesters were effectively asserting a claim of private property. That is manifestly inconsistent with the equal right of all to use that space as “quasi-public” space. As the court in Anson reasoned, it is for public authorities, not private persons, to determine the terms of use of a public space. Put differently, the equality of each member of the public precludes any private individual from excluding others from a public space.
Nor is it an answer merely to advert to the value of protest as a form of expression (para. 180). To the contrary, purporting to produce a “benefit,” even for some section of the public, is no justification for the private appropriation of public space. As Anson indicates, the invocation of one right (say, an expressive right) furnishes no warrant for injuring the public’s right to access the space: “No balancing of benefit to one right against injury to another is permissible” (p. 207).
These principles chime with, and are arguably inherent in, the Charter case law on public spaces. In the context of expressive activity in public spaces, the Supreme Court has held that “where rights and interests conflict,” “a measure of latitude” is warranted under s. 1 and that the court “will not interfere simply because it can think of a better, less intrusive way to manage the problem” (Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at para. 94). And as Koehnen J. noted, the section 1 analysis recognises that “[c]ommunities have a legitimate public interest in preserving shared spaces for recreational use” (para. 182, citing Bracken v. Niagara Parks Police (2018), 421 D.L.R. (4th) 157 (Ont. C.A.), at para. 71).
Most notably, in Batty v. Toronto (City) (2011), 108 O.R. (3d) 571 (Sup. Ct.), D.M. Brown J. rejected the Occupy Toronto’s assertion of a novel “constitutional right to occupy [a public] Park and appropriate it to their use” (para. 113). As Brown J. reasoned, such a novel right was incompatible with “the balancing of competing interests”—the reconciliation of equal rights to use public space—“which our Constitution requires” (para. 111).
In his obiter analysis under s. 1 (assuming arguendo that the Charter applied), Koehnen J. followed Batty and described “the real issue” as “who gets to make decisions about conflicting claims to the use of space” (para. 185). His decision upholds the equal freedom of all persons to access and use the “quasi-public” Front Campus, recognising the legitimate aim of the University in acting to secure the equal rights of the public:
In Batty, D.M. Brown J. found that there was a pressing and substantial objective in retaining public spaces for the use of the general public. That is one objective here as well. In addition, the University’s other objectives in enforcing the Trespass Notice are to restore its authority to manage competing demands on space at the University and to ensure that University property and freedom of expression on it are not unilaterally appropriated by a single group to the exclusion of others. Those all amount to pressing and substantial objectives. [para. 248 (emphasis added)]
When the protesters’ claims of right are viewed not from the aspect of their claimed subjective rights (as a contest between the entitlements of the protesters and the interests of the University), but from the standpoint of what is objectively rightful, the need to reconcile “competing demands on space” comes into view. The central defect of the protesters’ claim becomes apparent: it asserts an entitlement to public space that is not compossible with the entitlements of everyone else.
The preceding reflection on public rights not only reinforces Koehnen J.’s conclusion that “[t]he restoration of freedom to all more than justifies the limitations on the protesters,” in the event the Charter did apply (para. 253). More significantly, it belies the claim that a characterisation of the university quad as “public property” renders it more amenable to prolonged or persistent occupation by private individuals. If anything, as the Anson judgment reminds us, the demands of equality in public space call for more vigilance to “prevent the filching by private individuals of property that should belong to all.”
Kerry Sun is a doctoral student at Merton College, Oxford and Fortescue Scholar with the Canterbury Institute.
[1] Quaere whether this formulation, focused as it is on the expressive activity of students qua students, would extend to the occupation of the U of T Front Campus by students and non-students alike. Consistent with McKinney, the Alberta Court of Appeal declined to hold that the University of Alberta was a governmental actor subject to the Charter for all purposes, instead preferring to frame the issue as “rest[ing] on the ability to identify an area of government policy and objectives that the University can be said to be implementing for the state more broadly and not just for internal University objectives” (para. 139; see also para. 145). The decision in UAlberta Pro-Life, to hold the Charter applicable to a narrowly tailored, “specific area of action” (para. 148), should be read in this light. In any event, the decision is not binding in Ontario, especially as it expressly recognises that it departs from Ontario precedent (see para. 141).
[2] As just discussed, it does not suffice to say that U of T is relying on a trespass statute—since this would amount to claiming that the Charter applies to all private trespass claims, and in any event, the entitlement to injunctive relief is grounded in a common law property right and not the statute itself.
[3] See Jamie Cameron, “Compelling Freedom on Campus: A Free Speech Paradox” (2020), 29:2 Const. Forum const. 5, at pp. 6, 9, 17 (“Ontario’s free speech directive is explicitly aimed at reining in the expressive activities of students” and an “attempt to enforce a governmental view of expressive freedom”); James L. Turk, “Universities, the Charter, Doug Ford, and Campus Free Speech” (2020), 29:2 Const. Forum const. 31 at p. 31 (“it puts Ontario universities’ free speech policies and practices under the thumb of the provincial government”).
[4] See Stephen L. Newman, “The Politics of Campus Free Speech in Canada and the United States” (2020), 29:2 Const. Forum const. 19, at pp. 19, 22; Cameron, “Compelling Freedom”, supra, at p. 9; Turk, supra, at p. 42.
[5] Cameron, “Compelling Freedom”, supra, at p. 17 (emphasis added).
[6] According to Cameron, “the Charter must apply when the state compels members of the community to affirm, endorse, or adopt a policy, creed, pledge, or partisan position and attaches consequences to non-compliance” (ibid., at p. 15). Newman suggests the directive is an instrument of “a kulturekampf” (supra, at p. 22). Turk denounces the directive “as a way of dog-whistling the Premier’s base” (supra, at p. 42).
[7] See Richard Moon, “The Attack on Human Rights Commissions and the Corruption of Public Discourse” (2010), 73:1 Sask. L. Rev. 93, at p. 121 (criticising civil libertarian and other groups for “drawing on and appealing to a deeper suspicion of government”).
[8] As Gonthier J., speaking for four members of the Court, remarked in Sauvé: “Symbolic or abstract arguments cannot be dismissed outright by virtue of their symbolism: many of the great principles, the values upon which society rests, could be said to be symbolic” (Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, at para. 99).
[9] See generally Michel Villey, La formation de la pensée moderne juridique (Paris 1975).
[10] Thus the European Convention on Human Rights, for instance, provides that the right to freedom of expression may be restricted “for the protection of the … rights of others” (art. 10(2)).
[11] Bradley W. Miller, “Justification and Rights Limitations” in Grant Huscroft, ed., Expounding the Constitution: Essays in Constitutional Theory (CUP 2010), 93, at p. 96. See also Grégoire Webber, “Rights and Persons” in Grégoire Webber et al., Legislated Rights: Securing Human Rights through Legislation (CUP 2018), 27.
[12] It must be recalled that the Oakes test is merely a judicial specification of section 1 of the Charter. The ultimate question remains whether the rights have been subjected to “reasonable limits” that “can be demonstrably justified in a free and democratic society.” The s. 1 limitations analysis is “normative and contextual,” and the Oakes inquiry must be applied flexibly, rather than as “a mechanical or purely empirical exercise” (Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3, at paras. 38 and 126). As the Court has noted, the limitations analysis “seeks to define and reconcile [Charter] rights with other legitimate interests or even between themselves” (Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 187, per LeBel J. (dissenting, but not on this point); see e.g. B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at pp. 387-88).
[13] See generally J.W. Neyers, “Reconceptualising the Tort of Public Nuisance” (2017), 76:1 Camb. L.J. 87; Christopher Essert, “The Nature and Value of Public Space (With Some Lessons from the Pandemic)” (2022), 50:1 Fordham Urb. L.J. 61; Hanoch Dagan and Avihay Dorfman, “Public Nuisance for Private Persons” (2024), 74:2 U.T.L.J. 198.
[14] See generally Neyers, supra; David Bullock, “Public Nuisance is a Tort” (2022), 15:2 J. Tort L. 137.
[15] The case law has placed emphasis on the ordinary and reasonable uses of the public space in question, stating, for example, that “[t]he public have the right to use the street as a street” (Lingké v. Mayor of Christchurch, [1912] 3 K.B. 595 (C.A.), at p. 609) and that “[a] man may not use the highway to stable his horse” (Iveagh v. Martin, [1961] 1 Q.B. 232, at p. 273). Even though English law now recognises “that the public highway is a public place, on which all manner of reasonable activities may go on,” including peaceful assembly, it remains the case that “any use of the highway must not be so conducted as to interfere unreasonably with the lawful use by other members of the public” (DPP v. Jones, [1999] 2 A.C. 240 (H.L.), at pp. 254 and 280 (emphasis added)). Further, “any stopping and standing must be reasonably limited in time. While the right may extend to a picnic on the verge, it would not extend to camping there” (p. 280 (emphasis added)).
[16] Neyers, supra, at p. 106.
