A packed Court of Queen’s Bench heard opening arguments from the Saskatchewan government Thursday morning in a case that will decide the future of the Justice For Our Stolen Children camp.
There are two matters at hand in this case: the camp arguing that charter rights were violated when six protestors were arrested and the camp’s main teepee was taken down by police on June 18, and the province seeking the removal of the camp for breaking park bylaws.
Crown attorney Michael Morris argued the camp’s presence on the west lawn of Wascana Park is usurping to the government’s ability to administer the publicly owned land. Morris’ arguments also heavily relied on numerous bylaw infractions from the camp.
Morris argued that since February, and more specifically on June 21, the camp has grown to include 15 teepees and other structures. This makes the camp the “defacto administrator.”
To back up his argument he said nine permitted events have had to be moved from the west lawn; the largest being the Canada Day festivities.
Key bylaw infractions Morris presented include the maintenance of unpermitted structures, maintaining an unpermitted fire, the indefinite occupation of the west lawn, and unpermitted use of lodging in Wascana Centre.
Morris added the camp has been informed they can get permits to get around certain bylaws.
He pointed to last years’ Students Mobilizing Against Cuts protest that saw several tents put up in the park. The received a permit, and had to leave by 11 p.m.
Morris, and Provincial Capital Commission attorney Jared Biden, both argued that removing the camp would not infringe on their freedom of expression, and the protest could continue as long as park bylaws are followed.
Justice for Our Stolen Children attorney Daniel LeBlanc argued the province violated the charter right to freedom of expression when the camp was evicted on June 18.
LeBlanc said teepees and sacred fire, which has been burning since Feb. 28, are key symbols in the protest.
When Justice Ysanne Wilkinson questioned LeBlanc on who the audience for this protest is overnight, LeBlanc said the dedication to staying is a key part of the message as well.
Wilkinson said this case is about reasonable limits, and asked LeBlanc how the protest not staying overnight would change the protest’s message. LeBlanc countered the fire could burn out if left overnight and the teepees would be prone to vandalism.
LeBlanc added that these traditional Indigenous symbols are a key part of the form of expression, and you can’t change the form without altering the message. He added that the Charter of Rights and Freedoms protects this right from state intrusion, including through legislation.
As for the province and Provincial Capital Commission (PCC)’s bylaw concerns, LeBlanc argued the protestor’s charter rights supersede the bylaws.
He used Supreme Court of Canada protections in this argument, including that the expression must be non-violent and occur in an area where that kind of expression can be expected. There is no evidence protest camp ever being violent.
LeBlanc argued if there is anywhere free expression should be protected it is in and around the legislative building. He added the camp is focused on government issues, justice and social services, and outside the legislative building is an appropriate venue.
With this speech being political speech, LeBlanc said that puts it under a high degree of protection with the protest’s proximity to the halls of government the highest levels of protection should be applied.
As for impact to the park, LeBlanc made the case that the protest is minimal.
Wilkinson brought forward an analogy of indefinitely occupying the lone washroom in a home, justifying it by saying it is only a small part of the house. LeBlanc said he plans to show Wascana Park is a house with many washrooms.
The Crown argued nine permitted events, including Canada Day, had to be moved because of the park. LeBlanc argued there is no evidence that organizers lost money and attendance was affected.
LeBlanc also said there is no evidence backing up the assertion fewer people are using the park because of the protest. He said if the park was gone, recreationalists would have only one more hectare to use in a 9.2 square kilometre park.
The second camp attorney, Meara Conway, presented the argument that the June 18 arrests of six protestors were unconstitutional and without cause.
Conway’s argument centred around police reluctance to evict the camp prior to June 18, and their continued resistance of government requests to remove the camp.
Conway said this mindset is backed up by the affidavit of Regina police Chief Evan Bray who said he does not see the camp as a public safety risk. Bray has publicly made the same statements following a fourth written request from the province on June 21.
The Regina Police Service received their first written request from the PCC to remove the camp on June 8. Conway put forward the hypothesis that the police succumbed to mounting pressure to enforce an eviction from the PCC and other government bodies.
She argued that police acted more as enforcers for the government than officers when they made the June 18 arrests.
Conway also referenced police affidavit’s that say protestors were told they were being held in custody until the teepee was down and the sacred fire had burned out. She argued this is an unconstitutional justification for detention.
Contrary to Conway, Regina Police Service attorney Katrina Swan said the arrests were justified and lawful.
Attached in Chief Bray’s affidavit, is the eviction order issued by the PCC, which goes in line with the Trespass to Property Act. This notice was delivered to the camp both in writing and verbally.
Swan said protestors were asked to vacate the teepee and help dismantle it. They actively disobeyed the request, prompting the obstruction of an officer arrest. Swan made the case that these arrests were made through the Trespass to Property Act.
Under section 12 of the Trespass to Property Act, police can perform warrantless arrests when it is reasonable to do so. The obstruction was considered an ongoing offence until the teepee was down and the fire was put out. Police kept the six individuals in detention due to the ongoing nature of the obstruction and reasonable belief they would stop the PCC from trying to remove the teepee.
The camp’s counsel said they were not notified of the use of the Trespass Act in the police and Crown’s case. They were granted a week to provide supporting documents for their arguments.
“If the police relied on the Trespass Act in affecting the arrests we would want to get an opportunity to address that, and potentially challenge the Trespass Act itself,” Conway said. “Up until this affidavit came into being, we understood the police arrested on a different ground. So it just expands the range of issues we need to address.”
Crown counsel Dana Brule further Morris’s arguments on the need for all parties to be able to access the park. He put particular focus on the nine permitted events that had to move and the camp’s lack of permit, which may allow certain bylaws to be sidestepped.
Wilkinson concluded the hearing, saying she has a lot of conceptual heavy lifting to do. She reserved her decision for a later date that has yet to be announced.
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