by André Faust
Fredericton – “The city has been less than forthright about its actions with regard to the occupation of Phoenix Square.” – Paul Groarke
In a lecture that was held at the University of Saint Thomas, criminology professor Dr. Paul Groarke explains how Mayor Woodside misrepresented a Fredericton by-law in order to justify his decision to destroy the protest shelter and signage belonging to Occupy Fredericton. The by-law itself, signed into law by Mayor Woodside himself in 2004 and amended twice since, does not suggest that any activity undertaken by members of Occupy Fredericton was illegal.
On December 31st, letters were hand-delivered to:
These letters read as follows:
OCCUPY FREDERICTON- NOTICE
Pursuant to Section 5 of By-law No. T-4, A By-law Respecting Streets and Sidewalks, you are hereby given three (3) days notice to remove any and all structures that are located in Phoenix Square, being a public square and a public place in the City of Fredericton. If you fail to remove any and all structures from Phoenix Square after three (3) days you will be in violation of By-law No. T-4. Please be advised that
every person who violates any provision of this by-law is guilty of an offence and is liable on summary conviction to a fine of not less than fifty dollars ($50.00) and not more than five hundred dollars ($500.00).
In addition, please be advised that under Section 12 of By-law No. T-4, A By-law
Respecting Streets and Sidewalks, enhanced attraction signage is not permitted on a street,
which includes a public square or any other public place in the City of Fredericton without the permission of City Council.
Section 5 – the section referenced in the letter which supposedly prohibits Occupy Fredericton from erecting a shelter – does no such thing. It is missing a subsection, known as a substantive clause, which would actually define an offense. Section 5 does have a provision for notice to violators of the by-law and a provision defining the penalty for violation of the offense, but the offense itself does not exist. It is thus impossible for members of Occupy to be charged for an offense that does not exist. This explains why Occupy Fredericton protesters were allowed to protest for so long, and it also explains why they were never fined – because the Mayor, being familiar with the by-law and informed by the City Solicitor, must have known that he did not have the legal authority to charge them with anything.
Dr. Groarke further explains three additional issues that arise from the use of Section 5:
“The case raises two sets of issues. The first concerns the city’s use of Section 5. The letter and the Notice from the Mayor and the Director of Engineering allege explicitly that the protesters have violated Section 5. But the part of section 5 that they are alleged to have violated does not exist.
It follows that the occupiers in Phoenix Square were not in contravention of the section. Because there is nothing to be in contravention of-
The first question, then, is whether the Mayor and the Director of Engineering were aware of this. The City Solicitor must have reviewed the law as soon as the protesters occupied the Square and discovered the problem. It is hard to believe that anyone could draft a Notice under Section 5 without realizing that the substantive clause was missing. This probably explains why the City delayed so long before taking action against the protesters.
The first set of issues, then, includes at least three issues:
1. If there was no contravention of s. 5,
This gives rises to three obvious questions that need to be answered.
- a. why did the Mayor suggest that there was?
- b. what authority did the Director of Engineering have to issue the Notice?
- c. why did the City Solicitor allow the Director and the Mayor to proceed under the section?
When Mayor Woodside was confronted by the media regarding his rationale for having the Occupy Fredericton shelter destroyed, his response was: “I have been more than reasonable, enough is enough.” This does not answer the question as to what by-law gave him the authority to do what he did.
Upon closer scrutiny, the letter issued by the city engineer does not disclose why he issued the notice. The city did not give Occupy a full three days to remove the structure as cited in the letter of notice.
Dr. Groarke goes on to explain that there are by-laws which Mayor Woodside could have used to deal with the Occupy Fredericton shelter in a legal manner:
“It is notable that there are provisions in By-law S-7 and the Municipalities Act that set out the kind of process that should have been followed by the city. Section 1 of By-lawS-7, which is entitled “A By-Law Respecting Dangerous or Unsightly Premises” reads as follows:”
1. Section 190.001 to 190.07 of the Municipalities Act, Chapter M-22, RSNB, 1973, with amendments thereto, applies to the whole area within the city limits of the City of Fredericton.
The relevant provision in the Municipalities Act reads as follows:
190.01(1)No person shall permit premises owned or occupied by him or her to be unsightly by permitting to remain on any part of such premises
(a) any ashes, junk, rubbish or refuse,
(b) an accumulation of wood shavings, paper, sawdust or other residue of production or construction,
(c) a derelict vehicle, equipment or machinery or the body or any part of a vehicle, equipment or machinery, or
( d) a dilapidated building.
190.01(1.1)No person shall permit a building or structure owned or occupied by him or her to become a hazard to the safety of the public by reason of being vacant or unoccupied.
190.01(2)No person shall permit a building or structure owned or occupied by him or her to become a hazard to the safety of the public by reason of dilapidation or unsoundness of structural strength.
Dr. Groarke says: “There are additional provisions in the Municipalities Act requiring 14 days written notice from the city. Other provisions provide for a hearing before a City committee and a hearing before a judge of the Court of Queen’s Bench. The city may take the position that these provisions apply to structures on private property, but the city could have followed the same procedure, ex mero motu.”
It is notable that the Occupy Fredericton protesters were not given 14 days written notice by the City. They were not even given the 3 days they were promised in the letters from the Mayor and Director of Engineering & Public Works. They were also not given a hearing before a City committee or a judge of the Court of Queen’s Bench – a hearing which they had explicitly asked for on many occasions.
Dr. Paul Groarke concludes with:
The Mayor needs to explain his actions. There was nothing particularly difficult about taking the matter before a judge and, if the city wanted to move against the protesters, it seems to me that it should have sought direction from the courts. There is a strong argument that the construction and occupation of the shelter was a form of political expression and is protected by the Charter of Rights. There is the additional fact that the shelter was located in Phoenix Square, which functions as a public space attached to City Hall. It is significant that the Mayor and the city were taking down a shelter and seizing property that belonged to dissenters.
The case raises many serious issues. The deeper issue, however, concerns the rule of law. People who hold political office have an obligation to follow the legal procedures set out in the relevant by-laws and legislation before using force against other people. The historical position is even simpler: the use of force outside the law is violence…” – Dr. Paul Groarke, lawyer and professor of Criminology
Dr. Groarke’s lecture notes can be found here.
An article in Canadian Lawyer Magazine regarding this issue can be found here.