BENCH FOR SASKATCHEWAN Citation: 2018 SKQB 241 Date: 2018 09 07 Docket: QBG 2045 of 2018 Judicial Centre: Regina BETWEEN: RICI-IELLE DUBOIS, GAYLENE HENRY, CONSTANCE DUBOIS, PRESCOTT DEMAS, PAPEQUASH, SHANNON CORKERY Applicants and . GOVERNMENT OF SASKATCHEWAN, PROVINCIAL CAPITAL COMMISSION, REGINA POLICE SERVICE Respondents Counsel: Daniel S. LeBlanc and Meara A.M. Conway for the applicants Michael J. Morris for the respondents Gov?t of Saskatchewan and Provincial Capital Commission Katrina M. Swan for the respondent Regina Police Service Docket: QBG 2071 of 2018 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF SASKATCHEWAN AS REPRESENTED BY THE GOVERNMENT OF SASKATCHEWAN and PROVINCIAL CAPITAL COMMISSION Applicants -and- PRESCOTT DEMAS, JOHN DOE, JANE DOE, OTHER PERSONS OPERATING AS AND IN SUPPORT OF FOR OUR STOLEN in REGINA, SASKATCHEWAN, and THE -2- CHIEF OF POLICE OF THE REGINA POLICE SERVICE, EVAN BRAY Respondents Counsel: Michael J. Morris, Dana J. Brule and Jared G. Biden for the applicants Daniel S. LeBlanc and Meara A.M. Conway for the respondents Katrina M. Swan for the respondent Regina Police Service JUDGMENT WILKINSON J. September 7, 2018 A. Introduction Wascana Centre [Park] is an urban space of uncommon beauty, of which the citizens of Regina are justi?ably proud. The ?West Lawn? of the Park lies in the lengthened shadow of the Provincial Legislature, and it is a place for discussion, peace?il assembly and celebratory gatherings. The West Lawn is a preferred location for high?pro?le events, and for fundraisers for Heart Stroke, Childhood Cancer, and Alzheimer?s, to name but a few. It is a location that is ideally suited for those causes needing to raise public awareness and invite community participation on a large scale. Within the Park?s boundaries, digni?ed monuments to fallen soldiers and famine victims are interspersed with statues of politicians and premiers, tributes to the province?s ?rst police force, and a totem pole crafted by an artist of the Namgis First Nation in British Columbia. Everywhere the turns, emblems of heritage, sacri?ce, loss and devotion to duty are on prominent display. Of historical signi?cance, the Park has a ?Speakers? Corner? shaded by birch trees obtained ?'om Runnymeade Meadow. It was in that distant meadow that the Magna Carta the ancient charter of aspirational ?'eedoms was ?rst signed by King John ofEngland in 1215. In its expansive sweep, the Park embraces many traditions and customs. Across its length and breadth are honours and tributes to a broad swathe of everyday people, ?'om all walks of life war brides, surveyors, educators, nurses, nuns. It is a place of congregation and community, a sanctum and a sanctuary. In all its aspects, whether reverential or recreational, it is a place of symbolic importance for the citizens of this province. The Park is the property of the Government of Saskatchewan [Government], for and on behalf of the people of Saskatchewan. The Provincial Capital Commission [Commission], as agent of the Crown, is the caretaker and steward of the Park?s resources. Within its mandate, the decides upon the appropriate allocation and use of the prized spaces within its boundaries, including the use of the West Lawn. The signi?cant demand for the use of Park space is managed and streamlined through a permit process that is open to all applicants, including demonstrators, protestors and marchers. The Special Event Application form is not an onerous document to complete and, for the most part, simply involves ?ticking the boxes?. The form provides the Park authorities with valuable information regarding the nature of the event, the proposed date and times, the desired location, the personal property being brought onto the site (including tents, generators, toilets and the like), and the expected number of organizers, volunteers and participants. The permit process enables the Park?s caretakers to forward-plan, to manage the demand, to anticipate safety concerns, to arrange appropriate security measures, to de?ne areas of responsibility, and to determine who is in charge with respect to the conduct of any given event. The process facilitates arrangements for garbage collection, parking and barricades. The permit -4- process promotes ef?ciency, predictability and stability. The Park is regulated by bylaws (The Wascana Centre Bylaws (7 July 2017)) passed by the Commission under its delegated authority. The Bylaws de?ne the permitted and prohibited uses within the Park?s con?nes. Prohibited uses, without proper authorization and permit ?om the Commission, include erecting tents and other structures, burning ?res and maintaining a camp. Since February 28, 2018, the West Lawn has been the chosen site of a protest camp self-entitled ?Justice for our Stolen Children? [protesters]. The protesters? intention, past and future, is to maintain a prolonged, inde?nite, round-the?clock occupation of the West Lawn in order to highlight the failings of the judicial, political and other societal systems with respect to the treatment of aboriginal people. Despite the panoramic scope of the socio-political issues, for some of the core protesters the dissent is rooted in personal grief and the incalculable loss of a child or children. They have erected tipis and kindled a sacred ?re, a perpetual ?ame maintained in honour of their lost ones. In any ordinary understanding, the protest has taken on the form of a vigil. [10] The protesters decry the need to seek permission for their encampment and refuse to apply for permits and authorizations, as others are required to do. They contend that the Park Bylaws requiring prior approval for the erection of structures, burning ?res or that prohibit overnight lodging in the Park between the hours of 11:00 pm. and 5:00 am, constitute an unreasonable infringement upon their constitutional rights. Speci?cally, the protesters rely upon their right to ?'eedom of expression under 5. of the Canadian Charter of Rights and Freedoms [Charter]. This has brought the protesters into prolonged con?ict with the authorities. [11] The protesters ignored an eviction notice they received on February 28, 2018. A negotiated or mediated resolution was a dim prospect given the protesters? .5- sweeping demands. On June 2, 2018, the Government issued a trespass notice to the protesters, which was similarly ignored. The announced dismantling of the entire camp was postponed after a seemingly earnest promise by the protesters that they would voluntarily remove the main tipi themselves by June 17. The promise was not ful?lled. [12] The Government eventually dismantled the camp on June 18, 2018, resulting in the arrest and detention of six protesters by the Regina Police Service. Because of their insistence on remaining, and their adamant threats to return, the six individuals arrested were detained for four hours, then released without charges. That was the amount of time required to take down the main tipi in a Culturally appropriate manner, as the protesters had demanded. The tipi was removed in a respect?ll fashion, and the sacred ?re was allowed to expire rather than being forcibly extinguished. [13] The six protestors arrested and detained were individuals who had refused to vacate the tipi containing the sacred ?re. Some had lashed themselves to its poles, while another added logs to the sacred ?re in a deliberate effort to prolong the blaze. Two of the individuals went willingly with the police but several others had to be carried bodily ?om the tipi. [14] The police action, in turn, provoked complaints of unlawful arrest and arbitrary detention, and violation of the protester?s s. 9 Charter rights. The protesters say that the police acted as counterinsurgency force, bowing to unseemly political pressure from the Government. [15] The protesters immediately set about reconstituting the camp. It persists to this day in enlarged dimension. Presently, there are ?fteen tipis and two canopy-enclosed structures on the site. The protesters have been peaceful, that is not in dispute. They have engaged in meaningful dialogue with those visitors who have been allowed entry into the camp. They have promoted socially useful purposes in terms of imparting their message and providing information and assistance to individuals caught up in ?the system?. [16] Event planners who appropriately obtained permits for their functions during the summer months were driven away, forced to relocate to other areas of the Park, or, in one case, to abandon their event entirely. Canada Day celebrations, traditionally held on the West Lawn, were displaced. Complaints emanated from the citizens of Regina, manifesting a signi?cant degree of public discontent. [17] Of course, protests of the kind mounted here do not always generate reasoned or informed debate. Counter-protesters and back-porch commentators, some from dark places in the political and social spectrum, are apt to crawl out with venomous intent, as they did here. Two who did not have the courage to self-identify hid behind the skirts of anonymous letters. Others were emboldened to make their objections public, resulting in two unpleasant incidents. One hostile act resulted in a counter-protester being charged in relation to hurling an incendiary object in the direction of the encampment. [18] This collision of laws, rules, values and beliefs, and the clash between expressive idealism and proprietary rights, has fallen to this Court to decide. The issues require consideration of the rights to ownership and possession of land, the law of trespass, statutory remedies to enforce possessory rights to land, and injunctive relief, all viewed in context and juxtaposition with claimed rights under s. 2(b) and s. 9 of the Charter. Whether or when a lawful protest crosses the line and becomes an act of civil disobedience is a matter for examination and consideration by the court. [19] While I acknowledge the profound sense of loss that lies at the core of the protest, I am unable to give comfort or sanction to the position advanced by the protesters, for the reasons that follow. B. The Parties [20] The Government is the owner of the land known as the Wascana Centre. The Commission is an agent of the Crown and the appointed caretaker of the land. The Commission is authorized to pass bylaws to regulate and control the lawful use of Park property. In these proceedings, the Government seeks to uphold its authority over land that it holds for the bene?t of all. It wishes to uphold its right to possession in the face of an unlawful trespass. The Commission seeks to uphold its Bylaws, regulations that facilitate the shared and orderly use of public property. In each case, the authorities seek to achieve these objectives by primary resort to the remedies available to them under the law of trespass. From their perspective, the protest camp constitutes an unauthorized and virtually exclusive occupation of the West Lawn to the exclusion of other users of Wascana Centre. [21] The protesters effectively claim the right to maintain a permanent enclave on the West Lawn and rely on their Charter right to freedom of expression to do so. They say that the applicable laws, rules and regulations more than minimally impair their expressive rights and are not reasonable and justi?able in a free and democratic society. They say while the camp is inconsistent with the Bylaws, the Bylaws are inconsistent with the Charter. They submit the police action of June 18 in aid of the Government and Commission has interfered with their s. 9 Charter right to be free from arbitrary arrest and detention. [22] The Attorney General of Saskatchewan (and Minister of Justice) is the ?rst-line defender whenever the constitutional validity of certain laws is brought into question. In his capacity as Minister of Justice, he is responsible for the administration of justice in the province and tasked with preserving the rule of law. [23] The Regina Police Service [Police] are joined as a result of the protesters? complaints that the police action on June 18, 2018, constituted an infringement of their -3- s. 9 Charter rights. In matters relating to the encampment, the Police have acted both in a community mediation role and in an enforcement capacity that, of course, being with respect to the arrest and detention of protesters on June 18. Since that date, the Police have resisted subsequent requests by the Government and the Commission to intervene or assist in the matter on the ground that the protest, to date, has posed no threat to the public peace and order. The Police are unprepared to take measures in relation to the encampment without the authoritative approval of the court. C. Chronology [24] On February 28, 2018, the protesters began occupying the West Lawn, a green space of approximately 10,000 square meters situated north/northwest of the Legislative Building. They were joined by groups and causes af?liated in interest. No permit to do so was sought or obtained. At the outset, there was a single tipi with a ceremonial ?re. Over time, the encampment grew to its present size of 15 tipis and two canopy-covered structures. Some of the protesters have remained in the camp overnight, although exact numbers are not known. [25] The protesters were noti?ed by letter and by verbal direction that overnight camping was prohibited, that structures could not be erected without a permit, and that they would need to dismantle by February 28, 2018, at 5:00 pm. The protesters did not do so. [26] On June 2, 2018, the Commission served a Notice of Trespass under The Trespass to Property Act, SS 2009, T-20.2 [Trespass Act], spelling out the Violations of the Bylaws (overnight camping, erecting tents, burning a ?re) and requesting cessation by 5:00 pm. on June 5, 2018. The protesters did not comply, and the Commission made a complaint about the protesters? trespass to the Police. [27] On June 15, 2018, the Commission, with the assistance of the Police, -9. removed the encampment with the exception of the tipi containing the ceremonial ?re. The protesters asked for extra time so that the ?re would burn out naturally in accordance with cultural practices. It was agreed the tipi and ?re could remain on the West Lawn until noon on June 17, 2018, at which time it would be dismantled by the protesters. June 17 came and went, but the tipi and ?re were not removed. [28] On June 18, 2018, the Commission attended with the Police. Several protesters lashed themselves to the poles and were arrested. One threw logs on the ?re to keep it burning. He was arrested. Two of the protesters submitted peaceably to their arrest and detention. All indicated they intended to return and continue their activities. Their detention was deemed necessary until the tipi could be removed. [29] The protesters re?Jsed to provide information regarding the appropriate manner of disassembling the tipi. The Commission was delayed while it sought out the required information from others. The newly stoked ?re took many hours to burn itself out. The tipi was dismantled in the early evening hours of June 18, 2018, at which point the individuals arrested and detained were released without charges. [30] On June 19 and 20, 2018, the Commission posted signage in prominent locations, including the vicinity of the West Lawn. The signs stated: Prohibited within Wascana Centre unless authorized: 0 Using the park as lodging between the hours of 23:00 to 05:00 0 Erecting, maintaining or using any tent, shelter or other structure 0 Starting, making or kindling ?re [31] The protesters re-established the encampment on the West Lawn on June 21, coinciding with National Indigenous Peoples Day. The Commission sought further assistance from the Police, who elected to re?ain from further involvement without a court order. [32] On June 25, 2018, the Government and the Commission applied for leave -10- to commence action under The Recovery of Possession of Land Act, RSS 1978, [Recovery Act], which leave was granted on June 26, 2018. The application did not proceed and was discontinued in order to allow the opportunity for talks between the Government and the protesters on July 2, 2018. The talks were held, but the encampment continued unabated. [33] Nine scheduled events on the West Lawn were cancelled between April 21 and July 28 as a result of the protesters use of the site. These included Light up the Lake for Pancreatic Cancer, Walk for Alzheimer?s, two events for the Heart Stroke Foundation, Walk for Arthritis, World Partnership Walk to End Global Poverty, Canada Day celebrations, Carisask Caribbean Festival and a ReMax Client Appreciation event. It was anticipated that similar events scheduled in August would meet the same fate, including the Gold Run for Childhood Cancer, the Dragon Boat Festival and the Great Saskatchewan Mustard Festival. [34] On July 16, 2018, the protesters brought an originating application seeking a declaration that their 3. 2(b) and s. 9 Charter rights had been unjusti?ably infringed by the dismantling of the camp and by their arrest and arbitrary detention. [35] By July 17, there were 13 tipis and various other structures on the West Lawn. [36] On July 17, the Government and the Commission ?led a second application under the Recovery Act for an order that the protesters vacate and cease occupying the West Lawn and that they comply with the Park Bylaws. [3 7] The protesters brought a constitutional challenge asserting that the Recovery Act and the Park Bylaws infringed their s. 2(b) Charter right to freedom of expression. [38] On July 30, 2018, the protesters held a public event on the West Lawn -11.. which they advertised as the ?Trespassers Powwow?. Once again, no permit was sought by the protesters for the holding of the event. [3 9] On August 12, 2018, an individual was arrested and charged with ?ring ?reworks at the encampment in the late night hours. D. Overview [40] The property rights of all landowners, whether private, public or otherwise, are vigilantly protected under the existing law. In this regard, there is a pragmatic commonality of interest as between Indian Bands, governments and private property owners. Defending the rights and entitlements that are the natural incident of land ownership is a concern rooted in antiquity and re?ected through the ages to the law of trespass in modern form. A great store of jurisprudence is accessible to any landowner faced with an unlawful intrusion by individuals who lack permission to enter or remain on land. [41] In Peter Ballantyne Cree Nation Canada (Attorney General), 2016 SKCA 124, [2017] 1 WWR 685 [Peter Ballangme], the law of trespass was invoked by the plaintiff, Peter Ballantyne Cree Nation, in relation to the unwanted intrusion of water onto its reserve lands, damage that emanated from a dam constructed outside the boundaries of the plaintiff 5 property. Our Court of Appeal, in preserving the plaintiff entitlement to maintain its action in trespass, had occasion to address the core ingredients of the claim. Writing for the court, Herauf .A. said at paragraph 128: [128] The mischief that trespass is directed at remedying is ?unjustifiable interference with possession?: Didow Alberta Power Limited, 1988 ABCA 257, [1988] 5 WWR 606. It is ?the act of entering upon land, in the possession of another, or placing or throwing or erecting some material object thereon without the legal right to do so?: Mann Saulm'er (1959), 19 DLR (2d) 130 (NBSC) at 132 [Mann]. [42] At paragraph 129 of Peter Ballantyne, the Court of Appeal examined the -12- historical origins of trespass at common law. The primary objective, at least in the beginning, lay in the preservation of peace and public order. The law evolved to include proprietary aspects such as the resolution of boundary and title disputes. As the law developed, it came to be that a landowner defending a right to property was not required to establish or prove any actual or pecuniary loss. Further, it became undisputed that a mistaken belief on the part of trespassers that they had a right to be there, or that the land belonged to them, would afford no excuse in law. [43] As the Court went on to explain at paragraph 136 of Peter Ballantyne, a notable aspect of trespass was that it could constitute a continuing wrong, in cases where a refusal to cease interfering with land persisted. If a structure or other object was placed upon a person?s land, both the initial intrusion and the failure to remove the structure constituted an actionable wrong. Thus, there was a claim in ?continuing trespass? as long as the offending person or object remained on the land. [44] The elements of trespass comprise an intrusion on the land of another that is direct, physical and intentional: Peter Ballantyne, para 131. ?Intentional? does not mean that the trespasser intended to do a wrongful act, simply that the intrusion must be a voluntary and af?rmative action on the part of the trespasser: Peter Ballantyne, para 132. [45] Although they reject the application of external rules to their encampment, in microcosm, the protesters subscribed to some of these common law tenets, seeking to assert exclusive domain over the site of their protest. The public at large was con?ned and restricted to the ?outside areas? of the encampment. Entry into the heart of the encampment and access to the tipi containing the sacred ?re was nominally open, but required invitation and permission. The protesters expressly warned police of?cers that they could not bring ?rearms in proximity to the sacred ?re. In setting the rules surrounding their encampment, they invoked proprietary-like rights . 13 commonly associated with ownership. [46] Protest and demonstration are accommodated activities in the Park. They are included as speci?c options in the permit application itself. As an example, in 2017 there was an approved student demonstration, ?Students Mobilizing Against Cuts?. Those participants applied for and received permission to conduct their activities and erect tents and other structures on the West Lawn. Preston Demas, one of the core protesters in this action, was an active participant in that previous event. The student protesters were given permission to occupy the space on a daily basis, until 11:00 pm. at night, over the course of several days. [47] On average, there are between ?ve and ten protests, rallies or demonstrations held in the Park each year. The Commission says its primary considerations in terms of allowing any event in the Park are logistical, environmental and security concerns, and equitably balancing the requests and requirements of all park [48] The Government says that similar permission or exemption ?'om the operation of the Park Bylaws was never sought by the participants in the ?Justice for our Stolen Children? protest, despite their being made aware of the permit requirement at the onset of their demonstration. The protesters took the position that their right to freedom of expression absolved them from the need to obtain preauthorization or approval for their event. However, the protesters did not directly challenge the constitutionality of the govemment?s trespass notice of June 2, 2018. This will be addressed in the course of my judgment. [49] ?Civil disobedience? is de?ned in Black?s Law Dictionary (7th ed) as deliberate but non?violent act of lawbreaking to call attention to a particular law or set of laws of questionable legitimacy or morality.? In essence, it is an individual or combined effort to bring about social change or attack unpopular laws or policies by -14.. illegal means or in violation of the lawful interests of other citizens. [50] Importantly, then, a clear differentiation must always be made between lawful protest on the one hand, like the student demonstration in 2017, and conduct that amounts to civil disobedience on the other. [51] Robert J. Sharpe, Injunctions and Specific Performance, loose?leaf (Rel 26, November 2017) (Toronto: Thomson Reuters, 2017), wrote this at paragraph 4.10: 4.10 Where the plaintiff complains of an interference with property rights, injunctive relief is strongly favoured. This is especially so in the case of direct infringement in the nature of trespass. Where property rights are concerned, it is almost that damages are presumed inadequate and an injunction to restrain continuation of the wrong is the usual remedy. [52] Common law and statutory remedies are available to the Crown in common with other property owners. An injunction prevents active wrongdoing or mandates compliance with the law. Other relief available to property owners lies under the Recovery Act in the form of a court order for possession. There is provision for the imposition of ?nes in the Trespass Act. Remedies speci?c to the Commission lie in the form of statutory injunctions under The Provincial Capital Commission Act, SS 2017, P-30.011 [Commission Act], for court orders restraining the unlawful use of land (8. 7-7) and enforcing the regulations and bylaws (8. 7-11). In addition, under the Park Bylaws, the Commission has its own ability to impose ?nes on violators. [53] The Crown, in common with other property owners, has the right to withdraw permission for entry onto its property, but subject always to the Charter: Committee for the Commonwealth of Canada Canada, [1991] 1 SCR 139 at 245 [Commonwealth] . [54] The Commonwealth case explains that freedom of expression does not apply in equivalent degree in every public location, or to every location, private of?ces or a judges? chambers being illustrative examples. Distinctions are appropriate having regard to the purpose and function of the public location in question. Further, it suggests that the Charter does not necessarily guarantee an audience and that a constitutional right to speak embraces a correlative right to close one?s cars. [55] Any law that is inconsistent with the Charter is of no force or effect by virtue of s. 52(1) of the Constitution Act, 1982, being Schedule to the Canada Act 1982 MK), 1982, 11. Freedom of expression is a constitutional value of the highest order and enshrined in s. 2(b) of the Charter. At the intersection where public laws and individual freedoms collide, an analysis must be undertaken in a prescribed manner. [5 6] The required analysis is outlined by Richards .A. (now Chief Justice of Saskatchewan), in Marriage Commissioners Appointed Under The Marriage Act 1995 2011 SKCA 3, 327 DLR (4th) 669. There, he stated: [27] The Charter, of course, is an integral part of the Canadian constitution. Any law that is inconsistent with it is unlawful and of no force or effect. [28] The basic methodology of Charter analysis is well settled. The ?rst step involves an inquiry as to whether either the purpose or the effect of the legislative provision in issue is to curtail one or more of the rights and freedoms guaranteed by the Charter. If this is the case, it is necessary to determine whether any such infringement can be justi?ed, within the meaning of s. 1 of the Charter, as a reasonable limitation of those rights or freedoms. [57] Moving ?'om the general to the particular, the analysis requires further dissection. The ?rst step of the analysis requires three questions to be answered: Montreal (City) 2952-1366 Quebec Inc., 2005 SCC 62 at para 56, [2005] 3 SCR 141 [Montreal (City)]. In the context of the present case, the questions are best posed in this order, given the particular emphasis on the third question and the government?s proposition that the protesters actions are not Charter-protected. The three questions are: [53] . 16 Does the protest involve expressive content? Does the Government action limit that expression, in purpose or effect? (0) Does the method or location of the protest disentitle it to s. 2(b) Charter protection? In the second step of the analysis, the questions are: whether the limit is prescribed by law; and whether the limit imposed is reasonable and justi?ed in a free and democratic society. The onus is on the Government to establish both aspects. The analytical roadmap was provided in Oakes, [1986] 1 SCR 103 [Oakes]. The objective of the law must be of ?pressing and substantial concern?. The Government?s chosen measures must be reasonably and demonstrably justi?ed in three aspects: [59] rational connection to the objective; minimal impairment of the right; and proportionality between the effects of the chosen measures and the objective. In its examination of the proportionality analysis, the Supreme Court of Canada had this to say in K.R.J., 2016 SCC 31 at para 58, [2016] 1 SCR 906 [58] A law is proportionate if (1) there is a rational connection between the means adopted and the objective; (2) it is minimally impairing in that there are no alternative means that may achieve the -17. same objective with a lesser degree of rights limitations; and (3) there is proportionality between the deleterious and salutary effects of the law The proportionality inquiry is a normative and contextual one, which requires courts to examine the broader picture by ?balanc[ing] the interests of society with those of individuals and groups? (Oakes, at p. 139) [60] The KRJ. decision favourably quoted the comment of Abella J. in Alberta vHutterian Brethren of Wilson Colony, 2009 SCC 37 at para 149, [2009] 2 SCR 567. There, she said: most of the heavy conceptual lifting and balancing ought to be done at the ?nal step proportionality. Proportionality is, after all, what 8. 1 is abou [61] In terms of the ?rst step of the Charter analysis, it is conceded that the protest involves expressive content, a possible exception being the act of sleeping in tents overnight. However, the Government maintains the protesters methodology and selective choice of location, in combination, amount to usurpation of the West Lawn for their sole use and enjoyment. This exclusive occupation, in disregard of the rights of others, is the conduct that denies the protesters the right to s. 2(b) Charter protection. As to the last consideration, the Government asserts that the laws it seeks to promote do not, either in purpose or effect, serve to limit the protesters? freedom of expression. The protesters take the opposite View. [62] At the second step of the analysis, it is effectively conceded that the Government has a pressing and substantial interest in regulating the Park on behalf of the public, and that there is a rational connection between the Government?s chosen means and its objectives. Fundamental disagreement exists, however, on the questions of whether there has been minimal impairment of the protesters? rights and in whose favour the end-stage proportionality analysis should weigh. [63] In Weisfeld Canada, [1995] 1 FC 68 (QL) (Fed CA) [Weisfeld], which is central to the Government?s arguments in this case, the authorities had dismantled a Peace Camp consisting of seven tents erected on Parliament Hill. The government -13. relied on the common law of trespass and speci?c regulations prohibiting erection of structures without authority. The protesters replaced the tents with a more permanent structure. This, too, was removed. The appellant, one of the protesters, clung to the structure, resisting its removal and was arrested by the RCMP and taken into custody and later released. The protesters re-erected tents the following day. These, too, were removed. The regulations were amended to prohibit camping or sleeping at the site without the government?s approval. Later attempts to reconstruct the camp resulted in the appellant?s second arrest for obstructing a police of?cer contrary to the Criminal Code, RSC 1985, C-46, along with consequent breaches of his undertakings to the court. The appellant sought a declaration the govemment?s actions in?inged his freedom of expression right under s. 2(b) of the Charter and that the regulations were of no force and effect. He did not speci?cally challenge the government?s actions in relation to the common law of trespass. [64] The Federal Court of Appeal con?rmed that the appellant was engaged in an actionable trespass at common law and that this violation justi?ed removal of the Peace Camp?s structures. It determined that after the amendment to the regulations, the government had additional claims for breach of those regulations. In both cases, the government actions were subject to Charter justi?cation (Weisfeld, para 18). [65] The Court found that the appellant?s activity was expressive. At the ?rst step of the Charter analysis, his activity was not excluded ??om Charter protection by virtue of special considerations or circumstances relating to the form (method) or location of the activity. The government?s purpose was not to restrict the content of the message, which could be delivered by other means. The purpose was to control the form or physical consequences of the message?s delivery. Thus, the governmental actions restricted the appellant?s chosen manner of expressing himself (Weisfeld, para 47). [66] On the s. 1 analysis, the Court found that the governmental objectives, -19.. whether under common law or statute, were ?prescribed bylaw?, per Commonwealth. The objectives were: (1) safety, security, and maintenance, and (2) aesthetics and symbolism. Open ?res at the protest site posed a safety hazard. Proper maintenance of the Parliament grounds was being impeded. Extra security was required as aneg citizens had once torn down the camp. The grandeur of Parliament Hill, and the symbolic importance of the location to democratic traditions was being diminished and compromised. Removal of the camp was a rational connection between objectives and measures. The action minimally impaired the appellant?s rights as he could still speak to the public, hand out lea?ets, and display banners. Accordingly, the removal of the Peace Camp was proportional to the objectives. The Court concluded that the regulations and the common law were reasonable limits on the appellant?s freedom of expression. [67] Similar reasoning was applied in the removal of protest camps in Batty Toronto (City), 2011 ONSC 6862, 342 DLR (4th) 129 [Batty], sometimes referred to as the ?Occupy Toronto? case, and in Calgary (City) Bullock (Occupy Calgary), 2011 ABQB 764, 545 AR 5 [Bullock]. In those cases, the rationale was that parks are for the bene?t of all, and the authorities must be permitted to balance the needs of all park users. [68] I turn to the particular features of the case. E. Trespass [69] The Government began its presentation by outlining what this case is not about. It says the case is not about bringing into question the honour and integrity of the protesters? cause. Nor is it about whether there are larger failings in the political, social or legal systems. It is about the Government?s ability (and derivatively, the Commission?s) to regulate the use of Wascana Centre for the bene?t of the public as a whole. They see the action of the protesters as an unlawful usurpation of the -20. Government?s right and authority to control its property for the common good. The four key violations by the protesters were: (1) failure to obtain a permit; (2) erecting tents or structures; (3) kindling a ?re; and (4) overnight camping or lodging. [70] On June 2, 2018, the Government and the Commission served a Trespass Notice on the protesters. In it, they relied on s. of the Trespass Act and requested the protesters to discontinue overnight camping, erecting tents or other structures, and burning wood or other combustibles by June 5, 2018, at 5:00 pm. The Trespass Notice warned that failure to cease these activities was an offence under the Trespass Act and might be ?dealt with accordingly?. Section of the Trespass Act states: 3(1) Without the consent of the occupier of a premises, no person who is not acting under a right or authority conferred by law shall: after being requested either orally or in writing by the occupier to stop engaging in an activity in or on the premises, fail to stop the activity as soon as is practicable; [72] It is clear that both the Government, as owner, and the Commission, as caretaker, come within the de?nition of ?occupier? in s. 2(c) of the Trespass Act. It states: ?occupier? includes: a person who is in physical possession of premises; (ii) a person who: (A) has responsibility for and control over the condition of premises or of the activities there carried on; or (B) has control over persons allowed to enter in or on the premises; or [73] In Weisfeld, the Federal Court of Appeal af?nned the Federal -21- Govemment?s right under common law and comparable trespass legislation to dismantle a ?Peace Camp? consisting of tents or structures repeatedly erected by cruise missile protesters on Parliament Hill. In either case, it said, the government was proceeding in a manner ?prescribed by law?. [74] As more recently noted in Bracken Fort Erie (Town), 2017 ONCA 668, 137 OR (3d) 161 [Bracken], and in Batty, statutes like the Trespass Act have long been the instrument and means by which governments exercise their common law power to exclude uninvited persons from public property. In Bracken, at paragraph 70, the Ontario Court of Appeal observed that the authority to exclude others from property does not come from trespass legislation, as that legislation does not set out any preconditions for its application. Rather, the authority to invoke trespass legislation comes from other legal sources, such as the right to exclude others that is inherent in the status of an occupier in the common law of property. That is the substantive law; the legislation simply provides the remedies. [75] Thus, while the Government?s property rights are enforceable via statutory measures of the kind availed here, including the Trespass Act and the Recovery Act, these are simply remedies and enforcement measures. They are not the source of the govemment?s authority in the matter. They are practical tools to advance a larger body of substantive law concerned with proprietary rights and trespass. This has implications for some of the arguments advanced by the protesters. [76] The relevant portions of the Recovery Act are s. 3(1) and (3) and s. 4, which provide in material part as follows: 3(1) When a person re?lses or fails to cease using or occupying land that he is wrongfully or without lawful authority using or occupying, the person entitled to possession may apply ex parte to a judge of Her Maj esty?s Court of Queen?s Bench for Saskatchewan sitting at the judicial centre nearest to which the land is situated for an order granting him leave to serve a notice of motion directed to the person in possession and returnable before the judge at such time and place -22- as may be ?xed by the order, requiring the person to whom the notice is directed to show cause why an order should not be made for his removal from the land, and to compel him to vacate it, and to cease using or occupying it. (3) If the person . .. does not show good cause to the contrary, the judge shall make an order for possession 4 The of?cer or person to whom an order for possession is directed and delivered shall forthwith remove the person named therein from the land and all other persons who, under his authority or direction or permission, are using or occupying the land; and may also remove from the land the goods and chattels of such persons found thereon .. .. [77] The Commission relies on Bylaws 3(b) and and 27(a)(ii) and for Wascana Centre. In material part, these state: 3. Except as may be authorized by the authority or the director, either in writing or by an erected sign, no persons shall, save within a building: start, make or kindle a ?re within the centre for any purpose; engage in any activity within or enter upon and make use of any area that is contrary to a sign prohibiting, restricting or otherwise limiting such activity or use therein or thereon erected by or on behalf of the authority. 8. Except as may be authorized in writing by the authority or director no person shall erect any booth, tent, stall or other structure for any purpose whatsoever on any land within the Centre. 27 No person shall carry on the following activities in Wascana Centre without a permit: (ii) Set up a shelter, tarp, canopy or other such device. (0) No person in Wascana Centre shall: -23- (ii) Establish or maintain a camp, or erect or maintain a tent or other shelter for use as a lodging. [78] It has been noted that Bylaw 27 was passed on June 21, 2018, three days after the dismantling of the camp. The protesters have raised an issue that this shows manifest and speci?c intent to sti?e their voices. I will address this in the course of their Charter argument. [7 9] The Commission further relies the Commission Act, which provide as follows: 7-7(1) This section applies if land is used in contravention of this Act, the master plan or a bylaw of the commission. (2) The commission or a participating party may apply to a judge of the Court of Queen?s Bench for all or any of the following: an order restraining the person making the unlaw?Jl use of land from continuing the unlawful use. 7-11(1) The commission may apply to a judge of the Court of Queen?s Bench for all or any of the following: an order compelling a person to comply with this Act, the regulations, the bylaws of the commission. .. [80] In either case, whether under s. 7-7 or s. 7-11, the court may make any order it considers appropriate. [81] The Commission says that a statutory injunction such as one under the Commission Act, which is sought in the public interest of having the law obeyed, falls to be governed by different considerations than the granting of an equitable injunction by the court. In the case of a statutory injunction, judicial discretion is more fettered. Furthermore, it is unnecessary to prove damages or irreparable harm. There is no requirement to pursue other remedies before seeking the injunction. Hardship resulting -24- ?'om the injunction will not outweigh the public interest: Law Society of Saskatchewan Morrison, 2015 SKQB 323 at para 33; and Bullock, para 28. [82] Relying on the foregoing, the Government and the Commission seek an order compelling the protestors to vacate, to remove their belongings, and to cease their unlawful use of the land unless a permit or authorization is appropriately obtained. If the protesters fail to comply, the Government and the Commission seek authorization to dismantle the camp with police assistance and remove the protesters and their belongings. They ask for a provision authorizing the police to use reasonable force or arrest powers as required (including the arrest of all persons with notice of the order who refuse to comply). The police are to retain discretion in the manner of enforcement and in relation to the arrest, removal and release of any person. Finally, they require a deeming provision with respect to notice of the order Via personal delivery, posting in conspicuous locations, or delivery over a sound ampli?cation system. [83] The Government says the order has been tailored narrowly, in terms of its application to the West Lawn alone. The order does not prevent the protesters from continuing their protest within permissible limits and! or ?om applying for a permit and exemptions from the Bylaws. The wording of the order preserves and respects the operational discretion of the Police. The order mirrors the order granted in Bullock and is keeping with the terms of an order granted by Gomery J. in City of Burnaby Patricia Kelly (10 August 2018) Vancouver, Registry No S-188298 (BCSC). [84] Support for the inclusion of an enforcement provision in an injunction order was mentioned incidentally in the Supreme Court of Canada?s decision in MacMz?llan Bloedel Ltd. Simpson, [1996] 2 SCR 1048 at para 41. There, the police had requested speci?c authorization to arrest and detain persons breaching the injunction as a term of the order. They were met with arguments that this was super?uous or inappropriate as a court order must be obeyed. As the point had not been -25- in issue in the lower court proceedings, the Supreme Court did not feel the need to address it. However, it took the opportunity to observe that the inclusion of a provision for police enforcement appeared to follow common practice of ensuring that affected persons were clearly attuned to the consequences of noncompliance with a court order. Thus, members of the public did not need to simply take the word of the police that the violation of the orders would result in arrest or detention; it was spelled out in the judge?s order. In the Supreme Court?s view, the inclusion of the enforcement provision did no harm and had the potential to make the order fairer. [85] In Circumstances as here, where the Police have been hesitant to intervene because there has been no apprehension of violence or interference with public peace and order, and in a situation where the camp has once been dismantled and almost immcdiately re-established, it is entirely understandable the Government would require enforcement provisions in the order. Given the mercurial properties that enable the camp to disassemble and quickly re-forrn, the Government could face the ignoble prospect of repeated challenges to its authority, and the burgeoning costs of repetitive proceedings before the court. To date, the Government has not sought costs in relation to the proceedings. [86] There is no doubt on the facts and the law that, absent Charter considerations, the protesters are engaged in an act of trespass on government property. Above all, they failed to seek appropriate permission for their encampment. They concede that by virtue of that failure, there is no member of the group that can be identi?ed as the person in charge, or who accepts responsibility for the actions of its members, one of the important objectives of the permit process. Mr. Demas would seemingly have been aware of the need to do so, having engaged in the authorized student protest the year previously. The protesters at large were aware of the need for a permit from the outset by virtue of written and verbal notices provided to them. The -26- Government issued eviction notices and, the last, a trespass notice, all of which were ignored. [87] The protesters? intrusion on the land was direct, physical and intentional. There is no doubt they were engaged in voluntary and affmnative action in the required sense. Indeed, they self-proclaimed their status as trespassers. On June 30, 2018, they held an event entitled the ?Trespassers Powwow? to celebrate their return to the West Lawn and the re?establishment of the protest camp. The trespass is of a continuing nature, having persisted for almost six months. [8 8] Where a government action invokes the law of trespass, the comments in Smiley Ottawa (City), 2012 ONCJ 479 at para 49, 100 MPLR (4th) 306 [Smiley], are pertinent. The court said: [49] duly constituted government organizations in :1 free and democratic society have the right to issue trespass notices and follow through on that action when any person or group disobeys the governing rules, regulations and bylaws which are open to judicial and electoral review. In R. v. Behrens, the justice concludes that ?The law of trespass may act as a legal limit to freedom of expression, subject to justi?cation under section 1? of the Charter. [89] The protesters have explicitly attacked ss. 3, 8 and 27 of the Bylaws and s. 3 of the Recovery Act in their Charter motion, but have left untouched the question of the Government?s larger interest in preventing trespass to property. The protesters did not directly confront the issue of the Trespass Notice dated June 2, 2018, or assert that the notice constituted an unjusti?able limitation on their rights under s. 2(b) of the Charter. The protestors say they did not raise it because the Government and Commission relied on the Trespass Act but elected not to pursue the enforcement measures (?nes) under that Act. This argument con?ates rights and remedies and misconceives the fundamental nature of the underlying and substantive justi?cation for the Government?s actions, which, as explained in Bracken, draws on the full panoply of property rights and the law of trespass. -27- [90] For its part, the Government argues the protesters are con?ned to the matters raised in their Notice of Constitutional Questions. Nonetheless, given the result, there is no prejudice in taking the protesters challenge to the Recovery Act more broadly as a challenge with respect to the trespass aspect, given the Recovery Act is simply a means of remedying a trespass to property. F. The Charter: 8. 2(b) [91] In response to the Government?s application, the protesters served notice on the Attorney General for Saskatchewan of their intention to argue that 3 of the Recovery Act and ss. 3, 8, and 27 of the Bylaws were unconstitutional, and that they interfered with the protesters? expressive rights under s. 2(b) of the Charter. [92] Section 2(b) of the Charter provides: 2. Everyone has the following ?mdamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. [93] As stated in Irwin Toy Ltd. Qu?bec (Attorney Generai), [1989] 1 SCR 927 [Irwin Toy] at 968: Freedom of expression was entrenched in our Constitution and is guaranteed so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream . . . [94] Underscoring the impact of the inalienable right to speak one?s mind, Dwight Newman Guy R?gimbald, The Law of the Canadian Constitution, 2d ed (Toronto: LexisNexis, 2017), state that freedom of speech ?can be considered the last rampart of democracy, and the main protection against tyranny? The core human values that the expressive right protects are (1) democratic discourse; (2) truth-seeking; and (3) personal ?il?llment: Irwin Toy, at 976. -23. [95] Speaking truth to power, or even one?s perception of truth, is a personal sovereignty that will yield only to compelling state interests. [96] The protesters have characterized their expressive activity to include matters concerning the following: the relationship of indigenous peoples to Her Majesty the Queen; matters of national importance re?ected in the reconciliation process; concerns about prejudice in various Saskatchewan institutions; the overrepresentation of indigenous people in prisons and children in protective care (provincially and nation-wide); placement of aboriginal children with strangers; and, ?nally, partiality displayed by the Chief Coroner?s Of?ce. [97] At the nucleus of the protest are two mothers, each grieving the loss of a child, each disputing the ?ndings of the coroner that their child?s death was by accident. Another activist is an individual personally affected by the apprehension of three children from parental care. As their loss is perpetual and absolute, they feel their vigil can be no less. From time to time, other causes and movements have joined in a chorus of support and claimed common interest. [98] These issues, personal and panoramic, explain the ?why? of the encampment. [99] Expressive content goes beyond words and can extend to emblems, symbols and other inanimate objects that impart meaning: Weisfeld, para 30. The protesters contend that the tipis, representing the traditional home of Aboriginal Peoples, and the sacred ?re, representing the hope that the children may return home, constitute an integral component of their freedom of expression. [100] Just as the public square is ?paradigmatically, a place traditionally used to express public dissent? (Bracken, para 33), the protestors argue that the West Lawn is a symbolically important location due to its proximity to the Legislature. The location .29- is highly visible and allows them to convey a message on behalf of disadvantaged individuals, including children who cannot speak for themselves. While the law may apply equally to all, this uniformity gives no recognition to aboriginal concerns and interests. From their perspective, the law?s prohibitions and prescriptions are simply the instruments by which the majority can impose its will and avert its eyes from the plight of those in distress. [101] Similar observations have been made in dealing with the plight of the homeless. In a caustic piece of social commentary, made long ago, Anatole France observed that ?The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges Saskatchewan Federation of Labour Saskatchewan, 2015 SCC 4 at para 56, [2015] 1 SCR 245. However, the law in modern times is not the blunt instrument of its forbears. In Abbotsford (City) Shamtz, 2015 BCSC 1909, 392 DLR (4th) 106 [Shantz], for example, in balancing societal interests against the plight of the homeless and their rights to security under s. 7 of the Charter, the court achieved an equilibrium by allowing the homeless to lodge in the park during night-time hours. 1. The protesters? position [102] The protesters? position is that their message is politically expressive in nature and self-ful?lling on an individual level, particular for those participants who have suffered personal less. They say the public location is a place that inherently demands 5. 2(b) protection. In their view, the encampment constitutes no serious disruption to other users of the Park. [103] The protestors refer to Vancouver (City) Zhang, 2010 BCCA 450, 325 DLR (4th) 313 [Zhang], which held that the function of public streets is compatible with public expression and that an absolute prohibition on structures encroaching on the street (without interfering with pedestrians or traf?c) offended the Charter as it could subvert democratic discourse. -30- [104] The protesters observe that the only concession to freedom of expression that is given eXplicit recognition in the Bylaws is the right to post signs on a message board. They say it is feeble recognition. That ignores the larger accommodations inherent in the permit process. The permit process allows applications for the conduct of demonstrations and protests, and for speci?c exemption from the requirements of the Bylaws on a case-by?case basis, as seen with the student protesters in 2017. The process allows for focussed and pragmatic decision-making, event by event. Banners might be approved, for example, but not graf?ti, despite the fact that each contains expressive content. The protesters? arguments that beer gardens are given preference to protests are specious when the permit process has never been availed. [105] The same can be said for the argument that barbeques are allowed and there is no justi?cation for a complete ban on ?res. This misses the mark, for the same reason. There is no ?complete ban? but rather a requirement to seek permission. [106] That permit process distinguishes the present case from Zhang. There, the City of Vancouver had an absolute prohibition on structures in the streets without any policy accommodating political expression. Despite that, the city had established policies accommodating encroachments for other purposes, including commercial activities and aesthetic endeavours. This is sharply distinct from the situation here. [107] The protesters argue that the size of their camp is fractional in comparison to the total square footage of the Park. They say the West Lawn is only one of many, many areas in the Park that are particularly conducive to events and assemblies. The converse holds true. There are many other areas suitable to the protesters? purposes. The protesters can apply for permission to demonstrate in any number of areas, including the West Lawn. [108] As to the nine events that were forced to relocate, the protesters say it has not been shown that the events were any less enjoyable at the alternate location. The -31- essential point, however, is that the nine other events had pre-authorization and permission to use the West Lawn. [109] The protesters deny any intent to assert exclusive dominion over the West Lawn. The reality, however, is that exclusive occupation, continuous and uninterrupted, has occurred for the past six months, save for the brief interlude when the camp was dismantled. The actions taken against the protesters have not been precipitous. The West Lawn has been co?opted during the ?eeting summer months when signi?cant events are typically planned. Authorized events at that location have been compelled to adjust their pro-arranged, pro-approved plans. Those who abided by the rules and regulations have been ousted by those who failed to comply. [1 10] Public safety is not in jeopardy, the protesters contend, because the Police are responsible for keeping the peace and will presumably execute their duties, even if they are not allowed to approach the vicinity of the sacred ?re. It is true that the only disruptive incidents to date have been on the part of counter-protesters, one throwing a Nazi salute, the other a roman candle. That type of reaction is its own scar on the face of the community, but nonetheless manifests a very real prospect that tensions may escalate and that the ?tragedy of the commons?, as it was referred to in Batty, is a meaning?? concern for those ?xed with the responsibility of maintaining public safety and order. The concern for the Commission is not with who escalated tensions, but how they may unfold. [111] Although there have been a number of complaints (75) from the public, the content of the complaints is largely unknown, except with respect to two anonymous letters. One was replete with invective and overt hostility towards aboriginal people. As such, the protesters say the court should infer that all of the public complaints were in a similar vein. This overreaches the mark. Common sense dictates there will be complaints simply on the basis the protesters have jumped the queue. Whether the -32- public complaints are that the social contract requires everyone to play by the rules and have a fair turn, or that the smoke from the ?re bothers asthma sufferers, or that people no longer feel safe in the park at night, the right of complaint and criticism is, by and large, protected expression as well. More to the point, public support and/or public disaffection on a signi?cant scale, whatever the reasons, are rational considerations for the arbiters of the use and management of public property. [112] Turnng to the standard the Government must meet, the protesters concede that the limitations on their activities are prescribed by law, and that there is a rational connection between the Government?s objectives and the means of advancing those objectives. They concede, broadly speaking, that the Government?s ability to control public lands and manage its use and enjoyment, are pressing and substantial concerns. [113] However, the protesters do not agree that the Government?s speci?c concerns in the matter with respect to safety issues, grounds-keeping and lawn maintenance, public complaints and public inconvenience are suf?ciently pressing or substantial to warrant overriding their constitutionally protected expressive rights. They say the means of control used by the Government are not ?minimally impairing? of their rights. The Government has not demonstrated that removing the tipis, the sacred ?re and preventing overnight camping is minimally impairing, or justi?ed on the proportional analysis. [114] Further, the protestors say the timing in introducing Bylaw 27 is suspect and manifests an intent to limit free expression for its own sake, and not for any legitimate policy objective. They say Bylaw 27 is the ?rst mention of an explicit prohibition against ?camps?. This is largely semantics. I consider Bylaws 3 and 8 suf?ciently encompassing of the protesters? activities. It matters little whether the prohibition is couched in the singular (?any tent?) or in the plural (?camps?). The - 33 prohibition is clear. Amendments to bylaws were made after the fact in Weisfeld. 2. The Attorney Gen eral?s Position [115] The Attorney General says that s. 2(b) of the Charter does not operate to prevent others with similar rights from using the same space. The protection extends to all patrons, all protesters. The present protesters cannot use 3. 2(b) of the Charter to claim an unfettered right to protest at a prized public location on a perpetual basis. This is a usurpation of the space to the exclusion of all others. The Government is not limiting, or attempting to limit, free expression. It is only minimally restricting the time, place and, to some extent, the means by which that expression occurs. [116] Counsel notes that in common with all other users, the protesters are free to apply for permits and exemptions from the operation of certain Park Bylaws. Moreover, discretionary administrative decisions involving Charter values such as freedom of expression are themselves subject to review. Any such review would assess whether the decision is reasonable in re?ecting a proportionate balance between the Charter protections at stake and the relevant statutory mandate underlying the decision: Dor? Barreau du Qu?bec, 2012 SCC 12, [2012] 1 SCR 395. [117] In proceeding through the stepped Charter analysis, at the ?rst stage, the Attorney General concedes the protesters? activity has expressive content. However, on the question whether the method of protest or the place of protest preclude application of s. 2(b) of the Charter, the Attorney General argues there is an unusual conjunction between the two criteria in the context of this case. The interplay between the two serves to exclude the encampment from Charter protection. [118] In short, the choice of method and location in this case has effected a ?usurpation? by the protesters, to the exclusion of the public at large. The protesters are precluding the effective exercise by others of their s. 2(b) Charter rights in their monopolistic approach. This nuanced feature of the case is evidenced by the unfortunate -34- fact that nine other causes or groups were pre-empted and required to relocate. The Attorney General says the protesters are effectively seeking to trump all other rights in relation to the use of the space. [119] If the Court ?nds an infringement of s. counsel submits that the impugned provisions are a reasonable limitation under s. 1 of the Charter. As the protesters have fully conceded that the infringement was prescribed by law and that the Government?s interest in the management of Wascana Centre is a pressing and substantial objective, these requirements are satis?ed, leaving only the proportionality analysis. Counsel submits this should weigh in favour of the broader interests of order, stability, and equitable use and enjoyment of the Park?s resources. [120] Counsel submits the Commission?s Bylaws are similar to those upheld and enforced in the Bullock case and in Batty to end the prolonged encampments of the Occupy movement. Similar cases dealing with laws, rules and regulations prohibiting encampments in public parks, have been considered by courts across Canada. All have been deemed to be reasonable limitations under s. 1 of the Charter. These include Weisfeld, Bullock, Batty, and Bracken Niagara Parks Police, 2018 ONCA 261, 421 DLR (4th) 157 [Niagara]. 3. Analysis: Step One Does the protest involve expressive content? [121] This is conceded. Expressive content of a political nature is involved. The tipis and ceremonial ?re constitute expressive activity. Does the government action limit expression, in purpose or e?ect? [122] Here, the Government? concern is about the ?packaging of the message?, not the content. It does not seek to interfere with the protesters? ability to convey their message by other means. Nonetheless, the protesters? chosen form of expression is a -35- permanent and permitless occupation of the West lawn. The Government?s actions are restrictive of that desired effect and therefore restrictive of the protesters? freedom of expression: Weisfeld, para 47. (0) Does the method or location of the protest disentitle it to s. 2(b) Charter protection? [123] As Irwin Toy notes at pages 971-73, it is necessary to differentiate between efforts to control content (or content-related expression) on the one hand, which is Charter prohibited, and efforts to control the disruptive consequences of activities unrelated to expressive content, which is not. If the Government objective is simply to constrain the disruptive effects of protest activities and the disruption to public services, leaving demonstrators otherwise free to exercise their rights, then this is entirely permissible. [124] Montr?al (City), at paragraph 72, says expressive activity should be excluded train the protective scope of the s. 2(b) guarantee only if the choice of method or location (viewed in the context of the location?s historical and actual function) clearly undermines the values that underlie the guarantee. Those values, it will be recalled, are democratic discourse, truth-seeking, and personal ful?lment. [125] Clearly, others are being denied these same values by the actions of the protesters. Causes such as the ?ght against childhood cancer, pancreatic cancer, Alzheimer?s, heart and stroke, arthritis, and global poverty have been excluded from a highly prized, highly visible, promotional space. The symbolic importance of the West Lawn is acknowledged in full measure by the protesters, given its proximity to the seat of government. There is only one West Lawn. A strategically valuable speakers? corner should not be dominated by a single voice, no matter how vital or important the message. [126] In Niagara, the Court held that a regulation Within the Park against -36. abusive or insulting language or conduct unnecessarily interfering with the use and enjoyment of the Park by others was constitutional. It said at paragraph 71 that communities have an interest in maintaining the public character of shared spaces and regulating use that renders the space un?t for the reasonable use of others. It approved, the cements of Brown J. (as he then was) in paragraph 91 of Batty that ?without rules governing what people can and cannot do in parks, they would be at risk of descending into battlegrounds of competing uses (emphasis added): Niagara, para 71. [127] Niagara, at para 93 recognizes that there can be limitations on expression in the Parks based on time of day, appropriate limits on noise, or the nature of any interference with speci?c activities going on in speci?c locations. The analysis must always be contextual. [128] Similar sentiments are echoed in Bracken, where the Ontario Court of Appeal states: [75] 1 observe that where a government issues a trespass notice relying on the common law power to expel persons from property, it is exercising a power that is subject to implied limits. It cannot be issued capriciously; that is, it cannot be issued, in the circumstances of a public protest in the town square, without a valid public purpose. What constitutes a valid public purpose need not be fully canvassed here, but it would include, for example: the prevention of unlawful activity, securing the safety of persons, preventing the appropriation of public space for exclusive private use, and preventing the obstructing of the operation of government and the provision of government services. These implied limits are echoed in the proportionality analysis. [129] The protesters aSsert a right to encamp round the clock, on a permanent or inde?nite basis, on the ?xed location of the West Lawn. In the present case, as in Batty, the protesters have monopolized a prime area of the park and converted it to their exclusive use. They argue it is on a smaller scale than Batty, but the focus here is function, not scale. Occupying a uniquely symbolic and treasured space to the exclusion of all others is not justi?able on the argument it constitutes only a small part of the total -37- square footage. In light of its historical and actual use, and symbolic value, the West Lawn must be open and accessible to all. [130] In Vancouver (City) 2011 BCSC 1647, 342 DLR (4th) 190, protesters, part of Occupy Vancouver, erected tents that did not occupy all the municipal Art Gallery Lands, only a part of a plaza. The court said that although the protesters may not have intended to exclude other groups, the positioning of the tents throughout the entire north plaza prevented others ?'om accessing and using the public space. Here, counsel for the Attorney General argues the positioning of the tents on the West Lawn not only appropriated that site for the exclusive bene?t of the protesters, it had the effect, in terms of positioning, of posting a ?guard at the gates?. [131] The Government?s arguments are persuasive in suggesting that the combination of the protesters? chosen methods, and selection of location, could well serve to exclude protection under s. 2(b) of the Charter at the ?rst step in the analysis. Nonetheless, the case law predominantly decides the issue on step two of the analysis, and I will therefore proceed through that analysis and consider whether the limitations are reasonable and saved by s. 1 (the Oakes test). 4. Step Two Prescribed by law? [132] This is conceded. Pressing and substantial objective? [133] This is conceded. As stated in Betty, absent regulation of competing demands, chaos would reign: Batty, para 91. The limitations are an attempt to balance in an equitable way the different uses and users of the Park facilities. Remedies in trespass simply seek to secure those objectives: Batty, para 95. As noted in Bullock, parks are an essential part of the fabric of the community, and exercising control over -33- the competing demands, maintaining them in good condition, and implementing safety measures are all important objectives: Bullock, para 37. (0) Measures chosen are rationally connected to the objective? [134] This is conceded. Minimal impairment? [135] ?If the law falls within a reasonable range of alternatives, the courts will not ?nd it ovorbroad merely because they can conceive of an alternative which might better tailor objective to infringement. On the other hand, if the government fails to explain why a signi?cantly less intrusive and equally effective measure was not chosen, the law may fail?: RJR Macdonald Inc. Canada (Attorney General), [1995] 3 SCR 199 at para 160. [136] In Batty, this was considered the prevailing approach in determining whether a law is minimally impairing of particular rights: Batty, para 100. [137] In Niagara, the Ontario Court of Appeal put the analysis in these terms: [74] [The legislation] will fail the minimal impairment test only if there are alternative schemes, less restrictive of freedom of expression, that achieve the provision?s objective ?in a real and substantial manner?: KRJ, at para. 70; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 55. The Commission, which promulgated the regulation, is owed a ?measure of latitude? in this inquiry; the question is whether the means it chose is within an acceptable range of alternatives, not whether it is the least restrictive means imaginable: City of Montreal, at para. 94; R. v. Edwards Books and Arts Ltd, [1986] 2 S.C.R. 713, at p. 772; Gordon v. Canada (Attorney General), 2016 ONCA 625, 404 D.L.R. (4th) 590, at paras. 25 8-261. [138] As noted in Zhang, ?the Bylaw must be looked at as part of an entire regulatory scheme, in which a general prohibition is necessary because the City could not foresee every encroachment or obstruction?: Zhang, para 67. -39- [139] Although the protesters have adeptly tried to portray the limitations in question as an absolute prohibition against expression, they were not of that order. Limitations against unauthorized overnight lodging between 11:00 pm. and 5:00 am, and restrictions on encampments and ?res, unless authorized, have been found minimally impairing in comparable cases. [140] Further, in Bullock, the existence of a permit application process whereby applicants could obtain permission to camp or erect structures precluded any effort to categorize the bylaws as an absolute prohibition: Bullock, para 43. Here, the permit process is an open, accessible invitation to all users of the Park. It fosters sensible planning, promotes safety, and mediates competing demands on the Park?s use. Further, the prohibition is only restrictive in an absolute sense with respect to night-time hours, between 11:00 pm. and 5:00 am. What would constitute less restrictive measures was not a case put forward for the court?s consideration, nor is the court able to fathom any on its own initiative. As in Bullock, the measures in the present case are minimally impairing. Proportionality [141] As noted in K.R.J., it is at this stage that the court balances the interests of society with those of individuals and groups. [142] The protesters argued that the cultural values of reconciliation should inform the analysis, just as they have in the sentencing process. However, they did not expand on the proposition or offer suggestions how this could be effectively accomplished by the court when conducting a ?balancing? exercise. That exercise would seem, by de?nition, to preclude examination of questions such as whether protest on aboriginal issues should outweigh advocacy for global peace or ?ghting childhood cancer. I am unclear if the argument suggests there should be hierarchies of legitimacy in the arena of expressive rights, or that some speech is more meritorious than others, -40. or that their background should operate to reduce any overall moral blameworthiness with respect to the trespass committed. The lack of clarity makes the proposition dif?cult to address. [143] The legislative mandate set out in s. 2-4 of the Commission Act requires the Commission to administer and manage Wascana Centre, having regard to educational, research and development opportunities, the advancement of the cultural arts, the improvement of recreational facilities and the conservation of the environment within Wascana Centre. The limitations on the use of the Park secure to the many, not simply the few, all the aspirational values of democratic discourse, pursuit of truth, and personal self?ful?lment. To grant a veto to monopolistic claims achieved by way of trespass could, as counsel argues, create an expressive right to civil disobedience. [144] The limitations imposed by law to ?rrther these objectives bear striking resemblance to those in Batty, where the court said this at paragraph 123: [123] Turning, then, to the ?nal branch of the proportionality analysis, has the City demonstrated that there exists proportionality between the deleterious effects of the measure it adopted by issuing the Trespass Notice and its salutary effects? I have no hesitation in concluding that the evidence shows that there is proportionality. In seeking compliance with two provisions of the Parks By?law, the Trespass Notice would have the effect of ending the Protesters monopoly of a public park in downtown Toronto and requiring them to share it with the rest of the public. The Protesters have ample means left to express their message, including continued use of the Park (but no structures or ?midnight hours?), and other Torontonians can resume their use of the Park. In my view, such a result would more than meet the test for proportionality of deleterious and salutary effects. [145] In Bullock, the court stated the public bene?t that came with the limitations was not simply the removal of the encampment, it was nothing less than the working system of municipal parks, the balancing of competing interests of all citizens: Bullock, para 46. -41. [146] In its most recent comment with respect to proportionality, the Supreme Court of Canada said in Law Society of British Columbia Trinity Western Universigz, 2018 SCC 32 at para 80, [2018] 8 WWR 1, that reasonableness and proportionality are synonymous, and the case law has used the two notions interchangeably. In Shantz, the court said: [197] Although public property is held in trust for the public, the right to access and use public spaces is not absolute. Governments may manage and regulate spaces, provided that such regulation is reasonable and accords with constitutional requirements. Reasonableness must be assessed in light of the public purpose described. [147] Similarly, in Hussain Toronto (City), 2016 ONSC 3504, dealing with alleged violation of the right of peaceful assembly in the denial of a permit application, the Ontario Divisional Court said: [43] The right of some citizens to use a park in one way must be balanced against the right of other citizens to use it another way. The right must also be balanced against public health and safety concerns, and expense to the larger community. In my View, the City exercised its responsibility in an entirely reasonable way in this case. [148] For many, if not most, reasonableness and common sense are closely related as well. In Smiley, on the subject of challenges to trespass law and in ?nding the justi?catory burden had been met on the Oakes test, the court made these practical observations: [50] Protesters can access public parks, as any citizen, during the normal hours of operation of the public place to express themselves, but are subject to reasonable limits such as the bylaws prescribe. Should the protesters disagree with the bylaws, they are free to petition the public authority for change, raise the issue in the free press, protest within the limits of the park bylaws, support initiatives for change, support candidates of change, or run for elected of?ce to bring about those changes. This is the stuff of which democracy is made. -42- 5. Conclusion on s. 2(b) Charter issue [149] The protesters? claim to a right to encamp around the clock, on a permanent or inde?nite basis, on the location of the West Lawn, is not one that can be endorsed by this court. In terms of normative values, society has achieved more through order than disorder, more through respect for the law than disregard for the law?s application. The Government is applying the instrument of the law to prevent disruption to public services and resources, and fair allotment of those resources through the permit process. The protesters? occupation of the West Lawn, in the shadow of the most in?uential building in the province, although claimed in pursuit of heartfelt grievances, serves in the end to diminish the rights of all others to access the space and to enjoy the same fundamental freedoms and values claimed by the occupiers. [150] The application of the Government and the Commission is allowed. The order requested will issue in terms of the draft order submitted. G. Arrest and detention: 9(b) of the Charter [151] It is acknowledged that no mention was made in the course of the arrests regarding arrest on the grounds of ?trespass?. Counsel for the Police referred in their supporting material to arrest for ?obstruction?. Two of the Police af?davits indicate that the arrests were for ?Obstruct justice?. One of the protesters stated she was told she was being arrested for ?obstruct justice?. [152] The protesters say it must be concluded that the arrests were effected under s. 139 of the Criminal Code, which addresses obstruction of justice in a judicial proceeding. One of the elements of the offence (judicial proceeding) was not present, and there was no lawful basis of arrest on the grounds of ?obstruct justice?. [153] However, the af?davit of the senior of?cer on the scene (Superintendent -43- Koch) indicates the arrests were for ?Obstructing a Peace Of?cer? under s. 129 of the Criminal Code. These evidentiary inconsistencies became a focal point of argument. The argument by the protesters is that the lawfulness of an arrest is measured against the offence for which the arrest is purportedly effected because that is the foundation of the arresting of?cer?s subjective belief, not some other offence that may have occurred or that an arresting of?cer might have contemplated. [154] The protesters rely on Turpin, 2012 SKCA 50, 284 (3d) 296, where the police used a purported concern that a motorhome had been stolen as a blatant pretext to arrest for the purpose of conducting a drug investigation. The court held the arresting of?cer did not subjectively have reasonable and probable grounds to arrest, because there had not even been a cursory investigation into the possibility the motorhome had been stolen. The of?cer could not justify arresting the accused because of his ?agrant negligence in misreading a VIN number, and he had no other grounds to rely upon. While the subjective component was clearly lacking in that case, it is a signi?cant remove ??om the circumstances of this case. Arresting on a blatant pretext is quite different from arresting on a possibly erroneous justi?cation. [155] First, it must be understood what the police powers actually are in a situation involving trespass. Section 12 of the Trespass Act permits warrantless arrest. It states: Arrest without warrant 12 A peace of?cer may arrest without warrant any person found in or on premises if the peace of?cer believes on reasonable grounds that the person is contravening any provision of this Act. [156] In Asante?Mensah, 2003 SCC 38, [2003] 2 SCR 3 [Asante?Mensah], the Supreme Court of Canada considered the limits of the arrest power in s. 9 of the Trespass to Property Act, RSO 1990, T.21 and more particularly, the right of citizens to use reasonable force in making an arrest that is otherwise lawful under that -44- provision. Writing for a unanimous court, Binnie J. found that under s. 9, an occupier could use reasonable force both to institute the status of an arrest and to maintain it. [157] There, the appellant, a taxi driver, repeatedly ?scooped? fares at the Pearson International Airport (Toronto) without a permit, contrary to regulations. He continued to do so, notwithstanding having received notice under s. 3 of the TPA prohibiting entry for any purpose onto airport property. He shrugged off the ?nes resulting from charges of trespass. In an effort to control the problem of taxi drivers soliciting fares without proper licences, the airport authorities decided to exercise their power of ?citizen?s? arrest under s. 9 of the IPA. The courts below rejected the appellant?s Charter challenge to s. 9 of the TPA based on s. 7 (?fundamental justice?) and s. 9 (?arbitrary detention or imprisonment?), and he did not press those arguments before the Supreme Court of Canada. Thus, the Supreme Court was examining the legislation after an unsuccessful Charter challenge, as I am here. [158] The TPA differs from the Saskatchewan legislation in allowing an occupier to effect an arrest. The PA states: 9. A police of?cer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2. [159] The TPA, it was noted, did not replace the common law remedies, but gave occupiers additional rights. In examining the operation of the section, Binnie J. looked at the arrest powers of an occupier in comparison to those possessed by the police. He noted that in legal antecedent, the peace of?cer?s powers were derivative ?om that of the citizen, and not the other way around (para. 40). [160] In the course of his analysis, he described the TPA and the equivalent trespass statutes in other provinces as the ??vorkhorse? in terms of enforcing occupiers? -45- rights in places of public congregation (para. 25). The TPA included the authority to use reasonable force to arrest and to detain the person arrested. He described this authority as incidental to the statutory power of arrest and therefore requiring no separate or explicit statutory authority. [161] He noted that the inconvenience and indignity of being arrested might sometimes be seen as more of a punishment, and thus more of a deterrent, than the amount of any ?ne ultimately levied (para. 32). Thus, a serious interference with personal liberty of a trespasser was clearly authorized by the IPA, even if the individual arrested submits to arrest (para. 35). [162] The appellant had argued that breach of a minor provincial offence such as trespass (for which a ?ne could be imposed) should not be escalated to a Criminal Code offence (such as resisting arrest or escaping lawful custody). (Here, the protesters had similarly argued that the Police should not have resorted to the Criminal Code for the purpose of enforcing a bylaw scheme.) Justice Binnie?s response was that the law regards a de?ance of lawful authority more seriously than the original offending act in many circumstances (para. 70). [163] He also noted the following: [73] A certain amount of latitude is permitted to police of?cers who are under a duty to act and must often react in dif?th and exigent circumstances: Clueit v. The Queen, [1985] 2 S.C.R. 216, at p. 222; R. v. Biron, [1976] 2 S.C.R. 56, at p. 64 (Laskin C.J., dissenting); Besse v. Thom (1979), 96 D.L.R. (3d) 657 (B.C. Co. at p. 667, reversed on other grounds at (1979), 107 D.L.R. (3d) 694 R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.), at p. 218. The same latitude will not necessarily be shown to an occupier who is under no duty to act and who instigates a confrontation with a trespasser. [164] Although an arrest should only be attempted if other options prove ineffective (para. 76), he concluded that arrest was a reasonable course of action on the -46- facts of the case. All other attempts to secure the appellant?s compliance had failed, and directions to the appellant to leave the property had historically proven to be meaningless. The trial judge had also explained that the act of private arrest effectively stopped the commission of the offence and prevented its continuation (para 78). Accordingly, the appeal was dismissed. [165] Given that the Supreme Court of Canada recognized equivalence between the powers of a citizen?s arrest in trespass and the police power of arrest in trespass, and that the police had more latitude, the foregoing comments assist in understanding the ambit of the Police?s authority in the circumstances of the present case. [166] The Commission stated in its af?davit material that the complaint it made to the Police was about the protesters? act of trespass. The Chief of Police acknowledges this was the complaint the Police received. When the police acted on June 18, the protesters were still engaged in an act of continuing trespass. [167] In Richardson Vancouver (City), 2006 BCCA 36, 264 DLR (4th) 669 [Richardson], leave to appeal to SCC dismissed, 2006 41886, the plaintiff, a lawyer, sued unsuccessfully for what he claimed was a wrongful arrest. He had been arrested for obstructing a police of?cer in the execution of his duty, contrary to s. 129 of the Criminal Code. The police were assisting city workers in removing an unlawful camp constructed by the homeless. The plaintiff crossed a police cordon after having been once removed ?'om the area and warned to stay behind the line. The plaintiff was taken into custody, held overnight, and released the. next day without charge. [168] One of his arguments on appeal was that the trial judge erroneously based his decision solely on what the arresting of?cer saw and heard, while ignoring evidence of what was known by the other members of the police department engaged in the operation. The British Columbia Court of Appeal said the arresting of?cer?s perception -47- was that he was viewing an apparent wilful obstruction of the execution by the peace of?cers of their lawful duty to maintain the peace as city workers cleaned up city property. The arresting of?cer had reasonable and probable grounds to believe the plaintiff committed the offence. That perception, objectively viewed, was what would have been apparent to any reasonable person. The court said it knew of no authority that supported the notion of a collective intelligence, the sum of knowledge possessed by all the police in an operation, as the basis for judging the lawfulness of arrest. [169] Given the latitude afforded to the Police (as recognized in Asante?Mensah), the fact that the af?davit of the senior of?cer at the scene of arrests (Superintendent Koch) clearly states that the arrests in the present case were under s. 129 of the Criminal Code for obstructing peace of?cers in the execution of their duty, and the fact the collective knowledge of all the police that were involved in the operation does not constitute an appropriate basis for judging the lawfulness of the arrests (Richardson), I conclude the arrests were lawful. [170] In Kossick, 2018 SKCA 55, Caldwell .A. states: [26] [T]he Crown asserts correctly that the police can make a valid, warrantless arrest based on erroneous information; but, that broad statement is not without quali?cation. [P]olice reliance on erroneous information may be considered objectively reasonable ?unless, in the circumstances at play in the arrest situation, the police could reasonably have made inquiries which would have led to the discovery of the de?ciencies or defects? in that information: Shinkewski, 2012 SKCA 63 at para 19, 399 SaskR 11; see also Charles, 2012 SKCA 34, 393 Sask 19. [171] If the protesters were indeed advised that they were being arrested for ?obstruction? or ?obstruct justice?, what are the consequences of that de?ciency? The Criminal Code contains no de?nition of ?obstruction?, which is not surprising. Common parlance or words comprehensible in ordinary speech are often not de?ned. -43- [172] The question of how accurately an arrestee must be informed of the reasons for the arrest and detention has more typically been the subject of examination in relation to complaints under s. 10 of the Charter. That section confers the right, on arrest or detention, to be informed of the reasons, and to retain and instruct counsel without delay and to be informed of that right. The concern there is whether the extent of the jeopardy the arrested person faced was suf?ciently brought home to him or her. The degree of awareness that the arrested individual may be reasonably assumed to possess in all the circumstances may play a role in determining whether the extent of the jeopardy was suf?ciently understood. [173] In Smith, [1991] 1 SCR 714, the accused was arrested for a shooting, but not told that his victim had died. The issue was whether his lack of awareness regarding the extent of the jeopardy he faced had vitiated a waiver of the right to counsel. The Supreme Court said this at pages 728?29: It has never been suggested, however, that full information is required for a valid waiver. Indeed, if this were the case, waivers would seldom be valid, since the police typically do not know the whole story when the accused is arrested. Nor is the failure of the police to precisely identify the charge faced in the words of the Criminal Code necessarily fatal. In the initial stages of an investigation the police themselves may not know the precise offence with which the accused will be charged. Moreover, the words of the Code may be less helpful to a lay person than more common parlance in communicating the extent of jeopardy. Finally, the degree of awareness which the accused may be reasonably assumed to possess in all the circumstances may play a role in determining whether what the police said was suf?cient to bring home to him the extent of his jeopardy and the consequences of declining his right to counsel. accused need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case. What is required is that he or she be possessed of suf?cient information to allow making an informed and appropriate decision as to whether to speak to a lawyer or not. The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told. -49. [174] Latimer, [1997] 1 SCR 217, illustrates what was meant by an accused?s ?understanding generally? what he was up against. The failure to inform the accused, who had been placed under defacto arrest, that he had been ?arrested? and that he could be charged with murder did not violate s. 10(a) of the Charter. The Supreme Court noted that when considering whether there had been a violation, one must look beyond the exact words used. It is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was suf?cient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to understand his right to counsel under s. 10(b). [175] In all the surrounding circumstances, the substance of what the protesters can reasonably have been supposed to understand was the act of obstructing a peace of?cer, notwithstanding any loose or misplaced utterance of the word ?justice?. The Police had been there previously with representatives of the Commission who indicated their intention to remove the camp and did so, with the exception of the tipi containing the sacred ?re. They left because the protesters promised to remove the tipi voluntarily. On June 18, when the tipi had not been removed, there were continued negotiations with the protesters in an effort to have them remove the structure voluntarily. The protesters took steps to prevent removal, some by lashing themselves to the tipi, one by adding wood to the ?re. It was at that point the arrests were made. The word ?obstruction? was used. This, viewed reasonably, was suf?cient. H. Arbitrary Detention [176] The tipi was dismantled at approximately 7:30 almost ?ve hours after the ?rst arrest. Because of their adamant re?isal to vacate the area, and their avowed intention to return, the protesters were detained until the tipi was dismantled .50- and the sacred ?re extinguished. The length of time involved was the direct result of (1) their refusal to provide information to the Commission regarding a culturally appropriate and respectful manner of deconstructing the tipi; and (2) throwing additional logs on the ?re to stoke the ?ames and demanding the ?re be allowed to burn out on its own. Additional time was consumed in searching out information on how the tipi should be taken down. The ?re continued to burn for hours. [177] In Asante-Mensah (2001), 204 DLR (4th) 51 (Ont CA), the Ontario Court of Appeal addressed the s. 9 Charter issue raised by the appellant taxi driver. The trial judge held that an arrest without warrant of a trespasser on airport premises, authorized by s. 9 of the TPA, was not arbitrary. Section 9 of the TPA contained appropriate criteria for an arrest, and the actual arrest of the accused was ?reasonable in the public interest in order to prevent the continuation or repetition of the offence.? The Court of Appeal held that the trial judge?s analysis on this issue was unassailable. His analysis was that the trespass statute authority to arrest was narrow in scope and application. The jurisdiction to arrest related to a single offence trespass. The subject had to be observed on the premises in circumstances of trespass as addressed by s. 2 of the IPA. The arresting party, pursuant to s. 9 of the IPA, had to have reasonable and probable grounds to believe the offence was being committed. Such a state of belief included both subjective belief and an objectively reasonable component for the arresting party?s conclusion: Storrey, [1990] 1 SCR 241 at 249-51, per Cory J. In its View, a uniform policy of arrest of trespassers according to these principles was a model of consistency, not arbitrariness. As earlier noted, this aspect of the matter was not appealed to the Supreme Court. [178] Having found the arrests to be lawful in this case, I similarly conclude the detention was not arbitrary. The length of the detention was necessitated by the protesters? actions, by their demand that the ?re be allowed to burn out naturally, by their demand that the tipi be removed in a culturally appropriate manner (without -51- imparting the information how that was to be accomplished) and by their avowed intention to return to the site. The protesters request for declaratory relief is therefore dismissed. Summary of orders [179] The Court orders that: Pursuant to SS. 3 and 4 of The Recovery of Possession of Land Act, RSS 1978, the respondents, Prescott Demas, John Doe, Jane Doe and Other Persons Operating As And In Support Of ?Justice for Our Stolen Children? in Regina, Saskatchewan [Non?Police Respondents], and any other persons acting on or under their instructions and having knowledge or notice of this order, are hereby compelled to vacate and cease occupying Surface Parcel 153869686, being Blk/ParA Plan No 101852838 ExtensionO [Land], unless and until otherwise authorized by the Provincial Capital Commission. Pursuant to ss. 7-7 and 7-11 of The Provincial Capital Commission Act, SS 2017, cP-30.011, the Non-Police Respondents, and any other persons having knowledge or notice of this Order, are hereby restrained ?'om unlawfully using the Land or any land within Wascana Centre, as de?ned in Schedule of The Provincial Capital Commission Act, in contravention of The Wascana Centre Bylaws and are hereby compelled to comply with The Wascana Centre Bylaws, including abiding by the following restrictions: not to establish or maintain a camp, or erect or maintain a -52- tent or other shelter for use as lodging within Wascana Centre; not to assume exclusive use of all or a portion of Wascana Centre without a permit; not to leave or store personal property in an outdoor space within Wascana Centre Without a permit; not to set up a tent or other structure, shelter, tarp, canopy or other such device within Wascana Centre without a permit; not to start, make or kindle a ?re within Wascana Centre for any purpose without authorization; and not to engage in any activity within any area within Wascana Centre that is contrary to a sign prohibiting, restricting or otherwise limiting such activity or use therein or thereon enacted by or on behalf of the Provincial Capital Commission without authorization. The Non-Police Respondents shall forthwith remove all personal property, tents, structures, tipis, shelters, garbage, objects and things owned, constructed, maintained, placed or occupied by them which are located upon the Land. In the event that the Non-Police Respondents fail to forthwith comply with the terms of this Order, the Provincial Capital Commission and the Government of Saskatchewan are authorized -53- to dismantle and remove all personal property, tents, structures, tipis, shelters, garbage, objects and things owned, constructed, maintained, placed or occupied by the Non-Police Respondents on the Land. All such materials other than garbage shall be safely stored and returned to their owners upon request and adequate proof of ownership. The Non?Police Respondents, and any other persons having knowledge or notice of this Order, are hereby restrained from impeding, restricting, harassing, intimidating or physically preventing or interfering with the acts of dismantling and removing the personal property, tents, structures, tipis, shelters, garbage, objects and things owned, constructed, maintained, placed or occupied by the Non-Police Respondents on the Land. Any peace of?cers within the Province of Saskatchewan, as de?ned in s. 2 of the Criminal Code, RSC 1985, [Police] are authorized to provide assistance to the Provincial Capital Commission and the Government of Saskatchewan in dismantling and removing all personal property, tents, structures, tipis, shelters, garbage, objects and things owned, constructed, maintained, placed or occupied by the Non-Police Respondents on the Land, including, but not limited to, the following powers: standing by and keeping the peace; using all reasonable force required in the circumstances; entering any structure located on the Land; 10. 11. -54- physically removing the Non-Police Respondents or others ?'om the Land; and arresting the Non-Police Respondents or others if they do not comply with Police demands. Any person with notice or knowledge of this Order who interferes with the enforcement of this Order or who refuses to comply with the terms of this Order may be arrested by the Police and brought before this Honourable Court to show why they should not be cited in contempt. The Police are hereby authorized to arrest, or arrest and remove, any person who has notice or knowledge of this Order and who the Police have reasonable and probable grounds to believe is contravening or has knowingly contravened the provisions of this Order. The Police retain discretion as to the manner of enforcement of this Order, and speci?cally retain discretion as to the manner of arrest, removal, and release of any person pursuant to this Order. The provisions of this Order are additional to and do not derogate ?'om any powers of the Police, including but not limited to their powers under the Criminal Code and/or any applicable provincial legislation. This Order may be served on any and all of the Non-Police Respondents by posting the Order conspicuously in locations on the Land, and such service shall be deemed good and suf?cient 12. 13. 14. 15. -55- knowledge and notice on all Non-Police Respondents. For the purposes of enforcing this Order, any person, regardless of whether they are in breach of this Order, shall be deemed to have knowledge and notice of this Order if: (C) a copy of this Order is shown and offered or handed to them and they are provided a reasonable opportunity to comply with this Order; they come within 10 metres of a warning sign posted in a conspicuous location on the Land that states, with text no less than 10 centimetres in height: ?There is a court order (injunction) that applies to this area which includes an Order to remove all structures, belongings and camping facilities. Persons who impede or interfere with the removal will be subject to arrest.? or They are read the statement in above, over an ampli?cation system, and at that time offered a copy of this Order to read over. This Order shall not enjoin persons acting in the course of or in the exercise of a statutory duty, power or authority. Nothing in this Order prevents any person from using Wascana Centre in accordance with The Wascana Centre Bylaws. Provided the terms of this Order are complied with, the Non-Police 16. 18. -56- Respondents and any persons remain at liberty to engage in peaceful, lawful and safe protest within Wascana Centre in accordance with the provisions of The Wascana Centre Bylaws. The Non-Police Respondents? application for declaratory relief is dismissed. The Government of Saskatchewan and the Provincial Capital Commission have not requested an order for costs, and accordingly, no costs are ordered in QBG 2071 of 2018, Judicial Centre of Regina. In ?regard to QBG 2045 of 2018, Judicial Centre of Regina, the Non-Police Respondents will have costs in the amount of $800.00 from the Police in relation to the ?ling of a supplementary response which was necessitated by the late ?ling of material on the part of the Police. There will be no other order as to costs. Y.G.K. Wilkinson