The case of the missing subsection

Fredericton, N.B., has its revolutionary side. The Occupy Movement took over a piece of Phoenix Square last fall and erected a shelter, complete with wooden beams and a door. They put up a sign, declaring that they represent the 99 per cent. The appearance of this house of protest in the front yard of City Hall was not to the liking of Mayor Brad Woodside and like many other observers, I was rather surprised that the city did not intervene and de-camp the protesters, before they obtained peaceable possession of the site.
Never mind. The occupiers took the position that they had a constitutional right to be there. They argued that the shelter and the sign were an essential part of a political protest and provided a visible reminder that the 99 per cent have not been served by their political representatives. The house of protest was not on private property; it was on public property, outside the seat of local government, they argued, and was a legitimate exercise of their freedom of expression under the Charter of Rights and Freedoms.

The relations between the two sides deteriorated when Alex Davenport, one of the protesters, took up residence inside the shelter. This became news when he had the address on his driver’s licence changed to Phoenix Square, in order to cement his claim to possession of the newly built home. Woodside, less happy than before, nevertheless stood by his position that Fredericton would provide an example of peace and hope for the rest of the country. The protesters would be allowed to stay until they left of their own accord.

This period of peace and light lasted well into the fall, when colder political winds began to blow. As city after city began dismantling the tent cities that the Occupy Movement had erected in parks and squares across the country, the mayor began to show signs of impatience with Davenport’s homestead in Phoenix Square. The protesters sensed the halcyon days of their discontent were coming to an end, and kept a 24-hour vigil, waiting for the action against them to commence. 

As winter bore down upon the square, and the protesters huddled for warmth inside the shelter, the mayor suggested the city might have to bring the political experiment to an end. I thought there was something parental in his concern. The protesters responded by installing a heater in the house of protest, which was duly inspected — and passed — by the fire marshal. The mayor was not pleased.

It was plain that the city wanted the shelter down. We had already entered the Christmas season, however, and the bets on the table were that the city would not make its move until the season of good tidings had come to an end. As a lawyer, I wondered if it was going to be unpleasant. For one thing, the Criminal Code gives everyone the right to defend their dwelling house, and there were people living on-site. It could get nasty.   

The mayor asked the occupiers to take down the shelter to make way for the annual Christmas tree, but the protesters merely downsized, and added some Christmas lights of their own. The protesters knew that taking the shelter down was the easy part of it. The trick would be getting it back up.

The mayor was no longer interested in concessions. On Jan. 1, he personally gave the chief protesters a letter and a legal notice under s. 5 of bylaw T-4. The letter stated that Occupy Fredericton was prohibited from “installing, erecting, or maintaining a building or other structure in contravention of Section 5 of By-Law No. T-4, A By-law Respecting Streets and Sidewalks.”

The notice was issued by the city’s director of Engineering and stated that the protesters would be violating the bylaw if they did not remove “any and all structures” within three days. The notice quoted the penalty provision in the bylaw, which made such violations punishable on summary conviction. I found the notice rather deficient, legally, since the bylaw obviously has a number of provisions and the notice did not state what provision the protesters had violated. Section 5 merely provided for the issuance of the notice.

I have now spent more hours of my life reviewing Bylaw T-4 than I would have ever wished for. I cannot go into the details of the bylaw here, but I cannot find anything in it that covers the homestead in Phoenix Square. For its part, s. 5 merely states that the director “shall give to any person who erects or maintains a building or structure contrary to this section three days notice in writing to remove the same or such portion thereof as may be within or over a street.”

It is true that I kept stumbling over that reference to a building or structure “contrary to this section” — because it didn’t make any sense. Section 5 clearly states the director is to give anyone who contravenes the section three days written notice to take it down; but that’s all it says. There is nothing in the section that actually says what contravenes the section. At first I wondered if there was a mistake in the copy of the bylaw that I had — but the official copy of the bylaw in the city clerk’s office says exactly the same thing.

And then I realized that s. 5 is missing a clause. All we have is the subsection, which sets out the grace period. There must have been another subsection, which contained a substantive clause that makes it an offence to erect and maintain a structure on a street or sidewalk without the permission of the city. Something like that. If you insert such a missing subsection into s. 5, everything makes sense.

The problem for the city, of course, is that the subsection is not there. I cannot be sure, but the obvious guess is that someone down at city hall made a clerical mistake and left out the necessary clause. I do not know how many municipal bylaws there are in the country, but sooner or later, I suppose someone is going to forget to include something. 

I have never seen anything quite like this in 30 years of practice, but my immediate question was simple enough: how could the city have missed the problem? They have a solicitor. The city’s legal staff would have reviewed the city bylaws as soon as the protesters occupied the square and discovered the problem — if they were not aware of it already.

The legal response to the situation seems simple enough. The city had two options: the first was simply to amend the bylaw; the second was to make an application to a judge on the Court of Queen’s Bench and ask for an order removing the shelter. The second alternative made good sense, and the protesters had actually agreed to it, since they wanted to make their own arguments under the Charter. 

But that is law. The fight for Phoenix Square was a political fight and the politics of the situation were embarrassing. The mayor would have to take a deep breath and state publicly that the city had passed a defective bylaw, admitting the city had omitted the one thing in the bylaw that makes it work. Then I noticed it was Woodside who signed the bylaw into force and recalled the mayor had said something, at one point, about strengthening the bylaw. Strengthening indeed.

The city’s response when all of this came to light was to remonstrate that the square is public property. I suppose it should have said that to the judge. It has nothing to do with the letter and the notice, which state unequivocally that the protesters were violating of s. 5 of the bylaw. With all respect to the city, it is abundantly clear that the protesters were not violating s. 5 — for the simple reason that there is nothing in s. 5 to be in violation of — and the existing section is meaningless without the substantive clause. 

This may ultimately explain why the city moved in with chainsaws and box-cutters before the three days in the notice had elapsed, and literally cut down the shelter with Davenport and two other protesters inside it. The point, of course, is that the city had essentially promised to charge them with an offence after the three days had elapsed. And that would have been a feat.

The question that this raises for the profession is simple enough. How can the city’s legal department stand by idly in these circumstances and allow the city to misrepresent the law? I hardly need to say to lawyers that the city cannot charge the protesters with a violation of a clause that was supposed to be in the bylaw. Where oh where was the city solicitor in all of this?

Paul Groarke is an assistant professor in the Department of Criminology at St. Thomas University in Fredericton, N.B.

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