Occupy Osgoode?

On the day the Occupy Toronto movement kicked off its encampment at St. James Park back in mid-October, I was serving snacks and a signature, non-alcoholic cocktail to Beverley McLachlin, the Chief Justice of Canada, and twelve bright and slightly nervous Osgoode student leaders as part of our celebration upon the opening of the newly renovated Osgoode building. A day of new beginnings in real estate of a very different character!

After questioning the Chief Justice on whether she is a feminist (yes, sort of) and a proponent of judicial activism (yes, sort of), one of the student leaders asked whether it was a good idea for law students to take part in the Occupy Toronto protest. The Chief Justice replied yes, sort of (provided it remained a non-violent and law-abiding protest).  You can view the Chief Justice’s chat with Osgoode’s students  on Osgoode’s YouTube Channel. Her reaction to the Occupy Toronto question reflects an important ambivalence within the legal community about social and economic inequality. Inequality is at once viewed as a “stain” on Canada’s “tapestry” (to quote Osgoode’s former Dean and current Court of Appeal Justice James MacPherson writing in the context of Canada’s practice of imposing a “head tax” on Chinese immigrants), and yet also as a reality to be accepted. Rather than worry about inequality itself, we tend to worry instead about those who fall through the safety nets – the homeless, remote aboriginal communities, etc, or about those who are denied an opportunity to  succeed – which is why stories of children living in poverty attract more outrage than the fact that they are poor because their parents are living in poverty.

This ambivalence was on display in the community’s reactions to Occupy Osgoode. Lawyers tended to approach the Occupy movement through a legal lens – who has a right to use a public park? Does the fact that St. James Park is co-owned by the City and a Church relevant to the question of access? Should a by-law be used to curb political protest and dissent? Do protestors need to camp out in a park to be able to protest effectively? These are all important legal questions and deserving of legal comment. But they obscure the broader and deeper question – which is the proper response from the legal community to the realities of inequality.

In November, while the Occupy Toronto protest was underway, but when the Mayor and City Manager had already announced plans to “clear” the park, I had the good fortune to share some comments on the occasion of the 10th anniversary of the founding of the Income Security Advocacy Centre and Advocacy Centre for Tenants Ontario. The speakers at that celebration reviewed a sobering and stark series of numbers on inequality in Canada. It is growing, not shrinking. These statistics should make us think. Are low taxes and shrinking public spending requirements of prosperity? Must prosperity be lessened if its benefits are shared more equitably? At what point does inequality, or the suffering of those deprived the most, become an injustice?

The question I posed to that group and which I reflect on around our own dinner table as well, is what my children will think about this era a generation from now. Will they view the social and economic exclusion we are living through the same way we now view the exclusion of gays and lesbians or the exclusion of racialized communities a generation or two ago. When I read about the head tax on Chinese immigrants or the internment of Japanese Canadians, I ask – where was the legal community? How could lawyers stand on the sidelines while an obvious and manifest injustice unfolded? Will lawyers a generation or two from now ask the same about us?

To be fair, social and economic equality are broader, more pervasive dynamics than the isolation of a recognizable group. Oddly, under the Charter of Rights, recipients of social assistance have been recognized as an “analogous” group (in Falkiner) for purposes of the equality guarantee under s.15 of the Charter while poverty has not. In Gosselin, the Supreme Court left open the possibility of recognizing positive obligations on the state to provide social and economic supports to society’s most vulnerable “in special circumstances” under s.7 of the Charter, but concluded that the compensatory “workfare” scheme at issue in that case provided an insufficient evidentiary platform to do so.

I am not suggesting there are easy or simplistic answers to these questions, or that the most appropriate or effective response to inequality should come from law students, lawyers or our courts, but rather that the Occupy movement should serve as a catalyst for our community to explore these issues in more detail, in collaboration with those affected by them the most, and with an open and probing mind.

The issues giving rise to the Occupy movement and the interventions of municipal by-laws, police enforcement and private property owners all merit scrutiny at the law school, but if that is all we scrutinize, then the promise of “New Windows on Justice” which accompanied Osgoode’s building launch in October, will go unfulfilled. It is now December. St. James Park is no longer dotted with tents, and a court has ruled on the legality of the by-law, but the questions raised by the park’s temporary residents ought not to be ignored.