Batty v City of Toronto: Uncovering Property Law’s Constraint on Freedom of Expression
Yuha Khan, Senior Editor, University of Toronto Faculty of Law Review and JD Candidate (2027), University of Toronto
Part I: Introduction
On October 15, 2011, protesters set up an encampment in Toronto’s St. James Park in solidarity with the global Occupy movement, challenging systemic inequality following the 2008 financial crisis.[1] One month later, the City of Toronto (the “City”) issued a trespass notice, ordering the encampment’s removal and prohibiting overnight park access.[2] The protesters challenged the notice under section 2(b) of the Canadian Charter of Rights and Freedoms (freedom of expression),[3] which led to the decision in Batty v City of Toronto.[4]
Although Batty was correctly decided on its facts, its analytical approach risks undermining freedom of expression in three ways. First, the rights of private property owners are overemphasized in the freedom of expression analysis. Second, Charter and non-Charter uses of parks are viewed equivalently in the context of access to public space. Third, governments are assigned as the “owner” of public space rather than the trustee of common property, prioritizing state interests over those of the public.
Part II: The Batty Decision
While initially skeptical over the protesters setting up an encampment, Justice Brown found that erecting structures in the park falls within the ambit of constitutionally protected expression.[5] In determining whether the municipal bylaws and trespass notice issued by the City were reasonable limits on this expression, the Court undertook an Oakes analysis.[6] The first stage—whether the restrictions were prescribed by law—was easily met, as the bylaws raised no concerns of vagueness or overbreadth.[7]
At the next stage, the Court held that the City’s objective—ensuring public parks remain accessible and safe for all users—was pressing and substantial.[8] Justice Brown expressed concern that, without regulation, public parks could descend into battlegrounds of competing uses and thus disrupt the peace, especially during the night.[9] Therefore, the Court said it was rational for the City to prohibit protesters from staying overnight and to dismantle permanent structures.[10]
For the minimal impairment inquiry, Justice Brown emphasized judicial deference to elected officials in regulating public spaces, citing RJR-MacDonald Inc v Canada and Montréal v 2952-1366 Québec Inc.[11] He found that the City impaired expressive rights as little as reasonably possible while still achieving its objective. Justice Brown emphasized that protesters were still permitted to use the park for nineteen hours of the day and to continue their demonstrations.[12]In addition, he stated that alternative modes of expression, such as marches, signage, and social media, remained available for the protesters’ use.[13]
Justice Brown then rejected the claim that a nighttime ban constituted a near-total restriction on the protesters’ message.[14] He stated that accepting such a proposition would amount to granting protesters the ability to exclusive continuous occupation of a public space. Justice Brown dismissed the protesters’ proposed alternatives as unworkable, such as relocating other park users or creating a political exemption in the bylaws, because they would subordinate the rights of other members of the public to access St. James Park.[15]
Finally, under the proportionality analysis, Justice Brown iterated that taking down the encampment balances the protesters’ expressive rights with the public’s shared interest in park access.[16] As such, the Court held that the City’s order to dismantle the encampment was a reasonable limit, demonstrably justified in a free and democratic society.[17]
Part III: The Legal Context
Pre-Batty Jurisprudence
The outcome in Batty is consistent with the case law on freedom of expression in public spaces. The decisions below highlight that Charter protection depends on both the purpose of the expression and the compatibility of that purpose with the space where the expression occurs.
In Committee for the Commonwealth of Canada v Canada, the Supreme Court of Canada (“SCC”) unanimously held that it was unconstitutional for an airport to prohibit two individuals from distributing political pamphlets, and the restriction could not be justified under section 1.[18]
Fourteen years later, in Montréal, the SCC clarified its analytical approach to freedom of expression claims on public property.[19] Justice McLachlin established that the central questions are (i) whether people would reasonably expect that kind of expression to occur in the impugned space and (ii) whether the activity promotes one of section 2(b)’s core values: democratic discourse, truth-seeking, or self-fulfillment.[20] On the facts of Montréal, the City had issued a nuisance notice to a strip club emitting noise that could be heard on the public street.[21] The Court found the expression was protected under section 2(b) but upheld the notice under section 1, as the nuisance bylaw targeted disruptive noise without imposing a total ban.[22] Justice McLachlin emphasized that expression must not conflict with the primary function of the space, such as the street’s use for passage.[23]
Following Montréal, Justice Brown characterized the function of St. James Park as an “oasis” within Toronto and then scrutinized the protest’s compatibility with that function.[24] However, by citing Weisfeld v Canada (where the Federal Court of Appeal found an encampment on Parliament Hill compatible with the function of the space), Justice Brown confirmed that the Batty encampment was not inherently at odds with the park’s function.[25]
In the section 1 analysis, Justice Brown applied the reasoning from Montréal, accepting the City’s bylaws as minimally impairing because they aimed to balance competing public interests.[26] No Charter right is absolute, and according to Justice Brown, prolonged disruptive use of space is not acceptable in a democratic society.[27] Hence, Batty is consistent with precedent on this issue. Justice Brown maintained that if the individuals desired, they could protest for the remaining nineteen hours of the day; it was only wrong for the protesters to use a large portion of the public space for an indefinite period of time.[28]
Considering outside complaints of disruption and verbal harassment, as well as a lack of unified message on why the encampment was set up, Justice Brown concluded that the City’s actions were justifiable. However, as I will discuss next, the reasoning in Batty risks being misapplied in broader contexts.
Property and Expression: A Commentary
Section 2(b) jurisprudence is complex because we constantly engage in expression. This is why, in Irwin Toy Ltd v Quebec,[29] the SCC limited Charter protection to expression that furthers the pursuit of truth, participation in the community, or individual self-fulfilment.[30] As in Batty, concerns about order, safety, and the rights of others further justified certain limits under section 1.[31] However, as Professor June Ross notes, controversial forms of expression must not be filtered out merely because they are disruptive.[32] Protest is, by nature, disruptive; it is meant to place pressure on the political order. To sanitize it in the name of comfort or convenience is to erode its utility.[33]
The Batty decision highlights the pernicious impact of property-based arguments on freedom of expression. Courts frequently begin with the assumption that protesters are on “someone else’s” property, be it the state’s or the public’s, and that their presence must be justified.
Part IV: The Property/Charter Rights Chasm
In this section, I analyze three “types” of property interests present in Batty, offer insights into why these differences are important, and analyze implications for freedom of expression. First, I discuss how the interests of property owners have the potential to supersede constitutional rights under Batty’s freedom of expression analysis. Next, I examine rights in relation to common property and the nuisance framework implicitly applied in Batty, which wrongly treats all uses of public space as equally important. Finally, I analyze the government’s role in regulating public spaces as an owner, and I advocate for the state to be regarded as a trustee instead.
Relevance of Private Property Owners
While property interests are important, they should not take precedence over constitutional guarantees.Specifically, “peaceful enjoyment of property” should not be treated as paramount to freedom of expression in a democratic society.
Several scholars emphasize the importance of property rights. Professor Christopher Essert argues that property rights allow individuals to relate to one another as equals.[34] English jurist William Blackstone famously emphasized the “sole and despotic dominion” over one’s possessions as a fundamental expression of personal freedom.[35]
However, property rights are not absolute; they are structured by law, shaped by societal norms, and constrained by legal principles. Blackstone himself qualified the right to property as one that is subject to the “law of the land,” including principles of due process and public interest.[36] Professor Richard Moon further emphasizes that the right to private property itself is instrumental in protecting certain aspects of freedom of expression.[37]
What is problematic is when judges overemphasize the use of property at the expense of constitutional freedoms. For example, in Batty, Justice Brown outlined concerns about the impact of businesses, noise, and smells on private property owners.[38] Yet, if the protesters were to take Justice Brown’s suggestions seriously and return continuously during the day, nearby residents may still experience noise or discomfort. In this context, as Dr. Sarah Hamill observed, an overemphasis on private property rights arbitrarily restricts constitutional protections, especially those related to freedom of expression.[39] In essence, such logic relies on the concept of “peaceful enjoyment” of property, which, when applied to protests, risks suppressing necessary but disruptive democratic discourse.[40]
Hence, courts must take caution in how they balance protest rights against adjacent private property interests. In Greater Vancouver Transportation Authority v Canadian Federation of Students, the SCC acknowledged that “citizens are expected to put up with some controversy in a free and democratic society.”[41] While some limits on protest may be appropriate to protect the rights of others, excessive deference to proprietary interests risks undermining the very function of protest. Expression that challenges comfort, order, or routine is often central to its political purpose. Courts must be careful not to overly dilute Charter protections in favour of non-Charter-protected proprietary rights.
The Uses of Common Property
Treating Charter-protected protest as equivalent to other park uses, as demonstrated in Batty, risks undermining the special constitutional status of expressive freedom. In Batty, the theme of how to reasonably use common space underlies Justice Brown’s analysis. His concern that protesters had taken disproportionate control of a shared space reinforced his conclusion of dismantling the encampment.
Public or common property holds immense societal value. Professor Richard Epstein asserts that every society must preserve spaces for common use—roads, sidewalks, parks—as part of its core function.[42] Similarly, Professor C.B. Macpherson argues that individuals have enforceable claims to use common property.[43] The state defines these rights, while individuals maintain entitlements to access and participate in shared spaces.
Other theorists like Elinor Ostrom and Daniel Cole distinguish between state/public property and common property.[44] In a common property system, individuals have the right to access and use the resource according to collectively established rules. No one person can exclude others, but likewise, no one can be excluded.[45] This framework could suggest that public spaces like parks are not simply city-managed resources but shared democratic infrastructure that must accommodate collective needs, including protest. As Moon argues, freedom of expression requires protection from state interference and meaningful access to public spaces essential for communication.[46] He emphasizes that courts cannot treat access to space as a neutral background issue.[47] Instead, access forms part of the right itself. This is consistent with some of the SCC’s reasoning. In Committee, Justice L’Heureux-Dubé emphasized the symbolic significance of certain properties as places where one can have access to and address fellow citizens.[48]
Justice Brown’s reasoning leans heavily on the notion that common spaces must always remain neutral and orderly. As stated, common property is a difficult concept to define, but it is generally accepted that no one individual can be excluded from common property. Hence, a problem arises when courts view protesters as interlopers instead of rightful co-users of public space. Justice Brown invokes hints of the doctrine of public nuisance by suggesting that the encampment created safety and accessibility issues.[49]
This kind of characterization must be avoided. As Moon highlights, if expression has positive value in a democracy, the mere fact that it causes some disruption cannot justify its removal; instead, courts must balance disruption with the purpose of the protest.[50] In Batty, the Court made no explicit finding that protesters blocked the entire park or physically prevented others from entering. Moon warns that treating access to common property as a state “privilege,” rather than a right, risks hollowing out section 2(b).[51]
When employing the balancing exercise in section 1, courts must prioritize Charter-protected uses of public property. For instance, if other members of the public are allowed to access the park or even nearby green spaces, the mere discomfort of seeing a protest should not be sufficient to justify limiting the right to protest in that public space. Courts adopting Justice Brown’s reasoning haphazardly threaten to characterize any long-term protest as a form of public nuisance.[52] Context matters; courts should be more cautious in limiting protest or other types of protected expression, and avoid prioritizing socially useful yet non-Charter-protected uses.
The Appropriate Role of Government
The Batty decision reinforces a problematic shift in how courts treat government authority over public space, positioning the state as a private owner instead of a public trustee. Justice Brown warns that allowing one group to encamp in a park could set a precedent that leaves the City “powerless” to regulate the park space.[53] Justice Brown’s reasoning effectively casts the protesters as intruders, yet they are also users of a shared space. Although the state ought to maintain its ability to regulate public property use, the regulations should stem from its role as a trustee of public land, rather than a proprietary owner with exclusionary rights.[54]
The decision in Dubois v Government of Saskatchewan contextualizes the need for this approach. In 2018, a First Nations group set up a protest camp in Wascana Park, opposite the provincial legislature building in Regina.[55] After almost five months of encampment, the government served the protesters with a trespass notice for violating park bylaws. The First Nations group challenged the notice as an infringement on their freedom of expression.[56]
Justice Wilkinson delivered the judgement referencing the government as a landowner facing trespassers and emphasizing its power to control the space’s use.[57] While acknowledging the Charter, Justice Wilkinson affirmed the state’s right to withdraw permission for access to the park when it deems it appropriate.[58] By citing Batty, he followed the rationale that it was best for the Crown-run park authorities to allocate uses of the park.[59] However, in contrast to Batty, there were no community complaints or competing users.
The reasoning here is alarming. If the government, as the “owner,” can deny access to public property based on perceived inconvenience, then protests that challenge state power are unlikely to be tolerated. No private owner would willingly host a prolonged protest that criticizes them. Such reasoning, taken to the extreme, treats expression in a public space as a privilege granted by the state. As Moon and Hamill emphasize, courts must recalibrate their framework to center public benefit and democratic engagement, not just state control or proprietary order. When the state is viewed as a trustee of public property, its role centers on advancing collective public interests rather than prioritizing its own agenda.[60]
Part V: Concluding Remarks
In Batty, Justice Brown emphasizes the rule of law, which includes democratic freedoms and Canadians values such as freedom of expression. While property rights are closely linked to individual liberty, courts must carefully balance proprietary interests with expressive freedoms in ways that avoid harmful consequences.
This article outlined three key concerns with the reasoning in Batty and its broader implications. First, courts should be cautious not to overemphasize private property interests in the section 1 balancing analysis, as this risks disproportionately limiting constitutional protections. Next, Charter-protected expression should not be equated with non-protected uses of public space, as this risks misclassifying inherently disruptive protest as a nuisance rather than recognizing it as a legitimate form of expression. Third, governments should be viewed as trustees, not owners, of public space. Framing the state as an owner invites the government to easily employ property-based reasoning to justify the suppression of protest, as seen in Dubois.
Protest is not merely a disruption to be tolerated; it is a vital exercise of political engagement. Public parks are not merely recreational spaces; they are also civic arenas for democratic discourse. Canadian courts must carefully balance the rights at stake in situations like Batty and affirm that access to protest in public space is essential for meaningful expression in a free society.
Notes
[1] Batty v City of Toronto, 2011 ONSC 6862 at para 32 [Batty].
[2] Ibid at para 4.
[3] Canadian Charter of Rights and Freedoms, s 2(b), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[4] Batty, supra note 1 at para 6.
[6] R v Oakes, [1986] 1 SCR 103, 1986 CanLII 46 (SCC) [Oakes].
[7] Batty, supra note 1 at paras 80–83.
[8] Ibid at para 96.
[9] Ibid at paras 97–98.
[10] Ibid at para 99.
[11] Ibid at paras 100–101; RJR-MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199, 1995 CanLII 64 (SCC); Montréal (City) v 2952-1366 Québec Inc, 2005 SCC 62 [Montréal].
[12] Batty, supra note 1 at para 104.
[13] Ibid at paras 104–106.
[14] Ibid at para 106.
[15] Ibid at paras 112–21.
[16] Ibid at para 123.
[17] Ibid at para 128.
[18] Committee for the Commonwealth of Canada v Canada, [1991] 1 SCR 139, 1991 CanLII 119 (SCC) [Committee].
[19] Gerard J Kennedy, Charter of Rights in Litigation: Direction from The Supreme Court of Canada (March 2026) at ch 9:21, online: (WL Can) Thomson Reuters Canada.
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Montréal, supra note 11 at paras 75–78.
[24] Batty, supra note 1 at para 91.
[25] Ibid at para 72; Weisfeld v Canada (CA), [1995] 1 FC 68, 1994 CanLII 3503 (FCA).
[26] Batty, supra note 1 at para 111.
[27] Ibid.
[28] Ibid at para 104.
[29] Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927, 1989 CanLII 87 (SCC).
[30] Kennedy, supra note 19 at ch 9:9.
[31] Ibid.
[32] June Ross, “Committee for the Commonwealth of Canada v. Canada: Expression on Public Property” (1991) 2:4 Const Forum Const 109 at 110.
[33] Anna Feigenbaum, “The Long History of Protest Camps” (2015), online: <commonslibrary.org/the-long-history-of-protest-camps> [perma.cc/H4AC-G9U4].
[34] Christopher Essert, Property Law in the Society Of Equals (New York: Oxford University Press, 2024) at 48.
[35] Ibid at 49.
[36] Ibid at 51.
[37] Richard Moon, “Access to Public and Private Property Under Freedom of Expression” (1988) 20:2 Ottawa L Rev 339 at 340.
[38] Batty, supra note 1 at para 92.
[39] Sarah Hamill, “Location Matters: How Nuisance Governs Access to Property for Free Expression” (2014) 47:1 UBC L Rev 129 at 156.
[40] Ibid.
[41] Greater Vancouver Transportation Authority v Canadian Federation of Students — British Columbia Component, 2009 SCC 31 at para 77.
[42] Richard Epstein, Design for Liberty (Cambridge: Harvard University Press, 2011) at 69.
[43] Douglas C Harris et al, A Property Law Reader: Cases, Questions, and Commentary, 5th ed (Toronto: Thomson Reuters, 2002) at 4.
[44] Ibid at 6.
[45] Sarah Hamill, “Private Rights to Public Property: The Evolution of Common Property in Canada” (2013) 58:2 McGill LJ 365 at 373.
[46] Moon, supra note 38.
[47] Ibid at 345.
[48] Committee, supra note 18 at 154.
[49] Batty, supra note 1.
[50] Moon, supra note 38 at 350.
[51] Ibid at 344.
[52] Hamill, “Location Matters”, supra note 40 at 130.
[53] Batty, supra note 1 at para 105.
[54] Hamill, “Location Matters”, supra note 40 at 391.
[55] Dubois v Government of Saskatchewan, 2018 SKQB 241 at para 9 [Dubois].
[56] Ibid at paras 12–14.
[57] Ibid at para 40.
[58] Ibid at para 53.
[59] Ibid at para 20.
[60] Moon, supra note 38; Hamill, “Location Matters”, supra note 40.