The Eviction: Occupy Fredericton vs City of Fredericton

By Andre Faust
The Lefteye blog
February 23, 2012

Occupy Fredericton took physical occupation of Phoenix Square October 15, 2011 which is located by City Hall. The Occupy tent remained there until 5:00 am January 03, 2012, Orders from the mayor were given to the city workers to physically demolish the camp, city workers proceed to demolish the camp while there were still occupiers residing in the tent. Alex Davenport one of the occupiers was struck on the head by falling a 2 x 4, no serious injury was reported.
Two and a half days prior to the order to tear down the tent, the occupiers at Phoenix square where hand delivered two letters one from Mayor Brad Woodside, the other from city engineer Jamer Murray.
The Letter from The Mayor informs the occupiers that they are prohibited from:
1. 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. A written notice from the Director of Engineering and Public Works is attached to and forms part of this Notice.
2. Placing or causing to be placed an enhanced attraction signage in contravention of Section 12.01 (5) of By-law No. T -4, A By-law Respecting Streets and Sidewalks.
The second letter from the city engineer states that:
Pursuant to Section 5 of By-law No. T-4, A By-law Respecting Streets and Sidewalks, you are hereby given three (3) days notice to remove any and all structures that are located in Phoenix Square, being a public square and a public place in the City of Fredericton.
If you fail to remove any and all structures from Phoenix Square after three (3) days you will be in violation of By-law No. T-4. Please be advised that
every person who violates any provision of this by-law is guilty of an offence and is liable on summary conviction to a fine of not less than fifty dollars ($50.00) and not more than five hundred dollars ($500.00).
In addition, please be advised that under Section 12 of By-law No. T-4, A By-law
Respecting Streets and Sidewalks, enhanced attraction signage is not permitted on a street, which includes a public square or any other public place in the City of Fredericton without the permission of City Council.
Both of the letter and the notice refers to section 5
5. BUILDINGS AND STRUCTURES
The Director of Engineering and Public Works 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. If such person fails to obey the notice, the Director of Engineering and Public Works shall report the facts and circumstances to the City Clerk.
Included in the notice is the penalty clause section 16.
16. PENALTIES
Every person who violates any provision of this by-law is guilty of an offence and is liable on summary conviction to a fine of not less than fifty dollars ($50.00) and not more than five hundred dollars ($500.00).
According to Dr. Groarke, Section 5 creates and offense, but legislation as such contains three separate parts.
part 1. A Substantive clause that prohibits some form of
conduct.
part 2. a clause providing for Notice.
part 3. A penalty clause that sets out what the penalty is for violating part 1.
The problem is that there is no clause that prohibited the erection of the tent, therefore was no violation so the notice become void.
On numerous occasions Occupy Fredericton has ask the City to take the matter to the courts for a decision. The city refused to have the matter heard in the courts and countered with “Other municipalities have taken the matter to the courts and won on constitution grounds, there is no need to waste the tax payers money”. However the Fredericton situation was different because this is not a constitutional question but an action from the city on a clause that doesn’t exist. In all likelihood the city would have failed if the matter would have been taken to the courts because of the missing provision.