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City wins injunction against Occupy Vancouver

City workers remove a tent at the Occupy Vancouver protest site that did not comply with the fire code in Vancouver, British Columbia November 15, 2011.

Andy Clark/ Reuters/Andy Clark/ Reuters

Hours before the polls open to elect Vancouver's mayor for the next three years, the city won a court injuction Friday afternoon to have protest tents cleared from the downtown encampent at the Art Gallery.

BC Supreme Court Justice Anne MacKenzie gave protesters until 2 p.m. Monday to clear all tents and structures from the site.

She also granted an enforcement order authorizing police to arrest those who do not comply.

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The enforcement order was expanded to include members of other municipal police forces and the RCMP, should Vancouver police encounter difficulty.

Some Occupy Vancouver protesters were in tears after Madame Justice MacKenzie's ruling, handed down shortly after both sides ended three days of argument on the city's injunction request.

"I'm upset at my apparent naivety, thinking that a tent city could remain in Vancouver and we could be the one city that doesn't forcefully obstruct a movement," said Cherise Clark, wiping tears from her eyes.

"I thought maybe we could be the one place where authorities could work with us peacefully and in cooperation."

There was no immediate word, however, on whether occupants would comply with the court's order by next Monday.

Madame Justice MacKenzie said the city had established a clear breach of its land use regulation bylaw, and there were no exceptional circumstances that would dictate against issuing the injunction.

A more detailed trial on the constitutional merits of the city bylaw should be held later, the judge said.

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She noted there had already been a great deal of cooperation with authorities and "peacefulness" at the site, and hoped that would continue in dismantling Occupy Vancouver's sea of tents and other structures.

"But there may come a time where [the city]may reasonably require the assistance of police," Madame Justice MacKenzie added, explaining why she decided to attach a police enforcement order to her injunction.

Earlier, a lawyer for one of the protesters at Occupy Vancouver levelled strong allegations in court Friday against evidence presented by the city to back its bid.

Jason Gratl accused city officials of fear-mongering, gross exaggerations and an unsubstantiated smear against the Occupy Vancouver encampment.

"This isn't a dirty, squalid little squat," Mr. Gratl told B.C. Supreme Court Justice Anne MacKenzie. "It's quite a well-run little ship."

Granting the injunction, he said, would violate the protesters' right to freedom of political expression, which is protected by the Canadian Charter of Rights and Freedoms.

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And the tents at Occupy Vancouver are an essential part of their right to free expression, said Mr. Gratl, who represents protester Sean O'Flynn-Magee.

"It could not take place without these structures," he said, referring to the number of larger tents that provide food, medical assistance, information and peace-keeping at the site. "All of these are political structures."

He refuted city allegations there were fire safety concerns, dangerous trenching that imperilled valuable art stored beneath the surface of the plaza, and rats on site.

During the morning court session, Mr. Gratl quoted from regular reports by Vancouver Coastal Health inspectors who found no evidence of rats at Occupy Vancouver.

Noting that many commentators had referred to the presence of rats, Mr. Gratl said the reality of the situation must have been well known to the city. "This amounts to no more than an unsubstantiated smear," he said.

As to the trenching issue, Mr. Gratl said an affidavit from a city employee attesting to the danger did not contain a single photograph.

He produced a number of recent photos showing no trenches deeper than four or five centimetres, likely caused by rain runoff, and noted that Art Gallery representatives have said they are not worried about damage to the art in their below-ground vaults.

The city's claims, he said, represent "a gross exaggeration and an unnecessary spin that amount to fear-mongering about conditions at that site."

Mr. Gratl also referred to statements from Fire Chief John McKearney, who said he was generally pleased with Occupy Vancouver's compliance with fire safety orders.

"We are left with a situation where there are no significant fire, safety or health hazards, as opposed to the very vague generalities of the city, which are overwhelmed by the detailed evidence presented by the [protesters]"

The city has based its injunction bid on health and safety concerns, violation of its land use regulation bylaw, and the protesters' trespass on city-leased land.

Occupy Vancouver representatives would welcome discussions with the city to obtain a proper permit for the site, said Mr. Gratl, and is more than willing to respond to requests for other organizations to use the space.

He said the occupants' consensus-based decision-making, which gives voice and a vote to all who attend their nightly general assemblies, is an example of the "highest level of [a democratic system]available. We know our current democratic system does not live up to that ideal."

The hearing continues Friday afternoon.

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