Introduction

The 2019/2020 blockades of the Canadian railway lines by certain indigenous occupiers set the precedent for the 2022 truckers’ blockades of Ottawa, the Windsor-Detroit Ambassador Bridge and other trade-sensitive locations in Canada.  With the railway blockades, rather than using whatever police action was necessary to remove them our sympathetic federal government rewarded the indigenous occupiers with secret meetings and a signed secret memorandum of agreement. The hereditary chiefs got what they wanted while the elected chiefs and the band members who elected them, who wanted the pipeline built, were shut out. The message sent by this government response was that if you move some heavy objects like trucks into a critical logistics spot and then claim a noble cause our government becomes paralyzed, and will at least leave you alone if not buy you off.

Obviously, if such illegal conduct is tolerated or rewarded rather than penalized it creates the incentive for more of it. After the current vaccination mandate blockades are eventually removed we can look forward to the next illegal blockades for some other virtuous cause, and the ones after that, unless some lessons are learned by all levels of government from their mistakes.

Who Caused The Current Problem?

The federal government provoked this event with its effective ban on the 10% of Canadian truckers who remain unvaccinated, by imposing a requirement that unvaccinated cross-border truckers quarantine themselves for 14 days after returning from the US (rather than undergoing 15 minutes of testing).  This would limit such truckers to approximately two trips a month, which would be insufficient for most of them to earn a living.  Yet these truckers essentially live in isolation in their trucks on most of their trips. There does not appear to be a lot of evidence, if any, supporting the necessity for this quarantine mandate at this late stage, and no such justification has been given.  And the Prime Minister threw gasoline on the flames he had ignited by smearing all these drivers as racists. 

Unfortunately, now, it will be harder for the federal government, without losing face, to back down and quickly lift its trucker vaccine rule (and any other now unnecessary rules).  

As Globe and Mail columnist  Andrew Coyne wrote on February 12, 2022:

“… Giving in to their demands is out of the question.  Not only would it reward the political use of force in this instance, but it would send a clear signal to other groups, with other agendas, that this was the route to achieving their objectives…….

Both major parties have done a great disservice to the country over the past weeks and months: the Liberals, the Prime Minister in particular, by using the vaccine mandate as a wedge issue and vaccine refuseniks as objects of scorn; the Conservatives, their probable future leader in particular, by supporting and encouraging the lawlessness in Ottawa. Both are heavily invested in their positions, but both are equally at great risk of public opinion turning on them, especially should events spin out of control.”

In another critical article, John Ivison, in the February 11, 2022, National Post wrote:

“Meanwhile, the Conservative Party, at least as represented by Poilievre, is trying to exploit the Trudeau-generated anger, telling Postmedia this week that he is “proud of the truckers and I stand with them.”

That statement is in stark contrast to his position during the 2020 Indigenous rail blockades, when he said the protests “take away the freedom of other people to move their goods and themselves.”

The man who would be prime minister, a putative leader who has promised to rid the land of the “invisible thief of inflation,” is endorsing blockades that economists suggest may lead to a contraction in the Canadian economy and an even greater surge in prices. It’s a novel, if demented, approach.”

In a thoughtful, non-partisan commentary, Brian Lee Crowley of the  Macdonald-Laurier Institute wrote on February 10, 2022:

“One law for all or no law at all.

That is the stark choice we face in a democracy like Canada. Today the issue is raised by truckers’ protests about Covid restrictions, but the identical issue is raised by [previous blockades at] Fairy Creek [British Columbia], Caledonia [Ontario], the burning of churches on reserves, blockades of pipeline construction or of highways and railways to pick just a few examples…..

When the rule of law is supreme, political authorities cannot arrogate unto themselves the power to decide when and if to apply the law to protestors based on the politicians’ affection for the cause being defended. If they succumb to this temptation, the law stops being a neutral instrument that protects everyone’s right to engage in lawful activities, that commands everyone’s obedience precisely because everyone is under the law, the rich, the powerful, the poor, the meek, the virtuous and the vicious. Instead the law becomes the subject of partisan contention, with parties vying to control the law so that they can comfort their friends and afflict their enemies. In fact the very best test of a government’s commitment to the rule of law is whether they are willing to apply it, not just to their enemies, but to their friends as well.

If they do not do so, their moral authority as guardians of the law is undermined. Justice wears a blindfold for a reason. A Liberal who supports or excuses lawlessness against perfectly legal pipelines and churches and foresters has little moral standing to call on the majesty of that same law to punish truckers fed up with COVID rules. The reverse is equally true for Tories who excuse lawlessness in downtown Ottawa but want the full force of the law brought to bear on highway and rail blockades.”

What They Protest About and How They Protest are Two Separate Issues

To support the first doesn’t mean supporting  the second. Selfish, egotistical protests that become occupations, harming and holding hostage hundreds of thousand of innocent others (as in the Canada-US Ambassador Bridge blockade) do not advance a moral cause. Labeling it “Freedom Convoy” is just another egotistical use of vocabulary, and literally wrapping oneself in Canadian flags is just a theatrical performance. It is not the flag of the occupiers, it is the flag of all Canadians. Yelling “Freedom “ and singing “O Canada, glorious and free…” doesn’t justify usurping the freedom of thousands of others.

Even if the government’s trucker mandate is wrong, two wrongs don’t make a right. An occupation by a few that harms many innocent people for weeks on end is not a virtuous protest. The right to protest has its limits, after which it ceases to be a lawful expression of constitutional rights and becomes a criminal occupation.

Some commentators have strongly defended the right to disruptive protests without suggesting any reasonable limits to that disruption.  Here are two prominent examples.

First, in a February 10, 2022 editorial, The New York Times’ Editorial Board wrote:

“We disagree with the protesters’ cause, but they have a right to be noisy and even disruptive.  Protests are a necessary form of expression in a democratic society, particularly for those whose opinions do not command broad popular support.  Governments have a responsibility to prevent violence by protesters, but they must be willing to accept some degree of disruption by those seeking to be heard.”

Second, the Canadian Civil Liberties Association website explains:

“It’s worth remembering that protests are intended to cause disruption and this is protected activity in a democracy. Strong protections for the right to protest are essential to meaningful and informed political debate and discussion.”

Neither the NYT nor the CCLA  offers any limits to what degree of disruption — not just of governments, but of the country’s economy, its trade relations and its civilian population —  must be accepted, and when the disruption becomes unacceptable.  Where do we draw the line, or is there no line? And more importantly, what is it legitimate for federal and provincial governments to do to end an unacceptable disruption?

A February 13, 2022 Globe and Mail article describing the Windsor Police efforts to clear the protesters blocking border crossings to the US quoted Windsor Mayor Drew Dilkens:

“You had a situation where you had about 200 people holding up the livelihoods and impacting the lives of several hundred thousand people on either side of the border. The lawlessness had to end.”

The mayor told the Globe and Mail that it was time to think about how to prevent subsequent blockades, citing as possible solutions an increased police presence, tougher laws and gates that could be closed to restrict protesters congregating in certain areas.

An official communiqué from some leaders of the Ottawa protest called for the federal government to be replaced by a coalition of demonstrators, opposition parties and the Governor-General. This is not likely to happen, but it is revealing of the agenda of the leaders, who have no mandate from anyone to do anything.

The Weakness of Canadian Laws on Reasonable Limits to Protests

A number of Canadian commentators have called upon the federal government to invoke the Emergencies Act. I would question the legality of such an invocation, given the clear language of the last five words of section 3:

3 For the purposes of this Act, a national emergency is an urgent and critical situation of a temporary nature that

(a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or

(b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada

and that cannot be effectively dealt with under any other law of Canada. (emphasis added)

But there is another “law of Canada” that has traditionally dealt with such activities, the Criminal Code, under sections 430 and 423:

Mischief

430 (1) Every one commits mischief who wilfully

(a) destroys or damages property;

(b) renders property dangerous, useless, inoperative or ineffective;

(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or

(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property. (emphasis added)

Intimidation

423 (1) Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing, carries on business or happens to be; or

(g) blocks or obstructs a highway. (emphasis added)

Thus, when a protest starts intentionally obstructing other people from going about their desired activities its members can become subject to criminal prosecution under section 423.  However, as with the current arrests in Windsor, they are usually only charged with mischief, with a lesser or trivial penalty.

A Canadian expert on issues relating to intelligence, national security and terrorism, Wesley Wark, wrote in Policy Options on February 11, 2022:

“What’s wrong here? The [federal] government is sitting on unusable legislation that is not fit for this purpose and has never been modernized to meet the changing needs of societal protection. There is nothing here to help the governance centre hold, while it provides a woeful excuse for inaction and buck-passing.

In place of an unusable Emergencies Act, what is needed is rapid passage by Parliament of amended legislation that would add to the definition of threats to the security of Canada a new category: the deliberate and reckless interference with listed critical infrastructure, to include offices of government and the courts, health services and border crossings. After that should come enforcement action.”

Wark is right about inaction and buck-passing, as each level of government waited for someone else to act.  It was an almost comedic “‘After you, Alphonse.’, ‘No, you first, my dear Gaston!'” routine.  Given the high level of organization of this well structured and financed “spontaneous” convoy, Canadian intelligence services were either asleep or had advised the government of the impending occupation to no avail.  We may never learn whether the failure was that of the intelligence community or the politicians, but failure there certainly was.

Of course, as I write this, the federal government could still invoke the Emergencies Act, perhaps claiming that the Criminal Code would be inadequate, and could worry about the legality of its invocation later.  The Emergencies Act (originally enacted as the War Measures Act, for use in wartime), has never been used before.  If it is used now to deal with the chaos successfully created by the organizers of the truckers, that is only because of government failure to take decisive action in a timely manner.  Using it now will elevate the status and influence of the occupation organizers because they were so successful that only the use of such an emergency law could stop them.  If there was an Oscar for protests these organizers would win Best Protest Event of the Year.

A New Law is Needed

We live in the age of social media, which facilitates the easy organization and perpetuation of blockades by organizers who can preserve their anonymity. Either amendments to the Criminal Code or an entirely new statute is necessary and should eventually be enacted to deal directly and effectively with such future blockades.

Assuming that the federal government wants to stop future occupations while permitting reasonable protests, it will have to try to draw a line between them.  They could legislate to limit the duration of all protests with more than, e.g., 10 active participants, to no longer than a specified number of days. In today’s world of instant and continuous media coverage it doesn’t take more than a few hours to get your message across, even globally, as the siege in Ottawa and the Ambassador Bridge showed.  After perhaps two days the protest can become more than freedom of expression, essentially an occupation, a license to disrupt and harm innocent others.  As well, such legislation could specifically prohibit protests that would obstruct traffic on specified Canada-US high-traffic routes such as the Ambassador Bridge.  Protesters could be permitted to stand on the sidewalk with whatever placards they wish, but not to stand in or park vehicles on the roadway in a manner that blocked or restricted vehicular traffic.

Such a new law would be subject to a Charter challenge, but if properly written and applied, I would expect a court to recognize its necessity and uphold it. 

Lessons for Government from These Occupations

1. Don’t impose needless vaccination mandates, or other exercises of authority, just because you can.  Instead of quarantining truckers, who provide an essential service at a time of supply chain delays, a testing program requiring only 15 minutes for the results of a test would have been adequate.
2. Don’t inflame the targets of these needless mandates by smearing people who disagree with the government.
3. Enact a law that draws a line between a legal protest and a criminal occupation.
4. When a convoy of trucks is being organized to invade the capital or blockade bridges, don’t wait until after they are well entrenched with funding, supply lines and infrastructure, and then just urge them to go away.  Take the necessary pre-emptive action.
5. Respect the rule of law. Don’t praise or blame unlawful occupations on political party lines.  Blame them all, and treat them all alike.