Protests, blockades and other forms of civil disobedience are growing in popularity in Canada;  and the federal government depended on a blunt instrument – the Emergencies Act (the “EA”) as the way to deal with the truckers’ Freedom Convoy of 2022.  I’d like to suggest a more nuanced approach, which should serve both sides better in future confrontations.

First, a bit of background.

Background

On January 23, 2024 Justice Mosely of the Federal Court held that Canada’s federal government had (i) illegally invoked the Emergencies Act when the criteria in the Act had not been met, and (ii)  had violated the constitutional rights of the Freedom Convoy protesters and some of their supporters.  By invoking the Emergencies Act when there was no real national emergency, this law had been unlawfully misused.  Then, freezing the bank accounts and credit cards of many Convoy financial donors, and anyone jointly on their bank accounts and credit cards (including spouses and children), was an infringement of their constitutional rights against illegal seizures.  

The government has appealed this decision to the Federal Court of Appeal, and the loser of that appeal will probably take it to the Supreme Court of Canada. I would give the government’s appeal a 50 percent chance of success.  On the one hand, Justice Mosely has a strong background in criminal law and has worked in the senior public service.  His judgement is well reasoned and clearly written.  On the other hand, the applicable law requires judges to defer to government/administrative decision-makers.  That requirement is an unruly horse that can take an appeal court galloping off in another direction.  Deference is a perspective, not a law, so its application is unpredictable.

All of the judges of the FCA and SCC live in Ottawa and they all suffered from the noise and disruption in their city.  Justice Mosley admitted in his written reasons that he came to the case with an initial view in favour of the government, and so will the judges sitting on the appeals.  Of course their personal feelings should not become part of their decision as their obligation is to apply the law impartially.

A sometimes valuable tool in limiting the disruption of protests is the court injunction.  However, that can’t be the only tool.  Injunctions take time and money.  One cannot apply for an injunction on speculation but usually only after the protest has caused serious nuisance or damage.  It also requires a plaintiff willing to put her name forward, at the risk of – as was seen in the Ottawa Convoy – personal threats and the requirement of a police escort.  And usually the lawyer acting for the injunction applicant will charge a substantial fee and will need time to collect evidence for the court.  An injunction, if eventually granted, is often ignored.  That requires the police to enforce the injunction, which they often hesitate in doing.  If the injunction is enforced and the protesters arrested, they often pay trivial fines and return to the scene to continue their protest.  Injunctions should therefore be the last resort, not the first or only resort.

Canada Treats Disruptive Protests Unequally

The 2019/2020 blockade of the Canadian railway lines by certain Indigenous blockaders protesting the Trans Mountain pipeline extension created massive national economic damage, yet it set the precedent for the 2022 truckers’ blockades.  With the railway blockades, rather than using whatever police action was necessary to remove them after they ignored a court injunction our sympathetic federal government rewarded the Indigenous blockaders with private meetings and a signed but undisclosed memorandum of agreement, as described in detail here.  Obviously, if such illegal conduct is rewarded rather than penalized, it creates the incentive for more of it.

The message sent by this uneven government response was that if we like your protest and find it politically convenient we will buy you off.  But if we don’t, we will attack you with every legal and police weapon at our disposal. That’s not the rule of law, where everyone is subject to, and equal under the law.

Canada Needs Federal and Provincial Protest Laws

Ottawa and the provincial capitals have new and ongoing protests almost daily.  There are also protests focussed outside of government, for example, Palestinians protesting on a Toronto bridge about their dispute with Israel, or Sikhs versus Hindus.  Yet Canada’s way of dealing with protests and blockades has been ad hoc and chaotic. Often, nothing happens until after a lot of damage has been done, not necessarily to the target of the protest but to uninvolved local residents.  

Everyone is in favour of the rights of freedom of expression and assembly guaranteed by the Canadian Charter of Rights and Freedoms – until it impacts you.  Then it’s personal.

Here is a personal story about the Ottawa Convoy, from CTV News on October 16, 2023:

The court also heard testimony from Ottawa resident Paul Jorgenson, who said the entrance to his parking garage was completely blocked by trucks. Days into the protest he said he got in his car and hopped a curb to escape downtown.

“We ultimately had to flee town because I was unable to continue working,” he told the court, pointing to the “cacophonous” noise and odour from idling vehicles.

When he returned on Feb. 9, he said he had trouble getting food to eat.

“We were unable to order food and we were unable to get food from the grocery store and we had exhausted almost all the food in our pantry,” he said.

What if the weeks long blocked driveway was yours. How would you feel?

Canada should consider having some specific laws governing protests, at both the federal and provincial levels, so that every new protest is not seen as a new and unique experience that soon degenerates into chaos until the courts get involved.  A new Protest Act should set statutory time limits for larger protests, with serious penalties for protests that are overly long, or blockade international borders, major rail lines, pipelines, electricity generation, highways or other essential public facilities, or even private property.

Protests necessarily create some disruption, not just for the government target but for innocent bystanders like Paul Jorgenson, above, who become collateral damage.  The Convoy protesters insisted they would continue to blockade major Ottawa thoroughfares and residential neighbourhoods until the government gave in to their demands.  This insistence raises some difficult questions.

How much disruption and collateral damage should we allow?  Whose lives should be disrupted?  Should the protesters be required to compensate those who couldn’t get to work because of their protests?  If so, how would that compensation be ordered in a practical way? Is the right to protest the right to convey a message, with disruption as a minor side effect?  Or, is the disruption the message?  A protest law would deal with these and similar issues.

Balancing Conflicting Rights

Every free and democratic society needs to balance two rights (i) the right to protest, even somewhat disruptively, with (ii) the rights of those innocent local residents harmed by the disruption, to limit the financial and personal damage to them.  

A law setting out what means and manner of protest is allowed and what is not would be useful.  For example, it should be legal to protest as long as one is not physically impeding or blocking passersby, roads, or access to office or residential buildings or any other private property. 

Most very large protests should be limited to a specified number of days, within a specified area (unless the protesters seek and receive a permit to extend it), as a reasonable compromise between the conflicting rights.  A condition of this time limit would be that government staff be willing to meet with the protest leaders for a reasonable amount of time, in a safe location, to hear their concerns. After such a meeting, and after the expiry of the time limit, the protesters would be expected to leave, without the police having to take any action.  If they did not leave voluntarily and on time there would be real and significant penalties, to incentivize compliance.  That would be a lot better than using the EA, or doing nothing, for weeks.

The longer a massive protest becomes a blockade, the more comfortable and dug in the protesters become.  As they grow friendly with local police, they increase the likelihood of a long occupation, with violence required to break it up. Also, longer protests allow bad actors to join, and use the peaceful protesters as cover for vandalism, looting and violence. Hence the need for a time limit, which also limits the damage inflicted.  A time limit would also obviate the need for, and the delay in seeking an injunction, and then watching the protesters ignore the injunction, get arrested and pay a small fine before returning to their protest.

Trade blockades at international borders or of railway lines should also be highly penalized.  That’s not mere protest, that’s economic blackmail.  It imposes severe financial harm on numerous innocent businesses, their employees and consumers.

Protest legislation should prohibit overnight camping in tents or in illegally parked vehicles, before the protests become long-term occupations of public spaces and infrastructure. The duration of a large protest should be set by law, not by the protesters themselves, or by reliance on the police using force. The protest participants should be obliged to produce their ID when asked by police, to avoid returning at intervals and calling that a new, different protest.

Two Policing Problems

Why did the police not clear the protesters early on?  The first problem was that three police forces were authorized to act: the Ottawa City police, the Ontario Provincial Police and the RCMP.  These three played the Alphonse and Gaston routine about entering a door: after you, Alphonse; no, after you Gaston, while no one actually moved.

It shouldn’t require invocation of the Emergencies Act to decide who does what.  It should be enacted in law that the first responsibility is the municipal police, then the provincial, and finally, the national (RCMP, or if necessary, the Army).

The second problem was the attitude of the police.  Why were the police sometimes even giving the protesters hugs, selfie photo ops with the officers, and telling them that they were on their side?  Because the government had also imposed highly unpopular vaccine mandates on the military and the police. Many police and military were on the side of the protesters because they too resented the mandatory vaccinations they were also subjected to, even after there was growing evidence that vaccination would not prevent either infection or transmission [Transmissibility of SARS-CoV-2 among fully vaccinated individuals: The Lancet ]:

This study showed that the impact of vaccination on community transmission of circulating variants of SARS-CoV-2 appeared to be not significantly different from the impact among unvaccinated people.2,  3 The scientific rationale for mandatory vaccination in the USA relies on the premise that vaccination prevents transmission to others, resulting in a “pandemic of the unvaccinated”.4 Yet, the demonstration of COVID-19 breakthrough infections among fully vaccinated health-care workers (HCW) in Israel, who in turn may transmit this infection to their patients,5 requires a reassessment of compulsory vaccination policies leading to the job dismissal of unvaccinated HCW in the USA. Indeed, there is growing evidence that peak viral titres in the upper airways of the lungs and culturable virus are similar in vaccinated and unvaccinated individuals.2,3,5–7 A recent investigation by the US Centers for Disease Control and Prevention of an outbreak of COVID-19 in a prison in Texas showed the equal presence of infectious virus in the nasopharynx of vaccinated and unvaccinated individuals.6 Similarly, researchers in California observed no major differences between vaccinated and unvaccinated individuals in terms of SARS-CoV-2 viral loads in the nasopharynx, even in those with proven asymptomatic infection.7

This vaccine mandate for truckers was seen as an abuse of authority rather than a necessary public health measure.

The refusal to get vaccinated would mean the police would be terminated, and hundreds were.  Most of the police not yet vaccinated chose vaccination over unemployment, but resented having to make that forced choice, and didn’t want to help the government that did that to them.

The reason why the Ottawa police chief couldn’t get his officers to evict the protesters was because of an undeclared but effective police mutiny.  When a new chief came in and showed that he meant business the police went back to work.  This likely would have happened with or without the government bringing in the EA; none of the police forces had requested it.

Conclusion

Even the strongest civil liberties supporters of the constitutional right to protest (and to be somewhat disruptive) cannot justify creating endless chaos and financial pain for innocent victims who live or work near a massive protest that extends over several weeks.  There must be some limit to the exercise of these constitutional rights, just as there are limits to every other right.  These limits should be legislated rather than ad hoc, and, if necessary, enforced with full support from the police and the courts.

Justice Mosely’s decision was long, detailed and well reasoned.  It may well survive the appeals.  However, until new legislation regulating protests is enacted seriously damaging blockades like those of the railways and downtown Ottawa will continue to occur, again showing that Canada’s handling of the increasingly frequent blockades is out of control.  Better to have new, protest-specific legislation than having to choose between the illegal use of the EA, amending that Act to make it too easy to invoke, or periodic anarchy only occasionally terminated by injunctions that are respected rather than ignored.