Protests, demonstrations blockades and occupations that are now are facilitated by social media are growing in size and popularity.  And so are the damages they inflict on people and businesses who are neither the targets of, nor in any way involved with the protest.

The important civil libertarian interests in freedom of expression and freedom of assembly are well represented in the media and in judicial decisions.  So are the rights of the people engaged in protests.  However, the rights of individuals and businesses whose lives and incomes are disrupted and damaged by protests that become blockades or occupations are under-represented or unrepresented.  I am proposing a more just balance between these conflicting rights: a new protest law.

Canada Has No Legislation Covering Protests

As we saw with the recent Freedom Convoy in Ottawa, neither the police nor the three levels of government knew what to do for three long weeks while downtown Ottawa streets were blockaded.  Ultimately, to end the serious disruption, the federal government invoked the Emergencies Act (the “EA”).  However, on January 23, 2024 a Federal Court judge held that the government had (i) invoked the EA illegally, and (ii)  violated the constitutional rights of the Freedom Convoy by freezing numerous donors’ bank accounts and credit cards. The government has appealed this decision.

Rather than the two extremes of doing nothing or invoking the EA a better approach could be specific federal and provincial protest laws.  Although there are provisions in the Criminal Code covering offences like criminal harassment (s. 264), assault (s. 265) intimidation (s. 423) unlawful assembly (s. 63) and wearing a mask during an unlawful assembly (66) these crimes are insufficiently specific for protests, and have criminal penalties that are in many cases too severe to be used.

The Criminal Code gives the police both more discretion and more responsibility than they are comfortable with exercising.  That is a large part of the reason why police usually under-respond initially, until they have to over-respond.

The Benefits and Limits of Injunctions

Most of our law governing the legality of protests is judge-made law: injunctions. A court injunction can often be useful but they are not a panacea.  Injunction applications are expensive, take time to obtain and require a showing of harm already inflicted.  The injunction to stop the Convoy’s 24/7 truck horn blowing in residential areas was only granted in the second week of the protest. 

Injunctions have the benefit of flexibility and being tailored to fit the specific circumstances.  However, their specificity is a mixed blessing.  For example, if an injunction requires protests against an abortion clinic to be at least 50 metres away from the clinic but fails to prohibit the use of megaphones the purpose of the injunction can be evaded.  And , as sometimes happens, injunctions are disobeyed or ignored, yet the consequences of disobedience are often trivial or nonexistent. 

Canada’s Dealing with Protests has been Ad hoc, Chaotic and Ineffective

Ottawa and the provincial capitals see new and ongoing protests and counter-protests almost daily.  Protest targets are often unrelated to government, for example, pro-Palestinian demonstrators blocking the entrance to Toronto’s Mount Sinai Hospital as an expression of their dispute with Israel.  Yet Canada’s way of dealing with protests, occupations and blockades has been ad hoc, chaotic and ineffective. 

The Policing Problem

Through bitter experience the police well know that if they engage in rough tactics to break up illegal protests the politicians will not have their backs.  When the protesters complain about the police enforcing the law and the media amplify the complaints the politicians are as likely to create an inquiry into the police conduct than to thank them for their work.  This may be why the police often do nothing when protests become violent until the political risk to the police is reduced by an injunction.  That way it is the court that makes the decision, not the police. 

Even after an injunction is granted, if it is disobeyed, the police will often ignore a substantial degree of disobedience before deciding to act.  That way they cannot be accused of bias against the protesters and infringement of their constitutional rights.  But that under-enforcement does nothing to protect the numerous individuals and businesses whose lives and incomes are disrupted and damaged by protests.

Will a new Protest Act fix the policing problem?  Not in every case, but it will help.  Part of the reason why the police are reluctant to act at first is that the people protesting are usually peaceful.  Also, protesters often include police-friendly working parents who bring their children. The police are reluctant to charge them with criminal acts because convictions would give rise to a serious fine, possible jail time and a criminal record.  So they wait for the injunctions, which they hope will be obeyed.  

Protest legislation that is not criminal law would change this situation.  It would provide the police with better guidance, which the police can rely on to respond to the inevitable criticisms to say to politicians “You legislated this, we didn’t, so if you don’t like how your law works amend it”.

A Protest Act could also provide for substantial penalties in extreme cases, but without imposing a criminal record and the lifelong criminal stigma.  When the penalty is civil rather than criminal the police are more likely to enforce a law that prohibits blockading an international bridge, a hospital, a national railway line or downtown Ottawa.

The Collateral Damage Problem

All of us are in favour of the constitutional rights of freedom of expression and assembly – until it impacts us personally.  What if a demonstration blocked your driveway for weeks? How would you feel?

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.

Canada’s Charter of Rights and Freedoms Doesn’t Protect the Abuse of those Rights

Canada’s Charter doesn’t even mention the word “protest”, so it doesn’t explicitly authorize all protests regardless of their conduct.  It does protect freedom of expression and of assembly, under which peaceful protest is generally allowed, absent certain exceptions.  But even Charter rights have boundaries.  What determines those boundaries?  They are determined by how much disruption, at what cost, and to whom, a democratic society is prepared to tolerate.

Some protests go far beyond the reasonable scope of “expression” or “assembly”.  Very often the primary purpose of a protest is to disrupt and disturb, to try to compel change.  Sometimes this is without regard to the rights of those whose lives are being disrupted and disturbed. The constitutionally protected right to freedom of expression does not protect intimidation or coercion.  The right to freedom of assembly does not mean freedom to blockade access to a hospital, a national railway line, a school, a border crossing or an apartment building.

The common law jurisdictions in Canada (all provinces except Quebec) could learn from the concept of abus de droit (abuse of rights) found in the civil law jurisdictions (e.g., Quebec, France, Germany, etc.).  A right is abused if it is used to cause annoyance, harm or injury to another; a right ends where abuse begins.  

An act of civil disobedience, which is intentionally illegal, is not to be confused with a lawful protest. I am not suggesting that civil disobedience is always morally wrong. It may be justified if the disobedience is opposing a severe injustice that cannot be effectively protested by legal means.  But protesters engaged in civil disobedience should expect to be arrested and to suffer the consequences.

Canada’s unwillingness to learn from its numerous bad experiences with protests that become blockades or occupations , and to legislate boundaries, leaves protest organizers, police and judges with no advance guidance on what would be the legal limits of a protest.  Detailed statutory guidance would increase the likelihood of protesters’ compliance with the law and reduce the need for the police, belatedly, to use massive force to restore order.

The Charter Permits Laws Reasonably Limiting Rights

Charter rights are subject to Charter Section 1, which states:

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Thus, Parliament and the provincial legislatures can prescribe reasonable limits by law, subject to compliance with Section 1.

Parliament and the provincial legislatures can, and I argue should, enact detailed, carefully drafted laws specifically governing protests.  These laws should limit the harms that highly disruptive protests, blockades and occupations can inflict.

Why isn’t the Criminal Code sufficient?  The Criminal Code is a legal sledgehammer to an accused. It is the wrong law to apply to all but the most extreme protests.  Under the Criminal Code a protester is either arrested and charged with a crime or is treated as doing nothing wrong.  This helps neither the police nor the protesters to know what their reasonable and justifiable limits are.

Large-scale protests can create significant economic damages (euphemistically described as “disruption”), not only for the typical  government targets but for innocent bystanders (like Paul Jorgenson, above), who become collateral damage.  Legislating the acceptable level of “disruption” raises some difficult constitutional and administrative law issues, but less so than the current absence of any legal guidance.

Some Legal Issues for a Protest Law

• How much disruption of, and damage to, people and property of persons who are not the target of the protests should the law allow?
• Should protesters be permitted to hide their identities behind masks, avoiding accountability for any harm they cause?
• Whose lives, homes and workplaces should protesters be prohibited from disrupting (e.g. hospitals, legal abortion clinics, religious congregations, the homes of judges whose decisions the protesters dislike)? 
• Should blockaders and occupiers be required to compensate those who couldn’t get to work or to medical appointments or were otherwise harmed by their protests? 
• If so, how would compensation be ordered if they wear masks and can’t be identified, or have no resources with which to pay damages?
• Should a municipal, provincial or federal government or a police force that fails to protect these victims of a protest, blockade or occupation be required to compensate them?

A protest law should consider these and similar issues.

Balancing Conflicting Rights

The right to protest does not exist in a vacuum. Every free and democratic society needs to balance (i) the right to protest, even somewhat disruptively, with (ii) the rights of those harmed by the disruption, to avoid, or at least 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 to protesters, the police and the courts.  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 other private property.

Most very large, disruptive protests should require obtaining a permit (not to be unreasonably delayed or withheld) from the level of government that controls the protest site.  This permit, rather than the protesters themselves, should  set the duration of the disruption to a specified number of days, within specified geographic boundaries (unless the protesters seek and receive a permit to extend it).  That would be a reasonable compromise between the conflicting rights. 

A condition of this time limit would be that with protests against a level of government, that government’s staff would 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 penalties, to incentivize compliance.  That would be a lot better than doing nothing for weeks and then declaring a national emergency.

The longer a massive protest becomes a blockade, the more comfortable and dug in the protesters become.  That increases the likelihood of police violence being required to break it up.  A time limit would in many cases obviate the need for waiting before seeking an injunction.

Conclusion

Even the strongest supporters of the right to protest cannot justify inflicting unlimited disruption and severe financial damage upon innocent victims of blockades that persists for weeks.  There should be some legislated limits, outside of the Criminal Code, to the exercise of these constitutional rights, just as there are limits to every other constitutional right.  These limits should be in compliance with Charter Section 1, and, when necessary, enforced with full support from the police and the courts.

It would be helpful to protest organizers to have some advance guidance, in a statute, as to what they can and cannot do, as well as to know the penalties for violations.  Such guidance would also be useful to the police and the courts.

Canada’s handling of increasingly frequent and damaging blockades will remain largely out of control until new non-criminal legislation limiting damage caused by protests is enacted.  New, protest-specific legislation will reduce severe damage, occasionally controlled by belated injunctions (if obeyed), but too often broken up, too late, by police in riot gear, using truncheons.  Canada can do better.