The constitution requires tolerance for groups of law-abiding citizens who choose to come together to be heard, writes Ryan Alford. Yet the rule of law also requires that individuals who violate the Criminal Code should be held accountable, regardless of their motives.
By Ryan Alford, February 16, 2022
Social media is ablaze with fiery criticism of the Ottawa Police and its handling – or alleged mishandling – of the “Freedom Convoy” protest. Why, many observers ask, would the police allow the occupation of downtown Ottawa, the distribution of fuel to idling big rigs blocking main streets, and not citing or removing trucks that blast their air horns repeatedly (at ear-splitting volume)?
To understand why we have seen less heavy-handed public order policing in recent years, it is important to consider the historical context.
In 2010, a decade of anti-globalization protests culminated at the G20 summit held in Toronto. The government’s response shocked the conscience of many observers. On television, clips were aired of police officers with obscured badge numbers beating a defenceless man, interviews with bystanders swept up by police who had boxed in (or “kettled” protesters) for many hours on public streets, and even footage of arrests and harassment of journalists themselves.
A wave of recrimination soon followed. Ultimately, the Toronto Police Services Board settled a lawsuit brought by those arrested by agreeing to pay them $16.5 million.
In essence, the police response to the G20 demonstrations ignored the constitutional right of the people to engage in peaceful assembly to make their voices heard. The importance of this right, which is protected by section 2(c) of the Canadian Charter of Rights and Freedoms, cannot be overstated, as it protects every other right. As the Supreme Court of Canada noted: “Freedom of association . . . protects rights fundamental to Canada’s liberal democratic society.” Accordingly, laws that infringe the right to peaceful assembly must be justifiable as reasonable limitations, or they will be struck down.
These events produced a backlash that set the pattern for a decade of hands-off approaches, in which the police forces’ watchword became de-escalation. Generally, the focus was to ensure that police actions do not make the problem of lawlessness worse, especially as the use of violence might lead to further violence.
Unfortunately, the public record now shows an ineffective cure might be even worse than the disease. In numerous high-profile conflicts – many of which were far more than mere demonstrations or protests – the police appeared to stand by while violence took place. Shockingly, in response to allegations the Ontario Provincial Police (OPP) failed to protect the residents of the Douglas Creek Estates in Caledonia, their lawyer asserted in court that they were prevented from responding more forcefully owing to “policy implications”; the OPP ultimately settled the claim by distributing $20 million to these residents.
Additionally, over the past decade, opponents of the construction of the Coastal GasLink Pipeline repeatedly blockaded roads and, ultimately, rail lines. On February 13, 2020, Via Rail suspended virtually all of its passenger service due to multiple blockades; some remained in place until a month later at the onset of the COVID-19 pandemic. The disruption of rail freight had more serious consequences, including rationing of propane in rural areas across the country and shortages of chlorine used for water purification.
By 2020, the perception of police reluctance to protect the public and uphold the law when confronted with politically sensitive protests had increased markedly. After the announcement by the Kamloops Indian Band of the discovery of potential unmarked burial sites of children who had attended a residential school, a wave of protests swept the country. While most of these were peaceful, a significant number were marred by vandalization and property damage.
Furthermore, a covert campaign of arson attacks against churches tracked these protests. At least 45 churches were set alight during this period, although not all burned to the ground. Some activists praised this as justifiable civil disobedience. Most notable among these voices was Harsha Walia, who while head of the BC Civil Liberties Union had retweeted a report of two arson attacks on churches with a comment: “Burn it all down.” Perhaps most astounding, the Board of the BCCLA, the Union of BC Indian Chiefs and many other activists leapt to Walia’s defence.
Many other expressions of governmental approval for civil disobedience also occurred during the Black Lives Matter protests. Despite the promulgation of pandemic measures that imposed strict restrictions on public assembly, large crowds were permitted to gather, including in Ottawa, where Prime Minister Trudeau joined a crowd of over twenty-thousand protesters.
In contrast, when speaking a year later about the Freedom Convoy protests, the Prime Minister voiced his fundamental disagreement with the truckers, whom he characterized as “racist” and “violent.” Trudeau later tweeted his condemnation of “the antisemitism, Islamophobia, anti-Black racism, homophobia, and transphobia that we’ve seen on display in Ottawa over the past number of days.”
Trudeau’s statements have led some to speculate whether the right to protest would be preserved only when the government agrees with the organizers’ goals. Conversely, many activists opposed to the Freedom Convoy have complained that the police have shown excessive leniency towards the convoy, allegedly due to the race of its organizers or agreement with their message.
Yet, when alleging illicit discriminatory treatment by the police and the government, it is important that clear and consistent standards be applied when protesters assert their freedom of assembly to make their voices heard.
The first and most important principle is that peaceful protests are lawful, regardless of what motivates their organizers. It is only individuals who participate in these protests who can commit offences. Governments – not to mention police forces – should therefore resist the urge to bless or curse particular protests because of the messages they convey.
Second, while the act of protesting is constitutionally protected, in the course of doing so, individuals who break laws must always remain accountable. Civil disobedience can be tolerated as a means of expressing political opinions only when the citizens who engage in this practice accept responsibility and the possibility of prosecution.
A related principle that promotes consistency is the recognition of the paramountcy of the Criminal Code of Canada. If anyone is charged with a criminal offence, the Crown must assume the responsibility of proving each element of the offence beyond all reasonable doubt. For example, the Crown must prove that protesters charged with Mischief under section 430(1) of the Criminal Code (or with aiding and abetting mischief) caused actual damage to property; this is an onus that requires demonstrating an individual’s specific motive, which extends much further than an intention to assemble with one’s fellow citizens and to voice one’s political opinions.
As such, shutting down demonstrations because protesters are violating municipal by-laws or regulations governing the use of public spaces may not be constitutionally justifiable depending on the circumstances. The police must remain mindful of the fact that freedom of assembly is a constitutional right, and that regulations – which may be entirely valid when applied in other contexts – may not be reasonable limitations of that right in the context of a demonstration.
Additionally, protests and demonstrations may interfere with bystanders’ common law rights, such as the right to the quiet enjoyment of their property and freedom of movement. However, the mere fact that protests create these effects does not destroy their connection to freedom of speech and assembly. Police forces must be wary of relying on this rationale to curtail peaceful protests, lest they run roughshod over the Charter rights of demonstrators.
These challenges point the way to the best method of ensuring that consistent and constitutionally defensible standards are applied to the policing of non-violent demonstrations: Allow courts to adjudicate applications to enjoin the protesters. Canadian courts are ideally suited to the task of crafting equitable remedies, which may include prohibiting or requiring specific acts. These orders are backed up by the coercive powers of the courts; they can incarcerate those who violate them for contempt.
When issuing injunctions, courts can devote their singular expertise to the issue of whether limitations on constitutional rights are reasonable in particular circumstances. While the balance struck may not be identical to other places and times, the same constitutional jurisprudence guides every application of the legal principles developed by the courts, including the Supreme Court of Canada.
The final principle is essential to continued respect for the rule of law: Court orders and injunctions are sacrosanct. Police forces and governments must respect them, whether by enforcing orders to prohibit certain means of protesting or by allowing constitutionally protected speech and assembly to take place unimpeded. There can be no justification for ignoring the courts’ reasoned and nuanced assessments of how the demonstrators’ rights may or may not be limited in the interest of public order or the preservation of the rights of others.
Whenever the police can wait for the courts to sort through the claims of protesters and bystanders, they should do so, rather than taking precipitous actions that may infringe on the rights of freedom of speech and peaceable assembly. Policing strategies that focus on de-escalation are prudent at this initial stage; if decisive action is required once the courts have ruled, the police will have the benefit of executing orders not of their own making, thereby protecting their legitimacy and neutrality.
At each of these stages, governments must respect the independence of both the police and the judiciary. While admonitions from the government that the rule of law requires the enforcement of the laws may appear innocuous, this can frequently be read by the public as an attempt to spur the police into action before the courts can address thorny questions involving the balancing of rights. The police should not be pressured by governments into suppressing demonstrations based on by-laws or regulations that might later be found not to constitute reasonable limitations on constitutional rights in these particular circumstances.
The government should not seek to restrain the police when individuals engage in violence or destructive behaviour, no matter how popular the cause. When the courts have spoken, the government has no business second-guessing their rulings short of taking an appeal.
In sum, the rule of law requires that individuals respect the laws (particularly the Criminal Code) and that governments respect the law that governs them (the constitution). This means that by-laws and regulations may occasionally need to temporarily give way so that citizens can assemble and make their voices heard. The police should prioritize the prevention of violence and destruction of property by enforcing the law against individuals, rather than taking action predicated on the purported moral worth of each cause or protest.
These principles apply with even greater force to governments, which should not forcefully endorse or condemn citizens’ attempts to peacefully assemble and to make their voices heard. Attempts to coerce the police into shutting down or ignoring protests owing to a political calculation are wholly unacceptable. This sort of coercion risks sidelining the courts and eroding the police’s independence. Instead, the police should be trusted to operate under the sober oversight of the courts, which possess both prudence and power.
In the end, all these institutions should remember that the constitution requires tolerance for groups of law-abiding citizens who choose to come together to be heard; the rule of law also requires that individuals who violate the Criminal Code should be held accountable, regardless of their motives.
Ryan Alford is a Professor at the Bora Laskin Faculty of Law at Lakehead University.