Josh Dehaas: Hey protesters, please don’t take the wrong lesson from the Emergencies Act ruling

The Charter only protects the right to peaceful assembly.

By: Josh Dehaas

Earlier this month, the Federal Court of Appeal upheld a lower court’s ruling that the Trudeau government illegally invoked emergency powers and violated constitutional rights during the “Freedom Convoy” protests. The ruling is a historic win for the right to freedom of expression.

What it’s not is an endorsement of anti-social behaviour like the incessant honking of truck horns or blockading streets that many of the Freedom Convoy participants still seem to think was legal.

Protesters, whether of the freedom variety or the pro-Palestinian persuasion, must not take the wrong lesson from this important ruling. It does not give anyone a license to disturb the peace.

The Court, siding with my organization, the Canadian Constitution Foundation and the Canadian Civil Liberties Association, found that invoking the Emergencies Act was illegal because the government failed to show reasonable grounds to believe there were threats to the security of Canada or that there was an emergency of national scope. The Emergencies Act is an incredibly powerful tool that allows the creation of criminal laws on the fly. It was wisely designed with a high threshold for invocation that the Court found the Trudeau government simply did not meet.

Separate and apart from that, the Court found that, regardless of whether the statute had been legally invoked, the regulations made under it banning participating in, travelling to, or offering property (including money) to anyone participating in a public assembly that may reasonably be expected to lead to a breach of peace violated the Charter right to freedom of expression.

The problem, according to the Court, was not that the regulations had banned, to use their words, “blockading downtown Ottawa, disturbing the peace with incessant noise from truck horns, train-type whistles, late night street parties, fireworks and constant megaphone-amplified cries of freedom.” The Court says that all of these activities, while expressive, cannot be considered peaceful. This is important because the Charter only protects the right to peaceful assembly.

Rather, as the CCF argued and the Court agreed, the regulations against participating in, travelling to and funding the protests violated freedom of expression because they were so overbroad as to also capture many forms of peaceful protest. While the regulations were in effect, someone who simply made a sign and walked to a protest where someone else might blockade traffic or otherwise breach the peace could have been fined up to $5,000 and spent up to five years in prison. It’s reasonable to expect non-peaceful behaviour at nearly any protest, so the effect of these regulations was to criminalize all peaceful protesters through guilt by association. During the short period of invocation, it was essentially illegal to attend any public protest nationwide.

Since the regulations limited the speech of peaceful protesters, the government was required to show that it had reasonably tailored its law to its objective: clearing out the blockading trucks. There was a blindingly obvious way to achieve that without a near-total protest ban: create laws that help to clear out the blockading trucks. The Court points out that both Nova Scotia and Ontario had taken this approach using their emergency acts, creating fines for blockading streets and giving police the legal backing they needed to remove the transports. They just hadn’t gotten to it yet.

This also points to the other alternative. As convoy leaders Pat King and Tamara Lich found out the hard way, blockading streets and incessantly honking already count as criminal mischief. Ottawa did not like the speed at which police were dealing with the protests, but they should have simply waited a few more days for police to get their act together and enforce existing laws.

The lesson here for protesters is obvious. Canada’s Constitution should protect your expressive protests as long as you stay peaceful, but peaceful protests don’t include making incessant noise or blocking streets. Pro-Palestinian protesters and the police forces that have often taken an extremely light touch toward them ought to take note. Police can’t stop them from marching or expressing themselves, but they can keep traffic moving and unplug their goddamn loudspeakers.

Josh Dehaas is Counsel with the Canadian Constitution Foundation, a charity dedicated to defending Canadians’ rights and freedoms.

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