Josh Dehaas: The police can't just declare an overpass a Charter-free zone

Police tend to underreact to illegality at protests initially. Then, when the public gets frustrated with the lack of enforcement, they overreact.

Photo by Buongiorno Principessa/Twitter

By: Josh Dehaas

I realize it’s easier to armchair quarterback than to police protests. If police arrest protesters causing minor disruptions, they risk breaching the Charter rights to freedom of expression and peaceful assembly. If they don’t arrest protesters who are clearly breaking laws, they encourage more disorder. But, as a former journalist who now works for a charity defending constitutional rights, it’s my job to critique the police, and I’m frustrated to see them continue to make the same mistake. Police tend to underreact to illegality at protests initially. Then, when the public gets frustrated with the lack of enforcement, they overreact, which compromises constitutional rights.

I was hoping that the anti-Israel protests would mark a departure from this pattern. They haven’t.

I first saw this pattern in 2010 as an intern at Maclean’s, where my first big assignment was to cover the G20 Summit protests in Toronto. On the Saturday, police didn’t do much as black-clad protesters smashed storefront windows and torched police cars. On Sunday, police cracked down, arresting hundreds of people, mostly bystanders, and held them in a makeshift jail without charges, and at least one protester was badly beaten. The arbitrary detentions led to a class action lawsuit that cost taxpayers $16.5 million.

The Ottawa trucker protest suffered from a similar underreaction followed by overreaction. Instead of warning truckers it was illegal to park their big rigs on residential streets, police waved them in, allowing them to become entrenched. This led to the Emergencies Act, which was used to ban all protests in downtown Ottawa and freeze bank accounts without warrants.

Now, Toronto Police have done it again.

After weeks of not enforcing the law, Chief Myron Demkiw announced recently that police will not “allow people to congregate or demonstrate” on the Avenue Road and Highway 401 overpass. Yes, he has issued a blanket ban on protests and he didn’t even need an Emergencies Act to do it! When journalists asked what legal authority Demkiw had to ban protests, he grasped for an answer, blustering on about the Highway Traffic Act, public safety, criminal intimidation and mischief. Earlier this month, police on the overpass seemed equally confused. They told protesters they could “go back and forth,” but couldn’t stand on the bridge. They charged three for mischief and obstruction for “attend a demonstration.”

Police have a common law duty to keep the peace, but I don’t believe the chief has the power to issue a blanket ban against protests on the overpass sidewalk without violating the freedom of assembly protected by section 2(c) of the Charter, or freedom of expression protected by 2(b). Protesters should be allowed to gather on the overpass sidewalks, and wave their flags and placards at the drivers below, so long as they don’t blockade or commit other crimes.

Demkiw’s ban should concern us whether we agree with the protesters message or not. To be clear, I don’t. I’m disturbed that these protesters chose that overpass because of its proximity to Toronto’s largest Jewish community. I’m disgusted by the videos of some protesters yelling nasty things like “Go back to your f–king countries,” and calling the area “Zionist-infested.” But, in Canada, all but the most extreme forms of detestation and vilification are constitutionally-protected speech, and police can’t put prior restraints on expression just because it’s offensive.

We wouldn’t have gotten here if police had been enforcing laws against the illegal conduct of protesters from the beginning, including charging those who blockaded the road of the overpass. Section 423(1)(g) of the Criminal Code, bans “intimidation”: it’s a crime to “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 … including … blocks or obstructs a highway.”

Section 423(1)(g) is consistent with Charter rights. As a B.C. judge explained last year in R v Breen, the right to peaceful assembly doesn’t include blockading highways. The Supreme Court said in the 2005 case Montreal (City) that expression may not be protected in locations where it’s incompatible with the “historical or actual function” of a place. Expression may be compatible with protest marches but doesn’t include blockades. As former Supreme Court Chief Justice Antonio Lamer once wrote, you don’t have a right to “picket in the middle of a busy highway.”

Allowing the police chief to simply declare the entire overpass a Charter-free zone is a slippery slope. If police can ban protests in advance based on messages you don’t like, next time it might be your expression they decide to ban. Instead of this ban, police should tell the public in clear terms that they will be arrested if they block the overpass road but that they are still allowed to peacefully express themselves on the overpass sidewalk. The Charter demands no less.

Josh Dehaas is counsel with the Canadian Constitution Foundation, a charity dedicated to defending rights and freedoms, and co-host of the podcast Not Reserving Judgment.

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