Josh Dehaas: What your rights to protest actually are ... even during COVID-19

Ontario's stay-at-home order is likely legitimate — but it still needs to pass certain constitutional tests, and that isn't easy.

A photo from the Twitter account of The Line Canada — the other The Line, that is — shows an anti-lockdown protest in Toronto on Jan. 24. Original image here.

By: Josh Dehaas

To combat the spread of COVID-19, on Jan. 14, Ontario Premier Doug Ford issued a “stay-at-home order” that says everyone must stay home at all times (unless outside for an exempt reason such as essential exercise, essential curbside pickup, essential elite sports or essential Hollywood movie production). No more than five people are permitted to gather outdoors. The order says that it does not affect Aboriginal and treaty rights, although it curiously omits any kind of exemption for those who might try to exercise their constitutional rights to, oh I don’t know, protest that very order. 

Ford has faced anti-lockdown protests on Saturdays for many months and is sick and tired of this “bunch of yahoos” who gather too closely together, most of them without masks, often while spouting conspiracy theories about COVID-19. On the first Saturday under the new order, hundreds showed up and marched in downtown Toronto, eventually congregating at the edge of Yonge-Dundas square (across from Eaton Centre), where dozens of cops were there to meet them. As usual there were some crazies, including those who believe Bill Gates is going to microchip them with a vaccine. Their placards said things like “Pfizer is a franken shot,” “lockdowns are weapons of mass destruction,” and — my favourite — “the real virus is communism: COVID-19 is just how it spreads.” (They totally stole that from Antifa, which has been arguing lately that the “real virus is capitalism.”) 

There were also messages that it’s really hard not to empathize with: “We are essential,” their little signs said. At one point, the crowd broke into a chant: “Jobs are essential. Open up our city. Jobs are essential. Open up our city.” Their frustrations are understandable when so many Toronto businesses, including as barbershops and nail salons, have been illegal since Nov. 23. Businesses are eligible for up to $20,000 in grants, but there’s no assurance the employees will get that money. A lot of people are being told to live off of $2,000/month of Employment Insurance in a city where entry-level rent starts at over $2,000.

From what I could see on video (I didn’t attend, opting instead for an essential walk along a crowded boardwalk), though there were some scuffles, it looked mostly peaceful. Police handed out 18 tickets for failing to comply with the emergency order and arrested two for “common nuisance.” Protests have continued since; this past Saturday, Toronto police arrested 10 people and ultimately charged seven of them. A dozen tickets were issued.

A lot of protesters have been outraged by cops handing out tickets. After all, aren’t they entitled to exercise their constitutional rights to protest, even in a pandemic? As a law student, I’m not qualified to definitively answer that question. But I do think a lot of people could use some basic education in how our right to protest works, and now is as good a time as any.

The right to protest is spelled out in section 2 of the 1982 Charter of Rights and Freedoms, which says that “Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.”

The Supreme Court has said that freedom of expression, at least before it’s balanced against other rights, protects all non-violent action or speech that attempts to “convey meaning.” Yes, even hate speech and conspiracy theories are, on their faces, covered by this freedom. It exists for three purposes: “self-fulfilment, participation in social and political decision-making, and the communal exchange of ideas.” This very clearly includes criticizing the government’s policies.

The Supreme Court hasn’t said much about freedom of assembly, but Ontario courts have more than once (see R v. Behrens and Ontario (Attorney General) v. Dieleman) endorsed the idea that freedom of assembly is “speech in action,” and that “assemblies, parades and gatherings” on public property are protected because they may be the only way people can get media attention, show strength in numbers, and force legislators to change bad policies. There’s just something extremely effective about getting together in a raucous group and chanting outside the premier’s office that can’t be replicated in any other way. Keep this in mind if someone tries to say you can still protest “online,” which is what police and politicians in Victoria, Australia claimed after they banned all protests last year.

The Charter is part of our constitution, and the constitution trumps all other laws — even emergency regulations like the stay-at-home order. It says so at s. 52 of The Constitution Act, 1982: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”

Even if Canada didn’t have a written bill of rights like the Charter, we would still have a right to freedom of expression simply because we’re human. Supreme Court Justice Ivan Rand said as much in 1953 when he smacked down a Quebec City bylaw banning Jehovah’s Witnesses from handing out pamphlets. Freedom of expression (along with religion) are “original freedoms which are at once the necessary attributes and modes of self-expression of human beings and the primary conditions of their community life within a legal order.” They’re freedoms that we’re born with. This idea — that we possess natural rights — is why the Declaration of Independence endures. It really is “self-evident that that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

That said, no right is absolute. This is because one person exercising her rights can impair the ability of another person to exercise his. Governments are best placed to regulate these messy interactions. This is why section 1 of the Charter states that the rights and freedoms in it are subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” 

The Supreme Court has said that reasonable limits include restricting the times and places where freedom of expression occurs. You almost certainly can’t protest in the prime minister’s office, air traffic control towers or judges’ chambers. You also probably can’t stand in the middle of a “busy highway” or “set up barricades on a bridge.” Governments may also, according to the Ontario Court of Appeal, limit protests for reasons like “the prevention of unlawful activity, securing the safety of persons, preventing the appropriation of public space for exclusive private use and preventing the obstructing of the operation of government and the provision of government services.”

So how about effectively banning all protests due to a deadly airborne virus that spreads primarily but not exclusively indoors?

To use section 1 to justify the tickets handed out on Saturday, the government would need to satisfy the “Oakes test,” (from the 1986 Oakes decision). The first step is using evidence to show a pressing and substantial objective. The objective of saving a significant number of lives and preventing the health-care system from becoming overwhelmed would likely qualify. 

But Ontario would also need to show that the limit is proportionate in three ways. This would be a steeper hill to climb.

First, government would need to show evidence that there’s a rational connection between the means and the objective. In other words, it would need to show that banning outdoor gatherings of more than five people is a logical way to cut down on COVID-19 cases. If there’s evidence that COVID-19 can be transmitted outdoors in large groups, the government should be able to show this. They might also argue that people will carpool to protests, and that COVID-19 spreads in cars.

Second, the government would need to show its ban is minimally impairing of the right. In the 1980s, when the court first said that limits must be minimally impairing, they seemed to really mean it, requiring that governments prove “that there are no alternative means that may achieve the same objective with a lesser degree of rights limitation.” But, as Justice Louis LeBel put it more recently, “minimal does not really mean minimal” anymore — rather it means “as little as reasonably possible within a range of reasonable options.” This is a recognition of the fact that governments are better placed, and constitutionally entitled, to weigh the policy options and pick one. That said, you might ask yourself whether a total ban on protests impairs the right to protest as little as reasonably possible within a range of reasonable options considering that Ontario could have done what Quebec did: exempt protesters so long as they wear masks and keep 2 metres apart. 

Finally, the government would need to show that there is proportionality between the deleterious and salutary effects of the limit. This is where the court will try to balance the interests of society with those of individuals. The question they might ask is whether preventing people from assembling outdoors as a show of force — to try to convince the public and the premier that Bill Gates is trying to microchip us, that all jobs are essential or that lockdowns need to end — is outweighed by the increased risk of virus transmission. 

The courts may one day rule on this very issue. In the meantime, I leave it to you to make up your own minds.

Josh Dehaas is a freelance writer and student at Osgoode Hall Law School in Toronto.

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