One of the protesters at UBC was quoted as saying: “As Canadians, we have the right to demonstrate peacefully as long as there is no violence. We have the right to protest this. … We believe we have the freedom of speech, which is not taken away from us.”
Freedom of speech does not include a freedom to disregard university rules and policies, as long as those rules and policies are enforced fairly and equally for all groups, regardless of the group’s beliefs or opinions. Colleges, universities, and other government bodies are entitled to regulate the time, place, and manner of expression permitted on public property. To be reasonable, such restrictions must be applied neutrally to all groups, and should not target the content of the expression. For example, universities are within their rights to ban tent cities, overnight displays, excessive noise, and protests that interfere with students and professors going about their business. Conversely, universities have no right to suppress content because it is offensive and unpopular, for example, pro-life speech on campus.
When dealing with protests, police and other government authorities should look only at the behaviour of the protesters, not the cause or issue they are protesting. Whether a particular protest is for Palestine, against lockdowns, for aboriginal rights, against abortion, for the environment, or against drag queens should be completely irrelevant. The law should be applied equally across the board: enforce existing laws against illegal behaviour, and do not interfere with legal behaviour.
Sadly, this simple and fair standard has been abandoned repeatedly by governments in the past four years. Since 2020, politicians, police, and Crown prosecutors have repudiated the rule of law, one of Canada’s most crucial constitutional principles.
In March 2020, protesters blockaded railroads in the name of stopping oil and gas development, claiming to defend the environment and indigenous rights. Prime Minister Trudeau offered to meet with them, and police did little to address the protesters’ clearly criminal behaviour. Less than two years later, truckers along with thousands of other Canadians assembled peacefully in Ottawa to protest vaccine mandates. The prime minister refused to meet with them and left town. A few weeks later he illegally declared a “national emergency” and abused the Emergencies Act to use violence against peaceful protesters.
In April 2020, Ontario Premier Doug Ford denounced people who were peacefully protesting at Queen’s Park against lockdowns as “absolutely irresponsible, selfish, reckless, law-breaking yahoos” who were “putting everyone, themselves, and the workers in jeopardy.” On May 11, 2020, lone protester Cody Haller was arrested, dragged out of the Alberta legislature grounds, and given a $1,200 dollar ticket. Social distancing was apparently very important when people protested against the violation of their charter freedoms. Even a single protester—outdoors by himself—was deemed to be a threat to public health.
But when more than three thousand people crowded into downtown Toronto to protest against racism on May 30, 2020, social distancing no longer mattered. The prime minister participated in one such protest. Police officers and public health officials also took part in anti-racism protests that clearly violated public health orders. In provinces across Canada, not one single premier or chief medical officer denounced the blatant violations of health orders that required social distancing outdoors. Alberta’s Chief Medical Officer Deena Hinshaw suggested that people should kind-of, sort-of try to observe social distancing “as much as possible” but if anti-racism protesters failed to do so, then no big deal.
In July 2021, vandals in Winnipeg pulled down a large statue of Queen Victoria on the Legislature grounds, in broad daylight while police watched. Damaging property (apart from your own property) is clearly criminal, yet no arrests were made. In spite of abundant video footage that would make it easy to identify and track down the criminals, Manitoba Crown prosecutors later announced that no criminal charges would be brought against the vandals. The specific reason for not enforcing the Criminal Code was not given. It appears that government authorities felt sympathetic to the cause of denouncing Indian Residential Schools and “colonialism.” It appears that their reason for knowingly condoning criminal behaviour is that the vandalized statue was that of the monarch who reigned from 1837 to 1901, when Canada was founded and when numerous treaties were signed.
On July 1, 2021, most municipalities shuttered their Canada Day celebrations to help “stop the spread” or “bend the curve.” This did not stop indigenous groups from organizing protests and vigils for the Every Child Matters movement. As just one example, in Belleville, Ontario, there was a large gathering on July 1 at the same location that Canada Day celebrations would have normally taken place. Needless to say, no tickets were issued.
Conversely, Tamara Lich and Chris Barber continue to suffer through lengthy and expensive criminal proceedings that are far from concluded. They and other Canadians have been charged criminally for having peacefully exercised their charter freedoms of expression, association, conscience, and assembly in Ottawa in 2022. They participated in, and played a leadership role in, the Freedom Convoy gathering of thousands of Canadians, in a protest that was devoid of criminal activity.
Crown prosecutors condone the clear and obvious criminal conduct of those who destroy public property (e.g. the statue of Queen Victoria at the Manitoba legislature), while prosecuting Tamara Lich and Chris Barber for having peacefully exercised their charter freedoms of expression, association, and assembly.
Criminal Code section 423 prohibits intimidation, which includes blockading or obstructing a highway if done “for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing.”
Criminal Code section 430 prohibits “mischief,” defined as wilfully destroying or damaging property; wilfully rendering property dangerous, useless, inoperative or ineffective; or wilfully obstructing, interrupting or interfering with the lawful use, enjoyment, or operation of property. The maximum penalty is imprisonment for life.
Admittedly, it can be a daunting task for police (initially) and Crown prosecutors (later on) to determine whether protesters violated sections 423 or 430 (or both) of the Criminal Code in a particular situation, at a particular place, on a given date. There is no escaping the necessity of making difficult judgment calls.
The selective prosecution of offences committed (or not committed) by protesters, based on the protesters’ political views rather than on their behaviour, is a serious affront to the rule of law. Politicians, police, and prosecutors should acknowledge their wrongdoing over the past four years, and should once again respect the rule of law.
