In a confidential memo between legal counsel for the Ottawa Police Service and deputy chief Steve Bell, lawyers advised that police should take extra care with Freedom Convoy demonstrators who may be indigenous.
The memo, portions of which were published by Blacklock’s Reporter on Nov. 9, was written just a few hours before convoys and trucks started to arrive in Ottawa on Jan. 28 for what became the largest peaceful protest in Canadian history. Some First Nations people participated in the protest.
“Given that the convoy has not yet reached the City of Ottawa, it is difficult to assess the full range of legal considerations that may be at issue,” wrote the lawyers.
They warned that the protest “raises issues related to freedom of expression and lawful assembly, and therefore may have Charter implications.”
“In addition,” stated the memo, “there may be demonstrators who are Indigenous, there may be heightened concerns surrounding any active enforcement measures and recognizing the uniqueness of Indigenous occupations.”
‘Collaboration and Partnership’
The memo, clearly labelled by the lawyers as “Solicitor-client privileged and confidential—For OPS internal use—Dissemination Prohibited,” mentioned that the Ipperwash Inquiry Report provided guidance for law enforcement in responding to indigenous protests.“Police ought to develop communication networks and trusting relationships with Indigenous people. This involves collaboration and partnership with Indigenous leaders and communities,” OPS lawyers advised the deputy chief.
The memo advised that if there were indigenous protesters, the police should involve Elders or others with status within the First Nations community to help communicate.
“Indigenous leaders may be consulted to ensure that any police response considers the uniqueness of Indigenous occupations.” It also suggested that police “should focus on the requirements for peacekeeping, communication, negotiation and building trust both generally and with respect to specific incidents,” recommending officers exercise “patience, listening and good-faith communication.”
Charter Rights ‘Not Without Limits’
The memo also noted that “those who wish to protest have a Charter-protected right in doing so, [but] it is not without limits. These limits, as the courts have recognized, prevent threats of violence, acts of violence, and unlawful conduct... [and] prevent demonstrators from obstructing travel on roadways.”The memo said it was worth noting that at least one court decision “found that a blockade for a very brief period only constituted a minor inconvenience and was therefore permissible.”
The memo also set out the definition of an “unlawful assembly” as outlined in the Criminal Code noting that one of the criteria, is that an assembly of three or more people “will disturb the peace tumultuously.”
“A ’tumultuous’ disturbance requires an air or atmosphere or actual or constructive force of violence,” stated the lawyers.
Further, said the memo, “To prove a riot, it is essential that there be actual or threatened force and violence, in addition to public disorder, confusion and uproar.”
During the nearly four weeks so far of hearings into the invocation of the Emergencies Act to stop the three-week-long protest in the nation’s capital, testimony from witnesses has largely described a large and boisterous crowd that included bouncy castles, dance parties in the streets, impromptu children’s hockey games, and patriotic symbolism.
