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Victoria’s Johnson Street Bridge has been blockaded by protesters three times since October. Strictly speaking, you're not allowed to do that.
Even in traditionally protest-heavy Victoria, it’s been a busy last few months. Since October, the Johnson Street Bridge has been closed by protest blockades no less than three different times. In 2020 so far, protests and blockades have cancelled ferries, delayed the opening of the BC Legislature and prompted the partial closure of government offices across Victoria.
Most of the time, Greater Victoria law enforcement stands to the side and monitor blockades until they wrap up on their own. Sometimes – such as Tuesday morning outside Premier John Horgan’s house – they move in and make arrests. So, where does legality begin and end when it comes to blockades in Canada? The Capital dug through all the relevant legal literature to provide an answer below.
Canada’s constitution isn’t quite as gung-ho on the right to protest as the United States, where near-absolute free speech is famously protected by the First Amendment. But the Canadian Charter of Rights and Freedoms does guarantee freedom of peaceful assembly and freedom of thought, belief, opinion and expression.
It’s within those freedoms that the Canadian right to lawful protest is upheld. In Canada, nobody is technically allowed to tell you to put away a protest sign or to disperse a march that is otherwise not breaking any laws. Where it gets murky is when a demonstration starts to infringe on the rights of others.
There’s also a couple of pretty major loopholes that police can employ to shut down even the most lawful protests. The Charter itself prescribes “reasonable limits” on rights and freedoms, and police have the powers to arrest anyone for “breach of the peace,” even if that person isn’t breaking any laws. "The rights and freedoms contained in the Charter are not limitless," warns the official RCMP website.
It’s within those broad gray areas that you get weird situations such as that experienced by news photographer Jesse Winter last week in Coquitlam, where he was threatened with arrest for simply photographing a rail blockade.
Strictly speaking, a protest isn’t a magical shield against criminal behaviour. This was learned most recently by three Extinction Rebellion members arrested for mischief by blockading Premier John Horgan’s driveway. And while Victoria Police took a very non-interventionist stance on the February 11th blockade of the BC Parliament Buildings, they are investigation allegations of assault at the demonstrations.
However, the signature element to many of Victoria’s recent protests – the blockading of public infrastructure – is also illegal. “A desire to protest affords no lawful authority to blockade bridges, highways or rail lines,” Victoria defence lawyer Michael Mulligan wrote in an email to The Capital. “There are, after all, all sorts of opportunities to protest that don’t involve unlawful conduct.”
The moment you start intentionally obstructing other people from going about their day, you’re probably entering the realm of behaviour that is considered criminal by the Government of Canada. The Criminal Code of Canada has a couple of rather broadly written sections that cover this. Section 423, for instance, makes it an indictable offence to compel “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.”
In cases where protesters have been arrested for blockading roads or rail lines, however, they’re usually charged with mischief, which makes it illegal to obstruct or interfere with “the lawful use, enjoyment or operation of property.”
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Plenty of openly illegal things regularly escape the notice of law enforcement. Driving 51 km/h is a violation of the BC Motor Vehicle Act (Section 140, to be precise), but it probably won’t get you a ticket. Vaping virtually anywhere in Downtown Victoria will probably put you within six metres of a doorway or window and thus violate BC’s Tobacco and Vapour Products Control Act, but here again a police officer is probably not going to go to the trouble of busting you.
And so it is with protests. A protest blockade can comprise with any number of actions that would be prosecuted under conventional circumstances, but the sheer weight of numbers causes police to be more hesitant about enforcement. For years, this principle was most visibly on display at large-scale cannabis “smoke-ins” held on April 20th. In the years before legalization, every participant in these events was technically violating a host of laws from the Criminal Code to municipal anti-smoking bylaws, but they evaded legal consequences for the singular reason that police decided (sometimes openly) that public order was better served by standing aside rather than cracking down.
In a Tuesday tweet, the Green Party of Canada wrote that civil disobedience is “legitimate,” “just” and “lawful.”
Civil disobedience may be the other things, but it’s definitely not lawful. For proof, look no further than the activist handbook Civil Disobedience, which was published in 1999 by UVic’s Environmental Law Centre in order to assist environmentalists blockading West Coast logging operations. “Civil disobedience can be defined as deliberate disobedience of the law out of obedience to a higher authority such as religion, morality or an environmentalist ethic,” the guide reads.
Civil disobedience is usually non-violent, but that doesn’t make it any less unlawful. Breaking the rules is the whole point; the protester is either trying to publicly flout what they see as an unjust law, or they might be trying to attract public attention by risking arrest or inflicting economic harm. Viola Desmond, who recently earned a spot on the Canadian $20 bill, was being civilly disobedient when in 1946 she refused to leave a whites-only section of a Nova Scotia cinema. More recently, Alberta farmer Ron Duffy served jail time after a 1996 civil disobedience action in which he sold grain outside of the then-federally mandated Canadian Wheat Board monopoly.
So, while few would argue that civil disobedience doesn’t have its place, it also means there is no “right” to civil disobedience, since by nature it involves acting outside the law.
Last week, both the BC Parliament Buildings and BC Ferries obtained legal injunctions to restrict protesters from blocking access to their respective properties. In both cases, these injunctions aren’t adding any new laws to the mix. At any time during the blockade of the legislature last week, legislative speaker Darryl Plecas could conceivably have called 911 and demanded that police remove the demonstrators as trespassers. Similarly, the organizers of the January 20th blockade of the Pat Bay Highway which caused the cancellation of several BC Ferries sailings could reasonably have been sued for damages by the ferry corporation.
For a police officer trying to decide whether to halt a protest or wait for it to blow over, however, an injunction makes their job a bit less ambiguous. Injunction “can entitle the party obtaining the injunction access to civil remedies like damages, as well as an implied and focused directive for law enforcement,” David Milward, a UVic associate professor of law, told The Capital.