If they clash, litigation may be needed to guide lawyers
If public health directives limiting gatherings end up clashing with constitutional rights of protestors, it may pose difficult questions for litigators, says Jill Presser of Presser Barristers.
“When backed by science and epidemiological research, there are valid reasons to put in force temporary measures to restrict liberty. But the question then becomes: If those measures are going to be constitutional, how do we make sure that they impair other rights as little as possible? Especially when they clash up against rights that are as important — and fundamental, and as defining who we are as Canadian — as the basic rights of freedom of expression, freedom of peaceful assembly, freedom of mobility,” says Presser.
Protestors in several Canadian cities spent the weekend demonstrating against racism and police brutality. A lawyer from the Canadian Civil Liberties Association says that so far, activity on the ground in Canada has not led to clashing enforcement between public health directives and Charter rights.
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“From what I've seen so far, people engaging in protests are trying to do so in a way that — if it doesn't respect to necessarily the letter of the law in terms of the number of people that you're supposed to have at a gathering — they are trying to keep distance and they're taking other sort of precautions,” says Cara Zwibel, director of the CCLA’s Director, Fundamental Freedoms Program. “For the most part, I think police have been respecting the right to protest, and recognizing that this is a legitimate exercise of rights that are protected under the constitution.”
A 2017 guide to protesting, released by the CCLA, lays out the rights of demonstrators. This week’s protests, however, come amid Ontario’s public health warnings under the Emergency Management and Civil Protection Act, which includes penalties for an individual - a fine of up to $100,000 and up to one year imprisonment; for an individual who is a director of a corporation – a fine of up to $500,000 and up to one year’s imprisonment; for a corporation – a fine of up to $10,000,000. Border agents also have powers to enforce the Quarantine Act, says Presser.
Public health measures must be enforced in ways that are proportional, reasonable and minimally infringe on Charter rights, Presser says.
“There are some people in the U.S., or in the current context, who would say, ‘Our right to public health, or need for public health at this particular moment in history, isn't as important as our right to be free from race hatred-fueled police brutality’ . . . . Different people, depending on who they are, would calculate that analysis differently. And I don't think there are any easy answers here,” says Presser. “This may be something that ends up having to be litigated down the road.”
Zwibel says that while the current circumstances are unique, many forms of protest by their nature disrupt the status quo, and it is not unusual for protests to contravene rules or bylaws in doing so.
“A few years ago, during the student protests in Quebec around increases in post-secondary tuition, there were a lot of protesters who were ticketed under the highway traffic laws there, because they were blocking roadways,” says Zwibel.
“When that case went to court, a lot of those tickets were thrown out because the court said, ‘Yes, we have this law, but it was never intended to be used to, to prohibit protest activity . . . This is a bit different because we have so many more restrictions on our liberties right now — so many more restrictions on our right to assemble and our right to associate. But in some ways, it's similar to the issues that we always face. If you think back a few months to when we had the railway blockades, a lot of people were frustrated and saying, ‘These people are breaking the law. Why aren't they being arrested?’ . . . . I think officers quite rightly recognized that they would be doing more harm than good by stepping in with heavy enforcement measures.”