The last truck blocking the southbound lane moves after a breakthrough to resolve the impasse at a protest blockade at the United States border in Coutts, Alta., on Feb. 2, 2022.Jeff McIntosh/The Canadian Press
Jim Willett is the mayor of the village of Coutts, Alta., population 250. His LinkedIn page says he’s a former customer service and installation specialist at a cement loading facility, and the owner of a pottery studio. He is not a constitutional scholar. But Mr. Willett has nevertheless come up with a pretty good summary of the meaning, and the limits, of the constitutional right to protest.
On Wednesday, with a group of trucks and farm vehicles having isolated his town, blockading the highway and a major border crossing, he was asked by CTV News what he wanted. “I want the protesters to go back to protesting and quit blocking,” he said. “It’s just that simple.”
It really is that simple.
It’s what most Canadians, wherever they sit on the political spectrum, think about the highway blockades in Alberta, or the barricades that shut down rail lines from coast to coast two years ago, or the encampment of trucks that has occupied the streets of downtown Ottawa for a week. You can protest. You can’t blockade.
In a nutshell, that’s what the right to protest is, and what it isn’t.
Protesting is an ancient part of our legal tradition, and one of the four fundamental freedoms enumerated in Section 2 of the Charter of Rights and Freedoms. Along with freedom of conscience and religion, there’s freedom of thought, belief, opinion and expression; freedom of association; and “freedom of peaceful assembly.”
The right to hold to your own opinion would be severely limited if it didn’t include a right to express it. One way of expressing an opinion is to gather with others holding the same views, and to stand in or walk through a public place, giving speeches and carrying signs.
Even in a social media world, a march or rally is still one of the best ways for people to make their pitch to fellow citizens and governments. That’s why using the public square to persuade is a legal right.
However, all rights are limited, and not just by the Charter’s first section, its “reasonable limits” clause. There’s the inescapable fact that there are other people in society. If your right to protest was boundless – any time, anywhere, for as long as you pleased – then everyone else’s rights would be eviscerated.
To strike the proper balance, police generally allow protesters to march down streets or take over small areas for short periods of time, even if that does somewhat interfere with the lives of others. The right to protest is important enough that the rest of us have to sometimes accept some level of inconvenience – limited, temporary inconvenience.
That’s why it would be reasonable to shut down some streets in downtown Ottawa for a day or even a weekend for a protest of, for example, anti-vaccine advocates in big rigs and pickup trucks.
But those same protesters have no right to park their trucks in the middle of the street, day after day, for however long they like. Or to set up street encampments. Or to honk the horns of those illegally parked vehicles at all hours of the day and night.
Similarly, there’s a broad right for protesters to stand or park beside Highway 4 in southern Alberta and, while not physically impeding traffic, hold up signs of opposition to vaccines and public-health measures. That’s a protest: expressing opinions in a public place.
But there’s no legal right to block the highway, day after day. Such a right does not exist in the Charter, or in basic common sense. Blockading a road has nothing to do with the right to protest. As soon as you start trampling on the freedom of others, you’ve crossed from a legally protected assembly to an illegal one.
Canadians have the right to protest – regardless of whether the cause is left, right, centre, trucker, whatever. But any time that interferes more than minimally and temporarily with the rights of others – and particularly when it moves from persuasion by words to physical interference – it ceases to enjoy the protection of the law. It becomes instead a threat to law and order.
Police always have every reason to show patience, and to lean on negotiation rather than force. But at some point, one way or the other, the law and the rights of others must ultimately be upheld against illegal protests – be they left, right, centre, trucker, whatever.
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