Disruption is at the core of protest and the right to peaceful assembly, but there are always limits

On Twitter this morning Global News reporter Mackenzie Gray noted that PSAC, the federal union, “is calling on their members to keep escalating their actions” with efforts that include shutting down access to the Port of St. John’s, blocking access to the Canadian Forces base in Montreal, shutting down Sinclair Centre in Vancouver, and closing the Burlington Canal Lift Bridge, which provides access to thousands of vehicles and pedestrians entering Hamilton Harbour.

Columnist Andrew Coyne tweeted in response to this: “I thought we’d agreed that using physical force to make a point — blocking roads or railways or access to buildings — was out of bounds. Yet it continues. It wasn’t right when anti-vax loons did it in Ottawa, and it’s not right for “respectable” civil servants to be doing it now.”

And I noticed Prof. Michael DeMoor of The King’s University posted this ‘thesis’ in the form of a poll: “disruptive protest (including strikes) should disrupt what you are protesting against and not the ordinary life and business of people not directly involved.”

The answer, of course, depends fully on the context. We know all rights can be subject to reasonable limits in a free and democratic society (as s.1 of the Charter of Rights tells us), and an undergirding principle is that your rights and freedoms end where mine begin.

But it’s important to point out two things: the right to protest in Canada is protected by the entrenched right to peaceful assembly in s. 2(c) of the Charter (as well as by s.2(b)’s freedom of expression). This right necessarily includes the right to a certain degree of “disruptive” behaviour. Other people merely being inconvenienced is insufficient cause to restrict or violate so basic a right. The temporary blocking of an intersection, the slowing down of traffic, making noise in a public space, all of it is perfectly consistent with a right to peaceful assembly.

Context comes in when we consider both the nature of the disruption but also the temporal dimension. A perfectly valid protest march might impede an intersection as the march goes by. But that doesn’t mean you have the ‘right’ to impede the ambulance lane at a hospital, even for one minute. Moreover, it’s one thing to impede traffic at an intersection, even repeatedly, for 10 minutes at a time. It’s quite another to presume the right to protest gives you carte blanche to shut down a major road (or, y’know, a border crossing) for a whole day, let alone days or weeks at a time.

I think some supporters of the so-called Freedom Convoy border blockades and shutdown of Ottawa’s downtown honestly believe that many Canadian supported the Emergencies Act invocation only because they didn’t agree with its message. And while it’s true that the convoy message ranged from anti-scientific nonsense to outright hateful, anti-democratic odiousness, the content of the messaging generally was not the issue. The issue was that at a certain point of time - certainly once the first weekend of festivities ended - the Ottawa protests became an illegal occupation.

It’s not hard to point to all of the severe impacts on Ottawa residents that justify limits on the convoy occupation: businesses in the downtown core and adjacent areas (like the mall) were completely shuttered; protesters honked horns and made noise throughout the nights that clearly damaged the quality of life for those living in the area; and no fewer than thirteen children battling cancer had their chemotherapy appointments delayed/rescheduled because of the disruption. There’s no mistaking why most Canadians not only supported shutting the protests but also supported the EA declaration in doing so.

Some convoy apologists pointed to recent Black Lives Matter protests and actions taken by Indigenous land defenders (which included blocking roads and rail lines) as some sort of hypocrisy. But of course neither BLM nor Indigenous protests ever did anything like weeks-long blockades of borders or the downtown of the nation’s capital. For the most part, when Indigenous protests block railways or roads, they’ve tended to last one or two days before action was taken, or injunctions granted. Precisely the sort of temporal limits I’m speaking about.

The “disruption” called for by PSAC does not rise to the level of the convoy - for one thing I assume the strikers will be going home each night, at the very least! Disruption is part of the point of a strike action, and indeed it is part of the right. But that doesn’t mean that everything the strikers do will somehow be protected as an absolute right. There are limits on both the nature of the activity and its duration.

There is a coherent distinction made in Prof. DeMoor’s question, I think: it is one thing to picket and blockade your employer’s place of work while on strike and quite another to presume the right to block other people’s access to and enjoyment of vast public spaces or even unrelated businesses. At the same time, being temporarily delayed or inconvenienced by such protest action is not sufficient reason to presume that any “disruptive” protest is somehow automatically illegal or illegitimate. The precise lines drawn here will always depend on the full context of their nature and duration.