Reasonable Limits: A Look at the Right to Peaceful Assembly and the Freedom Convoy Protest
Originally published in TEACH Magazine, 40 Years of the Canadian Charter of Rights and Freedoms Special Issue, 2022
By Deidre Olsen
Since 1982, the Canadian Charter of Rights and Freedoms has served as a beacon for other nations to emulate, with some drawing on it to create or revise their own constitutions. At present, however, there are widespread misunderstandings of how the Charter works.
The drastic consequence of these misunderstandings was exemplified through a contentious protest: the “Freedom Convoy” of 2022. In this article, we’ll take a look at the rights and freedoms of people involved in the protest; why certain groups felt their rights were being infringed upon, why others believed they had absolute freedom, and what the Charter actually guarantees.
A New Vaccine Mandate
Starting on January 15, 2022, as part of the COVID-19 pandemic response, Canadian truckers were required to be fully vaccinated in order to cross the border from the U.S. into Canada. Otherwise, they were subject to a two-week quarantine coupled with a PCR test before arrival. (Unvaccinated American truckers would be denied entry altogether.)
Although almost 85 percent of the Canadian truck drivers who had cross-border routes were already vaccinated, there were several thousand who could potentially be affected by the new mandate. Immediately, the discussion of rights and freedoms began, with some truckers claiming that vaccine mandates and pandemic restrictions were infringing on their Charter rights.
Seven days later, hundreds of sympathetic Canadian truck drivers began heading to Ottawa. The convoy captured the attention of others who were against pandemic restrictions and quickly gathered support online. A GoFundMe campaign was set up to support the drivers and $10 million was raised, although the campaign was later shut down by GoFundMe and the donations were refunded.
Arrival in Ottawa
When nearly 20,000 protesters—many of whom had no connection to the trucking industry, according to the Canadian Trucking Alliance—descended on Parliament Hill a few days later, they created blockades throughout the streets of Ottawa’s downtown core.
Things soon escalated, with sightings of Confederate flags and swastikas in the crowd raising concerns about the motives of protesters and whether or not their movement was one associated with hate. Their behaviour was further called into question when at least one person was seen drinking and dancing on the Tomb of the Unknown Soldier, a historic monument memorializing Canadian soldiers who died in combat—an act that was described as a desecration by Chief of the Defence Staff General Wayne Eyre. Also, a statue of Terry Fox, cancer research activist and revered Canadian, was defaced with a vandalized Canadian flag and a protestor’s sign reading “Mandate Freedom.”
As the protests continued, workers at a nearby homeless shelter were harassed by protestors, as were several journalists, some threatened with racial slurs. Although police stated that there was neither evidence of violence nor injury, many of protestors were settling in for the long haul: setting up tents, shelter, and even hosting cookouts for fellow participants. Local businesses reported revenue losses as the downtown core was essentially shut down.
Ottawa residents suffered from lack of sleep and increased anxiety due to the incessant barrage of blaring of horns erupting at all hours—some even experienced hearing damage. The smell of diesel fumes from the constantly running trucks also suffocated the air and permeated into residents’ homes. Locals described an overall “atmosphere of fear” and a “lawless world” created by the convoy.
Prime Minister Justin Trudeau announced that he would not meet with the protesters and condemned the movement as hateful and anti-science; however, they refused to leave until all COVID-19 restrictions were abolished. During the second week of protests, the City of Ottawa declared a state of emergency in response to the dangers being posed to local residents. But the situation continued to worsen until Trudeau invoked the Emergencies Act on February 14, which allows the federal government to take temporary measures to respond to major crises.
Over the next few days, police arrested more than 100 protestors and towed away dozens of trucks. Despite some of those who participated in the demonstration claiming they were free to protest as long as they wanted, and that their forced removal was yet another violation of their rights, the three-week long protest was finally over.
There are important conversations to be had surrounding how government responses to COVID-19 have impacted Charter rights and freedoms. Bruce B. Ryder, an associate professor at Osgoode Law School whose research and publications focus on contemporary constitutional issues (including freedom of expression), says that emergency pandemic measures have undoubtedly placed extraordinary limits on freedoms enshrined in the Charter.
Unfortunately, there have been few informed discussions around the topic of Charter rights, and the lack of such conversations has led to an increase in heated political debates and controversial protests like the Freedom Convoy.
“I find it absolutely staggering how impoverished our public discourse about these limits has been,” says Ryder. “You see it in the mindless references to freedom as if just mentioning the word ‘freedom’ is self-defining. What do we mean by freedom? What do we mean by freedoms that are constitutionally protected by the Charter and that have special legal status?”
Section 2 of the Charter of Rights and Freedoms provides Canadians with four fundamental freedoms: “freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; freedom of peaceful assembly; and freedom of association.”
While the Freedom Convoy exercised many of these freedoms, many people involved with the protest believed them to be absolute when, in reality, the individual freedoms and liberties outlined in the Charter are subject to certain limits.
According to Section 1 of the Charter, it “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Often these limits are invoked when the freedoms of one person come into conflict with the freedoms of others.
Although the truckers and their supporters were allowed to peacefully assemble, voice their thoughts, beliefs, and opinions, and associate with one another, the freedoms of people living in Ottawa also needed to be considered. The convoy blockades impacted the daily lives of local residents and their abilities to move freely to work, school, or anywhere else. As well, the protestors’ incessant honking of horns upset the peace.
The Rights of Local Residents
Emilie Taman is an employment litigator at Champ & Associates in Ottawa and is the co-host of the award-winning podcast The Docket, a show dedicated to the discussion of complex and contentious legal issues. She is representing Ottawa residents and business owners in a class action lawsuit against the convoy. The lawsuit is open for any downtown residents who live in close proximity to the protest and have been affected by it.
The Statement of Claim for the lawsuit states that although protestors may have had the right to block roads and streets while exercising their freedoms of assembly and expression, “the serious, sustained and prolonged manner of the blockade of public streets [was] unreasonable and is not an activity protected by the Canadian Charter of Rights and Freedoms.”
This, along with behaviour that was not peaceful, such as the excessive honking of horns that “caused unbearable torment [for the residents] in the sanctity of their own homes,” not only violated the Charter, but several other laws as well.
“The real Charter issue implicated by the convoy had to do with the right to peaceful protest and where conduct crosses the line,” says Taman. “They seemed to think that they had an unfettered right to occupy the streets in Ottawa for as long as they wanted because there’s a Charter right to peaceful assembly and peaceful protest.”
But as with other freedoms in the Charter, the freedom of peaceful assembly is subject to “reasonable limits prescribed by law.” Thus, legislators and the police were tasked with determining when to intervene without infringing on the rights of protesters.
Drawing the Line
Any time a protest takes place, there is a careful balancing act for the police and government to follow when it comes to deciding if and when to step in. The rights of everyone must be taken into account, including those expressing dissent and those affected by the demonstration.
Basil Alexander is an assistant professor in the faculty of law at the University of New Brunswick, and has worked as a public interest and social justice lawyer. He has researched how Canadian courts approach the freedom of peaceful assembly, as well as how injunctions and criminal law processes affect demonstrations as they happen—such as in the case of the Toronto G20 Summit, the Occupy movement, and Idle No More.
Alexander says that when it comes to protests, the public often has one of two polarizing views on the matter: either they should not happen at all, or they should be allowed to proceed without any intervention whatsoever, both of which are unreasonable. In the middle of these positions is a space where important questions need to be asked, discussed, and debated.
“When I say I have the freedom to protest, how far does that go?” Alexander asks. “What types of protests am I allowed to do? Am I allowed to do it forever or for a certain period of time? How disruptive am I allowed to be? How far can I go in terms of engaging other people or affecting other people’s rights?”
By design, demonstrations are intended to be disruptive and draw intention to an issue. This is an essential component of democracy. Lines must be drawn, however, around reasonable limitations on freedoms and rights.
The Charter in the Classroom
It’s not often that a current event can so effectively illustrate how the Charter of Rights and Freedoms is a living and breathing document, one whose interpretation changes depending on the circumstances. It is by no means static, and the rights contained within it are not, as many believe, absolute.
As misinformation spreads, it’s important for the public, especially students and teachers, to have meaningful conversations about how the Charter operates, what it protects, and what limitations can be placed on rights and freedoms. After all, today’s young people could very well be tomorrow’s protestors; it is crucial that they understand the difference between a justifiable right to protest and what it looks like when things go too far.
Deidre Olsen is a Canadian, award-nominated writer based in Berlin.