The law on protests

The nature of large-scale public protests in Canada and throughout the developed world seems to be changing.

While traditional pickets-and-bullhorns events still pop up from time to time, the effects of social media seem to have inaugurated a free-floating age of rage — of large protests with no clear leadership, goals, or defined exit strategies. The convoy protests of 2022 were a prime example. There will be others.

“It used to be that protests were organized by groups with leaders, with hierarchies, who could direct the motion of the group and keep it within the lines,” says Robert Diab, a specialist in constitutional and human rights at Thompson Rivers University’s faculty of law.

“Today’s protests seem to involve more amorphous groups with no single unifying objective or concern, who may have only vague notions of what they’re trying to achieve. It’s less like a protest and more like a swarming.”

He says that because they are less focused on clear objectives, such protests can fizzle quickly or explode into violence quickly,. Further, our frameworks for dealing with this new type of protest “are from an earlier age.”

That suggests Canada needs new frameworks to deal with protests. Does that mean new laws?

The right to protest is derived from Section 2 of the Charter of Rights and Freedoms, specifically subsections b, c, and d, covering freedom of expression, peaceful assembly, and association.

“There is no express right to protest under Canadian law. It’s conflated from several different Charter rights,” says Sean Robichaud, a criminal defence lawyer and lead counsel at Robichaud’s in Toronto.

“So the common law on protests is usually defined in terms of limits on police powers. What you need to keep in mind is that almost any protest of any size involves breaking laws. The police, rightly, tend to take a light hand with enforcement at the start of a protest to avoid violence.”

Two years ago, Diab drafted a paper for the Public Order Emergency Commission, which the federal government tasked with probing its decision to invoke emergency powers in response to the convoy protests. In it, he argued that there’s a “gap” in Canadian law related to police power to establish “exclusion zones” — cordoned areas with restricted access — to handle large-scale, disruptive protests.

The gap is the lack of “clear” or “explicit” police authority in law to establish such zones, even though police routinely do to control or break up mass protests. He argues this left police services unsure of the extent of their authority and “made it appear necessary” for the federal government to invoke emergency powers to bring the convoy protest to a close.

“Who may be surveilled, searched, or detained? Who must be compensated and how, which officers are empowered to do what, where?” Diab wrote in 2022.

“Without clear law …  police imposing large scale closures of public space have decided these issues in a legal vacuum, acting for the most part in secret, beyond review, and outside the rule of law.”

Diab suggests that the federal and provincial governments pass laws with “comprehensive frameworks” for establishing exclusion zones to “bring police conduct into closer conformity with the rule of law.”

Not everyone is convinced, however.

At the University of Windsor’s faculty of law, Richard Moon, who writes on freedom of expression and conscience, says police already have ample legal authority to police protests — as long as they’re willing to use it.

“You need police services willing to take action when it’s required,” he says. “Governments are always going to face a heavy temptation to regulate protests based on their messages and not their impact.”

That said, Robichaud suggests many protesters are unlikely to respect exclusion zones.

“The whole point of protests is to disrupt, to get people’s attention. If a protest sticks to a designated zone, it’s not achieving its goal,” he says.

“And there’s the risk that zoning protests would leave police with less discretion to de-escalate. Do they have any choice but to move to strict enforcement if the zone perimeter is breached?”

Meanwhile, a less amorphous set of protests — the university campus protests related to the ongoing Israel-Hamas war — may have exposed another gap in the law.

As Ottawa police awaited the arrival of truck-driving convoy protesters in January 2022, they got a legal opinion suggesting the protesters’ Charter rights entitled them to park their rigs on the streets surrounding Parliament. In a recent online article, criminologist Michael Kempa called that a “fundamental error” which “allowed the convoy protest to take root and spiral beyond the control of conventional policing methods.”

“While the courts regard encampment as a form of political expression,” he wrote, “the standards of reasonableness attached do not extend to shutting down roadways for extended periods of time with heavy machinery.”

Unlike much of downtown Ottawa, university campuses are private property, which suggests that they can set their own rules about public speech and protest, like a private club. But they may not be private property for Charter purposes.

The University of Alberta recently called police in to break up a three-day protest by students condemning the war in Gaza; the University of Calgary did the same with its campus protest days earlier. Those decisions are likely to be reviewed by the courts in light of the Alberta Court of Appeal’s 2020 decision in UAlberta Pro-Life v. Governors of the University of Alberta — which concluded that the U of A violated the Charter by assigning heavy security fees to a pro-life student group looking to hold an event on campus.

The appeal court found that when regulating free expression, universities are acting as agents of government because they’re carrying out government policies.

“The court concluded that in some circumstances, the universities could be regarded as engaging in state action,” Moon says.

“This would mean university students have a Charter right to protest on campus. It’s an interesting argument, and I expect the Supreme Court will have something to say about it at some point.”