As many of my readers know, I have been environmental activist for a long time. As an activist I learned a lot about what you can and cannot legally do at a protest. It is through this lens that I have observed the unfolding protests around the Coastal GasLink pipeline. Listening to commentary on the news and on my social media feeds, I have come to recognize that many politicians, journalists, and activists don’t understand the responsibilities of protesters and the rights of the public affected by protesters. In this blog post I want to clarify the topic by discussing civil disobedience, uncivil obedience and the limits of legitimate protest.
The first thing to understand is that the right to protest is written into our Constitution. Section 2 of the Charter of Rights and Freedoms describe the freedoms of conscience, expression, assembly and association which together represent all facets of a legal protest. That being said, the Constitution doesn’t give protesters carte blanche. Your right to protest is limited because others around you also have competing rights. While you have an absolute right to conduct a legal protest, there is no “right” to conduct an illegal protest.
To provide a deliberately exaggerated example. Were I to hit a gentleman over the head with a ball-peen hammer and claim it is a protected form of protest, the police and the courts would make short work of my claims and I would go to prison. As a less extreme example, were I in the course of a protest, to elbow someone on the nose causing them to need medical aid, that may be construed by the courts as an assault and I could also be liable to be arrested and charged. Similarly, if I physically prevent someone from entering or leaving a building that action may be considered a form of assault or common nuisance, mischief or causing a disturbance and I may be liable to be arrested and charged on any of these three offenses.
To be absolutely clear here, many of the actions that reporters and protesters were calling a “peaceful protest” at the BC Legislature were absolutely illegal. Just because you don’t hit someone with a ball-peen hammer doesn’t make your protest “peaceful”. The act of physically blocking another individual, who is engaged in lawful activities in a public space, is Common Nuisance and represents a criminal act (under Section 180 of the criminal code) that could send you to jail; set you up for a hefty fine; or give you a criminal record that could limit your opportunities later in your life. Another similar charge is Mischief (Section 430 of the criminal code) which is used when individuals block doors and driveways, particularly on private property.
It has only been the reluctance of our authorities to enforce the law that has convinced protesters that their manifestly illegal actions are legal, “peaceful” protests.
This brings up an important distinction in the protest world. The difference between civil disobedience and uncivil obedience. In his seminal book “Uncivil Obedience: The Tactics and Tales of a Democratic Agitator” noted civil rights activist A. Alan Borovoy explained the difference.
When you protest within the confines of the law you are engaged in uncivil obedience. The Canadian constitution protects uncivil obedience as a form of protest, it does not protect you if you engage in civil disobedience.
Civil disobedience, meanwhile, is the deliberate choice to break the law, on the understanding that it will amplify your protest. It amplifies your protest because you are literally breaking the law. If you choose to engage in civil disobedience you must be willing to accept the consequences of your actions.
So to say it again for those people on my Twitter feed. There is no “right” to commit civil disobedience. I listen with decreasing interest to protesters who argue about their “rights” since most appear to have no clue what a “right” actually means under the law/constitution. Most activists these days appear to believe that they should be allowed to block roads and break the law with impunity. But that is not the case; you can’t legally commit assault or common nuisance or disturb the peace even if you feel your cause is just.
The problem, and the likely reason why so many people are misinformed about civil disobedience, is that the government has trained them to believe that they can use the tactics of civil disobedience without suffering the consequences of their actions. The government has enabled the protesters.
In the case of recent protests in Vancouver, around the Lower Mainland and Victoria the police have chosen to simply stand by to protect the peace, rather than to enforce the right of free passage within our communities. Even when the police do step in it is usually a case of catch-and-release where the police simply hold the offenders then release them without charge. Even more bizarrely, on Vancouver Island the police arrested a man for the act of removing illegal blockades along a public highway. Section 423 (1) of the criminal code makes it a crime to block a highway but the police punished a man trying to open up the highway while protecting those who were blocking it. We truly live in a world beyond the looking glass.
The whole civil disobedience approach hearkens back to the days of the Clayoquot protests when the protesters blocked the logging roads. As I have written previously, one feature of the protests in 1993, that has apparently been forgotten by our current generation of activists, was the protesters did not simply get to walk away after being picked up by the police. These protesters were arrested, charged, and had to face the consequences of their actions in a court of law. As described in the Wikipedia article on the subject “of the 932 people arrested, 860 were prosecuted in eight trials with all those prosecuted for criminal intent found guilty”.
As I recounted, many of protesters ended up spending a reasonable amount of time in jail. Can you imagine a modern environmentalist discovering that their actions would get them sent to jail? Remember, this was not a Conservative or Liberal government that had them arrested and charged, the government of the day was NDP. You see the government of the day recognized that their role was to ensure that the law was obeyed.
Another important fact that the protesters appear not to recognize is that just because the police choose not to charge you doesn’t protect you from civil liability for your actions as part of an illegal protest. When you break the law you are liable to the criminal system, but you are also subject to the civil system.
Consider the dozens of truckers who spent last week lined up to get into the Port of Vancouver. If they can demonstrate they were financially damaged by the protest they would be in their rights to go after the protesters individually and as a group. This is what happened in Verchere et al. v. Greenpeace Canada et al., 2003 BCSC 660e where truck loggers sued Greenpeace as an organization and its organizers individually for lost wages due to an illegal protest. While this type of case is highly unusual, a motivated group of defendants could really throw a monkey-wrench into activist groups by going after them financially every time they planned an illegal protest that cost an identifiable individual money.
As an example as described in “Guide to the Law of Protest“:
in A I Enterprises v Bram Enterprises, 2014 SCC 12. The Court held that the tort is available in three-party situations in which the defendant commits an unlawful act against a third party and that act intentionally causes economic harm to the plaintiff.
What this means is that under this ruling the truck drivers financially injured by the protesters blockading the Port of Vancouver could go after those protesters for their direct loses caused by the illegal protest.
To conclude a plea for the press. Stop repeating the trope that these protests are “peaceful”. They were only peaceful because the activists brought large enough numbers to cow the government into silence and to frighten employees into avoiding confrontation. You witnessed a series of illegal acts and instead of acknowledging that you implied that what was happening was part of the new normal. Letting bullies frighten the public cannot become the new normal.
As for my activist readers, stop with the vacuous “protest is legal” argument you have been making about civil disobedience. Legal protest is legal and illegal protest is illegal. Do the former your are fine, do the latter and you have no right or justification to complain when the authorities decide to clamp down or when you are served with a civil suit for lost time and wages.
Author’s note: I have edited this document to add the offense of Mischief, which was less of a concern in my day but appears to be the preferred charge in the current era.