On civil disobedience, uncivil obedience and understanding the limits of legitimate protest

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.

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15 Responses to On civil disobedience, uncivil obedience and understanding the limits of legitimate protest

  1. Jim says:

    There is, it seems to me, a serious lack of critical reporting surrounding these events.

    One of the most egregious is, in my view, is to label the lands in question “Wet’suwet’en territory”. They are unceded. Title has been asserted but has not been established via either a treaty or litigation. The Carrier Sekani have also asserted a claim to the lands which the pipeline would cross.

    I’m not suggesting that there are not legitimate interests that need to be addressed. But inflammatory rhetoric and the omission or misstatement of facts isn’t going to get us to effective solutions.

    Like

    • Thomas Beyer says:

      Unclear if the continued presence of BCers or Canadians in what is now BC is enough evidence for “settlement” ie precedent in law.

      Law consists of two forms: statutory law, ie what is written. Plus common law ie what is ruled or interpreted from lawsuits, and what is commonly done ie has precedent.

      One could argue there is no indigenous land as it is all “Canadian” now or one could argue that some (usually remote) land is not Canadian but indigenous title.

      Supreme Court also ruled that no indigenous band has a veto right.

      Like

  2. Roger Meredith says:

    Well written!!
    When will our governments have the courage to enact the law!

    Liked by 1 person

  3. Andrew Roman says:

    Excellent article. As a retired litigation lawyer I particularly appreciate your research into the legal issues, often ignored by the popular media.

    The real purpose of many of these protests is the media circus. If the media stopped glorifying the protests as legitimate, spontaneous responses to some sort of evil conspiracy by the industry and governments the protests would soon stop. But with widespread, viral coverage the “donate” buttons of the protest sponsors get pushed, so protest pays and the well-financed protest industry prospers.

    Liked by 2 people

  4. Gary says:

    Thanks for this. One thing I wonder though is why BC Ferries or the Speaker of the Legislature need t get a court injunction to prevent the protestors from doing something that is already illegal?

    Like

    • Blair says:

      Because the police will not enforce the law without a court order AND an enforcement order. Essentially they want the courts to tell them they have to do their job instead of simply doing their job.

      Like

      • Andrew Roman says:

        It may be more complex on land claimed by First Nations. Are they breaking the law if they prevent someone from doing something that amounts to avoiding eviction on their own land, as claimed? The police are not qualified to judge these issues of aboriginal law, or the proper interpretation and application of UNDRIP. It takes a court to do that.

        Looked at from the other end, you can’t get an injunction without proving to the court that someone is, or is about to commit an illegal act to harm or interfere with your rights. Once you do that the injunction should be respected. If not, the police should enforce it with as much force as necessary.

        Like

  5. Stephen Rybak says:

    Andrew, it certainly is more complex on land claimed by a First Nation, especially when rights are not clear. As an indigenous Law expert wrote in the Vancouver Sun 08 February, indigenous groups can go to court inCanada to establish their rights or to argue that its rights were not properly respected during a government decision-making process. The hereditary chiefs have pursued neither avenue. But most of the civil disobedience has not taken place on that First Nation’s claimed territory where there is no dispute over the primacy of Canadian courts.

    Liked by 1 person

    • Andrew Roman says:

      Certainly the protests in Ontario, allegedly in “solidarity” with the Wet’suwet’en, have taken on a different twist. On the CBC radio yesterday I heard interviews with the Minister and an unidentified Mohawk negotiator negotiating with the Minister. The negotiator said he intended to use the opportunity to negotiate some issues of the Mohawks as well. He also sounded like he didn’t trust the Minister to negotiate in good faith. This has nothing whatsoever to fo with the gas pipeline issues in BC.

      The Wet’suwet’en are being used as an excuse for all kinds of unrelated civil disobedience that apparently has no adverse consequences for those who engage in it. Despite the risks Blair has outlined above, no one will prosecute them or sue them, and the federal Minister goes cap in hand to negotiate with the Mohawks. This rewards, and encourages more of the same.

      Like

  6. Thomas Beyer says:

    I sent this letter to BC Premier Horgan and cc’d a few political leaders

    To: Premier of B.C., Hon John Horgan
    Cc: AG and my MLA David Eby
    My MP, Joyce Murray
    Andrew Wilkinson, MLA & Leader of Opposition

    Dear Premier of B.C., Hon John Horgan

    Many, including me, appreciate the complexity of the law re Wet’suwet’en land claims ( see here for example https://www.firstpeopleslaw.com/index/articles/438.php) and the legal quagmire Canada finds itself in for the gas pipeline through Wet’suwet’en claimed land.

    Layer the recently BC approved UNDRIP on top and major legal challenges are ahead for this pipeline in the currently proposed form, it seems. Without treaties so called unceded land remains legally indigenous, although conduct matters ie continued occupation ie settlement. Plus, the Supreme Court also issued rulings that do not give indigenous groups veto rights over their (sometimes disputed) land.

    This problem will get far worse as several indigenous groups in the Vancouver area, for example, claim massive parts of what is now private property in Vancouver worth billions and heavily “settled”.

    Legal void gets filled with chaos, protests and indecision. Jobs and huge tax revenue disappears as investors retract. Bad news for Canada’s and indigenous economy esp infrastructure projects such as roads, railways or pipelines.

    Why do we allow 5 unelected hereditary chiefs to hold hostage economic benefits to not only millions of Canadians but also 20 supporting indigenous bands and their teenagers?

    ==> That quagmire and ongoing legal dispute does NOT mean that most urban protests are legal, quite the contrary. It’s civil disobedience (see good article here, for example https://achemistinlangley.net/2020/02/13/on-civil-disobedience-uncivil-obedience-and-understanding-the-limits-of-legitimate-protest/) .. and I am sure David Eby, a smart lawyer and now AG, knows full well what the law re blocking vital infrastructure or buildings in BC is.

    Railway, road, port or building blockers ought to be arrested forthwith and fined regardless of the worthiness or complexity of their cause.

    Please do your job as Premier of B.C. and enforce the law, which means specifically arresting illegal protesters, deporting foreign agitators, fining them all and pursuing them for the economic damage inflicted on B.C. residents.

    A government that seems incapable of enforcing the rule of law or asserting the national or provincial interest has not only lost the will to govern, it has effectively ceded the right to govern.

    Enough is enough.

    If you are unable, or worse, unwilling to enforce the laws, please resign.

    Yours kindly
    Thomas Beyer
    Vancouver, BC

    Like

  7. Daryl Sturdy says:

    A good review of civil and uncivil disobedience. Most people would agree with the author on his definitions and on his application to the present situation, however, sometimes the law is an ass and being “nice” is not going to have an effect, although the effect may not be realized until much later. Does this exonerate the protesters? No, only in retrospect. History will judge. In the meantime, those who break the law should be arrested and charged. The reluctance of the police to act may be prudent, for a time, hoping that the situation will resolve peacefully. A heavy-handed, knee-jerk police action would only inflame the situation. Where the line should be drawn is a matter of opinion.

    To illustrate the “positive” effect of civil disobedience, one only has to look back to the many instances of disobedience that led to changes in law and the attitudes of the public.

    Example – Women had won the right to vote in several countries by the end of the 19th century; in 1893, New Zealand became the first self-governing country to grant the vote to all women over the age of 21. When by 1903 women in Britain had not been enfranchised, Pankhurst decided that women had to “do the work ourselves”, the WSPU motto became “deeds, not words”. The suffragettes heckled politicians, tried to storm parliament, were attacked and sexually assaulted during battles with the police, chained themselves to railings, smashed windows, set fire to postboxes and empty buildings, set bombs in order to damage churches and property, and faced anger and ridicule in the media. When imprisoned they went on hunger strike, to which the government responded by force-feeding them. The first suffragette to be force-fed was Evaline Hilda Burkitt. The death of one suffragette, Emily Davison, when she ran in front of the king’s horse at the 1913 Epsom Derby, made headlines around the world. The WSPU campaign had varying levels of support from within the suffragette movement; breakaway groups formed, and within the WSPU itself not all members supported the direct action.

    The suffragette campaign was suspended when World War I broke out in 1914. After the war, the Representation of the People Act 1918 gave the vote to women over the age of 30 who met certain property qualifications. Ten years later, women gained electoral equality with men when the Representation of the People (Equal Franchise) Act 1928 gave all women the vote at age 21.

    Like

    • Thomas Beyer says:

      Good point. It took women in Switzerland to 1971 to get voting right !

      The other side of ‘Wet’suwet’en and other protests: lost opportunities, lost investments, lost jobs, lost benefits. Think twice what you protest about. It may hurt indigenous bands more than it helps them.

      “ “This is a once-in-a-lifetime opportunity. I’m tired of managing poverty. I’m tired of First Nations’ communities dealing with issues such as suicide, low unemployment or educational opportunities. If this opportunity is lost, it doesn’t come back.” https://nationalpost.com/opinion/john-ivison-the-millennial-eco-activists-stopping-trains-are-the-new-colonialists

      Like

    • Chester Draws says:

      The activist Suffragettes aren’t actually a good example. There’s reason to believe they retarded the cause.

      If a man did not want to give women the vote because he felt they were unable to wield it properly — and in particular too prone to emotion rather than logic — then the activist Suffragettes rather proved his case. Places where the suffragettes broke the law didn’t get the vote earlier than other places.

      This situation is rather different anyway, because the powers that be don’t mind the current protests (hence no police action). The protests allow some of them to push through policies that they want to push through anyway. Trudeau is pandering to his base, and his base are soft on native rights.

      Extinction Rebellion, likewise, may think they are opposing power, but really they are just the cutting edge of getting in policies that would not otherwise succeed. The people opposing climate policies of any sort are the ones that are actually in opposition to mainstream politics, and they short shrift from government and media, whereas the main parties and the media lap up ER’s antics, giving them endless air time.

      If you run an illegal protest that the government don’t like, they’ll shut you down in an instant. In many cases they’ll prevent legal protest, if the protested targets are protected groups.

      Like

      • D MacKenzie says:

        Part of the women’s vote issue was rural/urban practicality, however the social justice folks have been able to write the history books. For most farmers, a trip to town on horseback to vote was a substantial time commitment and it was impractical for his wife and children to go, whereas in town, women could easily find time to go to the polling station. So there was resistance by many to ‘doubling’ of the urban vote. And at the time, the world was predominantly rural.

        Like

  8. A Lawyer says:

    “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”

    A small knit to pick: what you describe above in relation to leaving a building would also be an Unlawful Confinement.

    Like

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