Legal minds agree there is a proper and necessary place for civil disobedience, but they have different views on the circumstances under which it is justified.
Rallies against COVID-19 restrictions have drawn larger numbers in recent days. A Christmas-themed protest in Vancouver on Dec. 5 drew more than 400 people in defiance of public health orders that prevent any such gatherings.
A freedom rally in Saskatoon also on Dec. 5 drew more than 200 people. Saskatchewan Premier Scott Moe said the rally was “more troublesome” than the smaller ones that preceded it. It reached “a new level of problematic” because it encouraged others to defy public health orders, Moe added.
Jay Cameron, a lawyer at the Justice Centre for Constitutional Freedoms (JCCF), told The Epoch Times that he believes freedom of assembly has eroded in Canada amid the pandemic, despite fundamental Charter rights.
“Freedom is a byword, it’s a fiction in Canada at the moment, and democratic society the same thing,” he said.
“You have arbitrary rule by health officials who have turned dictator. Every single day they are proving the axiom that power corrupts. And you have cabinet issuing orders or rubber-stamping orders from health officials in some provinces, and the legislature is not involved.”
Recently, Springs Church in Winnipeg was fined $32,000 for holding two drive-in services in its parking lot. This defied health orders that prohibited gatherings of more than five people and made places of worship closed to the public. The courts refused the church’s application for an interim order to allow the services, where people stay in their vehicles. JCCF announced on Dec. 8 that Manitoba lifted the ban on drive-in church services following its warning of court action.
Cameron points out that Christian civil disobedience was what helped establish freedom of assembly in the West. A 1664 British edict forbade more than five non-Anglicans from assembling for worship. Quaker preacher William Penn, the founder of Pennsylvania, defied the law and was arrested. Penn’s example inspired the First Amendment to the U.S. Constitution, which connects the freedoms of religion and speech and the rights to assembly and to petition the government.
Jennifer Koshan, law professor of law at the University of Calgary, says, however, that challenges to pandemic-related public health orders would be struck down in court.
“Quite frankly, I think the government has a very good justification argument … because we are talking about health and safety issues during a pandemic,” she said.
“There’s case law from the Canadian Supreme Court that says that in pandemic times or in times when the government is facing a serious crisis, it’s going to be easier for them to justify limits on Charter rights than it is in normal times, and I think that is exactly the situation that we’re dealing with now.”
Koshan said a person with disabilities who is unable to wear a mask and is denied services for that reason might have the strongest case for redress.
As a general principle, she says, “civil disobedience is also a very important way that our Constitution works in the way that it’s supposed to, because in true acts of civil disobedience, people are challenging laws that are potentially restricting their Charter rights and freedoms and bringing those issues before the courts so that the courts can indeed rule on whether the Charter is engaged.”
Koshan is concerned that Alberta’s Bill 1, which aims to protect critical infrastructure from being obstructed or damaged during protests, might be too broad. “A lot of people are concerned that it is a law that makes protests illegal in many, many places in Alberta,” she said.
She says acts of civil disobedience that have the most clout are those involving historically disadvantaged groups, such as protests for the rights of blacks or justice for missing and murdered indigenous women and girls.
But John Robson, a professor at Augustine College in Ottawa, says protests such as those by Black Lives Matter or those that resort to blockades or violence sharply contrast with the actions of Martin Luther King Jr. and Mahatma Gandhi. King and Gandhi defied the law expecting to go to jail, accepted the punishment, and used the occasion to demonstrate how unjust the law was, Robson said.
“Nowadays people even, say, blockade railroads or occupy buildings or public spaces expecting not to be punished, and … get to override the will of their fellows and the parliamentary or congressional system just because they’re them and you’re not. And I think that’s completely illegitimate.”
Robson said Canada is not the kind of fascist or communist regime that begs for civil disobedience.
“If you live in a democratic, self-governing society, it seems to me it’s a pretty high bar to clear. The issue has to be one of paramount importance and it also has to be so urgent that you cannot wait for the normal mechanisms of policy debate and legislative change to operate,” he says.
Even so, Robson is concerned about where things are going.
“The mechanism of self-government itself is breaking down. We don’t really understand it anymore, we don’t like it very much, and those in power are perfectly happy not to have restraints on what they do,” he said. “But that is not how we became prosperous and safe and free. And if we keep going in that direction, we will not be prosperous or safe or free.”
Cameron is unyielding in his criticism of Canada’s COVID-19 restrictions and lockdowns, saying that they are “in the process of destroying society in many different ways in Canada.”
“They are destroying people’s livelihoods, their businesses, their jobs, their retirement, social cohesion, [causing] dramatic increases in domestic abuse and suicides and drug use and alcoholism.”