Canada's Convoy, Part 5. Three Serious Contradictions from Authorities During the Convoy Occupation
Getting the law right - and letting the public know about it - matters
Above: the “Protestors Code of Conduct” from the Convoy at the Manitoba Legislature.
In Manitoba, the Convoy released a first “code of conduct” which described itself as an “occupation”; agreed to limit noise to between 7 am and 11 pm, and in its first draft, made it clear they had no interest in the freedom of assembly, protest, and expression other than their own. “Counter-protest demonstrators will be asked to leave without force”.
The code was then updated - but still described itself as an “occupation” and asked for “family friendly signage” and made it clear they would obey all police on site.
Here’s an example of the family-friendly signage:
The PC Manitoba Party works closely with its Federal Conservative counterparts on policy and messaging.
When the Convoy arrived in Ottawa, leader Erin O’Toole wavered and was immediately removed as CPC Leader, and Manitoba MP Candace Bergen took over.
Bergen had urged O’Toole to say “There are good people on both sides” echoing a statement by Donald Trump after an anti-racist demonstrator was murdered when they were run over by a car at the “Unite the Right” Rally in Charlottesville.
When the seriousness of the convoy’s impact on communities started to be felt, Bergen took the position that, while Conservative MPs and PC MLAs had met with, encouraged and cheered on the convoy, they were going to blame it on the Prime Minister for “starting it”.
Media reported that Bergen
In an email sent on Monday, the then deputy leader told her colleagues “I don’t think we should be asking them to go home.”
“I understand the mood may shift soon. So we need to turn this into the PMs problem. What will he take the first step to working toward ending this?”
Examples of the genuine threats to human life and safety included a “slow rolling” truck protest blocked two seniors in rural Manitoba from getting to a hospital emergency room.
Manitoba’s Premier wrote a letter to the Prime Minister asking for the federal government to help, then told the media help wasn’t needed. To add to that, the Manitoba Justice Minister has claimed that they were always opposed to the Emergencies Act.
“Although she said in a statement earlier in the day "blockades that disrupt borders and critical infrastructure and impair trade, jobs and the economy, or that unduly infringe the rights of neighbours and communities — cannot be tolerated," her Tory government isn’t prepared to ticket or impound vehicles blocking roadways.
Nor does it support the federal government invoking the Emergencies Act with broad and sweeping powers to get rid of blockades.
"We have to trust our law enforcement, (that) they are doing their job," Stefanson said, blaming the federal government for the unrest.
"I think we have seen action at the Emerson border where some trucks are getting through now. I am satisfied that we are continuing to move forward on that front through peaceful negotiations," she said.
"This all started as a result of (COVID-19) vaccine mandates to the trucking industry, and that has not been helpful," the premier said. "We’ve called on the federal government to develop a plan (for) what is going to happen to the border.”
However, residents of Winnipeg and Emerson were asking why police weren’t ticketing protestors.
The answer to this was another contradiction.
The Winnipeg Police Service (WPS) was asked why trucks blocking traffic and access to people’s workplaces was being allowed.
Premier Heather Stefanson claimed that the provincial government has no jurisdiction in civic protests. The WPS tweeted that:
“The Charter of Rights protects every citizens’ right to peacefully gather. This supersedes the Traffic Act and City By Laws”
This is not accurate.
When the WPS later sought to explain how their handling of the protest, they said they were operating by the National Framework For Police Preparedness For Demonstrations And Assemblies.
That document - and Supreme Court Precedent - make it absolutely clear that protests that block people from going about their daily business are not considered “peaceful” - they are disturbing the peace.
Page 25 of that document makes it clear that “No one has the right to block or disrupt traffic on public highways: Criminal Code, section 423 (1) (g)” See also the highway traffic act.”
In fact, they have a sample handout for demonstrators explaining that:
The Government of Canada website has noted that, according to the Supreme Court decisions,
"Section 2(c) guarantees the right to peaceful assembly; it does not protect riots and gatherings that seriously disturb the peace: R. v. Lecompte, [2000] J.Q. No. 2452 (Que. C.A.). It has been stated that the right to freedom of assembly, along with freedom of expression, does not include the right to physically impede or blockade lawful activities: Guelph (City) v. Soltys, [2009] O.J. No. 3369 (Ont. Sup. Ct. Jus), at paragraph 26.”
Police could have charged anyone blocking the highway with their trucks or farm equipment with a crime. They could have ticketed people for parking their trucks and farm equipment blocking traffic at the Manitoba legislature. They could have charged the people blocking the border with a crime. No one was charged.
This was particularly disturbing, because there were other, real risks associated with blocking Manitoba’s Emerson border crossing. Emerson is the busiest border crossing between Vancouver and Windsor.
Hospitals were running low of “TPN” - a nutritional supplement for people with cancer and for underweight premature infants, resulting in shortages in Manitoba Hospitals, as a nurse reported on Reddit.
A Shared Health spokesperson publicly denied it, as published in the Winnipeg Sun.
That was directly contradicted by an internal e-mail that was made public in a different media story.
That e-mail read, in part:
Manitoba government and authorities - the Premier, Justice Minister, Police, and Health authorities - all made public statements that were directly contradicted by written evidence - and by higher legal authorities.
None of this has ever been explained. The Manitoba government declined to participate in the Emergencies Act Inquiry, and notes of discussions and decisions were not kept.
This is not to say the events would have been handled differently in Manitoba.
One of the defining and essential features of a functioning system of law, order, and justice, is discretion. Politicians are not supposed to dictate police operations.
However, that is not what we are talking about here.
We had a situation where you had growing tension between the Convoy Occupation and people in downtown Winnipeg, as well as at other protest locations around the province.
While frustration, anger and fear was growing among people whose access to food, health care or making a living was being blocked, when they appealed to authorities for action, authorities in Manitoba were claiming there was nothing they could do.
That made the people who lives were being disrupted even more frustrated - but also did nothing to discourage the people who really were, at times, tormenting their fellow Manitobans - and thinking that there was nothing unlawful about their protest, because that’s what authorities in Manitoba were telling them.
It’s entirely possible authorities simply had it wrong, or for some reason got bad legal advice.
For protestors, it’s not the only basic legal misunderstanding about what makes a protest “lawful” or “unlawful.’
Disturbing the Peace
The argument many convoy protestors made was that they were protesting peacefully, by which they meant the tactics they were using were non-violent.
The problem is that there is a basic misunderstanding about legal meaning of the word “peace” - as in “disturbing the peace”. It may be that people are thinking about protests as being peaceful vs being violent. But under the law, there is a point where a protest can become unlawful when it is disturbing “the peace” - when the protest starts to actually disrupt other people’s lives and living.
As above, the Supreme Court of Canada found that
the right to freedom of assembly, along with freedom of expression, does not include the right to physically impede or blockade lawful activities.
Blaring a semi horn for hours on end is disturbing the peace. It doesn’t matter that it’s between 7am and 11pm. There are shift workers whose lives that will disturb. That could certainly be considered an unlawful protest.
And that’s the point. There are all kinds of non-violent, peaceful protests that are unquestionably unlawful, like calling in to overwhelm 911 lines, straight through to blocking roadways and making unbearable noise.
The same is true of being charged with “mischief”. It doesn’t mean being naughty any more than disturbing the peace means being violent. It’s still breaking the law - sometimes seriously so.
For example, if protestors ignore a court order, they are ignoring the law.
Let’s take the example of protestors who set up a blockade and ignore a court order to take it down next to a government building. If people ignore that court order, they may be doing so as a statement and an act of civil disobedience, knowing that they are ignoring the law. Perhaps they are even willing to challenge it in court.
However, it is a different story with people who defy the law by ignoring court orders - ignoring the law - and who then say that their protest was lawful, when it was not. Ignoring the court order itself is unlawful.
If you disrespect a judge in a court, you can be sent to jail on the spot for contempt of court. Consequences can be severe and the way it actually works is rarely ever depicted in popular media, especially in the Canadian context. We don’t televise our trials, but there’s plenty of U.S. legal and police shows, which aren’t realistic either.
“Legal technicalities” matter because of ways in which the law seeks balance all kinds of risks and injustices. So, looking something up in the constitution or the criminal code to see whether it is legal, is not enough either. Canada also has common law precedent. That means there are different cases and rules and tests that suggest how laws are interpreted and when they apply.
All of this in the very important in understanding how the different ways of looking the law matters, especially of the ways in which convoy protest participants were being misinformed, both within their movement and also by authorities.
The ultimate decision maker when it comes to what’s legal - based on what the law is, and has been for decades - are Canadian Courts. They are their own branch of government, and the Chief Justice of the Supreme Court is the head of it. The reason for all of this is to try to maintain checks and balances and preserve the rights of citizens, while ensuring that the law is enforced. That does include imposing limits on the powers of elected government - because that is what rights are. Legal limits on the power of government to restrict the freedom of living, breathing human beings considered persons under the law.
This is another aspect of the way this crisis has been so divisive and damaging, which is the idea that the law has become partisan. Not just having some overlapping ideas with a political party, but actively working on their behalf. From a Canadian point of view, this is an accusation of profound corruption.
There is still an ideal of impartial justice, free from political interference.
Judges and other officials in Canada who take their professional ethics seriously, understand the strict requirement for being non-partisan. In Canada, judges are appointed by committees, and once appointed are expected to leave whatever political attachments they had behind.
So the idea that everyone - police, the courts, the law - that everything is partisan or a partisan witch-hunt does not reflect the way the actual system works, but it is concerning that that is the way people think it is works, or that it should work.
In other words - whoever told you to close your business, or wear a mask, and the cops that are enforcing court orders - they are doing that because they are enforcing the law.
Because it completely undermines the trust in the system that is essential to keep it working, which is that the system is impartial. We know there are many injustices, and lots of problems with justice in Canada, because like all such systems, human beings are running it. Enforcing the law is not, and must not be partisan, and addressing the failures in our justice system cannot be partisan either.
While ignorance of the law is no excuse, knowledge of the law makes a difference. If someone is warned they could face possible criminal charges, they might change their mind.
Many of the people involved in the convoy are people who think of themselves as law-abiding. If the same authorities who encouraged them had warned them instead, some might not have bothered.
To return to one of the points I made in the first chapter of this series - a prediction made by Nicole F. Roberts less than two weeks after the global pandemic was first declared:
History - And Psychology - Predict Riots And Protests Amid Coronavirus Pandemic Lockdowns
“history has taught us that whether it’s caused by fear, frustration, or the helplessness that comes with imprisonment, human beings do not respond well to forced lockdowns. These feelings are often exacerbated by sentiments that the vulnerable are being taken advantage of. There is also outrage that accompanies the gained knowledge that in almost all cases, the resources needed are not available – as it is difficult to prepare for the unknown.”
Roberts’ conclusion was that “Riots Are A Predictable Part Of Quarantine”
It is not just riots - but riots with scapegoating. Historically, it led to massacres - many of them. We can overanalyze and overationalize, but lots of people were frustrated, angry and feeling powerless, and this gave them permission and outlet - relief.
But understanding the feeling does not mean you overlook the real harm and distress that occupations, blocking borders can do, or that it’s ok to disobey a court order.
There is no doubt there were people who led the convoy, others who latched onto it for personal gain, and others who were swept up in it.
There is a feeling that we are in an escalating back-and-forth - a cycle of retaliation. We need to de-escalate - by at least working on a shared understanding and respect for the law. That’s what we’re losing, and it’s a dangerous place to be.
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