Freedom Is Just Another Word….

There’s much to say about the so-called “truckers freedom convoy” camped in Ottawa since January 29th. Its namesakes have also spent time in other major cities in Canada (right now the serious problem is in Ottawa), as well as at the Coutts, Alberta border with the United States. Those involved in the convoy and their supporters call it a “protest or demonstration by patriotic Canadians” (or, indeed, their organizers have touted a “revolution” or extra-election removal of the current governmental system); those affected or otherwise concerned about it call it an “occupation, blockade or siege” or described it as “sedition”. Some have even called the participants “terrorists” (pointing to section 83.01 (1)(b) of the Criminal Code).

What can these ways of looking at the convoy and its activities tell us about freedom? I consider whether too much credence has been given to blunt statements about “freedom” of expression and assembly and the location of the convoys say about who has legal capacity to
respond.

(I’m not discussing what the “truckers convoy” is really about, what the actual purpose of the organizers is, who is actually involved, what support is coming from sources external to Canada, the impact it’s having elsewhere and the other issues that have arisen since we heard the first references to “the truckers convoy” after the federal government instituted the vaccine [or 14 day quarantine] requirement for cross-border truckers. Nor am I discussing whether there should be limits on some of the expression — such as the anti-semitism — exhibited during the assembly. All these are important questions for what this whole thing has revealed and meant for democracy in Canada. My focus, however, is on the meaning of “freedom” using the situation as context.)

For convenience, although it’s evident there are people other than “truckers” involved, I’ll use the term “truckers” for those participating in these events.

It is helpful to remember that there is more than one source for recognition of various freedoms in Canada.

Most people immediately think about the Canadian Charter of Rights and Freedoms when they want to talk about how we all have freedoms to do what we want and to some degree they are, of course, right. Sections 2 (b), (c) and (d) of the Charter acknowledge that Canadians enjoy the “fundamental freedoms” of expression, “peaceful assembly” and association, respectively. There is an opportunity to claim these rights only if a public actor is involved. Thus, speaking superficially, those participating in the protest or siege are free to express their views, to gather together to do so as a group and not just as a random gathering.

Nevertheless, it’s not a free for all (despite seeming like it in Ottawa until the last couple of days). Government may try to limit the exercise of these guarantees under section 1 of the Charter. Still, the edge is in favour of those claiming freedoms, since the government has the onus of justifying the limitations.

Without going too deeply into the values underlying these freedoms, each recognizes in some way their importance to the individual, to finding “truth” and to the realization and protection of democracy. Protection of peaceful assembly does not extend protection to the purpose of the gathering, but it does cover a range of activity (people do not have to stand still, they can march, for example). There is an internal limitation to section 2(c): the assembly must be peaceful. It should not impede lawful activities. Where this is not the case, the assembly may fall outside the protection. Protection of the freedom to associate may also protect the activities of the association if the activities relate to other constitutional guarantees, but not otherwise (and as far as the Charter is concerned, the purpose matters).

Whether government can limit the exercise of these rights depends on a number of factors, including how significant the government’s objective is in imposing limits (how significant is bringing order out chaos, one may ask, for example). And how do the benefits and the deleterious effects balance out (what is the benefit to restoring order or miniminising the impact on Ottawa residents compared to decreasing the truckers’ freedom?)

One factor is the extent to which the expression is intended to further the values inherent in the Charter and particularly section 2(b) (such as political expression). Another is whether the limitation is complete or partial. For example, where section 2(c) is concerned, imposing too strict limits (such as requirements of advance notice and route of a march to which strict adherence is required) may run afoul of the minimal impairment test.

The above simplistic overview is Charter 101 (or some, including me, might say, something less than Charter 101). Obviously, the above discussion of the relevant protected Charter guarantees doesn’t even skim the surface of what they encompass (or not) and what kind of limits have been found justifiable. I refer to them only as a reminder of the complexity of Charter analysis in this area and the kinds of considerations at stake. It’s not my intent to cary out a complete Charter analysis here.

Rather, I remind us that when people speak about how the Charter allows people to speak freely or to gather with their cohort to make their point more effectively, this is only part of the story. The point is that at least as far as the Charter is concerned, the concept and operation of “freedom” is not open-ended. It has a context (note section 2 begins, “Everyone has the following fundamental freedoms:”, not “everyone has freedom, including the following fundamental freedoms”). And despite, the description the Charter gives them, government can override these “fundamental” freedoms under section 33 of the Charter.

Significantly, the Charter does not grant these rights; it recognizes that we have them. They derive from the common law constitution we inherited from the United Kingdom and the underlying principles of democracy. John Stuart Mill, whose name always surfaces when some people try to impose their own desire for liberty on others, didn’t need the Charter to appreciate that liberty means the right to do as you please as long as you don’t harm others. Indeed, the Charter developed from the liberal concept of liberty or freedom espoused by Mill.

In other words, freedom is not nihilism or chaos. Rather, it is a relational concept: “no [person] is an island” for many reasons, but this is one of them. The freedom enjoyed by one person — or one group — may interfere with the freedom of others.

Law helps to mediate the boundaries around freedoms. We may disagree with how it does that, either generally or in a particular case, but there needs to be a vehicle for establishing the parameters around the freedoms you and I both seek to exercise when they don’t play well together. That means we each are unlikely to enjoy the full scope of the freedom we claim. It may be that those who decide the question consider the freedom I want to exercise must be constrained to allow activity that is more directly related to the (contested) values by which we define society. We all experiences disappointments and inconveniences so that others can enjoy their freedom: this is a societal reality.

I provide two examples of how attempts to influence others through impairing the freedoms of someone else may be addressed. They also are examples of the difference between public and private contexts where this occurs.

Many have revived reference to the the Indigenous blockade of CN rail tracks in opposition to the Coastal GasLink natural gas pipeline in February 2020. It affected rail travel, both freight and personal. There’s an important difference between that situation and the current one in Ottawa. The blockade in Ottawa is taking place on public property, the streets of Ottawa and the streets of other cities this past weekend. Blockades of the railway took place on private property.

With respect to the railway lines, it was up to the “owner” (the railway) to obtain an injunction to stop the blockade and when that failed to seek enforcement of the injunction through the courts. In ensuring access to public streets or responding to public disorder (honking through the night, for example), the police can act on their own initiative (although the police in Ottawa have talked of obtaining an injunction). The mere blocking of access to the “public highway” (whether road or actual highway) contravenes the law.

There may also be something to be learned by comparing permissible and impermissible activity around legal picketing in a labour dispute occuring on private property. Picketing during a strike is part of the system of labour relations that serves to help even out the power relations between employees (the union) and the employer. Even so, there are “rules” around picketing that participants, as well as the employer, must observe.

Although picketers are allowed to stop employees or third parties entering the employer’s premises, they can block entry for only a specified — and short — period of time. And also while picketers might hurl insults at those entering (such as yelling “scabs” at replacement workers or workers continuing to work), they cannot otherwise break the law (scream racial epithets, for example, or threaten or use violence). Thus although picketing may be legal, it does not extend that legality to all activities that might arise during picketing. Employers may seek injunctions against illegal picketing (as long as they have tried to use police assistance to stop it and it is doing irreparable harm to the employer) and file complaints about illegal actions that are an element of legal picketing.

A strike and picketing to support a strike might well inconvenience members of the public who may not be able to obtain goods that the employer is having difficulty producing, for example, or whose education is compromised during the strike at a university. Secondary picketing of a company that has no direct involvement in the dispute but trades with the company subject to the strike can affect employees and others who see themselves as having only a tangential connection to the actual dispute. When acts during picketing become unlawful, the employer can seek a remedy.

When the “inconvenience” to the public becomes too great, government may take steps to require the workers to return to work or to impose a different method of dispute resolution on the parties, such as mediation or arbitration. In short, the law around strikes and picketing is both permissive and restraining, in an attempt to balance the freedoms involved.

As for picketing in other contexts, even while it is allowed, those affected may be able to convince a court to impose conditions (for example, while people can picket or demonstrate in front of an abortion clinic, they may be required to remain a minimum distance away from it). It is not unusual for street demonstrations to interfere with the plans of others. Marches close off streets, requiring traffic to reroute. This is partly (but not entirely) why marches require permits to be legal, have limited time periods and must be peaceful (not always achieved for one reason or another).

So where does that take us in relation to the protest or the siege? Perhaps having the benefit of learning from the Ottawa experience, or simply thinking ahead, in Toronto, at least to this point, the police (or powers that be) decided that some interests warranted protection from unimpeded actions by the participants in the demonstration or blockade. They identified “hospital row” along University Avenue and the legislature (Queen’s Park) as off limits, not to the participants completely, but to their trucks and other vehicles and whatever they might use to block the road and access to hospitals, as well as use them for harassment (loud honking, for example).

But participants were able to gather on the grounds of the legislature or walk down or gather on University Avenue. (On Toronto, see here.) Quebec City also took steps to control the influx of trucks and people (see here and here).

Ottawa has faced an entirely different more or less uncontrolled situation (see one slightly outdated description here).

The efforts in Toronto and Quebec attempted to provide the opportunity for protest while protecting others from potential negative impacts from an uncontrolled exercise of freedom. This meant that the participants in the blockade did not have the scope of action that their compatriots in Ottawa had, but it also meant that the freedom of others to use the public thoroughfare and to go to their healthcare jobs, as well as patients requiring access to hospitals, was effectively unimpeded. (I do not suggest that the attitudes of the participants in Toronto may have had an effect on their willingness to accept the restrictions, but this might be the case.)

The police did not have to wait for someone else to initiate action; but they also had the responsibility to act without waiting. University Avenue and Queen’s Park Crescent and the portion of Queen’s Park where the legislature is located are public property (the remainder of Queen’s Park is owned by the University of Toronto and leased to the Government of Ontario). Thus the public authority had an obligation to ensure access. And even though the police had acknowledged the freedom to assemble in some places, they retained the right and obligation to ensure that the actions in those places remained lawful.

At least initially, the idea that truckers who opposed a new requirement that they get vaccinated to cross the Canadian-US border were simply expressing their opposition to the mandate. (I realize that it appears the organizers of the convoy have been planning it for some time and the trucker vaccine mandate provided an opportunity to bring the plans related to ending all pandemic restrictions to realization.) And that they felt strongly enough about it to gather together to drive their trucks from various parts of the country to assemble in Ottawa. The name “Freedom Convoy” reinforced that this was something they were entitled to do, something fundamental to Canadian democracy.

To some extent, the situation in Ottawa arose from a lack of planning and understanding of the nature of the “convoy”. But I suspect it also had something to do with a lack of understanding of what “freedom” really encompasses. The emphasis on the freedom of one group resulted in a reluctance to interfere with the exervise of the freedoms of expression, assembly and association in the context of the convoy. One heard, “they have a right to protest”, as if that ended the matter.

And to a certain extent they do, but they do not have the right to take over the city’s downtown and upend the lives of other people. Freedom isn’t another word for occupation. Freedom isn’t another word for harassing people exercising their freedom to walk on the street or wear masks.

In Ottawa, residents had to protect their own freedom as best they could. For example, people offered to walk with others on the street. An individual went to court to obtain an injunction against the honking. Nor should they have to undertake other ways to make life difficult for the truckers (such as getting licence plates and informing insurance companies). The work of maintaining access to public spaces while also permitting expression lies within the purview of the police. It is not their job to facilitate the truckers who harass people on the street wearing masks by telling those people not to wear a mask.

To some extent (although not entirely), the response to the convoy in Ottawa and other cities was at least initially based on the view that the “freedom” the convoy participants are seeking is legitimately encompassed in freedom of expression and freedom of assembly. The reluctance of police to act in Ottawa stems from several reasons, including the concern about violence, but it also results from an early perception that the “truckers” are entitled to engage in activities that affect others. Or at least it appears that is the case when police will not enforce basic laws.

The individuals involved are more than welcome to express their opposition to vaccine mandates for cross-border truckers (even if it was the reason for the convoy, it has long since been lost in the mire of other demands extending to the replacement of the federal government). And they can assemble to express those views. However, the convoy shows why the right of assembly or any freedom is not open-ended. And it shows clearly that an assumption that freedom can be enjoyed as a one-sided right can lead to harm to others. And finally, it is hard to avoid the conclusion when those responsible for ensuring that the “freedom” of some does not dominate others fail in their duty, that they are complicit in allowing the inevitable results.

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