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Last month, Commissioner Paul Rouleau rendered his much-awaited report on the use of the Emergencies Act by the federal government in 2022 to contain the Freedom Convoy and other such protests. While the principal feature of Commissioner Rouleau’s report has been his determination (made with reluctance) that ” the very high threshold for invocation [of the Act] was met”, I found his discussion of the right to protest to be of great interest.

He noted that the ability to protest is a “cherished right” and that it “empowers individuals to shape the rules by which we choose to govern ourselves, thereby enriching social and political life”. He cautioned that all rights, cherished though they may be, they are subject to reasonable limitations and that this had been lost to some who were caught up in the clarion call of “freedom”.

Commissioner Rouleau observed that the right to protest was protected under the Charter by three provisions: freedom of expression under section 2(b); freedom of peaceful assembly under section 2(c); and freedom of association under section 2(d). According to the Commissioner, when freedom of expression is exercised collectively through a public gathering to raise concerns about grievances, it takes on the characteristics of a protest:

Expression is inherent in the very idea of protest, since protests are, by definition, attempts to express grievance, disagreement, or resistance. The guarantee of freedom of expression in section 2(b) protects a person’s right to communicate a message, as long as the method and location of that expression is compatible with the values of truth, democracy, and self-realization. While violence and threats of violence are not protected, freedom of expression is otherwise broad. Expression can take an infinite variety of forms, including the written and spoken word, the arts, and physical gestures. There is protection for expression regardless of the meaning or message sought to be conveyed.

Freedom of peaceful assembly, as the collective performance of individual expressive activity, incorporates and advances many of the same values as freedom of expression. A public assembly or gathering can send a message of protest or dissent, forcing the
community to pay attention to grievances and become involved in redressing them. Public gatherings can enable disadvantaged and disempowered communities to forge a collective entity and leverage their voice.

He noted that the Charter only protects “peaceful” assembly – not all assemblies. And “peaceful” for him was not simply non-violent but would include some measure of disruption, although the line between what is an acceptable level of disruption and unacceptable “non-peaceful” disruption is often “blurry”:

Only “peaceful” assemblies are protected by section 2(c) of the Charter. As a matter of definition, “peaceful” might simply mean “without violence,” but it could also entail something closer to “quiet” or “calm.” A violent assembly would clearly not fall within section 2(c). The more difficult question is whether an assembly should lose constitutional protection if it is disruptive or unlawful, but not violent. In my view, it can be reasonable to protect assemblies that produce an element of disruption. Many public protests are disruptive, and that disruption may be central to their efficacy. This is especially true for groups and communities who are otherwise politically marginalized. This is not to say that all non-violent assemblies are constitutionally guaranteed regardless of how disruptive they may be. In some cases, the line between disruption and “non-peaceful” may be blurry.

Commissioner Rouleau underscored that all rights, including all the fundamental freedoms underpinning the right to protest, have limits and that, at some point, the government can take steps to curtail those rights and freedoms. He stated that the prohibition against public assemblies that was made under the Emergencies Act had to be carefully crafted because most of the protesters were exercising their constitutional rights to express their political views, something that is at the very heart of the fundamental freedoms:

This measure was also the one that most directly impacted the constitutional rights of protesters. Most of the participants in the protest were engaged in the exercise of the core right protected by freedom of expression: political expression. While some protesters may have crossed the line into violence, and at times and in places, the assembly may not have been “peaceful,” the fact remains that many protesters were engaged in conduct that is afforded significant protection under the Charter. For this measure to have been appropriate, it needed to be carefully tailored.

I think that Commissioner Rouleau has rendered a great service to Canada, its citizens and its democratic traditions. He has reminded us of the important values that underpin one of the often overlooked democratic rights, the right to protest — peacefully. Thank you Commissioner Rouleau.

I remain

Constitutionally yours

Arthur Grant

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Today is Election Day in Canada. Canadian citizens have the right to vote for the candidate of their choice.

Just as a reminder, section 3 of the Canadian Charter of Rights and Freedoms provides:

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

If you can vote today in this election, please do so. Not all people are so lucky as to have this right,… and this responsibility.

I remain

Constitutionally yours

Arthur Grant

Edward McWhinney, Q.C.

On May 19, 2015, Canada lost one of her great constitutional scholars. Edward (“Ted”) McWhinney, Queen’s Counsel, former Liberal Member of Parliament for Vancouver Quadra, and constitutional and international law expert passed away on his 91st birthday. Ted McWhinney was born in New South Wales, and then educated first in Australia and later at Yale where he obtained his doctorate in constitutional and international law. Along the way, Canada became the lucky beneficiary of this citizen of the world who made Canada his home and eventually his nationality. He was fluent in English, French, German and Russian, and authored 24 books, three of which were in French or German, and countless papers of distinction. He was the first Canadian to be elected to the Institut du droit international based in Geneva and was actually that Institut’s president from 1999-2001. He ended his career as a university professor as a professor emeritus with Simon Fraser University. His full obituary was published in the Province. Thank you, Ted McWhinney, for your contributions to Canada and to the world. We are all richer because of your brilliance and your life’s work.

I remain

Constitutionally yours

Arthur Grant

Madam Justice Duncan of the Supreme Court of British Columbia was recently faced with a difficult decision – to evict scores of homeless who had occupied Oppenheimer Park in Vancouver’s Downtown Eastside or to let them stay in their informal tent city. The City’s Park Board bylaws prohibited any one to stay in a park after its posted hours and prohibited the erection of tents without permission of the City. Moreover, the bylaws prohibited what one might term disorderly conduct. The posted hours for Oppenheimer Park were from 6:00 am to 10:00 pm. In other words, the park was closed from 10:00 pm to 6:00 am. While I will not suggest that, in the end, Justice Duncan came to the wrong result (Vancouver Board of Parks and Recreation v. Williams, 2014 BCSC 1926), I will argue that she missed an extremely important element of the whole purpose of the tent city.

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It is with heavy hearts that Canadians throughout the land close out this day. Today Cpl. Nathan Cirillo lost his life while serving as an honour guard at the War Memorial in Ottawa. A gunman shot Cpl. Cirillo in cold blood for motives that remain unclear. The gunman then moved to Parliament’s Center Block where a gunfight ensued and the gunman was killed. Canadians grieve for Cpl. Cirillo and for his family. They are deeply grateful for the courage and valour of the security forces who defended Parliament, its members, staff and visitors, putting their lives on the line. “Thank you” “merci” to them all.

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Last week, Prime Minister Harper suggested that a phone call by Chief Justice McLachlin to Justice Minister Peter MacKay’s office about a potential appointment to fill a vacancy for a Quebec judge on the Court was improper. The Chief Justice took the unprecedented step of responding to this allegation by issuing a press release. It stated:

At no time was there any communication between Chief Justice McLachlin and the government regarding any case before the courts. The facts are as follows:

On April 22, 2013, as a courtesy, the Chief Justice met with the Prime Minister to give him Justice Fish’s retirement letter. As is customary, they briefly discussed the needs of the Supreme Court of Canada.
On July 29, 2013, as part of the usual process the Chief Justice met with the Parliamentary committee regarding the appointment of Justice Fish’s successor. She provided the committee with her views on the needs of the Supreme Court.

On July 31, 2013, the Chief Justice’s office called the Minister of Justice’s office and the Prime Minister’s Chief of Staff, Mr. Novak, to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court. Later that day, the Chief Justice spoke with the Minister of Justice, Mr. MacKay, to flag the potential issue. The Chief Justice’s office also made preliminary inquiries to set up a call or meeting with the Prime Minister, but ultimately the Chief Justice decided not to pursue a call or meeting.

The Chief Justice had no other contact with the government on this issue.

The Chief Justice provided the following statement: “Given the potential impact on the Court, I wished to ensure that the government was aware of the eligibility issue. At no time did I express any opinion as to the merits of the eligibility issue. It is customary for Chief Justices to be consulted during the appointment process and there is nothing inappropriate in raising a potential issue affecting a future appointment.”

In a few words, the Chief Justice is right.

I must make a simple observation. Whenever the Prime Minister and his government lose a battle or whenever an issue is raised with one of their programs or policies, the person or agency winning the battle or raising the issue becomes an “enemy” of the government. It is then considered to be fair game for the government to attack that person or agency at any level and by any means.

The current enemy of the Prime Minister and his government appears to be the Supreme Court of Canada. It is not enough to state that he disagrees with the decisions of the Court. Instead, a baseless attack on the integrity of the Chief Justice is in order. And truth need not enter the equation. It seems that the Prime Minister and Justice Minister think that it is appropriate to try to twist what was a normal exercise of her authority, indeed a proper discharge of her constitutional obligations (namely, providing prior input to the Prime Minister and the Justice Minister about a potential appointment to fill a vacancy on the bench), into some sort of sordid show of impropriety.

In acting in this way in relation to the Court and the Chief Justice, the Prime Minister is simply following a practice that he has cultivated over the last decade. He does not simply disagree with the Leader of the Opposition, Mr. Mulcair, or the Leader of the Third Party, Mr. Trudeau, he must seek to impeach their personal integrity. Ditto for the Chief Electoral Officer Marc Mayrand. Same for Parliamentary Budget Officer Kevin Page. The list goes on. In so doing, the Prime Minister and his government is bringing the entirety of Canada’s central institutions – the House of Commons, the Senate, the Supreme Court of Canada, the role of responsible and democratic government – all into disrepute. He is undermining the very foundations of the Canadian federation.

A constitution must not be simply written and read. It must be lived and embraced by all of its constituents. The Prime Minister would do well to learn to appreciate the underlying constitutional principles that support the country that is Canada.

I remain

Constitutionally yours

Arthur Grant