Wet’suwet’en solidarity protests: How Canadian law protects demonstrators

As the demonstrations in solidarity with Wet’suwet’en Nation hereditary chiefs halted trains across the country for the seventh day on Wednesday, many have questioned the legality of the protests.

On Wednesday, Prime Minister Justin Trudeau said the government recognizes the “important democratic right” of peaceful protest but said Canada is a “country of the rule of law.”

“And we need to make sure those laws are respected,” he told reporters in Senegal.

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Last week, the Royal Canadian Mounted Police (RCMP) received an injunction to enter a blockade on unceded Wet’suwet’en land, and in the days following, a number of arrests were made.

Since then, protests have sprung up across the country, disrupting not only rail lines but ports and bridges too — a show of solidarity with Wet’suwet’en hereditary chiefs, who are protesting the Coastal GasLink pipeline project in northern British Columbia.

Are the anti-pipeline protests in B.C. and Ontario legal? Can protesters be arrested? What laws protect demonstrators in Canada?

What laws protect protesters?

Section one of the Canadian Charter of Rights and Freedoms guarantees everyone in Canada has the right to “freedom of expression” and the “freedom of peaceful assembly.”

Section two affords Canadians the “freedom of association.”

Cara Faith Zwibel, the director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association, said these rights give protesters in Canada “the highest level of protection set out under the Canadian constitution.”

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But, according to Zwibel, all of the rights are subject to limits.

“It’s about determining what the limits are and how those limits, whether those limits are reasonable or not,” she said. “That’s kind of where the rubber hits the road, and we start to kind of figure out what police are allowed to do and what private companies that are being picketed may be able to do.”

READ MORE: Wet’suwet’en — Here’s where solidarity protests are happening across Canada

Some of them are spelled out in Canadian law.

Under Section 63 of Canada’s Criminal Code, a gathering of three people or more that makes another person fear that they will “disturb the peace tumultuously” or will provoke others to disturb the peace is considered to be “unlawful assembly.”

Section 31 of the Criminal Code says a police officer can arrest anyone who they deem to has “breached the peace.” The code says an officer can also arrest anyone who — on reasonable grounds — is believed to be “about to join in or renew the breach of peace.”

On Tuesday, Canada’s Transport Minister Marc Garneau said the protests in B.C. and Ontario were illegal because they had infringed upon the Railway Safety Act.

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Zwibel said there are “all kinds of laws” that may be interpreted to limit protests, but that is very circumstantial.

“Laws like the highway traffic laws that say you can’t block roads,” she said. “But in many cases, a court might find that using a law like that to shut down a protest is not a reasonable restriction on free expression or freedom of peaceful assembly.”

And, while there is guidance from the courts on how to interpret these laws and others, it is ultimately up to police on the ground to determine how to implement them.

“In the moment, if the police decide to take a slightly different interpretation and maybe arrest more people than a stricter interpretation would allow, then the people who are being arrested don’t have much they can do about it, except maybe fight it after the fact,” Zwibel said. “But in the moment, you basically have to comply with the police.”

Roberta Lexier from Mount Royal University said this creates a “balancing act.”

“The idea is that we’re constantly trying to balance those charter rights and the individual rights with other potential conflicting rights like freedom of movement and also property rights and industrial rights,” she said. “But in general, in a democracy, the idea is that people have the right to protest and that that is a requirement of the Charter of Rights and Freedoms.“

Are the B.C. anti-pipeline protests legal?

When asked if the protests in B.C. and Ontario are legal, Lexier said it’s a difficult question to answer.

“People have the right to protest,” she said. “But those rights are limited in particular ways by the government and others.”

She said technically, if an injunction is granted, then protesters are violating the law and can be arrested.

“But the reality is that injunctions are used in particular ways by particular groups to infringe upon more broadly respected democratic rights, like freedom to protest,” she said. “And so it’s really this tricky issue of balancing those kinds of property rights, and the rights of companies in particular, and those rights of free speech.“

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Lexier said Canada would “definitely” benefit from more guidelines on how to address these “points of contention between different rights.”

“So, many might say, ‘why does your freedom of speech trump your ability of freedom of movement?'” she said. “And so more guidelines, I think, would help the police on the ground on a case-by-case basis.”

But when it comes to demonstrations, Zwibel said arresting protests should not be a “first resort” for police, especially if other attempts to negotiate have not taken place.

In this case, Zwibel said police should try to determine how they can accommodate those impacted by the blocked roads and railways.

“While at the same time not unduly limiting the rights of protesters and just taking action to step in and make arrests immediately I don’t think would be a way to kind of appropriately balance those things,” she said.

– With files from Alexandra Mazur and The Canadian Press