Cody Haller, an Alberta oilsands workers, is skeptical of his government’s response to Covid-19. He worries that prolonged shutdowns of businesses are doing unnecessary damage to the province’s already ailing economy. To make his views known, Haller got up early on May 10 and went to a plaza outside the legislature in Edmonton to protest the government’s response.
Just as Haller was expressing himself, three sheriffs walked up and said that he was contravening an order made under the province’s Public Health Act. At the time, Alberta’s chief medical officer of health had ordered people not to gather in groups of more than 15 and to stay two metres apart.
When Haller refused to end his protest, the sheriffs picked him up by the arms and legs, carried him to a vehicle, and drove him to a downtown police station where he was charged with contravening the Public Health Act and obstructing, molesting, hindering or interfering with enforcement. The fines appear to be $0, but the tickets say that he must attend court on Sept. 1.
At least two videos captured the arrest. Neither video shows Haller within two metres of another person. The charge appears to be related to the size of the gathering, which Haller says ended up with about 40 to 50 people spread out across a large open space. Haller insists that the limit on the size of gatherings contravenes his constitutional right to protest. He’s almost certainly right.
“It is my freedom and my right to assemble and to express my concerns as well as any objections that I have to a government that portrays itself to be acting in all our best interests,” Haller said.
Haller’s arrest led to an outcry. Premier Jason Kenney said he would consider modifying public health orders “to clarify that it is acceptable for individuals who are respecting physical distancing guidelines to be present in outdoor public venues, including for the purpose of protesting.” A few days later, the province changed the order so that up to 50 people can gather in one place outdoors, but the order does not clarify whether even larger protests are allowed.
They should be allowed regardless. The constitution—Canada’s supreme law to which all other laws must conform—protects the right to peacefully protest, even during the Covid-19 pandemic.
The Charter of Rights and Freedoms, part of Canada’s constitution, spells out some of the protections that individuals like Haller have against unreasonable state interference. Section 2(b) protects freedom of expression. Section 2(c) protects freedom of assembly. Section 1 of the Charter says that these freedoms can only be restricted lawfully if the legal limits placed on them are reasonable and demonstrably justified in a free and democratic society.
The right to “freedom of peaceful assembly” has not been examined closely by courts but the Federal Court of Appeal said in its 1994 decision Roach v. Canada that freedom of assembly is “geared towards protecting the physical gathering together of people.”
The 2001 decision R. v. Behrens clarified that freedom of assembly is “speech in action,” meaning that a violation of freedom of assembly will usually also be a violation of freedom of expression. The Behrens decision quoted from a 1982 textbook by scholars Walter Tarnopolsky and Gérald Beudoin who explained why freedom of assembly exists. “Whenever the demonstrators are complaining of a bona fide wrong, society’s interests will be advanced if their grievance is brought to public attention and relief is granted,” they said. “Moreover, by allowing free assemblies, governmental authorities are able to measure both the identity of feeling with regard to an issue and the “extent” of grass-root support for a specific point of view.”
Drawing attention to a bona fide wrong is what Haller was trying to do, and the fact that Premier Kenney loosened the lockdown just days later suggests his protest may have made a difference.
R. v. Behrens is not binding on other courts, but the decision shows how a judge might think about Haller’s case. Matthew Behrens was a member of an activist group called “Toronto Action For Social Change” which poured fake blood on Ontario’s legislature building to symbolize the government “having bloodied hands due to the cutbacks in social assistance and housing.” The speaker of the house was angry about what he viewed as an act of vandalism and ordered Behrens and others banished from the legislature grounds. Behrens returned to protest again and was charged with trespassing. Richard Quon, who wrote the Ontario Court of Justice decision, said in his ruling that he believed the ban was unconstitutional. “As long as the defendants’ expressive activities at Queen’s Park come within the protection of section 2(b), any future charges under the Trespass to Property Act would fail,” Quon wrote. “The Speaker’s ban would not be saved by section 1 in any situation where the expressive activity is peaceful.”
Freedom of expression is generally protected unless it is violent. Haller was not violent, so his expression was protected. The only question is whether limiting the size of groups to 15 peoples outdoors is a reasonable limit that can be demonstrably justified in a free and democratic society.
To decide this, courts would apply the test from in R v. Oakes, which requires that the government demonstrate a “pressing and substantial” need for the limit on the Charter right, and show that the law is proportional. To be proportional, the law’s means must rationally connect to the objective, the means must be minimally impairing of the right, and the negative effects of the measure and its positive effects must be in proportion.
To show a pressing and substantial concern would be easy: the government could point to research indicating that close human contact can lead to virus spread, and that the virus may kill as many as 1 in 200 people infected.
It would be difficult, however, for the government to demonstrate that a 15-person limit on the size of protests is rationally connected to the goal of preventing the spread of Covid-19. If a two-metre distance can prevent virus spread, then a group of 40 people protesting while two metres apart from each other would be no more likely to lead to new infections than a group of 15 people spaced two metres apart. The fact that protests are outdoors where the risk of contagion appears to be minimal makes the limit on group size seem even more arbitrary and irrational.
As long as Haller kept physically distant from other protesters, then the sheriffs who arrested him appear to have violated his constitutional rights.
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