Does your blood pressure rise when you read or hear news about the Ottawa truckers’ protest that’s swept the nation, and the globe? Mine does. Have you wondered why?
For me, the “why” question suggests giving consideration to three aspects of convoy news that get minds spinning, blood boiling, and opinions flowing: framing of the narrative; the missing Charter right to peaceful protest; and who’s in charge of resolving this thing―the city, the province, or the federal government.
A key reason convoy talk gets us worked up is because of how the narrative has been framed.
When I was learning to downhill ski, my instructor said to pretend I was carrying a picture frame in my two hands. When I looked through the frame, I would go where I looked. Changing the position of the frame would change my direction. It’s a similar process when politicians, protesters and journalists select the words they use to frame a story. Framing directs the listener, viewer or reader in direction for their thoughts, and any resulting conclusions made.
Each of the messengers in this dispute exercise their own bias in selecting words to describe the protest. We recipients have biases too. It’s helpful to identify and acknowledge biases involved in order to sort facts from feelings, and news from opinion in our analysis. Professor David Haskell of Wilfred Laurier University has written, “The greatest problem with news is not that journalists are influenced by their perceptions; the greatest problem is that news audiences do not realize journalists are influenced by their perceptions.”
So why do current trucker protest stories get us animated?
From the time Covid-19 vaccines became available in Canada in December 2020, consistent messaging from political leaders was that getting the vaccine would be a personal choice. Secondary messaging was that Canada’s goal was a 70% vaccination rate to remove temporary restrictions infringing Canadians’ rights and freedoms. Canadians got vaccinated in droves, but not all.
That messaging shifted dramatically mid-August in 2021.
Polling revealed a substantial majority favoured the idea of requiring mandatory vaccination, particularly to protect medically vulnerable Canadians.
Two days before calling a federal election, Prime Minister Trudeau repositioned 180° from his words of exactly one month earlier that “vaccines will not be mandatory for any Canadian.” Trudeau announced he would make vaccination requirements mandatory for federal civil servants and industries regulated by the federal government under the Constitution Act, 1867. He asked Governor-General Simon to announce the election on August 15. During the election campaign, candidate Trudeau stated in a French language interview, the unvaccinated “don’t believe in science and are very often misogynistic and racist. It’s a very small group of people, but that doesn’t shy away from the fact that they take up some space. This leads us, as a leader and as a country, to make a choice: Do we tolerate these people?” (September 16, La semaine des 4 Julie)
Within weeks there was a dramatic shift in nationwide opinion about the vaccinated and “anti-vaxxers.” Jobs were on the line based on vaccination status. Discussions about rights and freedoms was mostly left to constitutional lawyers and academics. Discussion about jobs highlighted opinions from employment law lawyers and union leaders.
By the time a small group of 50 to 100 truckers was talking convoy to Ottawa because of freshly imposed border mandates in January 2022, roughly 90% of the eligible population was vaccinated. Interestingly, roughly 90% of epidemiologists, medical specialists and other healthcare workers are similarly vaccinated. A comparable 10% of general population and medically trained have objections to the vaccine: some religious because vaccine development used a DNA strain that originated decades ago with an aborted foetus; others conscientious objection based on their assessment of risks associated with the available vaccines; and another part of the 10% being people who had covid and were advised by physicians that natural antibodies would offer protection, the advice of the Centres for Disease Control at the time.
Constitutionally, the 10% rely on the Canadian Charter of Rights and Freedoms guarantees to freedom of conscience (s. 2a), freedom of religion (s. 2a) and “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” (s. 7).
As trucks started rolling east toward Ottawa the prime minister intoned they were a “fringe minority” with “unacceptable views” and said they represented the proliferation of “disinformation and misinformation online, conspiracy theorists, about microchips, about God knows what else that go with the tinfoil hats.”
Something else started happening. More trucks, pickups, minivans and sedans joined the convoy. Then there were multiple convoys Ottawa bound from west, east, south and north. The groups included vaccinated and unvaccinated. Roughly 1/3 of Canadians expressed concerns about rights and freedoms, small businesses and the economy. Thousands lined highway overpasses and sideroads to wave flags and cheer on the Ottawa bound. A crowdraising fundraising effort to raise $50,000 received contributions in the millions.
When the convoy arrived, Ottawa police treated it as the usual one, two, or three-day Parliament Hill protest. Trucks were directed to on-street parking on Wellington Street at the base of Parliament Hill and in the Centretown residential neighbourhood nearby. Excess vehicles were sent to the out-of-season baseball park. Other police forces would have a week to learn this demonstration was different before truckers arrived in their cities.
Unexpectedly for both truckers and Ottawa police, 10,000 people showed up on the first Saturday. In that crowd was a confederate flag, two swastika flags, and a Canadian flag with a red swastika drawn in marker. These were all self-policed by the crowd and removed. One participant danced on the tomb of the unknown soldier at the war cenotaph. Protesters posted a 24-hour guard. The cenotaph would later be fenced by police, and the fencing subsequently removed by veterans so the cenotaph could be cleared of snow and ice and open to the public. The four flags and the inconsiderate dancer have become the focus of most government and media language for the remainder of the protest.
The commemorative statue of Canadian icon Terry Fox was festooned with flags and a protest supportive handmade sign. In my decade-and-a-half in Ottawa I have seen Mr. Fox adorned with a knit rastacap on 4/20 and a rainbow maple leaf flag-as-cape during Pride Week among others. No one alleged desecration, which I would consider the relevant word if the statue had been pulled down, covered with paint, or otherwise marred it in a way intended to cause permanent damage.
There were other incidents largely attributable to a relatively small number of protesters behaving badly. The affect on residents who felt traumatized by the noise or adverse encounters cannot be minimized. Nor can the words of residents who said this type of excitement is why they live near Parliament Hill. Add into the mix what I heard in one city council office a few years ago referring to “the annual ten days of BluesFest complaints” residents.
A document prepared by one of the organizing groups to have the Senate and Governor-General form a temporary provisional government with truckers, replacing all elected governments in Canada for ninety days or less to overturn all vaccine mandates, was withdrawn at a media conference and subsequently in a press release.
Statements from the prime minister and media used words that elicited imagery of the January 6, 2020 riot in the U.S. capital: insurrection, siege, occupation, revolution (used in French by Mr. Trudeau). The CBC published an article suggesting the word “freedom” has been co-opted by the political far-right and thus the protesters calls for freedom represent an assault on the government. A Kingston journalist suggested the overwhelming presence of the red maple leaf flag necessitates Canada find a new symbol as this one has been sullied by far-right insurrectionists. The language used by members of the federal governing party and media imply militaristic ambition, but the protest has been more akin to a sit-in and loud street party (of the university frosh week variety) than an occupation.
Residents who took to the streets in counter-protest, blocking and turning around vehicles sporting Canadian flags were, properly I think, not tagged as vigilantes. Nor were they identified as communists because a sole hammer-and-sickle flag was unfurled for a time at their street march.
As the days and nights of protest continued, newscasts featured the Ottawa and nationwide protests as lead stories and Canadians started to ask questions about the extent of the right to peaceful protest. Those who took time to read the Canadian Charter of Rights and Freedoms noted they could not find it specifically stated there.
The right to peaceful protest both precedes the Charter (which I’ll get to in a few paragraphs) and is a recognition of the Charter rights to freedom of thought, belief, opinion and expression (s. 2b) and freedom of peaceful assembly (s. 2c).
Critics of the lengthy protest have properly declared that no right is absolute. This principle was recognized in Canadian law long before the Charter, and is expressed in s. 1 of the Charter, which reads “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
So, what does that mean? What are the limits on peaceful protest?
The Supreme Court of Canada has determined application of s. 1 regarding the infringement of right requires that the infringement be: (i) prescribed by a law (federal, provincial, or municipal legislative act); (ii) having a pressing and substantial purpose; (iii) that can be reasonably and demonstrably justified in a free and democratic society (i.e. the infringement must be rationally connected to the law’s otherwise valid intended purpose and the law may only minimally impair the right); and (iv) the infringement must be proportionate to attaining the intended effect of the law.
Basically, the law can only infringe a constitutional right if it is necessary to do so and there is not a less harmful way of accomplishing a valid legislative purpose.
The right to peaceful protest has been extended to encampments(think of the Occupy Wall Street/99% protests about a decade ago), but not to riots, gatherings that are a serious disturbance to the peace, or some instances of physically impeding or blockading otherwise lawful activities. The current protests have been predominantly peaceful. Outside of Ottawa, all municipal and border access protests have ended peacefully, without resistance to arrest at the one blockade where it was required to remove active protesters. The question becomes whether the Ottawa protest, with on-street parking as designated by police to keep a lane open for emergency vehicles, has surpassed the limits of peaceful protest?
Ottawa is now under three state of emergency orders. The city, provincial and federal governments have concluded the limits have been surpassed. These conclusions may have to, in time, be resolved in both the courts of law and public opinion (elections are consistently on their way as guaranteed in the Charter, ss. 3 and 4).
The city’s emergency order provides administrative leeway to move quickly on some matters. A court order obtained by the city allows a temporary increase in fines for relevant by-law infractions during the state of emergency. The parking and partying issues on Wellington Street are basically by-law infractions for which thousands of tickets have now been issued, as against a few dozen arrests for potential criminal violations.
The provincial emergency order allows the province to more readily provide resources to assist the city as required.
The federal order―invoking the never before used Emergencies Act―is the most drastic legal measure available under our constitution and is being used to address the non-violent, definitely not January-6-like situation. It only applies to specific ongoing protest zones of which only one remained at the time the Emergencies Act was invoked, a roughly mile-long stretch of Wellington Street in front of Parliament Hill and a few nearby streets.
The Constitution Act, 1867 (formerly the British North America Act) sets out the jurisdictional issues involved here. The federal government has jurisdiction for criminal law, international borders, interprovincial travel and national defence/emergencies (s. 91). The provinces have jurisdiction for health care, roadways within the province, and the establishment of municipalities (s. 92) for which it has limited the bylaw authority of cities unless they secure a court order for temporary increase for a valid reason.
The Constitution Act, 1867 also sets out the courts that have been involved in injunctions already issued in this matter and will likely be involved in later assessment if protesters do not depart voluntarily, and/or the government does not discontinue its stated intent to freeze bank accounts and prevent financial transfers from protest supporters.
Municipal bylaw offences will be addressed in provincial courts (s. 92). Criminal offences will be addressed in the superior courts of the provinces, where judges are federally appointed, including courts of appeal (s. 96).
If a matter makes it to the Supreme Court of Canada, it will be brought before a court established under the Supreme Court Act, 1875 (per s. 101). Decisions of that court were appealable to the Judicial Committee of the Privy Council (or directly to the Judicial Committee from provincial courts, bypassing the Supreme Court of Canada) until 1947. In recent cases the Supreme Court has expressed deference to the original trier of fact in decisions made concerning rights and freedoms, i.e. the court or tribunal of first instance.
Many of the rights and freedoms recognized in the Charter hail from a pre-Charter time in Canadian history, as well as decisions made in the United Kingdom prior to the Constitution Act, 1867 (which incorporates into Canadian constitutional law principles from the constitution of the United Kingdom, which include both judge-made law and several legislative documents such as Magna Carta and the 1689 Bill of Rights). The right of peaceful protest has a long history.
While many now see the Supreme Court of Canada as the supreme authority on all Canadian laws, it is worth noting that in Canada’s constitutional parliamentary democracy, in which free elections are held with consistency, the framers of the Charter (which is Part 1 of the Constitution Act, 1982) retained to the authority of Parliament and provincial legislatures in s. 33 the power to overrule courts on matters pertaining to the rights described in s. 2 and ss. 7 to 15, which includes the right to peaceful protest.
So, who’s in charge of resolving this thing? The federal government has stepped in to assist the province which is assisting the city to resolve a serious and substantial municipal bylaw problem―parking, idling, noise. The federal government apparently also wants to know who contributed $25 or more in support.
The dispute that started the freedom convoy protests is with the federal government, and likely could have been resolved with some diplomacy and a plan for “when x then y” ending of federal pandemic regulations such as was announced by Health Minister Duclos on February 15 in regard to select border measures. Organic growth in protesters joining in nationwide added grievances with the ten provincial and three territorial governments from coast to coast to coast. However, I suspect final resolution of issues coming out of this protest may take years in the courts.
I hope freedom convoy participants will hold fast to their stated conviction to keep the protest peaceful, up to and including not resisting arrest should it come to that.
[For more on framing and bias see my book Church in Society: First-Century Citizenship Lessons for Twenty-First-Century Christians, Chapter Thirteen―The Church, Media. For more on the Charter, and the constitutional establishment, history and jurisdiction of the Supreme Court of Canada see my book Under Siege: Religious Freedom and the Church in Canada at 150 (1867–2017).]