Last Wednesday, Native Protestors blocked the QE II near Gateway Boulevard fully and then partially for a little less than 2 hours. Then during the afternoon commute, the same protestors set up a blockade on St. Albert Trail at Sturgeon Road. As St. Albert is a bedroom community of Edmonton, I represent many commuters. My office has been inundated with e-mails and phone calls asking why the RCMP allowed this admittedly peaceful protest to proceed.
According to the St. Albert “Gazette”, the demonstration happened with the cooperation of the RCMP, who had met in advance with the protestors and were on scene to manage traffic. Apparently, the RCMP share Edmonton Police Service’s theory that managing a protest is a better tactic than stopping it.
I am not so sure. In the first place, acquiescing to an illegal activity does nothing to prevent further illegal activities. And make no mistake; the police were enabling an illegal activity. Section 430 of the Criminal Code clearly defines the offence of “Mischief” when one willfully “obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property”. Moreover, you can be charged with “Intimidation” when you compel “another person to abstain from doing anything that he or she has a lawful right to do” including one who “blocks or obstructs a highway”, which is “a road to which the public has the right of access” (Section 2).
A hallmark of a free society is our Charter protected rights of expression and assembly. Accordingly, I defend the rights of peaceful assembly without equivocation. However, one’s freedom to demonstrate cannot break the criminal law; one’s freedom to protest cannot trump another’s right to the lawful use of public property to get home after work. As enlightenment philosopher John Locke so famously declared: “my liberty to swing my fist is limited by the proximity of your chin.”
In a 1991 case involving picketing at an airport, the Supreme Court of Canada held that demonstrators could hand out leaflets but only “if the form of expression he uses is compatible with the principal function or intended purpose of the place and does not have the effect of depriving citizens as a whole of the effective operation of government services and undertakings.” (Commonwealth of Canada v. Canada). Certainly blocking a highway is incompatible with its principle use.
Secondly, the police are the state’s instrument in enforcing the law not the determiner of priorities when there is a conflict in rights. By allowing this illegal activity to proceed, public safety is imperiled not protected. The public roadway is designed for the taxpayers who built it to pass freely. A physical confrontation between a female truck driver’s slow moving vehicle and several protestors last Wednesday confirms just how dangerous blocking a public highway can be.
The City of Edmonton and the RCMP seem to believe they handled matters appropriately. EPS Chief Rod Knecht told CHED’s Rutherford that any group of protestors, regardless of cause, would be handled with the same police discretion to ensure non-escalation of the situation. Really? If I were to attempt to block a public roadway to protest the Ricky Ray trade, I suspect the protest would last mere minutes and would end in an arrest.
The duty of police is to uphold the law in a non discriminatory or preferential manner.
The most egregious recent example of police refusing to uphold the law was the case of the CN Rail blockade near Sarnia, Ontario. As the blockade occurred on private property, CN sought and obtained a Court Order to have the protestors removed for trespassing but the OPP refused to enforce the injunction. Citing safety concerns, the police made an “operational decision.” Had this situation not resolved on its own, the Ontario Police would arguably have been in contempt of court or at least complicit in “the deliberate or willful disobedience of a Court Order”.
I get that policing is dangerous business; in fact that is a given. Police are expected to and put themselves in harm’s way every day. We will be a much less safe society if police refuse to uphold the law if the concern is their own safety.
Police are agents of the state and when the state ignores the courts or the law, the Rule of Law is no more; my Canada is based on the rule of law, equally applied to all.