Why we need a National Summit on Protest and Human Rights*

Good evening friends, I am joining you from unceded Algonquin territory; an honour I hold to be even more dear at this time given the disrespect shown for the peoples, leaders and elders of these lands during the course of the occupation of Ottawa.

It is an extreme understatement to state that there is a great deal that we must confront, address and reflect upon as we move out of this crisis phase and consider what needs to be reformed, rebuilt and reimagined in our country. One vital area in need of reflection and action is protest.  What is it?  Why does it matter?  What is peaceful protest? What is not protest?  The limits on protest? The policing of protest? What about when protest threatens or abuses human rights?

The four of us, two weeks ago, were deeply troubled by those and other related questions; and in an effort to be a bit forward looking, came together in an op-ed in the Ottawa Citizen and proposed a National Summit on Protest and Human Rights.  We are not particularly hung up on the word ‘summit’, but do feel strongly that we need an honest, challenging conversation about protest in Canada, leading to some new understandings and commitment to its vital role in society.

What is protest?

Let me start with the obvious.  Protest is essential.  It is necessary.  It is precious.  And it absolutely is a right, a right at the fundamental core of all other rights, a right that is integral to upholding and defending the entirety of human rights.

That said, this may or may not come as a surprise.  There is no provision in our Charter of Rights and Freedoms, the Canadian Human Rights Act, in the Ontario Human Rights Code, or any of the international human rights treaties that Canada has ratified, such as the International Covenant on Civil and Political Rights (ICCPR), which lays that out as an explicit right.  No article 2 or section 11 that specifies the right to protest. In fact, the word ‘protest’ is nowhere to be seen.

It finds its home, however, in three vital freedoms that are universally and widely protected in all of those human rights instruments:  freedom of expression, freedom of association, and freedom of assembly.

Vital.  But not absolute.  Not without limits.  Our Charter of Rights recognizes that those freedoms can be limited, to the extent '‘demonstrably justified in a free and democratic society”.  The ICCPR allows restrictions to protect the rights of others and to ensure public order and security.  Courts, UN human rights bodies and experts have made it clear that such restrictions must be only to the extent absolutely necessary, targeted, and time limited. 

We often hear of ‘peaceful protest’, again not defined. It does not mean protest can’t be noisy, confrontational and disruptive. Of course not, some of the most impactful protests are exceptionally raucous and in your face.  But it means that protected protest must be within the limits that human rights standards themselves envision.

As human rights champions we usually find ourselves on the side of pushing back against the limits imposed by states, as governments and security forces are wildly prone to over-reach in undermining and decimating protest rights in the supposed name of safety, security and public order. It is a serious and grave concern and demands our constant scrutiny and vigilance.

For it is absolutely in our collective interest to ensure that the right to peaceful protest is scrupulously protected.  In fact, not only should we insist that security forces refrain from violating peaceful protest rights; they must go further and intervene to ensure that the space for peaceful protest is safe in the face of harms and threats of violence from others.

What is not peaceful protest?

But we crossed the line of this being peaceful protest almost on day one.  Regardless of whether some or even many of those who took part did not cross the line, the overall tone, objective, and tactics of this occupation masquerading as protest absolutely did. 

The menacing and obstructive presence of large trucks which can themselves be lethally weaponized; blaring of horns that truly constituted a form of sonic torture; noxious diesel and other vehicle fumes that were a grave risk to people’s health; and racist, misogynist, antisemitic, homophobic and other hateful taunts, threats, assaults, harassment and displays that clearly violated the rights of people residing and working in the occupation area. Well outside the bounds of legitimate, protected, peaceful protest.

There were and still are ample, lawful avenues open to individuals and groups determined to gather together in protest to express their opposition to COVID-related public health measures and any other ways in which they feel governments are repressing their freedom.  This was not and is not such an avenue. It does not earn that precious label of peaceful protest.

False comparisons

An aside then to consider false comparisons that have been made, suggesting that if we allow First Nations land defenders to impede railways,  environmentalists to blockade a logging road, anti-racism activists to take over a busy downtown intersection, or a homelessness encampment to take over a public park – if we consider all of that to be legitimate and protected protest, then so too was the occupation of Ottawa.  There is no comparison at all.  None of those other situations intentionally or even indirectly resulted in grievous harm and serious human rights abuses within surrounding or nearby communities. That any of those situations may cause some degree of economic loss, make it difficult for a logging crew to reach a work site or for the public to make full use of a park, is not even remotely equivalent to what was inflicted upon the people of downtown Ottawa.

And let us never forget that there are an additional set of considerations and safeguards that apply when we are talking about protests by First Nations, Inuit and Métis activists and communities.  For those are protests also inherently tied to land rights, traditional territory, Treaty rights, constitutional rights, international legal obligations, and sovereignty. That will never be comparable in the slightest to truckers and supporters from across the country aggressively taking over the core of downtown Ottawa while calling for the duly-elected government to be overthrown.  

The failure of federalism

The last point I want to underscore is the abysmal failure of governments – municipal, provincial and federal – over these past three weeks.  At a time when we needed them to show us their finest hour, what did we see instead? Baffling and distressing inaction for far too long; politics taking precedence over principled leadership; confusion, finger pointing and buck passing.  All of that festered and corroded for days 1-20 such that by day 21 we were instead faced with the staggering prospect of the first ever use of the Emergencies Act (which I’m sure we will come to).  The verdict from our political representatives being something along the lines of: we were so unwilling and/or unable to unite and work together that we had to declare a national emergency in order to get it done.

Let’s keep this in mind, however.  There is nothing surprising to see that disconnect and discoordination among governments in Canada when it comes to acting together, with shared purpose and in common cause, to uphold human rights.  For decades we have seen federalism stand in the way of meaningful, effective, accountable, transparent action for instance to ensure that Canada’s international human rights obligations are truly and consistently implemented and upheld across the country.  

A truly national embrace of human rights

It is staggering that in a country of the potential and resources that Canada has, a country that professes a deep commitment to human rights, time and time again jurisdictional squabbles and grey zones of responsibility carry the day. 

We must ensure that the legacy of this stunning debacle is, at long last, a truly national embrace of human rights in Canada – not the easy embrace of stirring words, but the meaningful embrace of tough decisions, adequate resources, and coordinated and consistent action.

*Opening remarks for the online webinar, Democracy: Freedom, Human Rights and the Rule of Law, hosted by the Islamic Social Services Association, the Canadian Museum for Human Rights, and the University of Ottawa’s Human Rights Research and Education Centre, February 22, 2022. Honoured to have shared space with Cindy Blackstock, Leilani Farha and Monia Mazigh, to have been guided by our moderator Niigaan Sinclair and thoughtfully wrapped up by Isha Khan. Gratitude for the audience that joined us for this important conversation; one that absolutely must continue. A link to a recording of the webinar is available here.