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Three weeks into the ongoing occupation in Ottawa last year, the federal cabinet invoked the Emergencies Act for the first time. The government passed a series of measures, including one which made it a crime to participate in public assemblies that might lead to a “breach of the peace.” That measure has been attacked as violating protesters’ right to peaceful assembly protected under Section 2(c) of the Canadian Charter of Rights and Freedoms.

In the Rouleau report, a commission of inquiry concluded that the use of the act was appropriate because cabinet could reasonably have believed that a public order emergency was occurring. The report exhaustively detailed the breakdown in policing that had created an “unsafe and chaotic” atmosphere rife with intimidation, harassment and a “disregard for the law.” The report stated that while it was a “close call,” the prohibition on public assemblies was a reasonable response to that “dynamic and fluid situation.”

The report got it right. Now, what remains is the hard work of figuring out a more general approach to this essential constitutional liberty – an approach that can help us navigate future protests.

Any emergency declaration will be extremely controversial. But one must distinguish criticisms of the declaration from any subsequent steps taken to deal with the emergency. Virtually no one thinks that people have a right to indefinitely occupy public spaces and infrastructure, to engage in lawless activity or to threaten their fellow citizens. The question is how to deal with such behaviour in a constitutional manner.

Freedom of peaceful assembly was entrenched in the Constitution in 1982 but has received almost no judicial or scholarly attention, although Jamie Cameron, professor emerita at Osgoode Hall Law School, provided a very useful exception in a discussion paper produced for the commission. As a result of the overall lack of attention there are misunderstandings about the application of the term “peaceful assembly.” In Ottawa, for example, the former police chief testified he felt powerless to prevent people from driving huge trucks into downtown Ottawa and parking them on a major thoroughfare. That misunderstanding helped to create an ungovernable situation.

The Rouleau report acknowledged that the people occupying Ottawa had diverse motivations, and many were exercising rights that are critical to Canadian democracy. That fact has led some to argue that the prohibition on assemblies was too broad because it prevented people from engaging in any assembly during the emergency.

In assessing that argument, one needs to be clear what “peaceful” assembly means. Libertarians often interpret the right very broadly, excluding from its definition only actual violence. It is not a coincidence that the violence exception also applies to the “freedom of expression” guarantee in Section 2(b) of the Charter. That is because of an unfortunate tendency to collapse assembly into expression. But the Charter treats them as distinct rights, and so should any legal analysis.

So, why does the Charter define this right as having to be peaceful? The most straightforward reason is that assembly has an inherently collective, and frequently physical, quality. An assembly can be constituted only by people acting in concert – most often in an actual physical space. These collective and physical aspects increase the risk that an assembly will bump up against the rights and security of other persons. Certainly, that was the case in Ottawa where the occupation was in “a general state of lawlessness” by the second week.

The report rightly stated that the Charter protects assemblies that are “disruptive.” But an assembly may become “unpeaceful” even if it has not yet descended into widespread violence. It will do this if it poses an objective threat of violence. The report defined this as substantial interference with anyone’s physical or psychological integrity, health or well-being. The threat depends on the nature of the assembly, and not the individual motivations of participants.

Should we be wary of engaging in “guilt by association?” Of course, but depending on the situation, it may be impossible to focus on individuals. In Ottawa, there was little control over those in attendance and some even ignored even court injunctions. Police were reluctant to enforce existing laws. These factors created an intolerable climate. Freedom of “peaceful” assembly should not protect protests that cause others to fear violence.

Assuming that an assembly is peaceful, Section 1 of the Charter states that it is still subject to “reasonable limits.” In addition to existing Section 1 case law, any analysis of freedom of assembly should consider two points.

First, a protest that is expansive and lengthy may include unwilling outside participants in a sort of “compelled assembly.” In Ottawa, many residents were unable to escape the protests’ highly negative impact without leaving their home. The choice to leave involved great hardship. In such a situation, it would be reasonable for the state to limit the assembly to mitigate those effects.

READ MORE FROM THE SERIES

The “failure of federalism” at the siege of Ottawa was primarily a failure of governance

The Rouleau report and the politics of living next to a powerful neighbour

Perspectives on the Ottawa convoy protest and the Rouleau commission report

Legal tussling over the Emergencies Act is far from over

Second, taking some actions at the outset of a protest can actually promote Charter rights for everyone. A notable feature of the Ottawa occupation was the use of large trucks which made it impossible for the police to re-establish control of the downtown core. But according to the inquiry, intelligence reports suggested that the Ontario Police Service was aware that the protest likely would be both lengthy and disruptive. Had other authorities acted on the information suggesting that the event would be an occupation, they could have taken steps to frustrate that outcome. That not only would have spared the citizens of Ottawa (and other places) from the enormously harmful effects of the protest, it would have ensured the maximum enjoyment of freedom of assembly by the protestors themselves.

There is no doubt that Canada will continue to experience mass gatherings and disruptive protests. There are understandable concerns that, given the experience in Ottawa, the state will be far less accommodating of those future protests. As the report acknowledged, however, the state’s response to the Ottawa occupation was proportionate. It respected the fact that peaceful assembly is indispensable to a free and democratic society. The report stressed that the Charter protects rights even when the majority finds them troublesome or inconvenient. But those rights do not exist in a vacuum. When people act in harmful ways, when by their actions they communicate contempt for the law and for other people, they are rightly subject to limitations for the protection of everyone else.

This article is part of the Lessons from the Rouleau Commission special feature series.

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Carissima Mathen is an award-winning author and professor of law at the University of Ottawa. Twitter @cmathen

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