The Incivility of Civil Disobedience: Part One

Civil disobedience is a familiar phrase these days what with the Occupy movement occupying public space and now University students protesting higher tuition rates. The term “Civil Disobedience” was coined by American author, writer, poet, naturalist and all around polymath Henry David Thoreau as the title of an essay originally published in 1849 as "Resistance to Civil Government." At the time, Thoreau was the voice of a country struggling with itself, both politically and morally. His was a voice of reason but also one of deep moral principle. In 1846, Thoreau was arrested and imprisoned for a failure to pay his poll taxes. Poll taxes were levied on all eligible voters as a prerequisite of voting and were the main means of raising funds for local governments. The poll tax, which anti-slavery abolitionists like Thoreau refused to pay, was levied to fund the Mexican War in a bid to extend American slave territories. The amount of the tax, even at that time a paltry $1.50, was viewed by Thoreau as too high a moral price to pay. Although his Aunt, against his wishes, paid the fee and Thoreau was released after only one night in jail, his essay on the experience remains today the first in a line of many personal actions of civil disobedience. I say “personal” as there was already an American example of group disobedience in the form of the famous Boston Tea Party, an act of disobedience heard across the ocean by King George III and the British Parliament.

Martin Luther King Jr., in another example of personal disobedience to the law, would also pen a famous piece of prose in the Letter from the Birmingham Jail. In this acerbic response to his critics, King tackles head on the moral and ethical issue of obeying “just” and “unjust” laws. To support his actions, King refers to St. Augustine’s position that an “unjust law is no law at all.” He also uses as a stark analogy the ultimate “unjust” laws of Nazi Germany. The letter became a touchstone for the civil rights movement and the idea that morally “unjust” laws should not and could not be followed became a permanent fixture in the American psyche.

Unsurprisingly, in Canada, acts of civil disobedience have been most pronounced in Aboriginal rights issues such as in the Burnt Church conflict involving the traditional fishing rights of the Mikmaq nation of Atlantic Canada. Another high profile case of civil disobedience was the Ipperwash Crisis and the police shooting death of Native activist, Dudley George.  Of course, more recently, the Occupy Movement is another example of collective disobedience. Canadians even have a “how-to” book for such practices with the Protestors’ Guide to the Law of Civil Disobedience in British Columbia. This document is easily accessible on-line and is written by Leo McGrady Q.C., a well-known BC lawyer specializing, on the union/employee side, in labour relations. No surprise, as BC has seen more than its share of civil unrest relating to teacher labour issues. Read my previous blog on the Legal Politics of Seussville for more on the issue.

With this little history lesson, my next posting will deal with the legal aspects of civil disobedience. How have the Courts reacted to this issue? Is the Charter engaged when acts of civil disobedience are stopped? And finally, what kind of legal defences are available when such acts become subject to the criminal courts?

The Sixty Day Review: Occupy Canada and Impaired Driving Alberta

Slightly more than sixty blog days have passed and it is time to review. I have chosen two of my most popular posting areas to review: the Occupy movement and the new Alberta impaired driving laws. 

As discussed previously, although the courts have recognized violations of freedom of expression resulting from the City's bylaws prohibiting the erecting of shelters in public spaces, these laws have been saved under s.1 of the Charter. This means the legislated restrictions on freedom of expression is justifiable in a free and democratic society. These decisions from across Canada have resulted in the removal of the various "Tent Cities," which were the outward manifestation of the movement's "occupy" philosophy. 

The media coverage of the court cases to remove the protesters seemed to overshadow the true nature and meaning of the protest. I recently read an excellent blog posting by the Dean of Osgoode Hall Law School, Lorne Sussin, who reminds us of the important "teachable moments" presented by the protest. In particular, Dean Sussin speaks of poverty and the inequalities arising from it, as the true issue to be resolved. 

This reminder lead me back to the letters written by the CCLA (Canadian Civil Liberties Association) to the various Canadian Mayors to remind the municipalities of their obligation to respect the protestors' human rights through "constitutionally-required tolerance towards peaceful, democratic activities."

As discussed in my previous posting, these reminders from the Dean and the CCLA provides the lessons we can learn from Charter values.

The second area of review is the contentious amendments to the Alberta Traffic Safety Act, which was passed late Tuesday, December 6 by the Tory dominated Alberta Legislature. After the Bill was passed, Premier Redford "softened the blow" by announcing the incremental implementation of the law.

The first phase, to begin in January 2012, will see the extraordinary penalties assessed against those whose BAC is over 80 and face criminal code charges as well. The second phase, involving increased penalties for those driving with BAC between 50 and 80, has no implementation date stamp as yet. According to Premier Redford, this second phase will be "accompanied by lengthy public education."

Already, there has been charts, graphs, and other such various multimedia presentations on what the new legislation "means." The difficulty is that these explanations are merely a general guideline and should not be used as a definitive guide to drinking and driving in Alberta. The calculations are estimates at best which rely on certain assumptions, which may or may not be the same for every person. As a result, the education may lead to more confusion.

In British Columbia, the harsh impaired driving laws, on which Alberta fashioned their new law, received a legal set back as discussed in my previous blog here. The BC government has still not announced their response, other than to recognize the need to change their legislation in order to make it constitutionally worthy. The growing issue is the response to all of the affected drivers, who were penalized under the old regime, and whether they will receive some recourse from the government.

The Alberta saw a real time example of impaired driving when Conservative MP Peter Goldring was stopped, after his constituency Christmas party, for drinking and driving. Goldring is now sitting outside of his caucus as a result of the charges: refuse to provide a breath sample contrary to the Criminal Code.

The only truly accurate educative message is: do not drink alcohol and drive. To that end, December, according to the Alberta Traffic Safety Plan Calendar, is Impaired Driving Awareness Month. As said in previous blogs, awareness education may be the best message to stop the dire consequences of drinking and driving. 

In the past sixty days we have discussed many interesting and important connections between ideas and the law. I invite you to read or even re-read these blogs, by visiting the "home" page, to make your own connections.

Injunctions and the Charter of Rights and Freedoms

It is difficult to read an article on the occupy movement and not read a reference to an injunction. An injunction, is a legal remedy, whereby a court orders a party to refrain from acting in a particular way that infringes the rights of another party. Although usually negative in aspect, a mandatory injunction can require the rights violator to take positive steps to respect the rights of another party. Typically, injunctions are only granted in exceptional circumstances and only when monetary damages fail to remedy the situation.

When constitutional rights are at issue, an injunction may be ordered to ensure a Charter violation is not repeated. In cases involving constitutionally suspect legislation, injunctions have also been used to order a party to obey the legislation until the validity of the law has been fully determined. Thus, injunctive relief has been sought by the government where sports' bars refused to comply with a City by-law banning smoking in restaurants. It has also been used to prohibit homeless people from erecting tents in public parks. Most recently, as we read in the media almost daily, injunctive relief has been requested to prohibit the occupy movement from occupying public space by erecting tents and by staying in the public areas overnight.

The test for whether or not an injunction should be granted, similar to a stay of proceedings application, is articulated in the Supreme Court of Canada RJR - MacDonald case. The three-step determination is made on the basis of the following:

First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried.  Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused.  Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.  

Additionally, as the issue is whether or not the law is constitutionally valid, a court considering an injunction in a Charter context must be mindful of the possible continuation of Charter breaches should the injunction be allowed. As briefly touched upon in my previous blog "Teachable Moments" And The Charter of Rights and Freedoms, in a case involving Charter rights, Charter values imbue and colour the legal principles. In those instances, the black letter of the law transforms into a kaleidoscope of possibilities with our fundamental values and beliefs providing the backdrop. It is in this heady context that the court must apply the three-step injunction analysis.

In tomorrow's blog, I will take this test and review it in light of the Charter possibilities to explain how injunctive relief looks in the kaleidoscope of Charter values and shed some light on the injunctions granted and still being sought against the occupy movement.

The Occupy Movement & The Charter of Rights And Freedoms

Read all the postings on the  Occupy Movement and the Charter:  Freedom of Expression and Occupying Public Space Part One  & Part Two: Occupying Public Space & Creating A Positive Out of A Negative & The Occupy Movement and The Government's Right to Allocate Public Space

 

The Occupy Movement and The Government's Right to Allocate Public Space

Justice can move at a dizzying pace: since Friday, the Occupy movements in Victoria, Vancouver, and Toronto have been ordered by the Courts to obey municipal law and take down their tents. The issue, at least according to B.C. Supreme Court Justice Schultes who granted the Victoria injunction, is the government's right to allocate public space. 

In his oral reasons for granting the extraordinary injunctive remedy, Schultes concluded the City of Victoria, by requesting the order, was "within its rights to mange public spaces in the public interest" and is "free to come to the conclusion that any encampment, wherever and however situated in the square, is not in keeping with the best public use of that space." 

In a previous post from November 4 on Creating A Positive Out Of A Negative, I suggested that the BC Supreme Court in Victoria (City) v. Adams created a Charter right to shelter. Adams involved very specific evidence of a lack of shelter beds for the homeless, causing the homeless to erect a Tent City in a public park. In that case, the Court found an infringement of s.7 right to life, liberty and security of the person as a result of the lack of shelter. In the Court's view, the case was not about property rights. Nor was it about the right to camp in public spaces. It was about human dignity and self-fulfillment of the homeless, who had no alternative but to sleep in temporary shelters in a City park.

How does the Occupy movement situation differ? Although homelessness and poverty does appear to be a theme in the Occupy movement, it is certainly not the reason why all of the members are living in tents in a public space. Certainly the movement would be unable to produce the same kind of evidence as in Adams, which was persuasive in its breadth and depth. Does that mean the case is all about property rights, which is not Charter protected?

Schultes's reasons may provide an answer. By framing the issue as one of public allocation, Schultes was no doubt referring to the Supreme Court of Canada Committee for the Commonwealth of Canada case decided in 1991. There, the members of the Committee were handing out their propaganda at an airport contrary to airport regulations. The Committee members argued their s.2(b) freedom of expression rights were infringed. Although the Court agreed the freedom was infringed, they were split on various issues of the case. One of the issues discussed was the special use, if any, of governmental property as public space.

According to the Court, public space should not be treated like private property as the government held the property for the benefit of the public. Indeed, in Adams, Madam Justice Ross found the public included the homeless. However, the SCC cautioned on a formulistic view of a "public forum" analysis and preferred a contextual approach involving the balancing of the interests of the individual and the interests of the government. Thus, in Chief Justice Lamer's (as he then was) view when expression is restricted in a public place, the legal analysis must examine the

interest of the individual wishing to express himself in a place suitable for such expression and that of the government in effective operation of the place owned by it".

As it is public lands, Lamer, C.J. found it is the "citizens above all who have an interest in seeing that the properties are administered and operated in a manner consistent with their intended purpose."

What does this mean for the Occupy movement? This means as stated by Justice Brown, in granting injunctive relief to the City of Toronto, that "protestors have ample means left to express their message, including continued use of the park (but no structures or "midnight hours"), and other Torontonians can resume their use of the park" too. Therefore, the right to freely express oneself does not include exclusive use of the space chosen to do it. In other words, there is room in the sandbox for everyone.

In the end, isn't that a good thing? The more the merrier and the more who will hear the message to be conveyed.