Random law enforcement an invitation to others to try their luck

In the interests of avoiding confrontation, police did nothing when protesters from Extinction Rebellion Canada calling for climate action occupied the Johnson Street Bridge in October 2019 and refused to let motorists cross, with the exception of emergency vehicles, writes Lawrie McFarlane, who argues inaction in such situations encourages others.

When I wrote a piece criticizing (among other things) the refusal of local police officers to intervene when a band of thugs threw the statue of Capt. James Cook into the Inner Harbour, I received a thoughtful email from a reader who made this point: “As for the job of the police to keep the peace, in [the] incident that you name they were actually keeping the peace by not intervening.”

The same defence was offered a couple of years back, when law-enforcement agencies stood aside and let a group of protesters march north along the Pat Bay Highway for 22 kilometres.

Because they were allowed to occupy both driving lanes, they caused a massive traffic snarl.

Without question, some folks missed their ferry or their flight, most likely tourists unfamiliar with the back roads.

The defence offered was that police had met with protest organizers before the march and detected several “troublemakers” who were looking to create a confrontation. As a result, it was decided not to intervene.

Another such fiasco occurred in 2019, when protesters occupied the Johnson Street bridge and refused to let motorists cross, with the exception of emergency vehicles.

Same outcome. In the interests of compromise and avoiding confrontation, our police agencies did nothing.

However, I’m not here to argue compromise. I want to raise a deeper question.

At what point, and at what cost, are lawenforcement agencies obliged to enforce the law?

All of the incidents mentioned above were illegal. In the statue case, public property was destroyed. In the other two, no permit had been issued to allow these protests to occur, and both involved a breach of the peace.

In noted contrast, when three Extinction Rebellion protesters blocked Premier John Horgan’s driveway last year, they were arrested.

Likewise, several hundred people have been detained on southern Vancouver Island for protesting logging activities. How did that happen?

Because the company involved, Teal-Jones Group, went to court and got an injunction.

So is that the message? If ordinary citizens want to retain their basic freedom of movement, they either have to get elected premier, or go to court and get an injunction.

Here, as I grasp it, is how the law stands. Canadians have the Charter right of peaceful protest, but that right is constrained if a protest “disturbs the peace tumultuously.”

What does that mean in practical terms? Victoria defence lawyer Michael Mulligan is on record as saying: “A desire to protest affords no lawful authority to blockade bridges, highways or rail lines.”

And Section 423 of the Criminal Code makes it an indictable offence to compel “another person to abstain from doing anything that he or she has a lawful right to do.”

I would have thought that pretty well sums up road and bridge blocking.

Now clearly, there are shades of grey here. The police may be excused for failing to intervene if a protest is of short duration and no one is seriously impeded.

But there is more at stake. One of the fundamental premises upon which legal penalties rest is that they should act as a deterrent.

That is to say, you’re not just punishing someone because they broke the law. You are also deterring others who might try.

Without that moral reinforcement, what you’re left with is an arbitrary and capricious rule of law.

When police forces can pick and choose which statutes they will uphold, and which they will not, law enforcement deteriorates into random acts of whimsy.

You’re not, in effect, deterring anyone. Rather you’re inviting others to try their luck.

And that, pretty much, is where things stand, when it comes to policing confrontational protests.