Protests: Where’s the line?

This past Friday marked the end of the most recent wild horse cull in Alberta. During that cull, five protestors were arrested and charged with mischief. It begs the question, when a group protests, what can and cannot be done?

The answer, as ever, is typically “grey”, but here are just a couple of Canadian decisions on the issue of protests. These protests, like those that shadowed the wild horse cull, were conducted on Crown land, and were protests against action that was legally permitted.

In Nalcor Energy v NunatuKavut Community Council Ltd. a group of protestors opposed the construction of hydro-electric stations. These protestors initially held peaceful protests outside of the construction area but their activities eventually escalated toward a blockade which prevented access to the worksite.

The construction company, Nalor Energy, was contracted to build these stations pursuant to lawful authority granted by an order in council as per the Environmental Protection Act.

The court in Nalor noted that the protestors had a Charter-protected right to protest. However, the interruption to Nalor Energy’s operations amounted to a risk of irreparable financial harm (primarily because of the very unlikely chance of recovery of money damages from the protestors). By blockading the construction site, the protestors had interfered with a lawful exercise of rights and an injunction was issued preventing them from engaging in specific blockade-related activates.

The court’s ruling sought to strike a fair balance between the right to a peaceful protest and the right to undertake lawful construction activities. The court required Nalor Energy to construct a safety zone adjacent to the construction area to allow the protestors to exercise their Charter rights.

The lesson from Nalor is that whenever a person is exercising lawful activities that are authorized by statute or regulation, protestors must avoid direct interference with the exercise of these activities. In other words, if the act of protesting has a direct or material effect on the activity in question (i.e. unreasonable delay or financial costs) then the protest activities causing this effect will likely be prohibited by an injunction.

Another case illustrating the application of the above principle is International Forest Products Ltd. v Kern. In Kern, International Forest Products Ltd. was lawfully authorized to harvest timber on certain Crown lands. Protesters sought to bring public attention to these activities. Their interference escalated from peaceful protests to vandalizing access roads, removing boundary markings and standing in close proximity to trees.

International Forest Products Ltd. was successful at obtaining an injunction restricting access by the protestors to the area. The court stated that “the protestors are free to exercise their views and protest in any lawful way they wish but they cannot engage in unlawful activities that deny or affect the capacity of another member of the public to exercise a lawful right.”

Furthermore, one of the protest leaders was arrested by the Royal Canadian Mounted Police and charged with mischief. The court reasoned that the power to charge a person with a criminal offence was the proper jurisdiction of the Attorney General and the court would not interfere. The court’s purpose is to resolve a civil dispute between two citizens.

In Kern, the court held that an injunction was appropriate because of the obvious safety hazards to both the workers and protestors as well as the financial costs incurred by International Forest Products Ltd. in the exercise of a lawful right that had become extremely difficult to exercise due to protest activities.

A protest, therefore, should bring public awareness to the issues or actions complained of, but should not directly or materially impact on the legal rights of others.

By James Early.