It seems like there are a lot of protests going on in the world right now. In Canada, you cannot be arrested for expressing yourself in the form of a protest. You can, however, be arrested if police suspect you committed a crime while protesting. So, is freedom of expression a defence during protests a valid defence against crimes committed during a protest?
The right to protest is a fundamental freedom guaranteed under the Charter. Specifically, Section 2 protects freedom of thought, belief, opinion, expression, communication, peaceful assembly and association – among others.
But non-violent protesters still find themselves in handcuffs. How can this be?
Contempt of court
Well, a common justification for arresting non-violent protesters in Canada is obstructing justice. Common forms of protest include sit-ins, human shields and other forms of civil disobedience.
Sometimes, courts will issue orders to prevent people from blocking passage to specific areas. Anyone who disobeys the order can be charged with contempt of court. Contempt of court is a criminal offence punishable summarily.
Freedom of expression defence in protests
This is exactly what happened to two women arrested while protesting the Trans Mountain Pipeline Expansion in Burnaby. The case recently made its way to the BC Court of Appeal. Susan Smyth and Pia Massie were arrested for disobeying an injunction against physically obstructing or impeding employees or contractors of Trans Mountain at a site in Burnaby.
After Smyth and Massie were convicted of contempt of court at provincial court, a decision that was later upheld, the pair took the decision to the BC Court of Appeal. They appealed their convictions on the grounds that the Crown had failed to prove the requisite mens rea; the courts wrongfully dismissed their argument that their actions were protected under the Charter; and the provincial courts lacked jurisdiction to impose punishment for a federal crime.
The BC Court of Appeal dismissed the mens rea argument on the grounds that there was clear evidence the two women both admitted intentionally put themselves in positions where they obstructed access and both admitted they were aware of the court order.
Freedom of expression
Massie said she believed at the time the offence was a civil matter, “like being parked in the wrong place”. The appellants said the effect of the court order was to preclude them from exercising their Charter right to freedom of expression.
Did they have a point? The Court of Appeal did not think so. The appeal judge said: “It is settled law that, with limited exceptions, an order issued by a court must be obeyed unless it is set aside in a proceeding taken for that purpose.”
So, there are limits to Charter rights. Freedom of expression does not work as a defence to breaching a court injunction.
The Court of Appeal also dismissed the duo’s argument that the contempt of court charge is an invalid delegation of federal powers to provincial courts, saying it had no merit.
This case shows that court orders must be obeyed and not even Canadians’ fundamental freedom of expression during protests is a valid defence.