Let's Block the Road!
When I was posted in the Okanagan in the 1990s I was answering phones in the detachment dispatch office. A caller from Summerland asked what would happen if he decided to take his protest sign down to the highway and conduct his own personal blockade. He expressed the opinion that if he did that the police would arrive quickly and if he did not move he would be removed.I couldn't argue his point.
This past week has seen a number of blockades of B.C. highways and other places, so I thought that it would be interesting to examine why groups were permitted to disrupt our everyday travels to express a point.
My first stop was the Guide to the Law of Protest published by McGrady Law of Vancouver. This document outlines some history of civil disobedience in B.C., examines a person's right to protest, outlines how to conduct yourself and how the law may be applied to you when you do.
Next, I contacted the Ministry of Public Safety & Solicitor General via the media contact information. All that they would say beyond the fact that the Motor Vehicle Act did not direct police to dismantle blockades was that the Ministry did not get involved in day to day police operations. When asked about setting government policy all further e-mail was ignored.
Government policy is published in the form of the Crown Counsel Policy Manual on Civil Disobedience and Contempt of Related Court Orders. This guides Crown lawyers in deciding whether they should prosecute protesters or not. I don't doubt that this guides police decisions as well.
Media relations with the RCMP in B.C. were helpful. They explained that each situation is evaluated separately and that a balance had to be struck between Charter rights, criminal actions, court orders and public safety. Where there is no court order, police can rely on the Criminal Code and common law powers in the event of violence or criminal actions by protesters.
Police resources to cope with the size of the protest group is without a doubt an important consideration.
Finally, the most assistance came from the B.C. Civil Liberties Association (BCCLA):
First of all, regarding the “free passage of traffic”, operating a motor vehicle is a privilege not a right.
Second, streets are blocked off for various reasons on a regular basis. Examples include activities related to the film industry, parades, marathons, and marches. Police are present to ensure that the scene is safe and the traffic is diverted. These events typically occur on main thoroughfares. A double standard applied in the case of lawful protest would be unreasonable.
Third, roads are public places in which political expression can take place. The rights to freedom of expression and assembly are enshrined in the Canadian Charter of Rights and Freedoms, and are necessary in a free and democratic society. Furthermore, the police have a duty to ensure a safe environment for members of the public to express themselves through non-violent protest and civil disobedience.
Finally, during the course of their duties, police are constantly balancing interests and re-evaluating their discretion. In the event of an emergency, police have the option to use their discretion to clear the way for an emergency vehicle. A court would likely uphold the infringement of Charter-protected rights to allow for the safe passage of an emergency vehicle.
A counter-protest to a blockade on Highway 19 in Courtenay did result in an arrest and an end to the blockade. The original protesters left out of concern for their own safety.
Returning to the inquiry that I mentioned at the start of the article, the BCCLA says that there is no difference between the right of the individual and the right of the group to protest, but I do wonder what would happen.
It's a Complex Issue
A lack of Government leadership on native issues over many decades is the problem. All political fuzzy talk for some time. Bureaucrats in Ottawa.
We both think Government is very poor at preventing traffic accidents by not enforcing traffic laws. It’s unpopular so they don’t. This is an obvious case of hands off-let the people decide what is safe. It does not work for those driving and hands off does not seem to work for our Indigenous community ,in general. Someone has to lead.
I don’t fault the Native community - our Government has not served them well. Hope the protests are a wake up call.
I’ve followed your blog for many years now and while most of your articles have merit, some of them - like this one is clearly biased and misrepresents the whole truth.
It’s absolutely ridiculous that when there’s a political will, theres a legal way - and never the other way around. Trudeau can’t order the RCMP to remove the roadblocks but he can order the RCMP to stand down from investing his participation in the SNC Lavalin scandal!?!?!
And the silence from Lawyers, Politicians and Police is telling where Canada is headed - especially when a Police Chief of Victoria BC (Frank Elsner) believes "Statutory law overrides common law”. (At 5:10 of the video) Most police officers knowledge of law comes from their short introduction at the Justice Institute.
Although the BCCLA is technically correct that “operating a motor vehicle is a privilege and not a right” your organization, the RCMP and the BCCLA all grossly misrepresent the truth and fail to identify the common law maxims and jurisprudence of the right to travel that underpins our democracy and inherent rights in Canada. The right of the use of the roads (not as a “motor vehicle”) is and will always be a right that no bureaucrat can remove. It goes as far back as the Magna Carta.
However it’s easy to fool a dumbed down nation with political and media deception while using identity politics to dismantle it’s history.
"The Right of the Citizen to travel upon the public highways and to transport his property thereon, either by horse drawn carriage or by automobile, is not a mere privilege which a city can prohibit or permit at will, but a common Right which he has under the right to life, liberty, and the pursuit of happiness." - Thompson vs. Smith, 154 SE 579.
While the RCMP say their “hands are tied” and that “its not as simple as it seems” there’s a very simple way to remove protestors from blocking roads - by using the laws provided in the MVA… (the police have no problem pulling this card in other situations..) Here’s one that I easily found applicable...
Depositing articles on highway
204 (1) A person must not throw, deposit, drop or leave on a highway a glass bottle, glass, nail, tack, wire, can or other thing or substance likely to injure a person, animal or vehicle on the highway.
(2) A person must not place, deposit or dump, or cause to be placed, deposited or dumped, garbage, swill, cans, bottles, papers, ashes, refuse, the carcass of a dead animal, offal, trash, rubbish or a noisome, nauseous or offensive matter in or on a highway, including a portion of the right of way of it.
(3) A person must not place, deposit or dump, or cause to be placed, deposited or dumped, rocks or dirt in or on a highway, including a portion of the right of way of it, without the consent of the party with jurisdiction over the highway at issue, which may be either the minister responsible for the administration of the Transportation Act, the council of a municipality or the governing body of a treaty first nation, or a person authorized by one of them to exercise the jurisdiction.
The government doesn’t own the highways. The government holds the highways in trust for the people. (Example: a trustee is holding your money, but has no jurisdiction to spend it without your consent, even if he thinks it’s in your best interest). The rules of Traffic Acts are there to regulate the use of highways in the public’s interest. But not to destroy your rights to use them. Traveling on public highway is a right, not a privilege.
Among the normal rights which are available to every British subject against all the world are : (1) personal safety and freedom; (2) one's good name; (3) the enjoyment of the advantages ordinarily open to all the inhabitants of the country, e.g., the unmolested pursuit of one's trade or occupation and free use of the highways; (4) freedom from malicious vexation by legal process; and (5) to one's own property. Rex v Sang Chong
"Complete freedom of the highways is so old and well established a blessing that we have forgotten the days of the Robber Barons and toll roads, and yet, under an act like this, arbitrarily administered, the highways may be completely monopolized, if, through lack of interest, the people submit, then they may look to see the most sacred of their liberties taken from them one by one, by more or less rapid encroachment." - Robertson vs. Department of Public Works, 180 Wash 133, 147
"...For while a citizen has the right to travel upon the public highways and to transport his property thereon, that right does not extend to the use of the highways, either in whole or in part, as a place for private gain. For the latter purpose no person has a vested right to use the highways of the state, but is a privilege or license which the legislature may grant or withhold at its discretion..." - State v Johnson, 243 P. 1073, 1078.
Other U.S. court cases that confirm and point out the difference between the "right" of the citizen to travel and a government "privilege" are - Barney v Board of Railroad Commissioners; State v City of Spokane, 186 P. 864.; Ex Parte Dickey (Dickey v Davis), 85 S.E. 781.; Teche Lines v Danforth, 12So.2d 784.
So in summary, if you’re gonna be an “authority” on this matter please, at the very least, provide some balanced journalism and historical context behind the economic-political games that are being played at the highest levels of our nation. Don’t be part of the problem misinforming people with the idea that “authority is truth” rather than “truth being the authority”. Otherwise you’re no different than Facebook.
Not an Authority
I try my best to present a balanced article every time I write. Like any human, sometimes I fail. That's why I encourage comment here on the site.
If your citations were in reference to current Canadian law rather than the laws of the United States, I would be much more comfortable that it was something that applied to me here in this country. Ditto for the rights of British citizens.
Our mobility rights as defined by the Charter of Rights and Freedoms don't appear to include unfettered use of the highways.
Rex v Sang Chong dates from 1909 and I suspect is not applicable to this situation.
Where does the BCCLA refer to the operation of a motor vehicle being a “privilege”? I am no lawyer, but Kyla Lee refers to the operation of a motor vehicle being a right which is conferred once the individual has met some qualifications. There’s definitely a big disparity regarding opinions on impeding traffic. I fall into the camp that hell should be frozen over before a road is spontaneously blocked. There’s a difference between planned blockages and those that occur without notice.
I'm Not a Fan of Blockade Protests
The caller from Summerland felt likewise. There's quite a difference between blockading which causes frustration and protesting which informs and educates. Yes, roads are public places. Use it for a political protest. March if you like. Waves banners. Hold up signs. Sing songs of injustice. I have a hard time wrapping my head around the idea of one group denying the use of a roadway as a form of political expression. Who benefits and how?
I live in Cumberland. Driving to Wal-Mart I slowly passed the protest. It was well marked. Protesters appeared friendly. I didn't feel unsafe. I choose to think of these protesters as friends and neighbours. I want them to feel safe as I drive alongside.
The BCCLA gives some points which are easy to argue against. And if this information is read as the "Gospel" then we all should be concerned.
The general public understands that operating a vehicle is a privilege. This is not to be confused with using a roadway. "Freedom of movement" is a right.
If a portion the highway was shut down for a film shoot they'd leaved when they finish. We would know about it in advance. They would have has Ministry approval I imagine. There would be economic benefits. At least millions of people could enjoy the movie.
Parades such as the Victoria Day Parade wouldn't follow a portion of the highway. A marathon wouldn't occupy the highway space. There would be permission. Parades are much anticipated. Spectators want to see a parade in their downtown core.
The Times-Colonist Run is well publicized. It is for the enjoyment of citizens. Permission is granted. The benefits of the TC Run are common knowledge.
Marches could follow the highway along the Ginger Godwin Way I suppose. This wouldn't benefit their supporters who'd have to drive onto the highway, park, then take out the lawn-chairs.
Maybe denying the use of space is logical. Say for example, if a university president's office is occupied with students during a sit-in. The president and his staff are inconvenienced. Perhaps blocking all entrances to the BC Legislature is a fair protest. The legislature is a political symbol. In the tv news I saw that MLA Lana Popham was turned away. But she gets paid either way. The staffer who shimmied up the steps was brave, but foolish. He was going to be paid either way.
These protesters sneaked onto the highway at midnight. They sought to deprive drivers not of the "privilege," but rather, the right to use the highway. Nobody knew when or where this protest would start. The protesters to their credit, left the scene when the situation became dangerous.
Roads and public places have many different uses. When one group occupies them in order to deprive the use to folks going on with their daily business this becomes an abuse of political protest.
Protesters, or Anarchists?
Y'know, I can understand legitimate protest. Heck, I've participated in this activity. Mahatma Ghandi used civil disobediance to achieve his peaceful ends, and showed the authorities how well this can work.
But these 'protesters' - aparently taking their direction from some unaccountable native seniors (not their legitimately elected band leaders) - are doing their utmost with traffic and rail blockages to bring this country down.
It's time that these folks were booked and charged, and prohibited from inflicting their internal native issues on everyone else. This is not Canadian.