Demonstrators don't have unlimited rights to clog up downtown, experts say

Ottawa's police force has told city council that they cannot legally prevent more large trucks from moving into and around the downtown in protest of COVID-19 mandates, but some constitutional experts disagree.

Constitutional law experts say police could restrict trucks

Trucks are parked on Wellington Street and the sidewalk during a rally against COVID-19 restrictions last weekend. Two constitutional law experts say the demonstrations could now be removed without violating the Canadian Charter of Rights and Freedoms. (Justin Tang/The Canadian Press)

Ottawa's police force has told city council that they cannot legally prevent more large trucks from moving into and around the city's downtown, but some constitutional experts disagree.

After a week of loud horns and closed streets, residents are girding themselves for a second weekend of trucks arriving in the capital to protest COVID-19 public health restrictions, joining those who have been set up near Parliament Hill.

One group says it will keep protesting until the federal government shows it will end all COVID-19 mandates.

At a briefing Wednesday, city councillors repeatedly asked police executives how they planned to keep trucks out of the capital this weekend.

Capital ward Coun. Shawn Menard asked that residential areas in particular be free of diesel fumes and horns.

Barrhaven Coun. Jan Harder pressed too, asking why police wouldn't erect barriers on the highways entering the city to restrict new traffic.

WATCH | Protesters building a shed is latest aggravation for residents:

Tensions rise as Ottawa protesters refuse to leave

2 years ago
Duration 4:19
Ottawa residents have grown more frustrated as protesters outside Parliament Hill refuse to budge and start building a structure. Police have started handing out tickets, but it’s unclear what more they will do.

Chief Peter Sloly told her he could not seal off a city. 

"One of the fundamental charter rights is freedom of movement, so to deny freedom of movement to people who are coming to express their charter rights, I don't have a lawful authority that I'm aware of to allow me to do that," Sloly answered.

He told council police have restricted access points but don't want to block emergency services, health-care workers, and deliveries. 

Acting deputy chief Trish Ferguson said while Ottawa police "do not have authority to prevent trucks from going into certain areas," they do plan to erect cement barriers at some points downtown.

Blocking roads for 'days on end' unacceptable

Professors who study the constitution, however, say Canadians' freedoms of assembly, movement and expression under the Charter of Rights and Freedoms are not absolute and the demonstration downtown — which became much smaller during the work week — has crossed the line because of the harm it's causing.

Errol Mendes, a professor of constitutional and international law at the University of Ottawa, said while he's a "great proponent" of freedoms of assembly and expression that allow protest, all of the charter's freedoms and rights are subject to the very first section.

That section allows the government to impose reasonable limits, he said.

Protesters rally on Wellington Street near Metcalfe Street Feb. 2, 2022 during a long-running protest against COVID-19 rules. (Michael Charles Cole/CBC)

Emmett Macfarlane, a professor in the University of Waterloo's political science department, agreed.

There's no clear rule in law for when an acceptable protest becomes unacceptable, he said, but the demonstration in Ottawa has "flipped across the line" as residents are unable to go about their daily lives.

"Blocking an intersection for 20 minutes if you are engaging in a parade down the street is going to be acceptable in a democracy," said Macfarlane. 

"Blocking major thoroughfares for days on end is generally going to be unacceptable."

If police were to try to safely remove protesters, it would be upheld under the Charter, he said.

Trucks park in front of Parliament Hill in protest of COVID-19 rules across Canada on Wednesday. (Christian Milette/Radio-Canada)

Cordoned areas in past protests

Many residents and local councillors have asked why trucks were able to make their way to Parliament Hill in the first place.

Sloly explained that police did try to get many trucks to park in lots outside of the core, and many did.

Macfarlane said it would have been unreasonable last week for police to stop trucks and question drivers entering the city, unless they had reliable information about a threat.

A police officer with a red 'POLICE LIASON' label on his back talks to someone in a truck in a city in winter.
A trucker speaks with a police officer as protests against COVID-19 rules continue in Ottawa Feb. 2, 2022. (Blair Gable/Reuters)

Cordoning off a smaller area is another matter, and both professors say it's reasonable to keep trucks off Wellington Street at Parliament Hill or restrict them from residential streets.

"I'm just stunned," said Mendes. "I don't call myself a security expert, but I'm looking at what history has shown to be possible to prevent the harms to local communities [and they've included] preventative strategies of cordoning off certain areas, putting [up] security fences."

Fences were used at the G20 summit in Toronto in 2010, where Sloly was a deputy police chief, although both Mendes and Macfarlane agree the "kettling" of protesters was a problem.

In recent years police forces have learned from those experiences and have been "more patient," Macfarlane said. 

"But there is such a thing as being too restrained," he added.

On Thursday morning, police released a statement citing increased enforcement including issuing some 30 parking tickets — eight for unnecessary noise from honking horns.