Protest bylaw goes too far

From Minneapolis, to Tehran, to Bangladesh, people are taking to the streets to protest against perceived injustices.

Peaceful protest is a critically important line of defence against the unjust actions of governments.

Incredibly, here in Winnipeg, some members of our city council want to put strict limits on that essential right.

The proposed safe access to vulnerable infrastructure bylaw, if passed, would be the most draconian law of its kind in Canada.

For example, the bylaw would ban any protest that obstructs traffic or uses sound amplification without a permit from the city, with heavy fines for non-compliance.

This sort of municipal bylaw would penalize people for exercising their rights to free expression and peaceful assembly. It would effectively give unelected city officials the power to shut down any protest of which they disapprove.

Coun. Evan Duncan said the quiet part out loud when he pitched the bylaw as a means to avoid the chaos that is happening in Minneapolis.

Why would we want to immunize any government from facing public protest?

Supporters say this sort of bylaw is necessary to protect vital infrastructure. But as proposed, it goes well beyond what has been enacted in other jurisdictions.

For example, bylaws in Calgary and Toronto are much more narrowly targeted. They apply to very specific spaces: child-care centres, places of worship and schools, in Toronto; libraries and recreation facilities, in Calgary.

Neither jurisdiction imposes restrictions on post-secondary educational institutions. Nor do they limit amplified speech or traffic disruption. They are aimed at very specific forms of conduct: actions that prevent people from accessing public spaces, or that target people on the basis of characteristics like race and religion, which is to say, those that are protected by the Canadian Charter of Rights and Freedoms.

The restrictions proposed in Winnipeg’s bylaw go well beyond any of this.

Its definition of vital infrastructure would forbid protests in just under one-fifth of the city. Keep in mind, 100 metres is the length of a football field. Protesters would have to allow twice as much distance from any designated spaces as a Canadian Football League punter can kick the ball. Why would Winnipeg need laws that are stricter than those anywhere else in Canada?

The proposal makes no sense.

As academics, we are particularly concerned that the proposed bylaw would have applied to post-secondary institutions.

The mission of colleges and universities includes promoting free expression, open debate and teaching the value of disagreement. Banning protests on campus would violate one of the core reasons these institutions exist. It would also prevent students and faculty from holding administrators publicly accountable. Do we really want to make it impossible for anyone to stage a protest anywhere on a college or university campus?

It is an open question whether a bylaw such as this one would survive a Charter challenge. But we can say with confidence that it would violate the basic spirit the Charter embodies.

In Canada, the right to protest, while not enumerated explicitly in the Charter, is nevertheless strongly protected through several interlocking rights at the heart of Section 2. This is the section that spells out our most basic freedoms. One of these is freedom of expression.

Canadian courts treat protest not just as a form of expression, but one that is especially valuable. This is because it is essential to political participation and democratic accountability. Another is freedom of association. The Charter protects the right to gather physically for a shared peaceful and expressive purpose, as part of this right to associate freely.

In Canada, our Charter does allow governments to impose limits on our rights, but only when the limits are demonstrably justified in a free and democratic society.

Winnipeg’s proposed bylaw clearly fails this test.

It fails because it works against the very ideals on which our free, democratic society is founded.

Neil McArthur, Arthur Schafer and R.J. Leland are all professors in the department of philosophy at the University of Manitoba.