Law students from the University of Ottawa are filing dispatches for JURIST on the “Freedom Convoy” protest in Canada’s capital that has paralyzed the city for over a week. Here, 1L Mélanie Cantin reports.
Monday’s issuance of an interlocutory injunction by Justice Hugh McLean of the Ontario Superior Court of Justice has been met with relief by downtown Ottawa residents. It is hoped that the 10-day ban on the use of horns “anywhere in the City of Ottawa” will put an end to the harrowing noise residents have been enduring for the past 12 days on account of the Freedom Convoy protest.
Despite this laudable victory for the nuisance plaintiffs and all downtown residents, questions remain about whether the order can feasibly help in bringing the “occupation of Ottawa” to a swift and peaceful dissolution. While the parties will return before the Court via videoconference on February 16th to debate a motion to extend the injunction, much could happen in the meantime, and the court order itself provides limited means to address continuing issues with the protest.
The injunction gives the Ottawa Police Service (OPS) the power to arrest and remove anyone “who has knowledge of this Order” and who OPS has “reasonable and probable grounds to believe is contravening or has contravened” it. These more precise elements are left entirely to their discretion, and they have stated that an arrest for contravening the injunction can lead to either:
- a criminal charge for contempt (disobeying a court order) under 127 of the Criminal Code, or
- civil contempt proceedings under 60.11 of the Rules of Civil Procedure, which can result in fines, imprisonment, and additional court orders.
While this seems like a positive step towards taking some kind of action against the protesters, this approach is simply a duplication of an existing set of tools that OPS has had at its disposition the entire time. Indeed, a contravention of the Ottawa bylaw against noise, which specifically prohibits the use of horns “in a manner likely to disturb the inhabitants of the City” can result in hefty fines and a Superior Court of Justice order prohibiting the conduct. A breach of such an order would lead to one of the same two potential outcomes upon arrest: either a criminal charge or civil contempt proceedings.
This is not to say that the injunction does not play an important symbolic role as a potential deterrent towards protesters, nor that Justice McLean should not have issued it. However, the obvious duplication between the injunction and the city bylaw shows that the former may not be of much help in addressing the same issues that have existed relatively unaddressed for the duration of the protest under the latter. Protesters are still honking and are now revving their engines, as well as finding other ways to make noise, such as by slamming gas cannisters together, perhaps in attempts to avoid falling within the purview of the injunction’s ban. In light of these circumstances, it seems that relying on OPS to enforce the injunction and curb the incessant noise plaguing downtown Ottawa may be wishful thinking.
Unique challenges have obviously arisen for OPS regarding the removal of the trucks obstructing several downtown streets and the practical difficulties of identifying and arresting those who contravene the horn injunction. Nonetheless, these problems ultimately stem from a lack of preparedness on its part; indeed, security sources who spoke anonymously to The Toronto Star said that OPS Chief Sloly had been forewarned about the convoy’s arrival and was asked to set up a perimeter around the downtown core. His inaction on these points refleets the clumsy way in which he has handled the entire matter.
Sloly also failed to maintain an open lane on Wellington Street as he had assured federal officials he would do, thereby allowing total gridlock in front of Parliament. He allegedly opted not to enforce the Wellington opening on account of believing a claim from the convoy’s leadership that they would be leaving Ottawa after three days. Such errors stand out when considering the fact that similar protests took place in various other cities with fewer problems.
As for the protesters themselves, they do not appear to be explicitly discussing the injunction, beyond a tweet to that effect by convoy organizer BJ Ditcher. However, a livestream from Monday evening by the current leader of the Christian Heritage Party of British Columbia, Laura-Lynn Tyler Thompson, showed the convoy’s communications team discussing OPS response to the protests. The “urgent” conference seems in many regards to be an implicit discussion of the injunction’s potential ramifications. The primary speaker (name unknown) during the livestream remains critical of police overall, but claims that his and other protesters’ relationships with several individual OPS officers have been “extraordinary” and “really solid” (17:03-18:44). He also stated:
“We have a lot of [police officers] within our members, we have a lot of police support. Even active, we have a lot of police support out there, they just can’t say anything. I can tell you when we went to Coventry last night, there was no eye contact with the police officers. They were embarrassed by what they were doing.” (14:50)
Accuracy notwithstanding, such remarks erode public confidence not only in OPS’s ability to address the protest, but its willingness to do so. Between this and previous rumors of officers facilitating convoy activities and turning a blind eye to illegal activity, if Sloly and OPS are to do anything swiftly and decisively in the next few days, distancing themselves from these rumors would be a good place to start.
Whether actual enforcement of the injunction can occur in the upcoming days and on the weekend remains to be seen. Sloly has requested additional assistance to help with the convoy, especially with the threat of more protesters potentially showing up to Ottawa at the behest of the convoy’s organizers (timestamp 4:33-5:23).
