What’s the ‘reasonable’ limit on protest in a public health emergency?

How do you distinguish between anti-maskers intending to flout health restrictions in the name of their “freedom” to infect themselves and others and organizers of a COVID-safe car rally intended to protest violence against Palestinians? You don’t, say police. But should they?

Sign-carrying anti-mask protestors chat with bystanders during 2020 protests. Photo: Yvette d’Entremont

On the morning of Friday, May 14, 2021, Nova Scotia government lawyers — armed with affidavits from Dr. Robert Strang, our chief medical officer, and Hayley Crichton, the department of justice’s director of public safety and investigations — appeared before Supreme Court of Nova Scotia Justice Scott Norton.

“There was a protest planned for this weekend [by] a group of people who don’t agree with wearing a mask or following restrictions,” Premier Iain Rankin told a news conference later that day. “So, government went to court to seek an injunction, and that was granted today.”

The immediate purpose of the injunction was to ban a rally on Citadel Hill the next day by an anti-mask group calling itself “Freedom Nova Scotia.” The planned protest — not the group’s first — had been widely publicized on social media and its organizers easily identifiable.

Despite that, government lawyers sought an ex parte injunction, meaning they didn’t have to let the group know about their application in advance. That meant the judge heard only one side.

“Their plan to gather in person in large numbers, without social distancing and without masks, in contravention of the public health recommendations and orders, shows a callous and shameful disregard for the health and safety of their fellow citizens,” Justice Norton declared in granting the government’s application. He said groups like Freedom Nova Scotia are “uninformed or willfully blind to the scientific and medical evidence.”

It is hard to disagree with any of that.

And yet the judge didn’t just ban Freedom Nova Scotia’s rally, which — based on past experience — would have been mask-free as well as up close and un-socially or physically distanced, making it a public menace during this latest COVID wave.

As Rankin himself noted during his news conference, it was an injunction “preventing this group and any other” from publicly protesting against almost anything in almost any way.

To make matters worse, the court’s order was not time-limited. It remains in effect “until varied by the court or removed by a further court order.” As the Canadian Civil Liberties Association’s director of fundamental freedoms, Cara Faith Zwibel, noted, even “discussing [possible protests] on social media appear to run afoul of this overbroad order.”

Halifax police didn’t waste any time brandishing the injunction.

The next day, officers issued 11 summary offence tickets to people allegedly violating health protocols on Citadel Hill, where 50 anti-maskers had shown up despite the injunction.

Later that same day, “significant police resources” were also deployed to break up what had been billed as a “COVID-safe car rally” protesting Israel’s treatment of Palestinians. Alaa Darwish, one of the participants in the 200-car caravan told CTV News the protesters planned to gather in “bubbles” in individual cars at a parking lot at Saint Mary’s University before driving down to Pier 21. “We didn’t want to do anything that would violate these COVID-19 guidelines, the six-foot social distancing stuff, so the car rally was the best option.”

Eleven more summary offence tickets issued. One arrest.

“The same methodology was applied to ensure the community is kept safe,” Police Chief Dan Kinsella insisted after the fact. The Middle East rally “was identified as an illegal gathering. The individuals there were dealt with to ensure public safety.”

It will be interesting to see what more we learn when — if — these cases end up in court.

But there are things we know already.

When the anti-mask group announced an earlier rally on May 1 — with the equally clear intention of flouting all health restrictions in the name of their “freedom” to infect themselves and others — the police went out of their way to avoid a confrontation, or even issuing tickets. Explained a police statement:

Our officers worked with the organizers for days leading up to the event. That proactive work led to the prevention of a march, which had been originally planned to a different location. HRP officers were present throughout the event, used their best judgment to contain the event, averting a more widespread public safety challenge. Beyond that, we are unable to comment on the details of our tactics and specific steps we took.” [My italics.]

Contrast that with the “significant” deployment of police used to break up last weekend’s Middle East rally, which the organizers had gone out of their way to make COVID safe. No “best judgment” there.

It is also interesting to note the actual charges in both of the most recent rallies (with the possible exception of the one arrest on so-far unspecified charges) were summary offence tickets of the sort police have been able to hand out since the beginnings of the health emergency.

In other words — except as an intimidation tactic — the police only used powers they already had.

So why the injunction? The logic for the injunction was to prevent a rally where participants intended to violate health protocols in a way that intentionally put them — and us — at risk.

That makes sense. But the broad brush of the prohibition is over-reach.

The May 14 order is “a two-handed axe where a scalpel would have sufficed,” as the CCLA’s Cara Zwibel put it in a letter to Rankin and the province’s justice minister, Randy Delorey. Nova Scotia’s injunction, she added, “is not a carefully tailored minimal restriction on protected rights. It is a severe violation of the freedoms that are fundamental to a functioning democracy.”

British Columbia and Alberta courts, she noted, issued similar orders to the one in Nova Scotia but tweaked them to protect the right to peaceful — and safe — protest.

The association has offered to work with the province to modify the injunction’s “exceptionally broad terms,” she said, but will take the government to court if necessary.

Responded Delorey’s justice department in its best Father Knows Best:

Nova Scotia is in a public health emergency. Our collective responsibility is to keep everyone safe. People have a right to protest, but there are times when reasonable limits on those rights are necessary.

But what is a reasonable limit? And how much unchecked power should the government have after 15 months of an ongoing public health emergency?

A version of this column originally appeared in the Halifax Examiner

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