In the face of a looming “Freedom Convoy”-style protest of its own this weekend, New Brunswick has moved swiftly to take what can only be construed as preventative measures.
But observers are questioning whether — in making it illegal to organize, participate in or offer other support for such a protest — the East Coast province may have driven over a line.
“I don’t agree at all with what (the protesters are) talking about, but I do like the fact that we’re in a free country and we have the right to protest,” Kerri Froc, associate professor at the University of New Brunswick’s Faculty of Law, said Thursday.
“Any time that the state tries to tamp down that protest, they have to do so in a way that is reasonable, that’s measured, that’s proportionate.”
The New Brunswick government revised its Mandatory Order for COVID-19 on Wednesday — a process it goes through every couple of weeks. This time, though, the move came ahead of a demonstration expected to hit Fredericton this weekend, in a show of support for the convoy now occupying downtown Ottawa to protest vaccine mandates and health restrictions.
Accordingly, there was a new twist to the government’s revision of its emergency order. Section 34 now prohibits the full or partial blockading of any roadway in the province and bans the gathering of people along any roadway “so as to create a safety risk.”
In enforcement terms, the revised order gives police the power to seize any motor vehicle involved in a blockade and to seize any supplies delivered in support of any such blockade. It also gives the province the power to fine individuals $3,000 to $10,000, and to suspend for 12 months the driver’s licence of anyone convicted of breaching the section.
The new measures are similar to those implemented in other jurisdictions, said Premier Blaine Higgs. Just prior to the convoy arriving in Ottawa, Nova Scotia enacted a similar emergency measures prohibiting protests blocking or partially blocking highways, specifically citing the highway near the New Brunswick border.
“It gives police the ability to act as necessary to avoid a situation like Ottawa,” Higgs said.
New Brunswick’s revised order, however, also contains a paragraph that bans participation, organization or financing or other support — including food, fuel, construction materials and “noise making implements” — for such a protest.
Higgs changed the order while at the same time announcing progressively loosening COVID restrictions for the province — because public health data indicated it, not because of the protests, he insisted. He held out the hope, though, that the coming easing of restrictions would take the air out of Fredericton protesters’ sails.
“I’m hopeful that protesters who are there for the right reasons will find no reason to be there. And the ones that do show up, we have to question why.”
Although New Brunswick’s revised orders may ultimately help to fend off the kind of occupation in Fredericton that has paralyzed much of Ottawa, questions have to be asked about both the orders’ platform and their legality, said Froc.
In the nation’s capital, anti-COVID restriction protesters have occupied the downtown core for almost two weeks, choking traffic in the downtown core, forcing many of the businesses there to close their doors and — until a recent court injunction — harassing the city’s residents with near-constant horn-blowing.
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There have also been reports of harassment of the staff of various businesses, of the desecration of war memorials and of protesters carrying flags with hate symbols, including swastikas.
Ottawa police have been roundly criticized for not being active enough at the beginning of the convoy; protesters got so thoroughly entrenched that police suggested that enforcement of the law is not possible.
The Emergency Measures Act in New Brunswick gives the province wide authority for emergency orders. If emergency measures are in place because of the pandemic, though, the question can be asked whether Section 34, which relates to protests, is closely enough linked to public health to warrant inclusion.
“If the protest was about an unrelated subject matter, could these terms still be wedged into the emergency order as it stands now?” Froc asked.
Froc said the other question is whether, given that Section 34 prohibits gathering in support of a blockade protest, or any kind of support of that protests, the restrictions are a proportionate response to the threat. The answer has implications not just for the weekend protest in Fredericton, but potentially for other, future protests.
“Governments are allowed” — under the Canadian Charter of Rights and Freedoms — “to limit rights, but it always has to be in service of an important objective,” said Froc. “I think we’ve got that here. (In Ottawa), the evidence there was that the noise level was equivalent to someone running a lawn mower in an apartment. So there’s the potential for harm.”
“But is it proportionate?”
That might be difficult to demonstrate in the case of charging people of providing support to a protest, she said. If a person donated $5 to a protest, is it proportionate for them to be fined $3,000 to $10,000, as the order seems to imply?
“I think a judge might have some difficulty with that,” she said.
Fredericton Mayor Kate Rogers said the concerns that the city has centre not around the anti-vaccine mandate protests, but the convoys that come with it, and the possible repetition of the problems caused by that convoy in Ottawa.
Fredericton police, in anticipation, have beefed up their numbers, calling upon nearby municipal police forces and the RCMP for resources. Rogers said she’s been assured that demonstrators will be restricted to an area around the legislature, and the streets of downtown will be kept clear of the convoy.
“Certainly everyone’s been following what’s been taking place in Ottawa,” said Rogers. “It’s been going on for a very long period of time, disrupting people’s day-to-day lives, the noise disruption, it’s impacted businesses, it’s impacted how people move around the city, which interferes with quality of life.
“But it also interferes with public safety and with business. We don’t want any of that in our city. We’re doing everything in our power to keep that at bay.”
Steve McKinley is a Halifax-based reporter for the Star. Follow him on Twitter: @smckinley1
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