Trudeau, Singh want to criminalize protests that block hospitals. But can they?

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Liberal Leader Justin Trudeau’s pledge on Monday to criminalize protests that block hospitals and other health-care facilities would be entirely within the government’s legal rights, expert say, with any challenges to such a law likely to fail.

Trudeau made the promise as demonstrators gathered outside hospitals across the country to protest COVID-19 health policies, with patients and health-care workers sometimes having to be escorted through the crowd by police to protect their safety.

Constitutional law experts agree that such a law would still abide by the Charter of Rights and Freedoms — provided it doesn’t go further than protecting access to health care, which remains an essential service.

“A blanket ban on protests would be difficult to defend in court,” said Joel Bakan, a professor in the Peter Allard School of Law at the University of British Columbia.

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“But I think a narrower ban that ensured that protests were not interfering with patients trying to access hospitals and doctors and ambulances and whatnot would almost surely be upheld.”

NDP Leader Jagmeet Singh has similarly promised to criminalize any blockade to accessing health care, as well as any assault of health-care workers.

Under the Liberal plan released Monday, new legislation would make it a criminal offence to intentionally block access to any healthcare services building, including vaccine and abortion clinics. Intentionally intimidating or threatening a health-care worker would also become a criminal offence.

Bakken and other experts explained that while Section 2B of the Charter allows freedom of speech and expression, Section 1 allow for “reasonable limits” on those freedoms — and blocking hospitals would not qualify for an exemption.

Clare McGovern, a political science lecturer at Simon Fraser University, says a law based on the Liberal and NDP promises would “absolutely” be challenged, but cited Section 1 as the main reason why any challenges would likely be dismissed.

“These protesters would already be on shaky ground if they tried to argue their freedom of peaceful expression is being threatened, because much of what we’ve been seeing has not been that,” she said.

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“But even if the court said ‘okay, your freedom of expression is being infringed,’ they would ask the government if they are justified in this law. And I think the government would be on solid ground, because they would say they’re protecting access to health care. And courts are already very sympathetic to that cause.”

 'Liberals pledge to outlaw blocking access to health-care facilities' 2:12 Liberals pledge to outlaw blocking access to health-care facilities

Liberals pledge to outlaw blocking access to health-care facilities

Many experts cited the “buffer zone” laws around abortion clinics passed in the 1990s by some provinces and cities, including in British Columbia and Ontario, that could provide legal precedent or a roadmap for writing the new federal law.

Such laws, which were passed in response to protests and so-called “sidewalk counselling” of abortion patients, have been upheld in court despite repeated legal challenges. Even when B.C.’s provision on sidewalk counselling was repealed, it was reinstated on appeal months later.

SFU criminology professor Colton Fehr points out that in the case of hospitals, as it was with abortion clinics, the point is to reinforce that the right to public safety supersedes one’s right to protest.

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“Whether or not you agree with someone’s objectives when they protest, the whole idea of protesting is just as fundamental to a democratic society,” he said.

“But at the same time, certain protests can have extremely damaging effects. And I think you’ve seen that with some of these protests that we’re seeing at hospitals today.”

 'Protests against pandemic protocols, vaccine passports held at Canadian hospitals' 2:18 Protests against pandemic protocols, vaccine passports held at Canadian hospitals

Protests against pandemic protocols, vaccine passports held at Canadian hospitals

As for criminalizing the threatening of health-care workers, Section 423 of the Criminal Code already contains provisions against harassment and threats that were originally put in place to criminalize stalking.

While that could also apply to health-care workers, experts say having specific language in place helps further protect certain people and actions — and looks good politically for whoever introduces such new laws.

“We’re in the middle of an election … and you don’t get votes by saying, ‘Well, the Criminal Code already covers that issue,'” said Margot Young, a professor at the University of British Columbia’s Peter Allard School of Law.

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“You get votes by saying, ‘We appreciate this harm and we’re going to give it specific, focused attention.’ And it seems to me that’s what he’s doing now.”

Young also pointed to the enhanced security laws passed in the wake of the Sept. 11, 2001 terrorist attacks in the United States: although airport and border security had already been legislated, the new laws spoke to “the politics of the time.”

In this case, she said a new law could help direct rallies to “more appropriate” sites like outside federal government buildings or constituency offices, where protesters could take their message directly to policymakers.

Some health-care workers on Monday, exhausted after 18 months of working on the front lines of the pandemic, called the protests “a morale blow” and “frankly disgusting.”

Constitutional law experts agreed, with Bakan from UBC saying it was “abhorrent” that patients and health-care workers feared for their safety.

Even if the motivation for Trudeau and Singh is political, Young said their pledges to crack down through legislation makes sense.

“(Trudeau) is very directly responding to a lot of voters who are fed up with the images of ambulances not being able to get through to hospitals, and are generally fed up with what they understand to be just selfish, entitled behaviour on the part of those who are opposed to vaccination,” Young said.

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“That being said, we don’t know yet if the legislation we’re proposing will address this properly or go too far. We don’t have any details. And the constitutionality is in those details.”

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