Brian Bird
Brian Bird spoke 8 times across 1 day of testimony.
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Brian Bird, Prof. (Law – University of British Columbia)
Thank you very much, Dean Leckey. So the topic of democratic participation, how and when individuals who belong to a democratic society contribute to the democratic governance of that society raises several complicated and nuanced considerations. Participation in a democracy can take many forms: voting, running for office, writing to your elected representative, starting or joining a political advocacy group, and so forth. But for today, our focus in on protest as a form of participation in a liberal democracy, the idea of a right to protest in such a society, and when that right can or should be limited. So in these brief remarks, I’ll offer some reflections on the added value of protest in a liberal democracy, leaving the matter of a legally protected right to protest and how that right can be limited, for a later stage of our discussions. So it seems rather uncontroversial to suggest that protest, in the form of rallies, marches, demonstration, sit ins, et cetera, is part and parcel of democratic life. Protest may, at times, test certain commitments that are said to be hallmarks of a liberal democracy, but I think it would be difficult to find widespread support for the notion that peaceful non-violent protest is untethered to democracy or that this activity should be done away with as a form of democratic participation. And in general, I think the occurrence of protest is a marker of a vibrant democracy in which citizens are invested in how they’re being governed and how their society ought to change. Even where protests might be a response to a perceived departure from democracy, these protests are still a form of democratic participation, as they aim to perhaps rescue or preserve democracy and democratic institutions. Citizens coming together to publicly manifest their support for or opposition to this or that cause, issue, law, court decision, or some other current issue of public interest, is a normal feature of democratic life. So much so that it would be perhaps unsettling, from the perspective of a society’s democratic credentials, if protests were to become an endangered species of democratic participation, and even extinct. And that idea invites us to think more about the added value of protest to our society, to democracy. It’s one thing to say that protests are common place and accepted as normal in a democratic society, but how do they enhance the practice or project of democracy? And perhaps history and hindsight might help us here. It wouldn’t take too much time to be able to create a list of protests or activities akin to protest that were either instrumental in effecting transformative change for a society, or significant from the perspective of raising within that society, and perhaps in other societies that take notice, of injustice, inequity, or violations of human dignity. So the civil rights movement in the United States, for example, comes quickly to mind. Now, scientific measurement of the effect of protests like these on the societies in which they occurred, as well as on the other societies that may have taken notice of those protests is difficult to provide, but it seems fair to suggest that these and so many other protests over the course of history have accelerated the pace of change in hearts, minds, and laws alike. So the value of protest in the pursuit of a society that is more just, equitable, and protective of human dignity might be easier to perceive through the rear-view mirror, so to speak, but we can choose to apply these lessons of the past to protests we witness during our lifetime. The protests we ourselves witness could be part of a longer arc of positive change that is not entirely perceptible to us at the time the protest is occurring. They may also turn out not to be part of that kind of change, but our inability to definitively know either way when the protest is underway suggests that we should perhaps err on the side of permitting protest. Still, some of us might say that instead of protesting, we should opt for less disruptive and disconcerting forms of democratic participation: voting in elections, writing to your elected representative, publishing an opinion article in the newspaper, launching media campaigns for a cause, and so on. And one response to this proposal would be that protests, owing precisely to its uniquely disruptive and perhaps disconcerting characteristics, may, in certain cases, be far more effective than other methods of democratic participation. It may even be true that in certain cases, protest is the only method that stands any chance of sparking the change that is desired. It’s hard to imagine, perhaps, the civil rights movement in the United States having succeeded simply through writing letters to Members of Congress. Protest, in other words, might be the only meaningful way for certain voices and the message they carry to be heard by individuals in the halls of power. Without protest, the desired change might take longer to come about in the order of years, decades, or even longer, or the desired change might never come about. Much more could be said about the added value of protest to democracy, not to mention the value of protest to the human condition and spirit, but for the sake of time, I’ll mention only one more now. It could be called the pressure cooker rational, allowing citizens to come together to peacefully express discontent over how their society or other societies are governed allows these citizens, and even those citizens who agree with the protest, but can only watch on television or social media, to let off steam and be heard. Forbidding or unduly expressing this outlet for citizens might, sooner or later, cause the pressure cooker to explode. Just to close, perhaps the greatest obstacle to appreciating the democratic value of protest is our own personal opinions on the aim or cause of a particular protest. When we disagree with the viewpoint animating the protest of the day, our opinion of protest as a form of democratic participation may also diminish. And the reverse also might be true. When we agree with the complaints of the protestors, our affinity for protest itself may increase as well. And this dynamic seems to come to the surface when we opine on how long a given protest should be allowed to last or the degree to which restrictions should be imposed on the time, manner, and place of the protest. I suspect we often afford more or less latitude on these points, depending on how sympathetic we are to the views animating the protest at issue. To close, I would just note that it takes a major dose of even-handedness and tolerance to express support for peaceful protest, even when we vehemently disagree with the reason for this or that protest, or the views that the members of a protest hold. And yet in Canada, this ideal, this even- handedness and tolerance, seems to be our aim in a free and democratic society committed to maintaining a public square that is open to all its citizens and apart from exceptional circumstances, the unhindered expression of their core convictions. So I hope these reflections will aid our conversation today as we explore how protest is and should be protected, as well as limited under Canadian law. Thank you very much.
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Brian Bird, Prof. (Law – University of British Columbia)
Just a couple of quick comments. Thank you, Professor Mathen, Professor Cameron for all the comments so far. And in listening to more recent remarks, it does seem to me that this addition of this adjective of peaceful, so far I’m drawn to this notion that perhaps the drafters are trying to point us to, in a way, what it doesn’t protect. And in that, just thinking of the kind of natural antonym of peaceful being violent, or violence, so it doesn’t protect violent assembly. But I need to think more about this, and the comments are making me think more about that. One thing I would also note, that this approach has been suggested by the City of Ottawa, perhaps using harm as a way to assess whether the assembly is protected or not. It does seem to me that, at least just from a purely -- from an application perspective, that determining what’s violent, as opposed to non-violent, seems to be a bit more manageable, or easier to identify, perhaps, than harm versus -- harmful versus not harmful. So even from a kind of just a linguistic text, to maybe pulling us to what -- pointing us to what the protection does not cover, I’m also drawn to the notion that harm is just, indeed, seems to be a very difficult or can be a challenging concept to apply, whereas violent versus non-violent seems to be a bit of a brighter line. I just wanted to mention on the section 1 standpoint, this idea of limiting peaceful assembly, just given what has been said so far about the value of assembly and protest to democratic participation, one of the lesser kind of interpreted phrases in section 1 is this idea of a free and democratic society, this notion that all rights and freedoms in the Charter can be limited when those limits are prescribed law, when they’re reasonable limits, and then finally when they’re demonstratively justified in a free and democratic society. Perhaps this discussion also invites us to think more about what that phrase, free and democratic society, especially the democratic part, means in terms of does that somehow animate the threshold or the bar which a statement needs to reach? And even the word “free”, as well, given that that word points to, has a particular resonance with freedom in a fundamental freedom. So just maybe thinking a bit down the road of our discussion of section 1, that that phrase of free and democratic society seems to potentially have a lot of -- may have much to say or a lot to say in this context. I’ll just pause there.
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Brian Bird, Prof. (Law – University of British Columbia)
On the conscription point, or imposing one’s assembly on another, it does seem to me that built into the protection of the guarantee is this notion of voluntary assembly, of you wanting to be your own free will and not under duress, or not coerced or conscripted, being a member of that. So I think the notion of not imposing one’s religion on another in terms of the freedom of religion context, does seem to have a lot of purchase here as well. On the question of threats of violence, strikes me that, you know, if an assembly is occurring and it’s public and the authorities are aware, of course can monitor for prospects of violence. Is there a point at which the threats of violence have transformed into where the violence is inevitable, the authorities know that it’s going to occur, maybe they have intelligence that they know that it’s going to occur on a certain -- start at a certain date and time, or they have very strong evidence or objective grounds for that. You could arguably say at that point that maybe it’s now no longer peaceful, such that it’s no longer captured by the guarantee. Alternatively, it could be seen as still being peaceful, because the violence hasn’t yet started, and any kind of intervention, which might well be justifiable to avoid what is violence that is forecasted to start, would indeed be a limit on a peaceful, still peaceful assembly, but one that would be considered under section 1. So I’ll just pause there.
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Brian Bird, Prof. (Law – University of British Columbia)
Just building on Professor MacDonnell's point, I think that's very important to the kind of social media face on the media face of a assembly versus the -- through the potentially different institutions on the ground or perhaps the skewing effect that you talked about, it seems a very important factor. And I just wanted just to qualify my remarks a little bit before, when I said if there -- threats of violence are -- have risen to the level that now they're going to be inevitable, the violence is going to occur or is expected to occur, it may not be that it animates the entire assembly, it may be that, you know, out of an assembly of a thousand people there is evidence that five people, whatever the number might be, a very small percentage themselves are going to kind of go low, sort of speak, and enter into violence, while the rest of the assembly has no interest in that whatsoever. So that's another part of the conclusion as well, is you then have a more individual focus in holding those individuals accountable and saying that the assembly still, by definition is still peaceful, or do you say that it's now become, given the grand scheme of things, unpeaceful or non-peaceful assembly across the boards? So that's another consideration to bear in mind.
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Brian Bird, Prof. (Law – University of British Columbia)
Thank you, Dean Leckey. So in these comments, I just want to kind of intensify or amplify the radar with respect to how the Charter and the Emergencies Act converse. And so most of the commentary on the Federal Government’s use of the Emergencies Act this year has focused on whether the circumstances in Ottawa last February amounted to a public order emergency. In other words, whether the Federal Government was legally entitled to invoke the Act. This is, of course, a very important question for this Commission, but it’s also not the end of the story. This Inquiry is tasked with investigating the circumstances that led to the declaration being issued and the measures taken for dealing with the emergencies. So even if the invocation of the Act was lawful, what about the legality of the measures that followed? This question looks beyond the issue of whether the Federal Government, either at this moment or any other moment in history, can lawfully invoke the Act. It certainly engages the downstream issue of whether measures taken after invocation fall within the scope of powers granted by the text of the Act, but the legality of these measures also implicates foundational considerations within the Canadian legal landscape. It invites us to think about how the Emergencies Act converses with the Canadian Constitution. And in particular, as we’ve been discussing today, the Canadian Charter of Rights and Freedoms. And so it could be perhaps tempting to think that the Act, given its substance, and purpose, and the stakes transcends, or somehow transcends the Charter. Put differently, if the Federal Government concludes that a given situation satisfies the criteria that permit recourse to the Act, its invocation, some citizens, maybe even the Government itself, might slide into thinking that practically anything goes in responding to the emergency and that the Charter need not be consulted. But this way of thinking would be incorrect. The starting point is that every instance of state action in Canada must comply with the Constitution. To the extent that an instance of state action is inconsistent with the Constitution, the action is null and void. This principle applies with equal force to the Emergencies Act, both in terms of the substance of the Act, its text, and decisions taken by government pursuant to it. The preamble to the Act actually refers to the Charter, noting that the Federal Government would be subject to the Charter when exercising powers granted by the Act. Now, to be clear, the Charter would still govern the use of the Act, even if the preamble did not mention the Charter. And as for why Parliament included this reference, perhaps it was intended to help us avoid that headspace described earlier, where the Act is somehow perceived as beyond the reach of the Charter. Now it seems fair to say that in general, the substance of the Act does not unjustifiably limit Charter rights and freedoms. What I mean by that is that legislation that permits the state to take temporary but severe action to deal with extreme situations, insurrections, terrorism, and so forth, will certainly or almost certainly interfere with various Charter guarantees, like the ones we’ve been describing or discussing today. Even so, most, if not all of us, can agree that those interferences in those extreme situations would often be justifiable under section 1 of the Charter. But matters become more complicated once the Federal Government actually invokes the Act and has recourse to the emergency powers at its disposal. Now, assuming for the moment that the circumstances on the ground satisfy the definition of a national emergency in the Act, it would be incorrect to suggest that each and every use of the powers in the Act that follow invocation will inevitably or automatically comply with the Charter. Even if an emergency, as contemplated by the Act exists, each emergency is unique in nature. The Federal Government must therefore ensure that its use of emergency powers, depending on the features of the emergency at hand, limit Charter rights and freedoms in ways that satisfy section 1.
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Brian Bird, Prof. (Law – University of British Columbia)
Just very quickly, I just -- just zooming out a bit, just it strikes me that often other protests, give marches where people are walking the streets, maybe even, you know, stopping in a city square or intersection, oftentimes protests will involve abnormal use of a space. You know, normally people don't walk down major boulevards and that's -- usually you use cars and usually they'd be on the sidewalks instead. Sometimes that -- maybe even some cities, I don't know the array of by-laws, but even walking on streets, marching streets might well also breach by-laws. So just to say that an abnormal use of public space for the purpose of protest is -- seems to be quite common, but I agree with all the comments so far as well. Very important.
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Brian Bird, Prof. (Law – University of British Columbia)
I'm just going to say that, thank you, that the constitutionality of those Regulations may also be informed by just the nature of the emergency. They could be overbroad for the reason stated by colleagues, on its face, but given the nature of the particular emergency in which they're being applied it may not be, just depending on the actual application, just what's on the ground. And so it maybe on its face potentially some overbreadth issues, but depending on the nature of the emergency it may end up not being perhaps an overbreadth issue at the end of the day once it's actually applied. Just a thought there.
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Brian Bird, Prof. (Law – University of British Columbia)
Sure. No -- thank you for that. I think that the -- it may well be that a part of the analysis might be that given the nature of what's at stake in a potential invocation of the Emergencies Act what the Act is meant to deal with, assuming that there has been a lawful invocation of a Public Order Emergency, Public Welfare Emergency, et cetera, et cetera, that might well inform whether the regulations that have been put to us are overbroad as well. So it just depends whether we're deal with an emergencies legislation, I think it also needs to be brought into the picture as to whether that overbreadth actually pans out. But I do also share the concerns of my colleagues that that needs to be brought into the conversation too.