Jamie Cameron
Jamie Cameron spoke 20 times across 1 day of testimony.
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Jamie Cameron, Prof. (Law – York University)
Yes, thank you, Dean Leckey. I would just draw attention to the pedigree and lineage of protest movements in history. So not expressly to answer your question, but just to point out if we’re looking at the United States, for example, we go back to the time before the Civil War and to the whole Abolitionist movement followed by the Women’s movements and then up into the Civil Rights movement, which has been mentioned by Professor Bird, as well as the Vietnam protest and any number of others. In our own country, just in recent years, we have seen Maple Spring, of course; the Occupy movement; Black Lives Matter; Idle No More; Pride movements, and all the Indigenous movements which are too numerous to mention, but just to say that we have a very strong pedigree of protest movements in North America and including in Canada. And they’re an important aspect, I agree with Professor Bird, very important aspect of participatory democracy.
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Jamie Cameron, Prof. (Law – York University)
Well, I think as part of what I had been planning to say, I can do it upfront, if that’s preferable? So I guess I would say that the fundamental freedoms overlap and complement each other, and that you couldn’t have a viable freedom of peaceful assembly without also respecting protections for freedom of expression, and I guess incidentally, freedom of association. So they work together, and they have to all be protected. But I would also say that freedom of peaceful assembly is a distinct and independent guarantee that is not the same as freedom of expression. And so I can go into that in a tiny bit more detail. So freedom of peaceful assembly is a collective entitlement; it’s an exercise of solidarity by a group of two or more individuals. The Supreme Court of Canada has acknowledged as much; it hasn’t discussed section 2(c) very much, but it has acknowledged it that it is a group activity that is incapable of individual performance. So we tend to think of section 2(b), freedom of expression, as being an individual entitlement. And perhaps section 2(c) is as well, but it’s one that is exercised in collective -- in a collective way as an embodiment. I think that also it’s important to note about freedom of peaceful assembly that it has an embodiment and a presence that is usually spatial in nature. Usually spatial in nature, not necessarily the case with freedom of expression. And an assembly is also -- I’ll use this word, it’s performative in nature, in the sense that, what you have with an assembly is more than verbal expression. And whether the assembly is passive, like forms of assembly can be completely passive, that can be the message; an assembly can also be active and, indeed, very active. But what this tells us is the -- that is that the act of assembling itself has a performative nature and a meaning that is not captured by section 2(b)’s freedom of expression, and therefore, it would be a mistake to collapse section 2(c) and the right of peaceful assembly into section 2(b)and only -- and treat assembly events as belonging under section 2(b), rather than having their own independent entitlement. And so from my point of view, anyway, it’s very important to separate section 2(c) from section 2(b) and begin the task of giving it definition and interpretation. So I don’t know if others have comments on that.
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Jamie Cameron, Prof. (Law – York University)
Don’t worry, Dean Leckey, this is where it gets lively. Okay. So the Charter’s guarantee of peaceful assembly has been mostly inert for the first 40 years of the Charter’s interpretation. There’s been very little in the jurisprudence, and apart from a mention by the Supreme Court that I noted a moment ago, has had very little interpretation or discussion at the Supreme Court level. And this might seem surprising, given what we’ve just heard from Professor Bird and others about the importance of public protests and public gatherings. As -- and their value as a form of participatory democracy. And I think it’s clear that the Charter’s fundamental freedoms and peaceful assembly do form a vital background to the Commission’s work. So some may know that I did write a Commission paper for the Commission on peaceful assembly; it’s on the website. And the purpose of that paper, at least from my point of view, was to bring peaceful assembly into the conversation. And the paper, therefore, does not discuss the convoy, or make any assessment of convoy activities, but its objective instead was to propose an approach to section 2(c). So here I think I’ll quickly just make two or three points, and then move the discussion back to colleagues, who I know would like to weigh in on how we look at peaceful assembly. So I’ve already spoken about peaceful assembly as an independent guarantee of the Charter. And I’ve spoken about the importance of recognizing that entitlement and giving it its own place in the Charter. That was point number one in my presentation. So I’ll move to the second point. And it -- we heard about the structure of the Charter from Professors MacDonnell and Mathen. And I think I’m going to start there because it’s very important when we start to take a look at section 2(c), very important to have that structural framework in mind. And as Professor MacDonnell told us, there are two steps in any Charter analysis. The first step is to look at the nature of the entitlement and to give that entitlement a definition or interpretation, and then the second task is under section 1, is to determine what limits are reasonable, what limits on that Charter entitlement are reasonable.
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Jamie Cameron, Prof. (Law – York University)
Oh.
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Jamie Cameron, Prof. (Law – York University)
My apologies. Should I go back over any of that?
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Jamie Cameron, Prof. (Law – York University)
Okay.
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Jamie Cameron, Prof. (Law – York University)
All right. So then looking at that structure reinforces the view that peaceful assembly, like the other fundamental freedoms under section 2 of the Charter, should receive a generous interpretation. And so that means that questions about limits on peaceful assembly, for the most part, should be found and imposed under section 1, rather than introduced into the preliminary definition of the entitlement. And in other words, peaceful assembly should be given broad coverage and limits to deal with disruption, disturbance. Those kinds of issues should, for the most part, be reserved for section 1. That’s the set up, and the nature, and the concept of the Charter. So moving to section 2(c) specifically, the central question under section 2(c), I think it’s fair to say, is what is the meaning of peaceful assembly? What does it mean to say that an assembly is peaceful in nature? So what is peaceful under section 2(c) and what is not? And I think there are going to be different views on this. And I’ll just tell you a couple that I encountered in preparing the paper. And I’ll say first that how you answer that question, how you decide what peaceful means for purposes of section 2(c) will have dramatic consequences for the scope of the entitlement. So it’s the critical issue under section 2(c). It’s the critical issue for peaceful assembly, for that entitlement. So one approach to the question of what is peaceful equates peaceful assembly with non-violent assembly. And under this view, assemblies are considered peaceful, unless they engage in acts or threats of violence. It doesn’t mean that limits can’t be imposed under section 1, but it means that an assembly has prima facie or preliminary status under the Charter, as long as it does not engage in any violent activities. That’s one view. It’s not the only view. There’s a different approach, sees it a different way, and would interpret the meaning of peaceful assembly quite differently. So under that view, a peaceful -- sorry an assembly is not peaceful or non-peaceful when it does any of the following, like cause a disturbance, engage in disruptive activity, engage in objectional conduct, and even violate bylaws. Bylaws and other kinds of legal regulations. So on that view, an assembly would become non- peaceful when it reaches a sufficient threshold on any of these criteria. And under that view, it would mean that the assembly does not have any protection under the Charter. The difficulty with that view, in my opinion, is that it creates a risk of prematurely or pre-emptively shutting down public gatherings or demonstrations because they are considered or experienced as being objectionable in nature. And the risk is that the messages of the dissidents and vulnerable will be too quickly cut off. Now, we don’t have a lot to go on in Canada. We do not have any section 2(b) jurisprudence to speak of, much less a robust jurisprudence. But the international jurisprudence on these issues is quite striking because under the international guarantees, peaceful assembly is protected, up to the point of violence. And the issues about disturbance, disruption, commission of unlawful conduct, et cetera, are matters of limits under their version of section 1, or proportionality, but not of initial entitlement. I’m going to mention a third approach, and I’m going to give a bit of a shout out to the City of Ottawa, who provided -- the City of Ottawa presented a brief in response to my paper. And it’s a thoughtful response. The City of Ottawa, as I understand their response, proposed a harm test for section 2(c). So the idea was that violence is at one end of the spectrum, disruption considered still a form of peaceful assembly is the other, and the City placed harm as a test sort of between the two. And the idea of it is that once a certain threshold of harm is reached in the activities of an assembly, that will forfeit the protection under section 2(c). So that was proposed as an alternative to these other two understandings of peaceful assembly. I guess I would say that it’s difficult for me to agree with the City of Ottawa, although I think the proposal is certainly worth discussing. It’s difficult for me to agree with that because harm is a very subjective and evidence-based concept, and it’s better suited to the kind of analysis that is typically done in section 2 cases under section 1. So I would see a harm analysis under section 2 as being out of keeping with the way section 2 analysis is done generally in section 2 cases. And again, a malleable concept of harm runs the risk of pre-empting assemblies that are engaged in participatory democracy. I’m coming to pretty much my last point about section 2(c), because I know we want to open the discussion up. And this is also a really important point, I think. We need to think about the relationship between the assembly per se and the individuals who are participating in the assembly. So I’ve mentioned that the assembly is conceptualized as a collective entity, but the collective entity, you know, incorporates various numbers of individuals. The constituent participants in an assembly remain responsible for their actions. So for instance, if members of a public demonstration or protest engage in unlawful conduct and even violate the Criminal Code, they are responsible in their individual right for their actions. They’re responsible for any unlawful conduct they may commit. But generally speaking -- and it’s subject to evidence, of course; generally speaking the acts of individuals do not taint or compromise an assembly, unless those acts become so pronounced or so pervasive that they come to define or characterize the assembly. At that point, they become the assembly and that may change the status of the assembly under section 2(c). I’m just going to -- I think I’ve given us some things to think about. I’m going to make one final comment, and it is a little bit about this particular demonstration, but just to illustrate. I guess it would be my view that the assembly in this instance began at the point when the convoy set out from British Columbia at the start of the convoy. Trucks were, at that point, integral to the assembly, and it was a moving -- for many days, it was a moving assembly. It was an assembly that moved across the highways in Canada before arriving in Ottawa. When it arrived in Ottawa, it became static and embedded. The trucks may still have been part of the assembly, but maybe their role changed, and maybe their presence in Ottawa changed and even escalated the nature and scale of the assembly. I think it would be fair to say, and I hope I’m not overreaching, Mr. Commissioner, I think it would be fair to say that the trucks compounded and intensified the disruption. But what I would say is that on a principled approach to the structure of the Charter, those issues inform the analysis under section 1 rather than the scope of entitlement under section 2(c). And I have things to say about reasonable limits, but I think I’ve spoken enough, and would love to hear from my colleagues.
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Jamie Cameron, Prof. (Law – York University)
Yes, just -- thank you, Dean Leckey. Just a couple of follow up points. On the issue of acts or threats of violence, I think that it’s helpful to think about the nature and the level of the threats, to ask where they’re coming from, who is making those threats, if any, and how pervasive they are, because the threats will typically be made by individuals, rather than the assembly. The entitlement belongs to the assembly. So we just have to be careful not to treat levels of disruption as threats in and of themselves, because to do so risks excluding certain assemblies and gatherings from section 2(c) and not granting them any Charter protection at all. So I would always argue that those kinds of limits can be imposed under section 1. So it’s evidence based, whether there are threats, whether they’re sufficient to compromise assembly. A second point has to do with Dean Leckey’s observation, and I guess a discussion we had at dinner last night, which is what exactly is the assembly and what kinds of props that may be used or by an assembly are included in the entitlement. And so we specifically had a question about trucks last night and whether they are part of the assembly. But there are other kinds of examples, of course. So that assemblies choose the way and means that their message can be effective, so they will typically, or they may use different kinds of props. And they can be quite innocuous in nature, the props that are used by assemblies, but they can go all the way down to the use of weapons and so forth. So the question there is to what extent does this -- the right of peaceful assembly include the choice of means and the choice of props instructors, including not just camps and entitlement -- tents and camps and so on, but things like trucks. And a final point just has to do with the relationship between section 2(c) and section 1. I think, you know, we may have reasonable disagreements about whether the work can be done under section 2(c), or whether it should be reserved to section 1. One of the reasons I support the section 1 approach is that for the reasons that were just mentioned, that it’s not an all or nothing kind of a calculation. There may be ways for an assembly to continue in a proportional way with the imposition of limits that carefully balance the rights of the community. I think I’ll stop there. Thank you.
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Jamie Cameron, Prof. (Law – York University)
Okay. So just a couple of points, if I can read my writing. Thank you, Mr. Moderator. So I think there’s a difference between threats of violence being made and the community’s experience of feeling threatened by the presence of a gathering or a demonstration. And so, again, in the spirit of not pre-empting a fundamental Charter entitlement, I would say that that experience of feeling threatened can definitely be addressed, and there’s nothing to say that it doesn’t allow limits. But my view would be that that belongs under section 1, rather than section 2. I think also again, with the second point, I’m not sure if this is responsive or not, but it’s a messy situation; isn’t it? Because you have an assembly that can be sort of inchoate and you don’t really know what is the -- who is the assembly? What is the assembly proper and who are the intervenors? And to what extent is the burden on the state and authorities to separate out those who have gone rogue or engaged in their own activities of unlawful conduct? I think that’s a difficult question. Again, the concern would be not to pre-empt the entitlement needlessly, unless the evidence permits a conclusion that the assembly has, itself, attained violent dimensions. And then a third point was about being conscripted, but I’m going to pass so that others can speak.
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Jamie Cameron, Prof. (Law – York University)
Just one ---
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Jamie Cameron, Prof. (Law – York University)
Just one tiny point, which is what Professor Mathen is speaking to I think is the coercive properties of demonstration in certain circumstances. And I guess I'm just thinking through, and I don't have any further to say at the moment, but there may be a difference between something that is sort of a coercive presence versus a threatening presence, and you know, it's a point to sort out.
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Jamie Cameron, Prof. (Law – York University)
I'm not sure what my point of view is, but I would just observe that in Toronto, I believe I'm correct in saying that the trucks were stopped from coming into downtown Toronto. And so the same kind of situation never crystallized in Toronto. As for Ottawa, I would say there's a significant difference between a flow-through demonstration, so where the trucks flow through in a day or two days, and the trucks stay. As to whether and when they could be stopped, I'm not really sure. I would worry a little bit about prior restraint kinds of concerns were all trucks to be stopped and never given any opportunity to come into the capital city and make any kind of demonstration, I would worry a little bit about that, but it's an awkward situation, obviously, because once the trucks are there and they come in, the enforcement issue arises very quickly.
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Jamie Cameron, Prof. (Law – York University)
Simply to add that on the question of reasonable limits, there is -- there are a number of variables. And as for the assembly itself, the general principle is that the assembly needs to be allowed to have an opportunity to present its message. So whatever that reasonable scope of time is, I'm not sure on the facts of this convoy, but then at a certain point in time it becomes unreasonable for the vehicles to stay. So I think that's a fairly safe assessment.
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Jamie Cameron, Prof. (Law – York University)
Yeah, exemptions, yes.
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Jamie Cameron, Prof. (Law – York University)
Exemptions.
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Jamie Cameron, Prof. (Law – York University)
Thank you. Just a discrete point, which has to do with the designation of protected places, and the potential over designation of protected places, in particular, section 6(f) that allows any other place to be designated as a protected place by the Minister of Public Safety and Emergency Preparedness. I just have some concerns about that provision and its consequences for public assembly and other Charter rights, including freedom of association, those who might wish to associate with a valid, viable assembly. Thank you.
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Jamie Cameron, Prof. (Law – York University)
Thank you. In researching the paper, I encountered quite a bit of commentary on just this point in the international jurisprudence and so forth. And basically the position that’s taken in that jurisprudence is that the authorities have an obligation and a duty to protect the primary assembly in those circumstances, so that where a counterprotest presents itself, and poses risks to the viability and the safety of the principal assembly is the duty of authorities to deal with the counter protest and protect the assembly, which is an interesting point of view. We don’t have much guidance in Canada, but that’s what I found when I was researching the paper.
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Jamie Cameron, Prof. (Law – York University)
Well if there are -- excuse me, if there are difficulties with, we’ll call it the primary assembly, then those can -- if that’s what you mean, then those can, of course, be addressed.
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Jamie Cameron, Prof. (Law – York University)
Well they ---
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Jamie Cameron, Prof. (Law – York University)
Sorry. They both might be subject to regulations, so we wouldn’t rule out the prospect of reasonable limits on the primary assembly, but the counterprotest would still be subject to limits insofar as it is confronting and escalating the situation with the primary assembly. That would be my view.