Robert Leckey

Title
Dean (Prof.)
Organization / Affiliation
Law – McGill University

Robert Leckey spoke 84 times across 1 day of testimony.

  1. Robert Leckey, Prof. (Law – McGill University)

    Merci beaucoup, Monsieur le Commissaire. Donc, je suis Robert Leckey, le doyen de la Faculté de droit de l’Université McGill. J’ai le plaisir de vous présenter les panélistes ce matin. Brian Bird, Assistant Professor, Peter A. Allard School of Law, University of British Columbia. Jamie Cameron, Professor Emerita, Osgoode Hall Law School, York University. Jean-François Gaudreault-Desbiens, Professor, Faculté de droit et Vice-recteur de la planification stratégique et des communisations de l’Université de Montréal. Vanessa MacDonnell, Associate Professor in the Common-Law section of the Faculty of Law, University of Ottawa. Also co-director of the U Ottawa Public Law Centre. Carissima Mathen, Full Professor in the Common- Law section of the Faculty of Law, University of Ottawa. And Richard Moon, full Professor, Faculty of Law, University of Windsor. This roundtable aims to lay out the foundation and framework for the fundamental freedoms under the Canadian Charter of Rights and Freedoms; rights to freedom of expression, assembly, and perhaps association. Protesters regularly exercise these democratic rights, and governments seek to justify limits on those rights. I think there will be a consensus on the importance of these rights of democratic participation, and the need for sound justifications for limiting them. Beyond that, Commissioner, it's possible that one takeaway will be that reasonable people disagree on the complex challenges of fleshing out and concretizing these rights in our free and democratic society. We have a lot to address this morning, and I remind participants of the need to keep their answers concise. We’re going to kick off with a brief primer on the Canadian Charter of Rights and Freedoms, perhaps set against the history of rights protection in this country; rights have not only been protected through entrenched Bills of Rights. And so we’ll have a little introduction to that, including the notion of substantive rights, and limitations on them, and we begin with Professor MacDonnell.

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  2. Robert Leckey, Prof. (Law – McGill University)

    Thank you, Professor MacDonnell. Professor Mathen?

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  3. Robert Leckey, Prof. (Law – McGill University)

    Thank you very much, Professor Mathen. Does another panelist wish to anything at this introductory level or sort of Charter primer, so to speak? Professor Moon?

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  4. Robert Leckey, Prof. (Law – McGill University)

    Thank you, Professor Moon. Okay. Commissioner, we’re going to move on. So a few minutes from now, we’re going to drill down more specifically on two of the fundamental freedoms: freedom of peaceful assembly in paragraph 2(c) of the Charter and freedom of expression in paragraph 2(b). Still at a somewhat introductory mode, we’re going to speak a little bit about those rights of democratic participation together, perhaps connecting them to fundamental values of engagement of participatory democracy. And we’re going to continue now with Professor Bird.

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  5. Robert Leckey, Prof. (Law – McGill University)

    Thank you, Professor Bird. I wondered if any panelist wanted to comment on the particular contributions of any particular protest in recent years — qu’il s’agisse du Printemps Érable ou quelque chose d’autre comme cela – at this stage? Does anyone want to jump in on a particular -- I have another -- after that, we’ll move to the connection, perhaps, between a couple of the democratic rights of participation. Professor Cameron?

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  6. Robert Leckey, Prof. (Law – McGill University)

    Thank you, Professor Cameron. That makes it a little more concrete, Professor Bird’s reminder that protests may not be simply something to be tolerated, but that they bring a distinctive value. Professor MacDonnell?

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  7. Robert Leckey, Prof. (Law – McGill University)

    Thank you, Professor MacDonnell. Professor Moon?

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  8. Robert Leckey, Prof. (Law – McGill University)

    Thank you, Professor Moon. Part of the challenge of construing a Bill of Rights, such as the Canadian Charter, is seeking to identify the relationship between the different guarantees, and at times we see from, you know, the claims brought in court, that there is a perception that multiple guarantees may be engaged by a similar set of facts. But nonetheless conceptually it can be helpful to try to distinguish the different guarantees. And in the discussion so far we’ve been touching, I think, on peaceful assembly and perhaps freedom of expression. Does any panellist want to prepare us for the challenge of articulating or separating those two, before we go into them one by one? Professor Cameron?

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  9. Robert Leckey, Prof. (Law – McGill University)

    Thank you. So you’re -- Professor Cameron, you’re laying the groundwork for us to move in a moment to go a little deeper into looking at freedom of peaceful assembly, which as you note has been construed less by our courts than have others; freedom of religion; freedom of expression. At the level of the rights of democratic participation together, is there a final thought from anyone? Okay. So we’re going to go back to Professor Cameron, to pursue our reflections on freedom of peaceful assembly.

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  10. Robert Leckey, Prof. (Law – McGill University)

    Professor Cameron, this is super valuable stuff. If you could slow down just a little bit, ---

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  11. Robert Leckey, Prof. (Law – McGill University)

    --- it would help the interpreters and the broadest audience you deserve for this.

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  12. Robert Leckey, Prof. (Law – McGill University)

    No, no. Just ---

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  13. Robert Leckey, Prof. (Law – McGill University)

    --- a tiny bit slower.

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  14. Robert Leckey, Prof. (Law – McGill University)

    Thank you very much, Professor Cameron. So just to situate your very helpful comments for the audience here; you were really focusing at defining peaceful assembly at the paragraph 2(c) level; basically, bracketing for other discussion the question of reasonable limits on peaceful assembly under section 1. And you are, very helpfully, I think, focusing on the qualifying adjective, “Peaceful” and its -- 2(c) is distinctive in that the other fundamental freedoms don’t have a qualifying adjective. So we have the right to freedom of religion with no adjective, freedom of expression, freedom of association without a qualifying adjective. So it’s a real limitation to understand what that “Peaceful” is doing there. And you’ve invited us to think about the three approaches there. I remember from our preliminary discussion with several panellists that there are also questions about even what an assembly is, and to what extent an assembly is focused on natural persons and, you know, appendages immediately within their control versus larger dimensions. But let’s open things up. I think Professor Mathen, you had some thoughts to share on this one, too.

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  15. Robert Leckey, Prof. (Law – McGill University)

    Comments from other panellists at this point? Professor Moon and then Professor Bird. Professor Moon.

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  16. Robert Leckey, Prof. (Law – McGill University)

    Thank you, Professor Moon. Professor Bird?

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  17. Robert Leckey, Prof. (Law – McGill University)

    Professor MacDonnell is next, and then we’ll go to Professor Cameron. Professor MacDonnell?

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  18. Robert Leckey, Prof. (Law – McGill University)

    That’s very interest, Professor MacDonnell, given Professor Cameron’s point that dispersal is the absolute last resort, ---

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  19. Robert Leckey, Prof. (Law – McGill University)

    --- but it’s not the first mode of intervention. Professor Cameron?

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  20. Robert Leckey, Prof. (Law – McGill University)

    Thank you. Professor Mathen?

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  21. Robert Leckey, Prof. (Law – McGill University)

    Thank you. It’s also interesting to grapple with the question at what point do individual members of the assembly start to characterize the thing as a whole, such that we feel the assembly itself is involved in conduct of that nature. One of the questions submitted in advance to us concerns specifically Canada’s Indigenous peoples. And so I wondered if panelists had thoughts on whether the fundamental freedoms of Indigenous peoples differ from those of others? Particularly when they involve social movements seeking to promote recognition and respect for traditional territories, lands, and resources? And a more specific form of that question, should the Charter protections for assembly and protest interpreted consistent with the rights of Indigenous peoples and is section 25 of the Charter any help in this regard so that limits imposed on those fundamental freedoms do not restrict Indigenous peoples from obtaining redress for historic and ongoing violations and denial of their rights? Anyone wanting to take that one on?

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  22. Robert Leckey, Prof. (Law – McGill University)

    Dr. Jean-Francois Gaudreault-Desbiens?

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  23. Robert Leckey, Prof. (Law – McGill University)

    Thank you. Commissioner?

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  24. Robert Leckey, Prof. (Law – McGill University)

    Thank you, Commissioner. And just before we go back to the panelists, I would just add to that, if I might. I’m wondering if anyone else wishes to take up Professor Mathen’s suggestion that at a certain moment, an assembly is actually conscripting other people into participating in it by being, you know, in their neighbourhood all the time or something like that? And so we know in other contexts that one is not allowed to impose one’s religion on others, that one has a certain right not to be in an association, and so I’m wondering if anyone else finds it helpful as a distinct question from whether violence has occurred, to say at a certain point, “I have no choice but to be part of this assembly,” and is that -- does that help us see a limit on the right to peaceful assembly? Now, Professional MacDonnell was already on my list, and I see Professor Cameron will follow her.

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  25. Robert Leckey, Prof. (Law – McGill University)

    Sure. Professor Cameron?

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  26. Robert Leckey, Prof. (Law – McGill University)

    Professor Bird, then Professor Mathen.

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  27. Robert Leckey, Prof. (Law – McGill University)

    Thank you. Professor Mathen?

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  28. Robert Leckey, Prof. (Law – McGill University)

    Thank you. Other thoughts from the panelists?

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  29. Robert Leckey, Prof. (Law – McGill University)

    Yes, Professor Cameron.

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  30. Robert Leckey, Prof. (Law – McGill University)

    Thank you. Professor MacDonnell?

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  31. Robert Leckey, Prof. (Law – McGill University)

    Professor Bird.

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  32. Robert Leckey, Prof. (Law – McGill University)

    Commissioner, have we provided some help on the question you asked?

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  33. Robert Leckey, Prof. (Law – McGill University)

    Thank you. The -- and the occupation question is one challenging thing. Last night, in the discussion some of us had, there was also disagreements, indeed, over whether honking at a certain point becomes an assault. And is it -- I mean, it's -- there is a physical dimension, your body can experience noise if it's loud enough and sustained enough, and there are all kinds of norms around construction work, and so on, that recognises the impact on the person. Does that itself become unpeaceful at a certain moment? And it's -- I don't think of it as a political ideology, but whether you were in Ottawa last winter seems to effect a little bit abut how you approach some of these issues where conceptualising and facts meet up. Professor MacDonnell?

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  34. Robert Leckey, Prof. (Law – McGill University)

    Colleagues, we're doing this collectively. We've spent longer on this issue than we expected, but I think it's valuable. So Professor Moon, I'm happy to go to you next. We're all cognisant that this is shrinking a little bit freedom of expression, but think this has been very helpful so far. Please ---

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  35. Robert Leckey, Prof. (Law – McGill University)

    Please continue.

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  36. Robert Leckey, Prof. (Law – McGill University)

    Okay. So thank you very much for the exploration of freedom of peaceful assembly. We’re going to turn now to freedom of expression, paragraph 2(b) of the Charter. We’ve already had the suggestion that there’s continuity in the sense of, potentially, a collective and a physical dimension to this guarantee as well. But we’re going to continue with Professor Moon.

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  37. Robert Leckey, Prof. (Law – McGill University)

    No, no, you’re good.

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  38. Robert Leckey, Prof. (Law – McGill University)

    About two minutes left of -- -

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  39. Robert Leckey, Prof. (Law – McGill University)

    Thank you. Thank you. And social media and disinformation, we’ll come back a little bit later this week. Professor Gaudreault-Desbiens?

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  40. Robert Leckey, Prof. (Law – McGill University)

    Peut-être un peu plus lentement.

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  41. Robert Leckey, Prof. (Law – McGill University)

    Merci beaucoup. Il se peut aussi qu’il y ait une dimension intrasexuelle (phon.) à cela aussi puisqu’on a l’impression que ce sont peut-être les personnes féminines qui occupent des fonctions publiques qui sont peut-être victimes le plus souvent…

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  42. Robert Leckey, Prof. (Law – McGill University)

    …le plus virulemment des attaques.

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  43. Robert Leckey, Prof. (Law – McGill University)

    C’est démontré très bien.

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  44. Robert Leckey, Prof. (Law – McGill University)

    C’était le professeur Gaudreault-Desbiens. I’m looking at the time and we have one more topic still, the relationship between the Emergencies Act and the Charter. So if someone has literally two minutes or less further on freedom of expression, I would be delighted to take it. But we collectively spent longer on peaceful assembly. Freedom of expression, final intervention?

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  45. Robert Leckey, Prof. (Law – McGill University)

    Okay. Thank you very much. Commissioner?

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  46. Robert Leckey, Prof. (Law – McGill University)

    Unless there is an answer, a short answer for the Commissioner? Professeur Gaudreault- Desbiens?

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  47. Robert Leckey, Prof. (Law – McGill University)

    La Charte canadienne n’a que 40 ans, donc c’est intéressant de constater que déjà la jurisprudence peut paraitre un peu périmée sur certains points.

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  48. Robert Leckey, Prof. (Law – McGill University)

    Returning now, we have literally five minutes. So Professor Bird will share perhaps a comment or two on the relationship between the Emergencies Act and the Charter. Professor Bird?

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  49. Robert Leckey, Prof. (Law – McGill University)

    Thank you. Thank you very much. So we now have our little pause where we look at some questions, and then we’ll come back for a final much shorter session. Thank you very much, panelists.

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  50. Robert Leckey, Prof. (Law – McGill University)

    We have several questions. We'll begin with the one we wanted to address most importantly I think. There may be a perception by the police this past winter that the Charter, Canadian Charter of Rights and Freedoms prevented them from, say, stopping the movement of trucks into parts of the city, and so we're curious if there are thoughts on how the Charter -- and this is combining, I think, section 2 and section 1, so the Charter as a whole, I mean, would police have been able to stop truckers from driving through zones that were zoned as no trucks? Would the Charter have allowed police to stop people parking their trucks? Would the Charter have been satisfied if people were told to, you know, park here and we'll bus you over to a different zone where you could gather. We're wondering if you have thoughts on those. First one will start.

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  51. Robert Leckey, Prof. (Law – McGill University)

    Professor Moon, if I could just follow up, you were talking about reasonable limits and so on, which is evoking the idea of a limit prescribed by law and so on. Do you think, like, existing no truck zone by-laws or whatever form those rules take, would that have been enough as the legal basis for the police to interfere with what they perceived to be the exercise of the democratic rights?

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  52. Robert Leckey, Prof. (Law – McGill University)

    Sure. So you're ---

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  53. Robert Leckey, Prof. (Law – McGill University)

    --- you're hedging your bets a little bit.

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  54. Robert Leckey, Prof. (Law – McGill University)

    Yeah, thank you. Professor Mathen and then Professor Cameron.

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  55. Robert Leckey, Prof. (Law – McGill University)

    I'm wondering if Professor Cameron has a different point of view.

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  56. Robert Leckey, Prof. (Law – McGill University)

    Professor Bird?

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  57. Robert Leckey, Prof. (Law – McGill University)

    So the factual question of whether there was prior notice of an intention to park might well be very significant as one thinks this through.

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  58. Robert Leckey, Prof. (Law – McGill University)

    Professor Moon.

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  59. Robert Leckey, Prof. (Law – McGill University)

    Professor Cameron?

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  60. Robert Leckey, Prof. (Law – McGill University)

    Thank you. Professor MacDonnell?

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  61. Robert Leckey, Prof. (Law – McGill University)

    The idea of the sort of changing situation, I mean it's very interesting. It takes us a little bit off the initial question of the police, whether they were entitled to sort of stop the trucks before they came in. Commissioner, have you heard enough about the trucks? (LAUGHTER)

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  62. Robert Leckey, Prof. (Law – McGill University)

    We had another sort of specific question about the Charter and what it requires of us. So the Emergency Measures Regulations included a prohibition, as you'll know, on public assembly: "A person must not participate in a public assembly that may reasonably be expected to lead to a breach of the peace by: ...the support of the threat or use of acts of serious violence against persons or property." And it also said that: "A person must not travel to or within an area where [such] an assembly...is taking place." So persons prohibited from entering the area where an assembly might, you know, reasonably be expected to lead to a breach of the peace. Are there views over whether these rules in the Regulations would appear to be, you know, reasonable limits on Charter rights? Professor MacDonnell?

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  63. Robert Leckey, Prof. (Law – McGill University)

    Thank you. We've got Professor Mathen and then Professor Cameron, then Professor Bird.

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  64. Robert Leckey, Prof. (Law – McGill University)

    Professor Mathen, just a second.

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  65. Robert Leckey, Prof. (Law – McGill University)

    There's exceptions, and we're asking whether there's a criminal -- yeah.

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  66. Robert Leckey, Prof. (Law – McGill University)

    Yeah, they're offences under section 10 of the Regulation. Professor Mathen, did we cut you off? Did you finish?

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  67. Robert Leckey, Prof. (Law – McGill University)

    Yeah.

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  68. Robert Leckey, Prof. (Law – McGill University)

    Thank you. Professor Cameron.

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  69. Robert Leckey, Prof. (Law – McGill University)

    Thank you. Professor Bird?

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  70. Robert Leckey, Prof. (Law – McGill University)

    Professor Bird, do you want to explain a little more? I mean, if someone were to bring a constitutional challenge to the enactment they'd be challenging the written down rule.

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  71. Robert Leckey, Prof. (Law – McGill University)

    Thank you.

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  72. Robert Leckey, Prof. (Law – McGill University)

    Professor Moon, were you wanting to jump in?

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  73. Robert Leckey, Prof. (Law – McGill University)

    Thank you. Okay. So we’re going to move on, is that okay, to the next question?

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  74. Robert Leckey, Prof. (Law – McGill University)

    And there’s, I mean, a potential rule of law issue, in the sense that there’s a rule you must not participate in a public assembly that may reasonably be expected to lead to breach of peace, how do you know when a particular assembly has met that threshold, such that you’re prohibited from going there? There are real questions about that.

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  75. Robert Leckey, Prof. (Law – McGill University)

    Professor MacDonnell?

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  76. Robert Leckey, Prof. (Law – McGill University)

    Other thoughts on this one? Professor Mathen?

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  77. Robert Leckey, Prof. (Law – McGill University)

    Thank you. So we’ll take a crack at another question. And counterprotests are in the question here. So we’re wondering, you’ve got someone protesting, or an assembly is protesting, and then there’s prospect of a counter protest that could bring violent confrontation. And so we’re wondering, does the kind of realistic prospect of a counterprotest that will perhaps issue in violence, does that make the initial protests violent or, you know, attach a threat of violence to it? Professor Cameron?

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  78. Robert Leckey, Prof. (Law – McGill University)

    Thank you very much. Other colleagues on that one? Professor Gaudreault-Desbiens?

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  79. Robert Leckey, Prof. (Law – McGill University)

    And perhaps, Professor Cameron, so I hear you saying what you state in the literature, if protest is seriously harming or threatening the livelihood of the potential counterprotests, does that in any way change their position?

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  80. Robert Leckey, Prof. (Law – McGill University)

    And if the primary assembly is blocking a bridge that is shutting down the workplaces of the potential counterprotests, so, like, they’re not just people expressing a different point of view, ---

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  81. Robert Leckey, Prof. (Law – McGill University)

    --- does that change it?

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  82. Robert Leckey, Prof. (Law – McGill University)

    Commissioner, anything?

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  83. Robert Leckey, Prof. (Law – McGill University)

    Professor Moon?

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  84. Robert Leckey, Prof. (Law – McGill University)

    Thank you. We’re out of time, so we’re going to stop without moving on to the fast- hitting question of separating the acts of individuals from the assembly as a whole, which we might otherwise come back to. Thank you very, very much for your contributions.

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