Sorry, partisans, but you can’t have it both ways.
January 2022: protestors start blocking Ottawa streets to make a political point. Police are ultimately used to clear them out. Some conservatives are very unhappy the police used force to do so, while some progressives are happy.
January 2024: protestors start blocking Toronto streets to make a political point. Police haven’t cleared them out using force (yet). But some conservatives are very unhappy police haven’t used force (yet) – while some progressives are happy they haven’t.
I know, I know: both sides are mad at me, now. Sorry. But you can’t oppose (or favour) clearing out the Ottawa road occupiers, and now take the completely opposite position with the pro-Palestine road occupiers. It’s illogical, it’s inconsistent, and it’s unfair.
Two years ago, this writer strongly favoured the police clearing out the Ottawa occupiers, with force if necessary. As I wrote in these pages at the time:
“Enough is enough. It’s time to invoke the Emergencies Act…The Act would give the government the ability to prevent more troublemakers from traveling to Ottawa to extend the siege there. It would prevent ‘protestors’ from blocking border crossings — including, as they did in Windsor, with children.
“It would allow the authorities to remove trucks and barricades that have been used to shut down the national capital — and cripple billions of dollars in cross-border trade. And it allows government to compensate citizens and businesses who have been victimized by the lawlessness.”
And, two years later, just about every word of that also applies to the “pro-Palestine” (read: kind-of, sort-of pro-Hamas) protestors, who are now regularly blocking access to and from Toronto’s 401, the busiest highway in North America. Not only are they hurting local businesses and residents – like the Ottawa occupiers did – they are using their presence to intimidate the people (mainly Jews) who live in those areas.
What’s fair is fair, what’s good for the goose is good for the gander – and any other cliché that applies. You simply can’t be okay with one group blocking roads and intimidating locals, and then oppose it when another group does it. The law, if it is to matter at all, has to be applied without fear or favour. It has to be equitable.
At just about this point in this opinion column, or course, partisans on the Left and the Right are steaming mad, and want to argue that the two situations are completely, totally different. Right about now, they’re dreaming up distinctions they hope make a difference.
But they are distinctions which don’t amount to a difference. In international law, blockades are considered acts of war. In statute law, it is also illegal: in Alberta, for example, the Critical Infrastructure Defence Act properly makes it against the law for “blockades, protests or similar activities” to damage or harm essential infrastructure like roads.
And in Ontario, during the Ottawa occupation, Premier Doug Ford (rightly) applied the provincial equivalent of the Emergencies Act days before Prime Minister Justin Trudeau did so to stop blockades of roads and border crossings. Meanwhile, Canada’s Criminal Code’s section 423 makes blocking roads a crime – punishable by five years in prison.
For centuries, the non-criminal common law has done likewise: going back to the Seventies, the Supreme Court of Canada has held that “authorities were not only entitled but duty bound, as peace officers…[to ensure] the right of free access of the public to public streets.”
In international law, in Canada’s criminal law, in our statutory laws, in Centuries of common law – it’s the the iron-clad rule: you are not allowed to block public roads and highways with impunity. And the police have always had the authority to arrest and detain you for doing so.
So, in case of the Ottawa occupation and the “pro-Palestine” occupations, the law must be applied consistently and fairly. If it was right and proper to arrest and detain the Ottawa occupiers who refused to leave that city’s streets, it’s now right and proper to arrest and detain the pro-Palestine/anti-Semitic occupiers who are refusing to do likewise on the 401’s exit ramps.
The law is the law. If you apply it in one case, you need to apply it in all similar cases.
So, why haven’t the police arrested and cleared out the anti-Israel mobs?
For that question, I do not have an answer.
[Kinsella is a lawyer and former member of the executives of the provincial and federal bar associations.]