, 01.03.2024 11:41 AM

My latest: it’s illegal, and I don’t care who does it

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.]


  1. Robert White says:

    The Free Dumb Trucker demonstration in Ottawa
    angered the entire population of Ottawa and now
    we have zero tolerance for any sort of misbehaviour
    in our midst. Post-Emergencies Act declaration we
    decided to get a no-nonsense Chief of Police who
    would not hesitate to remove any protestors that
    would block anything. One million residents were
    annoyed beyond the pale when the legislatively ignorant & mindless truckers showed up to attempt
    to circumvent long standing Canadian legislation
    and nobody will ever forget it for as long as we are

    The GTA population needs to get similarly annoyed
    before they become irate enough to force Mayor Chow’s hand and that of the Toronto Chiefs of Police.
    From what I know of the TPS they have become serial
    incompetents since I left Toronto back in the early 70s.

    When I was a kid living in Toronto’s North York throughout the 60’s I thought the TPS was the finest
    police force in the entire world due to the fact that
    they had found my bike that was stolen. It took them
    a year to find it and give me a call to pick it up at 51

    • PJH says:

      I’m old enough to remember reading innumerable MacLean’s magazine articles in the 70’s entitled “Toronto the good”…..and of course, many singing the praises of Toronto’s “tiny perfect Mayor” David Crombie.

      For a young kid from the West, it almost seemed a mythical, magical place.

      What happened?……

  2. Warren,

    Oftentimes, when the police do something it’s based on personal initiative, sometimes right, sometimes wrong. But when the cops do diddly, zip, zilch, nada, look to the chief and the top brass, who may or may not be taking their cues from Your Worship.

  3. Warren,

    Convoys, covered. Same for Palestinians. But eventually, the big elephant will once again come into the room: First Nations’ blockades or protests. I view the adjective tricky as an understatement.

    • Martin Dixon says:

      Yes. All of a sudden(AND THIS IS A JOKE(ish) IN CASE THAT IS NOT CLEAR), the second the Ottawa types were a bit held up getting their double ristretto, half-soy, nonfat decaf at Starbucks, suddenly the feds had to get involved.

  4. David cluff says:

    Your views on this are a beacon in the darkness

  5. Peter Williams says:

    Does this apply to railway blockades?

  6. Ron Benn says:

    Far too many people, across the political spectrum, believe that the end justifies the means. For this cross section of the population, they believe that the righteousness of their cause allows them to do whatever, wherever, whenever. As for anyone who disagrees with them, at a minimum defamation of character is the standard response.

  7. PJH says:

    I’m wicha on this Mr. Kinsella…..as much as it pained me, I supported the PM in invoking the Emergencies Act, as the incredibly noisy and disruptive truckers protest had gone on far too long, and showed no signs of abating. I think the convoy would have received much more public support if they came for the weekend, vented their spleens and airhorns, and then left quietly(we wont mention the illegal blockade of the Ambassador Bridge and the unlawful blockade at the Coutts Alberta border crossing)

    I think the same of the Hamas/Palestinian cheering squad(s)….If Canadians have any sympathy for Palestinian civilians in Gaza, it will soon be greatly diminished by the Hamas supporters continuing to disrupt citizens ability to go about their business freely without intimidation and fear for their personal safety.

    I would hope the Hamas cheerleaders will realize that their tactics are backfiring, and will curtail their disruptive activities before police intervention is required.

    We are either a nation of laws or we are not, and I hope the authorities will act if these kinds of disruptions continue.

    • Doug says:

      The Emergency Measures Act and freezing bank accounts were massive over-reaches that were completely unacceptable in a democratic country. The Liberals should pay massive prices for both. All that is needed is legislation that enables criminal charges to be levied against anyone blocking critical infrastructure. Obviously the definition of “critical” needs to be considered, but I would include rail lines, ports, border crossings, airports, arterial roads, hospitals, government offices

  8. WestGuy says:

    Had it just been limited to “clearing out”, sure. Had the feds ordered the convoy to just be “cleared out” I could see that. But it wasn’t just “clearing out”, was it? It was the Emergencies Act. They charged the organizers and – much more importantly – froze bank accounts. That little bit of serious government over-reach seems to have been forgotten.
    Sure, the authorities took their sweet time clearing out the convoy but you’d be hard pressed to provide an example prior to that where a rail or road blockade was removed quickly. Sure, the convoy absolutely overstayed it’s welcome but, again, show me a blockade that didn’t.
    No, the feds won’t take any action to this or any Palestine-support disruption. They won’t charge anyone even if they threaten cops. Because this government sees everything in terms of votes. These people are more likely to vote Liberal than the convoy was, therefore not only will the feds not likely “clear them out”, more likely they will defend it. Hell, they may even join it and take a knee.

    • Ron Benn says:

      One of the problems associated with the federal Emergencies Act is that it is a blunt instrument. In retrospect, a poorly crafted piece of legislation (a problem endemic at all levels of government) that did not stand the test of time.

      For instance, police officers from jurisdictions outside a province (Ontario in this instance) must be sworn in individually before they can legally perform their duties. Processing thousands of individuals would have been cumbersome and time consuming, to say the least. The Emergency Act allowed this requirement to be circumvented.

      The freezing of bank accounts requires a court order, one that by necessity takes time and evidence to accomplish. The lag time could allow an account holder to move the funds in advance of the court order being given.

      A prudent federal government would learn from this experience and introduce changes to the Emergency Act, to separate it into multiple segments, each of which having to be invoked individually. Converting a blunt instrument into a set of surgical instruments, if you will.

      Back to my examples.

      Create a segment of the Emergency Act regarding the use of extra-provincial police officers in specific circumstances, where a large number of police officers are required for a specific situation, for a limited time period (say 30 days).

      Create a segment of the Emergency Act to permit the freezing of bank accounts holding funds over a specified amount (say $100,000) for a limited period (say five business days), to allow for the application for a court order. Failure to get the supporting court order results in the immediate release of the freeze order.

      As I said, a prudent government. A government that is willing to learn the lessons provided. A government that understands that it has an obligation to improve existing legislation based on experience.

  9. Gilbert says:

    Will the protestors have their accounts frozen and property seized, or will they get an exemption because they’re associated with the left?

    • Gilbert,

      Freezing bank accounts was a monumental bridge too far. It never should have happened in a democracy, especially not without probable cause, to use an Americanism. It was wrong then and at an individual level is wrong now.

      • Martin Dixon says:

        I’ll say. One of my partners had a sister who had the shit scared out of her because she had her bank account frozen over something ridiculous.

    • Dale says:

      Exactly…also ask Warren if he ever apologized for spreading that lie about the truckers trying to burn down an apartment, which he said would have killed , or they tried to kill people . The convoy was a country wide protest by CANADIANS against GOVERNMENT regulations,, no calling for a genocide of a group, no pro terrorists signs ..just dancing and honk honk

      • Dale,

        Yeah right. And their kind words for Trudeau were only about government “regulations”…give us a break.

        As for the top of your comment, Warren can speak for himself, should he deem it appropriate.

  10. Doug says:

    The Coastal GasLink protestors blocked rail lines in early 2020 to no consequence. As per the broken windows theory, if it is acceptable to block infrastructure for one cause it is acceptable to do so for any cause. The fix is easy: something akin to Alberta’s Critical Infrastructure Defense Act (https://open.alberta.ca/publications/c32p7) for federally regulated infrastructure and other provinces enacting similarly. The acts would be used to criminally charge anyone, be they Climate Change protestors, pro-lifers/pro-choicers, anti-vaxxers, strikers etc. who impede functionality of critical infrastructure such as arterial roads, pipelines, powerlines, ports.

  11. Steve T says:

    This is spot-on, and should apply to all blockades. Notably, the anti-pipeline railway blockades that were also illegal, and quite in-vogue with the left.
    An illegal blockade is an illegal blockade, period. Those who try to wrap it up as “freedom”, or “reconciliation”, or any other nonsense are hypocrites who should be arrested.

    • Martin Dixon says:

      Yes and now do the various and sundry Hagersville and Caledonia blockades. Do the Toronto and Ottawa types even know where they are? Business were bankrupted. Who do they see about that?

  12. Matt cole says:

    After reading your article “Apples to Apples “
    I completely agree with your points about anyone who blocks roads for protest reasons, should be removed. Even if it requires force. My question is, how come none of this was brought up about what happened in Caledonia, Ontario. I don’t remember Ford, or anyone talking about using force then? Even the town of Caledonia was held captive for extended periods of time.
    Interesting how this has never (as far as I know) been brought up?
    Thank you

    • Martin Dixon says:

      People tried but the narrative was very inconvenient so it was drowned out by the usual suspects. See above. Nothing was done and likely never will for the same reason Joseph Brant will never get cancelled despite the fact he bought and sold slaves. Let’s focus on Dundas instead. I was sympathetic to the convoy types for that very reason. I know not a widely held view on this site but the hypocrisy was nauseating. I have a massive problem with hypocrites no matter how I feel about a particular issue.

  13. western view says:

    In a general sense, I can follow Mr. Kinsella’s path of applying the law evenly to control protests.

    I do have concerns about the use of the Emergencies Act to bring the Freedom Convoy to a conclusion. This was a serious overreach of Government power to not only bring the protest to an end but to cause financial harm to people without due process. What kind of democracy does that to citizens who are charged with “public mischief”?

    Further to that, the inability of the OPS and three levels of government to properly address the situation and bring it to a peaceful end is shameful. And let’s remember that this was no ambush that caught everyone by surprise, which is the norm for rail, road or bridge blockades. For Christ Sakes, the Convoy organizers TOLD everyone they were driving to Ottawa. DAYS in advance. So much advance notice was provided that the PMO organized the talking points for Trudeau to stand in front of cameras and microphones to trash talk the movement long before it even arrived.
    Using an Emergency Act to cover up for poor policing and even poorer political administration is an admission of failure. The Convoy outwore their welcome and the leadership splintered into factions that became hard to control. Some political smarts were missing there too, but the use of the Emergency Act was unwarranted and unnecessary if everyone would have done their job in the first place.

    • Martin Dixon says:

      “And let’s remember that this was no ambush that caught everyone by surprise”

      The media was complicit in that. Despite the fact that hundreds of thousands lined the highways cheering the convoy on for days, that was not helpful to the narrative so there wasn’t much coverage of the crowds.

      • Martin,

        Doesn’t say much for those hundreds of thousands now does it…they should all vote for the Anarchy Party. Bozos.

        • Martin Dixon says:

          Not the point Ronald-the point was that everyone knew they were coming and serious but lots of blind eyes turned. Those hundreds of thousands were news. You may not have liked it but that does not matter.

          • Martin,

            They behaved like jerks, assholes and bozos. Best not try it again. Their reception next time won’t be as friendly. I never bought their bullshit and NEVER will.

          • Martin Dixon says:

            Ronald-again, that does not mean the fact that the convoy was heading toward Ottawa and literally telling everyone what they were doing was not news. Media barely reported it. Perhaps if some of the “jerks, assholes and bozos” in the media had taken the “jerks, assholes and bozos” in the convoy seriously as they drove across Canada, we would not have got into this mess. And since when do people not have a right to be “jerks, assholes and bozos”. It says so right in the constitution and the HOC is full of them.

          • Martin,

            True enough. LOL.

            But last time I checked, none of those Parliamentary types were blocking roads, border crossings or disturbing the peace.

          • Martin Dixon says:

            They sure are disturbing my peace!

  14. Jan says:

    Thank you for doing the legal research on this Warren and keep hammering at the authorities to do something. What is going on is outrageous and needs to be stopped.

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