The limits of peaceful protests

After nearly two months of protests by Canada's aboriginal communities, an uneasy calm seems to have settled across the land, but the unrest could erupt at any time, particularly if there's a sense that movement on their concerns has stalled.

In typically Canadian fashion, the demonstrations have been peaceful, but a Manitoba judge warned last week of the potential for violence if rail-line blockades, a favourite tactic of some protesters, are resurrected.

Queen's Bench Justice Don Bryk said aboriginal protesters who block rail lines in Manitoba in defiance of an injunction will almost certainly be arrested. He said he was worried about the "potential for violence and harm."

With respect to the learned judge, there is no certainty police would arrest anyone who blocks a rail line in an act of civil disobedience.

In fact, an Ontario judge criticized police for refusing to carry out his order to remove a group of protesters who were blocking a rail line in that province.

It's true, of course, that no one is above the law, but, to mangle a phrase, discretion is sometimes the better part of policing.

The goal of police during demonstrations is to balance the rights of the public and private companies against the constitutional rights to freedom of peaceful assembly, freedom of association and freedom of conscience.

When protesters block a rail line or roadway, they arguably step over the line that separates peaceful assembly and unlawful disruption. There are possible exceptions to the rule, such as when the roadway in question is a threat to another right, real or perceived.

In the case of the aboriginal protests, however, the railway itself was not the target, but merely a means to disrupt the community and draw attention to their cause.

Police were entitled to end the protest by former chief Terry Nelson and a handful of followers near Portage la Prairie, but strong-armed action could have led to violence and further fuelled the unrest across the country. They did the right thing by showing restraint and allowing demonstrators to make their point before calling it a night after several hours.

That doesn't mean, however, that protesters should expect the same tolerance in the future, particularly if the interruption goes on for a long period of time.

At some point, police would have to intervene to protect the rights of the railway or the general public, as the case may be.

Aboriginal protesters have been shown deference because it's understood their grievances are both serious and real, and because respectful forbearance is more likely to avoid violence than heavy-handed police action.

There are limits, however, to the tolerance of the state and the ability of police to stand by while the law is broken.

Republished from the Winnipeg Free Press print edition January 28, 2013 A10