Protest in the Age of Code Red

The many faces of the rule of law

Protest in the Age of Code Red

Last year I argued against extending the Fairy Creek injunction, along with my then-co-counsel Phil Dwyer and Charlotte Chamberlain, and other lawyers and parties involved. The date, Sept 15, 2021, was memorable for me because it was my birthday, we won, and it was exactly 28 years after blockading old-growth logging at Clayoquot Sound.

The Fairy Creek protests became the largest act of civil disobedience, by number of arrests, in Canadian history. And then — the trucker’s convoy happened. We saw truckers complain of mistreatment while sipping margaritas in bouncy castles, terrorizing foodbanks, and keeping our capital city up all night with horns blaring. Yet they were unmolested by police and law enforcement. Now, with an inquiry ongoing, the complaints of unfairness mount.

The blasé attitude of the Ottawa police stands in stark contrast to the blind dedication of police and private security in quelling protest which dares to block the flow of natural resources. At Fairy Creek teenagers, seniors, and reporters were beaten and had their belongings and vehicles taken from them by police and private security. Peaceful protestors were pepper sprayed, and then the RCMP dug fingers and thumbs into their eyes, to “make sure it got in there.” A video on Global News showed a cop punch a protestor in the face when they were already on the ground and restrained by other officers. Later in 2021, the RCMP introduced a policy which they called “pain compliance,” which they used against the Wet’suwet’en.

Protest/blockade law engages the rule of law in a very tangible way, with both “sides” resorting to rule of law arguments as both a shield and a sword. Former UK House of Lords Justice Tom Bingham noted that the “rule of law” can often mean “hooray for our side,” but that it is more than that. It is a concept, whatever it means, which undergirds western civilization, all civilization — it’s about how we agree to live together.

Runaway climate change threatens global civilisation. The UN Office for Disaster Risk Reduction warned this summer of impending collapse of natural and human systems, in a report titled, Our World At Risk, which was largely overlooked by the media. A group of key climate scientists released a report in October which warned of a plausible risk of societal collapse. Others have warned that even the strongest democracies will be challenged by climate impacts such as migration, food, and resource shortages.

In the realm of protests and injunctions the rule of law is engaged in at least three ways — (1) laws must be obeyed, (2) the Crown is bound by the law, and (3) there may be no law on the path we’re on.

The old-growth and pipeline protestors strive to avoid number 3. The resource companies propound number 1, but, in my experience, are often blind to number 3, and the fact that their actions often actively destroy the systems they rely on.

And 2 — this may be the most important. The Magna Carta, the root of the rule of law as a concept, did not say “a permit’s a permit.” It said — everyone is bound by the law, even the King. And, in Canada, the expression of the King’s power is the state.

Although we leave a terrible legacy for our children in a demolished earth, we can leave them a good tool to deal with the many challenges they will face — the rule of law. If the use of force is constrained, and procedural rights protected, for all peaceful protestors regardless of their cause, that is a step in the right direction. As lawyers, it is our most sacred duty to ensure this. The challenge will only become more intense as our crises escalate.