The human rights case for ending the siege in downtown Ottawa*

#FreedomConvoy, rally, siege, occupation… 

There are many terms being bandied about as labels for what has been happening in Ottawa’s downtown core since January 28th.

And there are certainly many concerns wrapped up in its origins, grievances, public-health messaging, demands of government, sources of funding, tactics and intended timeline.

What is undeniable is that for the residents of downtown Ottawa, particularly the Centretown neighbourhood, it has rapidly become a source of extreme inconvenience and frustration at the very least, and increasingly of incidents of racism, homophobia and transphobia, misogyny, fear, and very serious physical and mental health harm from the hate-filled messages on flags and protest signs, encounters with angry protesters, incessant blaring of high-decibel truck horns, impact of diesel fumes, and helpless sense people have of being abandoned and trapped in their homes. Additionally, large number of businesses, small and large, have been left with no choice but to close or scale back their operations; a tough hit for livelihoods amidst these already difficult COVID times.

But it is a “peaceful” protest isn’t it?  Is that not a cherished right at the heart of our democracy which is sacrosanct and must upheld in all circumstances.

Not so fast.

Here’s the human rights take on what has gone so terribly wrong in the police response to what has truly become a vehicular occupation laying siege to many blocks of downtown Ottawa.

It is worth noting that there is no “right to protest” as such in any of the key international human rights instruments. There are, however, three absolutely essential freedoms, guaranteed in numerous international treaties, that certainly combine to protect protest: the freedoms of expression, assembly and association. And there is no denying that gathering in protest in front of Parliament to exercise those freedoms is one of the most important of all venues for doing so.

But those freedoms, as fundamentally important as they are to the entire notion of human rights, are not absolute.  And we do not need to look outside the wording of the human rights treaties to find and apply those limitations.  The rights themselves are defined so as to be qualified, recognizing there are important concerns, including core human rights imperatives, that compel and justify restricting the exercise of freedoms of expression, assembly and association. And thus limiting protest.

The best source is the International Covenant on Civil and Political Rights, which safeguards the freedoms of expression, assembly and association in articles 19, 21 and 22.  The ICCPR, one of the most important international human rights treaties, has been ratified by 173 of the world’s 193 states. Its terms were finalized in 1966 and it has been in force for 46 years, since 1976.  Canada has been a party to the ICCPR since 1976. Many of the provisions in our Charter of Rights and Freedoms were drawn from or inspired by the ICCPR.

And when you look at those three freedoms, as enumerated in the ICCPR, the limitations are clear, three of which absolutely are in play with what is happening right now in Ottawa: respecting and protecting the rights of others, public order, and public health.

Red alert obviously.  Governments could drive a mac truck (bad analogy given the circumstances) through those phrases and strip these essential rights of any meaning.  Of course they could and they do, constantly.  And we must all be vigilant and diligent in defence of these precious freedoms.

That is why UN human rights bodies, independent experts and courts have pushed back and have made it clear that there are onerous and exacting restrictions on the permissible restrictions. They are absolutely meant to be exceptional. They are to be interpreted and applied as narrowly as possible, for as short a period of time as possible, only to the extent absolutely required, and with the minimal impairment possible on the freedoms in question.  Restrictions cannot be crafted or applied in a discriminatory way.  They should be grounded in law and should be clearly communicated. And there should be oversight.

As many have pointed out, the wide latitude being given in this protest differs glaringly from the all-out, weapons on display police response so often seen in other protests, notably Indigenous land protests across the country. That speaks volumes.  Of course we all recognize that police must proceed in ways that minimize the risk of violence flaring up; but that does not mean inaction or close to inaction is the only other option and it does not mean it is okay to treat some protests with a heavier hand than others, simply because of who is out in the street.

At the end of the day, restricting human rights, when necessary, should be motivated, informed and guided by protecting human rights.

We have absolutely reached that point in the occupation of downtown Ottawa, and it is time for police to take human rights action to uphold human rights.

There is no unqualified right to protest that gives freedom to wave flags, chant slogans or make threats that are racist, misogynist or direct hate at the LGBTQ+ community.

There is no time-unlimited right to snarl and obstruct residential streets with tractor trailers, pickups, SUVs and other vehicles in the name of protest.  No unbridled right to ceaselessly blare horns at decibel levels that drown out all other sounds and cause physical and mental harm.  No unrestricted right to have vehicles idle in those streets for hours at a time, spewing noxious diesel and other fumes in front of peoples’ homes.

There is no unqualified right to deface, desecrate or vandalize public or private property.

And there is absolutely no right to be violent or threaten violence towards others.

There is certainly a vital right to gather, in large numbers, for extended periods, to express viewpoints popular and unpopular; and to take up all of the vast space in front of Parliament in doing so if desired. That right does not automatically include bringing a truck, let alone dozens, hundreds or thousands of trucks and vehicles. There are countless other ways that the protest rights of those who oppose vaccine and mask mandates or have other concerns about the policies governments have adopted in response to COVID, can be meaningfully and robustly upheld.

And no matter who, what, where, when or why, there is a fundamental right to be free from racism, misogyny, discrimination and threats that incite hate. Those troubling accounts continue to mount, including from homeless shelters, programs providing support to women fleeing violence and vulnerable youth, and from First Nations and Inuit leaders and communities in the city.

This is not a matter of giving up on human rights by shutting down a protest.  Quite the contrary, this is a matter of upholding human rights by ending an occupation that is a source of fear, menace, hardship and harm. 

This protest can and must go forward in ways that respect rather than denigrate human rights. It is time for that to guide the police response.

*Photo credit, Canadian Press