Courts recently gave police broad powers to arrest protesters: necessary public health precaution or dangerous overreach?

A

s she heads to court to fight Nova Scotia’s abrupt expansion of powers to clamp down on anti-mask protesters, or anyone else flouting COVID-19 restrictions, Nasha Nijhawan invokes the totalitarian regime at the centre of Margaret Atwood’s dystopian story The Handmaid’s Tale.

The Halifax lawyer is working pro bono on behalf of the Canadian Civil Liberties Association to challenge the government-requested injunction that bans public gatherings during the pandemic, an order that the Supreme Court of Nova Scotia approved on May 14. The national advocacy group argues that the far-reaching injunction goes well beyond the original intent of blocking events such as an rally planned for Citadel Hill by a fringe group of anti-science and anti-lockdown protestors.

“If this was Gilead, would I want the government to be able to do something like this or would I have wanted to stand up when it was maybe innocuous?” Nijhawan says in an interview. “If this power was allowed, what if the government was trying to do something that targeted individuals on the basis of a personal characteristic—like women, racialized people, persons with disabilities, etc.?” 

She adds: “It’s dangerous to ignore oversteps of government power just because you agree with what they are doing, or that their purpose is sound. Governments can change, different ideas can take hold … We have to fight for everyone’s Charter rights, not just the people we agree with.” 

The order gives police around the province broad new powers to make arrests at any gatherings of “Jane Does” or “John Does” if they’re above restrictions on group size limits, not wearing masks, or failing to keep the mandated two metres of physical distance. Depending on the discretion of responding police, that could include innocent infractions such as a group of kids shooting hoops or neighbours chatting from yard to doorstep, or even texting or posting a plan on Facebook to do so.

A judge approved the injunction at a hasty hearing after an ex parte application from the province with no notice or invitation for the group organizing the anti-lockdown protest, which is called Freedom Nova Scotia, or other dissenting voices to speak.

For Nijhawan, the overreach of power is more troubling than the affront to the rights of Nova Scotians under the Canadian Charter of Rights and Freedoms.

“The attorney general shouldn’t be able to go to the court and say, ‘Just give me this extra power and I’m not going to tell anybody about it’ and then enforce it on the weekend,” she says. “I just don’t think that’s how governments should be behaving, even in a public health emergency.”

Police wasted no time in Halifax. A day after the injunction was granted, police rounded up anti-maskers on Citadel Hill, then ticketed Free Palestine protesters attending a South End car rally. Later that weekend, police invoked the measure as they issued warnings to people crammed bumper to bumper in a Point Pleasant Park watching a large container ship dock.

Dr. Robert Strang. Photo: CNS

The rationale
Dr. Robert Strang, Nova Scotia’s chief medical officer of health, defended the two-week-old injunction during the May 31 COVID-19 briefing, after Halifax Magazine asked if the extreme measure is necessary when case numbers are rapidly improving and the government is starting its reopening plan.

“Bringing large numbers of people together still can present some risk,” Strang says. “The other purpose of the injunction is to prevent groups that are deliberately spreading false information. The information, if listened to, creates risk to the public as well. That certainly is a need to manage that misinformation campaign as well.”

Nijhawan says a government attempt to limit freedom of speech is troubling.

“We don’t actually restrict speech in this country, false or not false,” she says. “Don’t get me wrong. I’m vaccinated. I believe in science. I hate the anti-vax truther stuff. But I will defend to the death their right to say dumb stuff on Facebook, or anywhere else, if they want. When we restrict speech, it’s very susceptible to abuse down the road.”

Misinformation isn’t explicitly mentioned in the injunction, so it’s unlikely to come up as an argument in court, she says. “It’s an offence to organize a public gathering, but not an offence to tell lies about COVID. It’s a sort of a back door.”

Nijhawan has taken on the case with fellow Halifax lawyer Benjamin Perryman. (The two previously worked together to fight Ottawa’s attempt to deport former child refugee Abdoul Abdi, who grew up in foster care in the province and never received Canadian citizenship. Perryman was Abdi’s lawyer and Nijhawan represented the CCLA as it sought intervener status.)

Nijhawan says their aim is to have the whole injunction thrown out after government rebuffed their request to reduce the scope of the order.

“We were happy to speak to the government about narrowing it in a way that applied only to those people in the province who demonstrated an interest in flouting public health requirements, not people who are doing their best to comply,” she says. “They were not interested in narrowing it, so we will be seeking to have the whole thing set aside because, frankly, I don’t think it was properly obtained or necessary.”

A procedural hearing was set for June 4 for Nijhawan and Perryman to make the case that the CCLA should be allowed to proceed. She says the province has just consented to that motion.

It gives the not-for-profit group public interest standing in the matter, rather than representing a particular person or people who could be affected by the injunction. “It could have been my own name, since every Nova Scotian is named,” says Nijhawan. “We made a conscious decision to highlight the importance of someone being present to represent the public interest more broadly.”

The court date will now be used to schedule a hearing on the merits of the injunction, likely in June, she says. “We want it to be heard earlier, rather than later.”

Freedom Nova Scotia organizers wouldn’t answer questions on the injunction, which halted its plans for rallies. “Priority is being given to non-owned, free media—real journalists and media platforms—who have not sold out to be part of the government’s paid propaganda ecosystem,” a representative from the group said via email. 

Peter Planetta, a lawyer representing people ticketed at the Free Palestine rally, says he “fully supports” the CCLA’s effort, but quashing the injunction won’t help his clients in dealing with “the unnecessary and heavy-handed tickets they have been issued.”

While perhaps inspired by the injunction, the measure wasn’t used at the rally. Instead, protesters got $2,422 tickets under the Health Protection Act, ($2,000 for each infraction plus an additional $422 in court costs and fees) and $155 Motor Vehicle Act tickets for honking their horns.

“We are seeking to have the tickets withdrawn without going to court,” says Planetta. “Failing that we will fight them at trial where we will raise the flagrant violations of their Charter rights to peacefully assemble and express themselves.”  

A better balance?
Many experts immediately critiqued the open-ended injunction for going beyond the case made by Strang. The province’s argument leaned heavily on the “imminent serious harm” organized public protests present to public health.

Some lawyers say the injunction would have merit if it wasn’t a massive escalation in powers with the potential to sweep up any Nova Scotian.

David Fraser, a privacy lawyer with McInnes Cooper, says the order could be handy in situations where the province’s recently doubled fines of $2,000 haven’t been enough to dissuade some people from defying safety restrictions. Offenders could include anti-maskers, house partiers, or churchgoers who insist on indoor gatherings despite the public health rules.

“I would not have had any problem with the police using the order to arrest and charge the people who had a large party in Cole Harbour,” says Fraser.

But protests and other gatherings shouldn’t be prohibited if people are following safety restrictions, he adds. “For the anti-maskers and anti-lockdown folks, with whom I don’t agree with at all frankly, if they wanted to have a protest by having 500 people, 15 feet apart each encircle the Common or Citadel Hill, they should be allowed to do that,” he says. “While it still may be a gathering, the risk to the public health is minimal and their Charter right is paramount.”

Beyond an infringement of the rights of anti-maskers, Fraser worries the extraordinary measure could have a disproportionate impact on racialized and marginalized communities.

“In the current health order, it’s an illegal gathering if three kids go to playground and can’t keep two metres apart,” he says. “Do we really think the cops are going to be arresting the three kids in a playground or four kids playing basketball? Probably not. But the police did ticket a group of young people who were sitting at a picnic table.”

The legal safeguards are insufficient, he adds. “The police could call the homeless encampment on Spring Garden Road an illegal public gathering and arrest everybody. I have a problem giving the police that sort of power.”

Instead of just ticketing people, police can arrest them, holding them in custody until they can get in front of a Supreme Court of Nova Scotia judge.

If the challenge succeeds and courts strike down the injunction, Premier Iain Rankin’s government misses its opportunity to negotiate, running the risk of undermining authority it already had.

“Then we’re back to square one,” says Derek Simon, a Halifax lawyer specializing in Aboriginal, environmental, and corporate law with Burchells. “A narrow scope of order would achieve the objective in preventing deliberately illegal behaviour without catching every single person in the province.”

He cites the Annapolis Valley’s Weston Christian Fellowship Church as an example. “They’ve already been fined multiple times and they’re continuing to gather. That’s the kind of case where an injunction like this can be appropriate.”

Simon says clients approached him about a possible legal challenge to the injunction, but decided not to proceed.

Wayne MacKay, professor emeritus of law with Dalhousie’s law school, says the injunction’s broad reach could prove dangerous.

“In any situation, but especially in these pandemic times, it’s particularly important that our laws and restrictions be as clear and has fairly enforced as possible. That’s a cardinal rule,” he says. “Most people are quite willing to accept restrictions on our freedoms if they’re clear and fairly and consistently administered. If they’re not, then not only is it not fair in that particular case, it breeds a general disrespect or lack of confidence in the system making the rules.”

Nasha Nijhawan

A dangerous precedent?
Nijhawan says the injunction seems only to be in place “for its chilling effect.” The government told her Monday that no one has been brought up for civil contempt under the new order.

“The police could always stop you from gathering. They could always ticket you and arrest you if you didn’t comply. This order just adds this additional layer,” she says. “It sounds scarier maybe to people.”

Still, that’s not good grounds for an injunction, she adds.

“It’s not enough for the government to say, ‘Oh don’t worry, we won’t enforce it,” she says. “It’s important for the government to act appropriately. Even though it hasn’t had any adverse impact—no one is sitting in Burnside because of this—we certainly don’t want this to be a precedent that allows that sort of creep in government power.”  

Halifax Magazine