The link between dissent, disobedience, and justice may not seem clear at first glance. Protests are disruptive and sometimes involve brazenly breaking the law. The resulting disorder, arrests, and occasional violence can look like the antithesis of justice. Despite these appearances, public expressions of dissent lie at the very heart of representative democracy and our notions of justice. The paragraphs below seek to highlight this connection.
In doing so, it is important to recognize that there is significant debate surrounding this link, as well as the proper characterization and uses of civil disobedience and dissent. This page will illuminate common themes and points of division that arise when discussing various acts of protest and their link to justice.
Dissent and Civil Disobedience are both forms of protest, but they are not the same. While they can take many forms, generally speaking, the difference lies in lawfulness.
Dissent is lawful objection to a law, policy or action. It often, though not necessarily, involves engaging in protests, or marches for which a legal permit has been obtained.
Civil disobedience is a form of protest that seeks to raise awareness about injustice through willfully breaching the law. The exact contours of civil disobedience are the subject of debate, though the philosopher John Rawls’ definition is often cited as the traditional conception of civil disobedience:
“a public, non-violent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the laws or policies of the government” (John Rawls, A Theory of Justice, revised ed (Harvard: Harvard University Press, 1999) at 320 [Rawls]).
While this distinction is clear in theory, in practice the line legality and illegality can be blurred.
To explain, civil disobedience may be direct or indirect.
Direct disobedience involves violating the law that you are protesting (for example, Rosa Parks refused to give up her bus seat in accordance with the law).
Indirect disobedience involves violating a law which is not the object of the protest to bring attention to injustice (for example, marching in a protest without a permit).
The line between dissent and civil disobedience is particularly blurred in cases of indirect disobedience. Consider, for example, a protest march. If the march is conducted without proper municipal authorization, it is illegal even if participants are not aware of that fact (for more information on municipal bylaws and protest, click here).
Even if proper authorization is in place, protesters often cause minor infractions that the police may or may not target – for example, disturbing the peace, causing a nuisance, loitering or disrupting the flow of traffic. The police have significant discretion in how they treat these minor infractions. Recent years have seen police err on the side of arrest and prosecution. This approach has “severely narrowed the scope for lawful protest” (Jackie Esmonde, “Bail, Global Justice, and the Limits of Dissent”, (2003) 41 Osgoode Hall LJ 323 at 332-333 [Esmonde]).
Further complicating matters is the fact that (legal) dissent can quickly descend into (illegal) civil disobedience with little warning. A person may be marching in what starts as a lawful protest. However, violent protesters have been known to infiltrate a peaceful protest to shield their actions. If other protesters start committing vandalism, does this change the nature and lawfulness of the protest? Is that original person engaged in dissent or civil disobedience? The answers are not entirely clear.
What is “real” civil disobedience, and how is it different from people who are simply breaking the law?
There is no easy answer to this question. The mainstream view of civil disobedience advanced by leaders such as Gandhi and Martin Luther King Jr states that, to constitute civil disobedience, an act must have four key features. It must be:
Canadian judges have largely adopted these features. The Chief Justice of the Manitoba Court of Appeal indicated that civil disobedience is (1) always peaceful; (2) engaged in by persons who must be prepared to accept the penalty arising from the breach of the law; and (3) performed for the purpose of exposing the law to be immoral or unconstitutional, in the hope that it will be repealed or changed (McGrady at 10, quoting Chief Justice Samuel Freedman’s speech “Challenges to the rule of law”, 14 January 1971, Empire Club, Toronto, Ontario).
Other voices have argued that civil disobedience need not follow those four features. For example, Jackie Esmonde has argued that non-violence and open acceptance of punishment need only be adhered to where protesters accept the underlying validity of the State. Without this basic premise, she argues, the traditional constraints on civil disobedience disappear (Esmonde at 329). This view is echoed by Howard Zinn, who argues that refusing to accept punishment sends an important message: “[t]he system that sentenced me is the same foul system that is carrying on this [injustice]. I will defy it to the end. It does not deserve my allegiance” (Zinn at 917).
While this more aggressive stance may be difficult for many Canadians to accept, it is worth noting that Nelson Mandela espoused a similar view in his fight against the apartheid regime. Mandela differed from Gandhi in his view that violent actions (against property) could be justified to overcome evil and achieve justice where the people had been excluded from any avenue of meaningful participation in government, and no other options existed:
[W]e felt that without violence there would be no way open to the African people to succeed in their struggle against the principle of white supremacy. All lawful modes of expressing opposition to this principle had been closed by legislation, and we were placed in a position in which we had either to accept a permanent state of inferiority, or to defy the Government. We chose to defy the law. We first broke the law in a way which avoided any recourse to violence; when this form was legislated against, and then the Government resorted to a show of force to crush opposition to its policies, only then did we decide to answer violence with violence (Mandela).
There are no rules limiting what dissent and civil disobedience must look like. It can involve thousands of people or one individual. Protest movements are often characterized by their innovation and ability to respond to the specific issue being opposed. Some common examples are as follows:
A demonstration is action by a mass group of people in favor of a cause. A demonstration can be legal (if conducted with a permit) or illegal (if done without a permit). They can be nonviolent or violent – or may unexpectedly descend into violence. If conducted illegally, the demonstration is characterized as civil disobedience. If it descends into violence, it arguably falls outside the boundaries of “civil disobedience”.
A march is a very common type of demonstration. It is an expression of solidarity and dissatisfaction with a policy, practice or law. Often protesters will march from a designated start point to a significant endpoint (for example, Parliament buildings or a targeted company) where speakers are then heard.
Sit-ins involve one or more people “taking over” a given location and refusing to leave until they are evicted, arrested, or until their requests have been met. The “Occupy” movements that arose in the wake of the Global Financial Crisis are an example of this form of protest.
A blockade is a demonstration that cuts off material, people or communications from a particular area. Blockades have been used by aboriginal groups who dispute Crown logging rights on disputed lands, and environmental groups challenging corporate practices.
Boycotts involve inciting support from the public to voluntarily stop using or buying a product, or dealing with a person, organization, or country. For example, the Palestinian-driven “Boycott, Divest and Sanction” (BDS) movement encourages the public to, among other things, boycott buying Israeli goods.
In recent years, an increasing number of protest movements have moved online (e-sit-ins or spamming campaigns).
Why do people turn to protest and civil disobedience? Is it ever justified? These questions have been debated for hundreds of years.
The link between dissent and accessing justice rests on the notion of “natural law” – the philosophy that there are certain universal rights that we inherit by virtue of being human beings. These rights remain in existence no matter what the laws in our community say (for more information on natural law, click here).
One explanation of the link between dissent and justice rests on understanding the crucial distinction between law and justice (a fundamental pillar of natural law):
We obey the law because it purports to align with our sense of justice. In other words, law is merely a means to access justice, it is not an end in and of itself.
Sometimes this crucial link between law and justice is lost. Laws are created to entrench existing power structures rather than better the community. Governments use their authority to imbed their own privileges rather than serve the people. Powerful legislators use law to legalise the suppression of minorities. In these cases, the laws themselves become a mechanism of injustice, rather than an avenue by which justice is accessed.
To correct this imbalance, the public has historically turned to acts of dissent and/or civil disobedience (for an articulation of this view, see Howard Zinn, “Law, Justice and Disobedience” (1991) 5:4 Notre Dame JL Ethics & Pub Pol’y 899 at 902 [Zinn]). These movements, and their leaders, are often mired in controversy. Sometimes, as in the case of Gandhi, Martin Luther King Jr, and Nelson Mandela, we look back on their actions as morally justified and worthy of respect and admiration. On other occasions, we view demonstrators as disruptive extremists or criminals to be condemned. Often, this distinction is only revealed through the benefit of hindsight.
Another explanation of the link between dissent and justice reaches the same conclusion, but digs into more complicated questions about the role of civil disobedience in liberal democracies. This engages lofty philosophical theories about the foundation of our society, democracy, and the rule of law.
The rule of law is a layered concept that, at its core, is a constraint on the arbitrary exercise of power (Roncarelli v Duplessis [1959] SCR 121; Reference Re Quebec Succession, 1998 2 SCR 217 at para 70). It demands that everyone — including the government – be subject to the same laws (Esmonde at 326).
In a liberal democracy, the government operates within the rule of law to represent the will of the people. To ensure the line of communication between government and the people stays open, we constitutionally protect freedoms necessary to express political dissent and opinion (Charter at ss. 2(b)(c), and (d)).
Given these protections and expectations, some have argued that civil disobedience isn’t needed to access justice in liberal democracy. They argue that people who disagree with government policies have a plethora of legal and constitutionally protected avenues to pursue. Thus, one never has the right to step outside this regime to make their point (see, for example, Joseph Raz, The Authority of Law: Essays on Law and Morality,2nd ed (Oxford: Oxford University Press, 2009) at 266-75 [Raz]).
The response to this criticism argues that disobedience goes beyond mere political participation and engages the basic foundation of our society: the social contract.
The social contract is a philosophical theory of how a just society works. It is an (implied) agreement between a government and the people it serves: We collectively agree to limit our freedoms and obey laws passed by the government, and in exchange, we enjoy a safe, orderly, respectful community. Even though we don’t actually sign a contract setting out this agreement, by living in, and reaping the benefits of the agreement, we tacitly accept its conditions (Rainer Forst, “Chapter 8: The Duty of Justice” in Otfried Höffe ed., John Rawls: A Theory of Justice (Leiden: Brill, 2013) 127 at 130 [Forst]).
The foundation of this social contract is the natural law, including the dual pillars of fairness and justice. When governments impose unjust laws, they have breached a fundamental condition of the social contract. This is so irrespective of majority support, as the will of the majority does not guarantee respect of natural law. As such, the social contract theory allows (and some would argue – demands) civil disobedience in a liberal democracy when it imposes unjust laws. Civil disobedience is thus a mechanism that restores the social contract (Esmonde at 327; Forst at 142).
The idea of natural law, social contracts, and moral right and wrong may seem too academic or philosophical to have meaning in the real world. However, there are numerous examples of it guiding our modern political world. Consider the situation of Nazi Germany. The people of Germany democratically elected that government to power. Does that mean that everyone was right to obey their laws? The Nuremburg trials didn’t think so — judges sentenced several Nazi leaders to imprisonment or death for actions that were legal under the governing regime. Blindly following those laws was no excuse. Their actions constituted crimes against humanity – a principle grounded firmly in the natural law (Zinn at 901-902; Esmonde at 327).
The philosopher Henry David Thoreau is credited with coining the phrase “civil disobedience” in arguing that people have a moral obligation to act when they see government injustice, lest their passive acceptance of unjust laws constitute tacit endorsement (Henry David Thoreau, “Civil Disobedience” 1849 [Thoreau]). However, the concept of publicly and symbolically breaching unjust laws has its roots throughout history, and predates Thoreau’s famous essay (consider, for example, the French Revolution or the Boston Tea Party).
Some of the world’s greatest thinkers and visionaries have channeled and adapted their own versions of civil disobedience. For example, Mahatma Gandhi’s Satyagraha (“insistence on truth”) adopted a similar view of one’s moral obligation not to participate in an unjust regime (Vinit Haskar, “The Right to Civil Disobedience” (2003) 41 Osgoode Hall LJ 407 [Haskar]).
Martin Luther King Jr’s famous “Letter from Birmingham Jail” espoused principles that built on Gandhi and Thoreau’s conception of civil resistance as a mechanism to achieve true justice (King Jr., Martin Luther, “Letter from Birmingham Jail” (August 1963) [MLK]).
In yet another variation, Nelson Mandela’s “Speech from the Dock” embraced but reshaped the concept of civil disobedience in fighting to dismantle the South African Apartheid regime (Mandela, Nelson, “Speech from the Dock” (20 April 1964) (Pretoria Supreme Court, South Africa) [Mandela]).
Liberal philosophers including Joseph Raz, John Rawls, and Ronald Dworkin have drawn their own connections between civil disobedience and justice, building on the concepts and experiences of the visionaries outlined above (Rawls at 335-43, supra, Ronald Dworkin, Taking Rights Seriously (London: Gerald Duckworth & Co: 1977) at 206-22 [Dworkin]; Raz at 263-75). Their exploration of the link between disobedience and justice has been considered and critiqued by countless activists, academics, and policy makers around the world (see, for example, Haskar).
In essence, there is no single source that can be attributed with the idea of civil disobedience as a mechanism to achieve justice. The idea that unjust laws must be challenged, and that the existing legal system may be part of the problem, is likely as old as time. Throughout history, visionaries and activists have taken this concept and honed it to meet the particular injustice they challenged.
This answer to this question depends on what is meant by having a “right”.
A moral right is a right justified by moral standards that most people acknowledge. It is not based on any written law and may be different, based on your moral standards.
A legal right is one codified in writing. It is recognised by law and by the legal system it belongs to.
Civil Disobedience as a Moral Right
In terms of a moral right, philosophers have divergent views on when people are justified in turning to civil disobedience. For example:
John Rawls argued that people have the right to engage in civil disobedience when it is undertaken 1) in response to an instance of substantial and clear injustice; 2) as a last resort; and 3) in a way that will not destabilize the entire system of law (Forst at 139; Rawls at 326-328).
Joseph Raz believed that civil disobedience is only justified in illiberal societies, where people have been denied avenues of political participation (Raz at 272-73).
Ronald Dworkin argued that whenever the law wrongly violates one’s rights, one has a right to civil disobedience. Moreover, the protester should not be punished in cases “where the law is uncertain, in the sense that a plausible case can be made on both sides” (Dworkin at 215).
Mahatma Gandhi believed that civil disobedience was the inherent right of every citizen, derived from the duty not to participate in evil. A citizen is justified, and even obligated, to engage in civil disobedience when his or her cause is just, and the injustice is so great that one’s conscience and self respect does not permit them to tolerate it. In his view, evil deeds should never be permitted in civil disobedience, no matter how honorable the ends were (Haskar at 410-411).
Civil Disobedience as a Legal Right
Our legal right to engage in dissent and disobedience is outlined in our laws, and particularly, the Canadian Charter of Rights of Freedoms, section 2. It engages our freedom to peacefully assemble, associate with others, and express ourselves, all of which are expressly protected:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Whenever these freedoms are restricted because of government action or policies (for example, through laying criminal charges, or through the effect of a municipal bylaw), Charter rights are engaged. Like all rights and freedoms enshrined in the Charter, however, these entitlements are not limitless. Legal forms of protest (dissent) are permitted, while illegal acts (civil disobedience) are subject to the full force of criminal law – so long as the government can demonstrate the criminal law is reasonably justified in a free and democratic society (for more information on reasonable limits, click here).
As an example, most municipal governments have bylaws stipulating that demonstrations must occur with a permit. A demonstration conducted without a permit may be shut down by the police. The bylaw and the police action engage our Charter rights. However, the government may justify the bylaw and the police action to a Court as being reasonably necessary to maintain public order and to balance the rights of the protesters against those held by the broader public.
Protesters regularly rely on Charter arguments when they appear in Court. It is important to remember, however, that Charter arguments cannot be made if the government is not involved (for example, if the dispute involves demonstrators and a corporation, and there is no issue with police or other government involvement).
The vast majority of Charter cases dealing with dissent and civil disobedience are decided under the framework for section 2(b) (for example, see Calgary (City) v Bullock (Occupy Calgary), 2011 ABQB 764).
These cases hold that people have the right to engage in dissent or civil disobedience on government property or without fear of criminal sanction, so long as they are (1) consistent with the boundaries and purposes underlying section 2(b), and (2) the government cannot reasonably justify their interference with those rights.
Boundaries and purpose of section 2(b)
Section 2(b) of the Charter does not protect violent expression or threats of violence (Greater Vancouver Transportation Authority v Canadian Federation of Students — British Columbia Component, 2009 SCC 31 [GVTA] at para 28). Demonstrators who engage in acts of violence or threats of violence cannot rely on the Charter’s protections to shield themselves from criminal liability.
Section 2(b) also does not extend to every public place. It only protects locations where freedom of expression does not frustrate the location’s purpose, and where it does not conflict with the purposes of section 2(b) – democratic discourse, truth-finding, and self-fulfillment (Montreal (City) v 2952-1366 Quebec Inc, [2005] 3 SCR 141 at para 74; GVTA at para 39).
These two factors were directly at issue in R v Behrens, [2001] OJ No 245 (Ont CJ), when a group of protesters were charged under the Trespass to Premises Act, RSO 1990, c T21 for breaching a court order issued after they smeared synthetic blood on the doors of Ontario’s provincial legislature. The protesters claimed that the Charter protected their freedom to protest on public property, and that the criminal charge was invalid. The Superior Court of Justice disagreed. In its view, smearing blood on the provincial legislature was vandalism and a form of violence to property. Moreover, defacing public property was incompatible with building’s function of providing government services. This form of expression was not protected by the Charter.
Reasonable justification
Even if a government restriction interferes with rights under section 2, it may be justified under section 1 of the Charter.
In Ontario (Attorney General) v Dieleman, [1994] OJ No 1864 (Ont Gen Div) [Dieleman], the Court was asked to issue an injunction restraining anti-abortion protesters from staging demonstrations at abortion clinics, hospitals and at the offices and homes of certain doctors. The demonstrations were varied — some were silent vigils, while others involved harsh language, signs, and a potential for physical assault. The Ontario Court of Justice granted the injunction in part. Although the injunction clearly infringed the protesters’ freedom of expression, the restriction was justified for some of the protesters because:
However, in light of the importance of free expression, the “no protest” zone was significantly restricted. Other protesters whose actions were less predatory (for example, one woman’s monthly prayer vigil) were not subject to the injunction (Dieleman at paras 669-681).
If you are a protester whose feels their right to engage in dissent was limited, you may raise this issue in Court. Your claim will be successful if the Court accepts that your rights or freedoms were infringed, and if the Court rejects the government’s attempt to demonstrate that the limit was reasonably justified.
For more information on how section 2(b) and 2(c) of the Charter interact, please click here for 2(b) and here for 2(c). More detailed information on section 1 of the Charter is located here.
In addition to civil and criminal laws that exist across Canada, municipalities pass bylaws that can impact one’s right to protest. While peaceful protest may be an important right in Canada, there are municipal bylaws across the country that may be used to limit protest.
In Alberta, under the authority of the Municipal Government Act RSA 2000, c M-26, municipalities have passed by-laws that address activities related to protesting or dissent. Other provinces have similar authorizing legislation. These by-laws may not be passed directly to control protests, but nevertheless they may affect where, when and how people protest.
For example, the Calgary Parks and Pathways By-law has been invoked on more than one occasion to shut down dissent and civil disobedience in Calgary. This bylaw restricts how, when and what a person can do in a Calgary “Park” (which includes playgrounds, cemeteries, natural areas, fields, pathways, trails and park roadways).
Among other things, the Parks and Pathways Bylaw sets park hours, and bans persons from entering any park when it is closed to the public. It stipulates that no one can “camp” in a Park without a permit. People may not disturb other’s use or enjoyment of a Park, or act inconsistently with the Park’s purpose. A person cannot operate an amplification system, do anything likely to attract a crowd, or take part in any procession, drill, performance, ceremony, concert or public gathering in a Park except where specifically allowed by the Director. The Director can grant such permits, but is entitled to place restrictions on, or revoke, the permit at any time. Failing to abide by this bylaw will render a person guilty of an offence and liable to pay a fine up to $10,000 or imprisonment up to six months.
In R v Pawlowski, 2009 ABPC 362, 2011 ABQB 93, 2014 ABCA 135 a man was charged with violating Calgary Parks and Pathways Bylaw for engaging in street preaching activities and using an amplification system. He challenged the bylaws as being contrary to his religious and expressive freedoms provided for under section 2 of the Charter. His challenges were largely successful before the Alberta Provincial Court, but he lost ground in an appeal to the Court of Queen’s Bench. The Alberta Court of Appeal dismissed Mr. Pawlowski’s further appeal, agreeing with the City that any Charter breach was saved by Charter section 1 (click here for more information on how Charter claims are adjudicated).
The same bylaw was invoked to shut down the Calgary “Occupy” Protests in 2011 in Calgary (City) v Occupy Calgary (Bullock) 2011 ABQB 764. On October 15, 2011, a group of individuals called “Occupy Calgary” set up tents on the grassy portions of Olympic Plaza. Though the number of individuals and the number of tents varied over time, the Occupy Calgary encampment was continuous. The City of Calgary applied for an injunction to enjoin occupiers from continuing to breach sections 4 and 9 of the Parks and Pathways Bylaw, and for an order to immediately remove the tents, structures and other materials from Olympic Plaza. Chief Justice Wittman held that the Court may deny an injunction where there are exceptional circumstances. If the injunction would breach the occupiers’ Charter rights, then an injunction would not be granted.
The City conceded that the occupiers’ freedom of expression was violated BUT argued the Bylaw was a reasonable limit on the occupiers’ Charter rights, particularly because the limit was not absolute – occupiers could apply for a permit, or occupy the park during the daytime without structures.
The City’s injunction request was granted. The Court noted that refusal to comply by occupiers would likely result in civil remedies for contempt of court. Per Chief Justice Wittman (para 51):
“Many of the values and rights we cherish today have been the subject of debate and fierce protest in years past. Society does not easily change for the better, and it is often necessary for individuals with strong views to take extraordinary steps to make their voices heard. The Occupy Calgary group has been, if not entirely organized, certainly passionate and peaceful. The City of Calgary has also exercised restraint in the manner in which it has dealt with the group, up to and including the way in which it acted in the conduct of this proceeding and the remedy sought. I hope that in the days that follow the granting of this application, both sides continue to act in a measured, conscientious and peaceful manner.”
In the city of Victoria, BC, a similar bylaw was successfully challenged by a group of homeless persons who erected nighttime shelters in the city’s parks. In Victoria (City) v Adams 2008 BCSC 1363, affirmed 2009 BCCA 563, a number of homeless persons in Victoria BC brought an application to have a city park bylaw declared unconstitutional because it violated their Charter right to life, liberty and security of the person. Their claim was successful. The Court held that the tenting ban was unconstitutional. The decision was guided by evidence demonstrating that the number of homeless persons exceeded the City’s shelter space. However, it is important to note that the creation of a homeless “tent city” in protest of the bylaw precipitated the lawsuit.
The Calgary Community Standards Bylaw limits how a protest can be conducted. It restricts a person’s ability to make loud noise, movement, or activity in public. The appropriateness and reasonableness of the effect of the sound or noise on the public is a question of fact to be determined by a Court.
A person can challenge municipal bylaws using the Constitution. In addition to the section 2 Charter arguments outlined above, a person can challenge bylaws on the basis of constitutional authority, or jurisdiction.
To explain, for a law to be valid, it must be passed by a level of government that has the authority to so. If the wrong level of government passes a law, it is “ultra vires” and will be struck down. For example, only the federal government (Parliament) can pass criminal laws. In Westendorp v The Queen, [1983] 1 SCR 43 Calgary tried to pass an anti-prostitution bylaw. The Supreme Court of Canada held that this was actually an attempt to pass criminal law, which is outside the jurisdiction of the City/province to pass. The bylaw was held to be ultra vires, and, consequently, of no force or effect.
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