CCLA Presents to the Standing Committee on Justice Policy on Bill 100 (Ontario)

Oral Submission to the Standing Committee on Justice Policy of the Legislative Assembly of Ontario (Bill 100, Keeping Ontario Open for Business Act, 2022)

42nd Parliament, 2nd Session
Tuesday, April 5, 2022 

Abby Deshman
Director, Criminal Justice Program, Canadian Civil Liberties Association

Thomas Naciuk
Public Interest Articling Fellow, Canadian Civil Liberties Association

Thank you for inviting me here to speak on Bill 100.

My name is Thomas Naciuk and I’m a Public Interest Articling Fellow at the Canadian Civil Liberties Association. With me is Abby Deshman, Director of our Criminal Justice program.

The CCLA stands up for the rights and freedoms of all people in Canada. This includes fundamental freedoms under the Charter. Freedom of expression. Freedom of peaceful assembly. Freedom of association. Our democracy not only depends on these most basic rights and freedoms—it is sustained by them. Bill 100 puts these freedoms—the lifeblood of our democracy—at risk. The CCLA believes the Bill should be withdrawn, or substantial amendments be introduced to render it compliant with our Constitution.

Bill 100 is an over-correction. A fast response to the blockade of the Ambassador Bridge and the occupation of downtown Ottawa earlier this year. It has superficial appeal, given the havoc these incidents caused. Rather than addressing a gap in the law, however, Bill 100 duplicates existing prohibitions in broad and ambiguous terms and expands the powers of police beyond constitutional limits. Although the government may have particular blockades in mind, this Bill risks criminalizing a much broader group, including Indigenous, Black, and other racialized people who criticize the government, poor labour conditions, and the rich and powerful.

First, Bill 100 does not address a gap in the law. It is already illegal to occupy city streets or obstruct a border crossing for days on end. Assuming all “protected transportation infrastructure” is property, the obstruction or interference with the lawful use of that property, by definition, is mischief under section 430 of the Criminal Code, regardless of whether it also “obstructs ordinary economic activity” or endangers others as Bill 100 would require, per subsection 2(1). In more serious cases, where there is a genuine risk of violence, the criminal law goes further still, and prohibits unlawful assemblies and riots, as outlined in Part II of the Criminal Code. The police have arrest powers to enforce these laws. Ultimately, these offences are subject to police and prosecutorial discretion, which must be exercised according to the public interest. This discretion already includes consideration of the types of economic impacts emphasized in Bill 100, as well as the importance of dissent.  Duplicating existing legislation needlessly complicates the law, making it less accessible.

Second, in effect, the Bill impinges on the right to peaceful protest. By defining the prohibitions in section 2 of the Bill in terms of interference with the “ordinary use” of protected transportation infrastructure, it goes beyond what is necessary to maintain the public order and makes no allowances for protests that inconvenience or cause disruptions. Standing up to power is often disruptive. Strikes and picket lines, for instance, are designed to apply pressure against employers through collective action.  There is a reason why rallies use megaphones to effect change, not courtesy. The rich and powerful, including the government, would otherwise never listen to some voices.  For the same reason, Indigenous land defenders engaged in rail blockades near the Tyendinaga Mohawk Territory between Toronto and Montreal in 2020, climate activists caused delays at Toronto Pearson airport in the fall, and George Floyd protests spread across the world. Sometimes asking for change politely, with a smile, is precisely the sort of thinking that contributes to the conditions at issue.

Relatedly, the exceptions for obstructions that are minor or “easily avoidable” in subsection 2(3), introduce an element of uncertainty in the law. The standard of “easiness” is highly subjective. If a demonstration can be avoided with a ten-minute detour, is it “easily avoidable”? By car? On foot? In a wheelchair through the snow? In a remote or Indigenous community, where there might only be one road, an obstruction might never be “easily avoidable.” Yet protest rights are not confined to the lawns of Queen’s Park and Parliament Hill. Democratic expression is protected in rural communities, too. For all these reasons, the CCLA believes Bill 100 infringes upon fundamental freedoms and equality rights.

Lastly, the CCLA believes that police powers should not be expanded lightly, which is especially difficult to justify here since the police have not exhausted the tools already at their disposal. The Bill would give police the power to seize objects and vehicles and suspend driver’s licenses. The CCLA is especially concerned about the proposed roadside suspension powers under section 7 of the Bill. Unlike the provisions of the Highway Traffic Act for failing a breathalyzer test, Bill 100 does not rely on any empirical measure, but on the far more flexible “reasonable grounds to believe” standard, as assessed by a single police officer. These powers raise important questions regarding the Bill’s constitutionality under sections 2, 7, 8, and 9 of the Charter.

On behalf of the CCLA, I urge this Committee to consider the wider picture. Rights are social relationships that enable or constrain action by people in relation to one another. The CCLA recognizes that protest rights have limits. In a free and democratic society, there must be room to challenge authority, including through disruption, without granting license to create widespread pandemonium and chaos. Bill 100 strays from this democratic balance, limiting protest rights at a wide range of locations to the point of extinguishment. The Bill should be withdrawn, or significant amendments made to ensure its constitutionality.

This concludes my submissions. Thank you for your time.

Guest Author: Tom Naciuk