Demonstrations and the Law: Patterns of Law's Negative Effects on the Ground and the Practical Implications

<p dir="ltr">Although demonstrations are a recurring and key feature of Canadian and other societies, law often has negative and unacknowledged larger impacts on demonstrations while they occur when one examines how courts and police practically use and apply law on the ground. By pragmatically analyzing the experiences in Canada of Ipperwash, the Toronto G20, the Occupy movement, and “Idle No More,” this article illustrates patterns of how injunctions and criminal law processes negatively interacted with those demonstrations while they happened. The article begins by reviewing law’s usually detrimental impact on demonstrations-in-progress in the context of interlocutory and statutory injunctions (unless rare circumstances arise). For example, given the prior status quo focus of such injunctions, demonstrators have an uphill battle to practically win such motions. As well, using Hohfeldian conceptions, specific “rights” (such as property rights or regulated property use) usually prevail over more general aspirational “privileges” (such as freedom of expression and freedom of peaceful assembly) when they come into conflict. Law also does not usually act in prospective (or ex ante) manner for specific future or current situations. The article then examines how the police can use criminal powers and processes to effectively shut down or undermine demonstrations in the heat of the moment, notably because any after-the-fact (or ex post) reviews or accountability for misuse come much later, if at all. Finally, the conclusion explores some practical implications as a result and potential mitigation methods, such as more pragmatic understanding and balancing, better articulating some of the specific rights associated with demonstrations and dissent, and implementing more holistic and nuanced solutions, including trying to practically minimize and avoid raising tensions in such situations.</p>