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

University of British Columbia Law Review, Vol. 49, No. 3, pp. 869-930, 2016

62 Pages Posted: 4 Jan 2017

See all articles by Basil Alexander

Basil Alexander

University of New Brunswick - Fredericton - Faculty of Law; Queen's University (Canada), Faculty of Law

Date Written: November 25, 2016

Abstract

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.

Keywords: demonstrations, protests, law, Canada, interlocutory injunctions, statutory injunctions, criminal procedure, criminal law powers and processes, Ipperwash, Toronto G20 Summit, Occupy movement, Idle No More

Suggested Citation

Alexander, Basil, Demonstrations and the Law: Patterns of Law's Negative Effects on the Ground and the Practical Implications (November 25, 2016). University of British Columbia Law Review, Vol. 49, No. 3, pp. 869-930, 2016, Available at SSRN: https://ssrn.com/abstract=2867950

Basil Alexander (Contact Author)

University of New Brunswick - Fredericton - Faculty of Law ( email )

P.O. Box 4400
Fredericton, New Brunswick E3B 5A3
Canada
+1-506-458-7837 (Phone)

Queen's University (Canada), Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L3N6
Canada

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
174
Abstract Views
1,070
Rank
311,080
PlumX Metrics