Using the Courts to Crack Down on Dissent

The head of the Progressive Conservative Party of Ontario, John Tory, is quite possibly the next premier of Ontario. This should make those that enjoyed life under the conservative government of Mike Harris quite happy. In a move similar to that of cities that demand proof of liability insurance from organisers before granting permits to use public space for protests—making sure that public dissent is something for those with money and incorporated status—John Tory is calling for government of Ontario to sue protesters for the costs of cracking down on dissent.

He was very clear on this. In an article, Sue lawbreakers, Tory urges, which appeared in the Toronto Star on May 5th, he said:

“We have to use the courts, we have to use financial penalties to send these people a message and say: you can’t do this. We’re not going to put up with this.”

This is very frightening. In B.C. civil injunctions have resulted in jailing of people for periods of time that if prosecuted under the criminal code for similar actions would likely have resulted in an acquittal or, if found guilty, absolute or conditional discharges. The leader of the official opposition in Ontario, and likely next premier, is threatening to sue people for the costs of dealing with protests.

“”Whether it’s a group that is protesting some kind of environmental incident, or farmers protesting government policy, or whether it’s a First Nations group protesting what are very legitimate land claims, people cannot take the law into their own hands,” Tory said in an interview.

“If I was made premier, I would use the court system to say to people: we have ways of dealing with our complaints, and they don’t include blockades and occupations.”

If the Conservatives win the Oct. 10 provincial election, Tory said he would “aggressively pursue civil remedies” against people who lead protests that cross the line between free speech and disregard for public safety and the rule of law.”

I do admit that I have been arrested for defying the rule of law. I have handed out leaflets on public sidewalks, drawn peace symbols in chalk on public property, sat down on roadways outside of weapons factories and arms sales events, occupied the offices of elected officials and in many other ways used creative civil disobedience to draw attention to the problems of the day. Most of the time I have been acquitted—indeed, I take delight in having heard one judge state that “Such protests should not only be permitted but encouraged”, in dismissing the charges against those arrested at the Queen’s Park Plant-In in 1997.

But I have also been fined, sentenced to probation and served a few short periods as guest of her majesty. There are existing remedies, often severe ones, under the criminal code to deal with forms of dissent that could harm others.

John Tory wants to go further than trusting the police and criminal courts to deal with those that speak out against government policies. He wants to sue those that organise and participate in forms of dissent he does not approve of and use the courts to make those who, most often peacefully, are accused of violating the Trespass to Property Act or municipal by-laws dealing with issuing of parade permits or of having committed acts defined under various mischief and public order sections of the Criminal Code of Canada pay for the costs of stopping them from speaking out in defence of the environment, in opposition to war, in favour of an adequate guaranteed income for all…In short, in Ontario speaking out by those who are not paid to sit in the chairs of office or are welcome to walk the corridors of power will be a very risky proposition.

It is one thing to risk going to jail. It is one thing to risk a fine of $200.00
or six months of probation. It is a completely different reality to be sued for
tens of thousands of dollars, perhaps hundreds of thousands of dollars, for
taking part in peaceful blockade of a roadway leading to a factory.

There are further implications as well. Unions, churches and community
groups often endorse protests and actions that include a civil disobedience component. Even demonstrations that are intended as peaceful and legal can result in arrests. Will the province of Ontario sue a United Church congregation if it offers sanctuary to a refugee claimant afraid of being tortured if returned to his homeland? Will the province of Ontario sue community centres and social agencies if they endorse a rally that the police crack down upon—such as during some of the protests at Queen’s Park against the Mike Harris government? Will the threat of civil liability weaken the willingness of those that work directly with the vulnerable from speaking out in favour of a more just and compassionate society?

Whether a near universal franchise to legislation dealing with workplace
health and safety to basic rights such as the freedom to assemble and freedom of speech, our society has been shaped by those that took risks, including breaking the laws of the land, to push for something better for all.

The Metro Toronto voted to sue the organisers of the Toronto Days of Action. This threat faded away, although at the time there was fear of bank accounts and homes being seized among some of the organisers. I think that if John Tory has his way, such fears will become concrete and will paralyse most voices of hope and compassion in Ontario.

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