Dissent, Disobedience, and Justice
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. It will also explain how Canada’s laws on dissent and disobedience interact with the Canadian Charter of Rights and Freedoms and the private rights protected in civil actions.
For a basic understanding of what dissent and civil disobedience are, how they differ, and how they are used, click here.
Introduction to Civil Disobedience and Dissent
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. With that said, the philosopher John Rawls’ definition is often cited as encompassing 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]).
By contrast, dissent is a form of protest that stays within the confines of the existing law.
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While this distinction is clear in theory, in practice the line is significantly blurred. To explain, civil disobedience may be direct or indirect. Direct disobedience breaches the law that is the focus of protest. For example, a group of people who fish for their livelihood may decide to disobey a law restricting their fishing practices (R v Kapp, 2008 SCC 41 at para 9). Indirect civil disobedience involves breaching an unrelated law to bring attention to injustice. For example, environmental and aboriginal groups have a history of engaging in unlawful marches or sit-ins to oppose environmental or land use policies (see, for example, discussion of the interaction between governments and aboriginal/environmental protesters in Graham Mayeda, “Access to Justice: The Impact of Injunctions, Contempt of Court Proceedings and Costs awards on Environmental Protesters and First Nations”, (2010) 6:2 McGill LJ 143 [Mayeda]; see also Leo McGrady Q.C., “Guide to the Law of Protests in British Columbia - Cedar as Sister: Indigenous Law and the Common law of Protests” Guide, (2013 Vancouver) at 4-7 [McGrady]).
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 (McGrady at 31). 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.
The Philosophy of Dissent, Disobedience and Justice
What is the Link Between Dissent, Civil Disobedience and Accessing Justice?
There is a short and a long way to explain the link between dissent and accessing justice. Both versions rest to varying degrees on the notion of “natural law” – the philosophy that there are certain universal rights that we inherit by virtue of being human beings and which remain in existence no matter what the laws in our community dictate (for more information on natural law, click here).
The abridged explanation 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. In these cases, the laws themselves become a mechanism of injustice. 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]).
The more lengthy explanation 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, it is a constraint on the arbitrary exercise of power (Roncarelli v Duplessis  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 is a classic philosophical theory that attempts to explain how a just society is structured. At its most basic, the social contract is an (implied) exchange of promises between a state and its population. The people in a society collectively agree to limit their freedoms and obey laws passed by the government, and in exchange, they 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 H?ffe 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 where 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).
Where do the Ideas about Civil Disobedience and Justice Come From?
The philosopher Hendry David Thoreau is credited with coining the phrase “civil disobedience” in arguing that people have a moral obligation 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 singular 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.
Do we have the "Right" to engage in Civil Disobedience to Achieve Justice?
This answer to this question depends on what is meant by having a “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 has 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 has argued that whenever the law wrongly violates one’s rights, then 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).
Our legal right to engage in dissent and disobedience is outlined in our laws, and particularly, the Canadian Charter of Rights of Freedoms. This legal right is described in more detail below – click here to be redirected to this discussion.
What are the features of civil disobedience?
What is “real” civil disobedience, and how is it different from people who are simply breaking the law? Like many other issues, this is the subject of debate with no easy answers. 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:
- Public (not covert);
- Protesting an injustice (typically an unfair law); and
- One were protesters willingly accept legal penalties.
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).
Less mainstream voices have argued that civil disobedience need not be constrained to the Gandhian parameters. For example, Jackie Esmonde has argued that non-violence and open acceptance of punishment need only be adhered 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 a troublesome concept 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).
Dissent and Civil Disobedience in the Courtroom
Does the Charter Impact the Ability to Engage in Dissent and Civil Disobedience?
Canada protects the right of its inhabitants to express their dissent, both individually and collectively through peaceful assembly and association (Charter at ss 2(b)(c)(d)). 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 how the Charter operates, click here.
Section 2 of the Charter expressly protects our freedom to assemble peacefully:
2 Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression…
(c) freedom of peaceful assembly…
Protests and demonstrations take place to communicate a message; therefore, courts have interpreted section 2(c) as being ancillary to our freedom of expression contained in section 2(b). As such, the vast majority of Charter cases dealing with dissent and civil disobedience are decided under the framework provided in 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 consistent with the boundaries and purposes underlying section 2(b), and so long as the government cannot reasonably justify their interference with those rights.
To expand on this, 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,  3 SCR 141 at para 74; GVTA at para 39).
These two factors were directly at issue in R v Behrens,  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. Their form of expression was not protected by the Charter.
Even if a restriction on falls within the boundaries of section 2(b), a government restriction may be justified under section 1 of the Charter. In Ontario (Attorney General) v Dieleman,  OJ No 1864 (Ont Gen Div) [Dieleman], the Court was asked to issue an injunction restraining anti-abortion protesters from staging demonstrations 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:
- the physiological, psychological and privacy interests of women was a pressing and substantial objective, as was the government’s interest in protecting health care providers from the nuisance created by the focused picketing (Dieleman at paras 649, 667);
- the right to free expression does not guarantee protesters the right to a captive audience that is unable to escape the messaging (Dieleman at paras 647, 670);
- picketing and protesting were contradictory to the nature and use of a physician’s office or medical clinic, and there was evidence of an interference with the reasonable use of these locations (Dieleman at para 683); and
- while protest is an important use on public streets, it is subject to the protection of public health and to reasonable limitations consistent with the freedom of others to receive or not receive the information at issue (Dieleman at para 668).
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).
Legal Tools, Dissent, and Justice
Protesters and government authorities use various tools at their disposal to conduct and influence civil disobedience movements. Particularly the rules around arrest, bail and sentencing have been used by both sides of fence to achieve their version of justice.
Protesters have found that tools enhancing solidarity are useful to achieve their ends. For example, in some demonstrations, arrestees are counselled to refuse to give their names to police when being arrested. This reduces their ability to be released one by one, thus overwhelming jails and courts. This leads to mass publicity, public sympathy, and often release without charge (Frances Olsen, “Legal Responses to Mass Protest Action: The Dramatic Role of Solidarity in Obtaining Plea Bargains” (2003) 41 Osgoode Hall LJ 363). Hunger strikes have also proven themselves very powerful when undertaken by a group. However, this action carries the risk of a criminal charge for obstructing justice.
Protesters are not the only parties who can use the bail system to their benefit. Law enforcement has been accused of manipulating the bail system to impede and/or cripple civil disobedience movements in various ways. This includes, among other things, accusations that governments strategically arrest protest organizers prior to scheduled events, and impose constitutionally questionable bail limitations on protesters in an effort to quell their rights of dissent and trap them in ever-increasing ambits of illegality (Esmonde at 339-358).
Increasingly, acts of dissent and disobedience are being controlled not by the state, but in the civil courtroom via lawsuits brought by powerful private actors.
Most often, acts of dissent and civil disobedience come before civil courts by way of injunction applications. A successful injunction application results in a court order preventing (or requiring) the defendants from doing a certain act. In order to successfully obtain an interlocutory injunction, the applying party (typically the corporation) must meet three inquires:
- There is a serious issue to be tried (or, in some cases, that they have a strong case on the surface).
- Irreparable harm will result if the injunction is not granted. Irreparable harm is more than just lost money – this can be compensated later. Irreparable harm includes things like lost clients or damage to the company’s reputation.
- The entity seeking the injunction will suffer greater harm the injunction is not granted, than the protesters will suffer if the injunction is granted (RJR MacDonald Inc v Canada (Attorney General)  1 SCR 311).
More information on injunction applications, and the forms they take, is available here.
When raised in the context of dissent, injunction applications raise significant concerns about access to justice. In particular:
- While civil injunctions are most commonly launched by a private actor in response to an act of dissent or civil disobedience, there has been an increase in anticipatory injunctions. These actions, known as “Strategic Litigation Against Public Participation” (or SLAPP suits for short), seek to silence dissent before it occurs. SLAPP suits are particularly common in the context of aboriginal and environmental litigation (Mayeda).
- When SLAPP injunctions are sought, they are often heard ex parte, since the protest organization has not actually appeared or conducted any protest yet. As such, protesters are not party to the injunction proceedings. They do not have the opportunity to present their arguments to the Court and review the case against them. Breaching the terms of a subsequent court order can have serious impacts for protesters – they can be sanctioned with jail time and an award of costs against them. SLAPP suits raise significant access to justice and fundamental fairness concerns.
- Private civil disputes do not involve the government, and thus, protesters have no recourse to the Charter’s protections. It has been argued that governments have intentionally adopted a “hands off” strategy to many protests in the hopes that private organizations will take action, thus privatising the disputes and constraining the matter in the less protective civil sphere (Michael Welters, “Civil Disobedience and the Courts: The British Columbia Approach” (2003) 12 J Evn L&P 1).