Liberal leader Justin Trudeau’s promise Monday to criminalize protests blocking hospitals and other health care facilities would be entirely within the government’s legal rights, experts say, with any challenge to such a law likely to fail. .
Trudeau made the promise as demonstrators gathered outside hospitals across the country to protest COVID-19 health policies, with patients and healthcare workers sometimes having to be accompanied by crowds of police to protect their safety.
Constitutional law experts agree that such a law would adhere to the Charter of Rights and Freedoms provided it goes no further than protecting access to health care, which remains an essential service.
“A general ban on protests would be difficult to defend in court,” said Joel Bakan, a professor at Peter Allard Law School at the University of British Columbia.
“But I think a tighter ban ensured that the protests do not interfere with patients trying to get into hospitals and doctors and ambulances and what will not be held for sure.”
‘It’s not fair’: Trudeau vows to penalize blocking of hospital access amid protests
NDP leader Jagmeet Singh has similarly promised to penalize any blocking of access to healthcare, as well as any attack on healthcare workers.
Under the liberal plan released Monday, the new legislation would make it a criminal offense to intentionally block access to any healthcare service building, including vaccine and abortion clinics. Intimidating or intentionally threatening a healthcare worker would also become a criminal offense.
Bakken and other experts explained that while Section 2B of the Charter allows for freedom of speech and expression, Section 1 allows for “reasonable limits” on those freedoms and the blocking of hospitals will not qualify for an exception.
Clare McGovern, a political science lecturer at Simon Fraser University, says a law based on the Liberal and NDP promises would be “opposed” absolutely, but cited Section 1 as the main reason why any challenge is likely to be rejected.
“These protesters would already be on shaky ground if they tried to argue that their freedom of peaceful assembly is being threatened because most of what we have seen has not been it,” she said.
“But even if the court says ‘well, your freedom of expression is being violated’, they would ask the government if they are justified in this law. And I think the government would be on solid ground because they would say they are defending “access to health care. And the courts are already very sympathetic to that cause.”
Liberals promise to outlaw blocking access to health care facilities
Many experts cited “buffer zone” laws about abortion clinics passed in the 1990s by some provinces and cities, including British Columbia and Ontario, that could provide a legal precedent or a guide to writing new federal law.
Such laws, which were passed in response to protests and so-called “sidewalk counseling” of abortion patients, have been backed in court despite repeated legal challenges. Even when the BC provision for sidewalk counseling was repealed, it was reinstated on appeal months later.
SFU criminology professor Colton Fehr points out that in the case of hospitals, as was the case with abortion clinics, the point is to reinforce that the right to public safety replaces one’s right to protest.
“Regardless of whether you agree with someone’s goals when they protest, the whole idea of protest is just as fundamental to a democratic society,” he said.
“But at the same time, some protests can have extremely damaging effects. And I think you saw it with some of these protests that we are seeing today in hospitals. “
Protests against pandemic protocols, vaccine passports held in Canadian hospitals
With regard to the criminalization of intimidation of health care workers, Article 423 of the Criminal Code already contains provisions against harassment and threats that were originally intended to criminalize prosecution.
While this may also apply to healthcare workers, experts say having a specific language helps further protect people and certain actions and looks good politically for anyone introducing such new laws.
“We’re in the middle of an election … and you’re not getting votes by saying, ‘Well, the Penal Code already covers that issue,'” said Margot Young, a professor at the Peter Allard School of British Columbia University School of Law.
“You get votes saying, ‘We appreciate this damage and we will pay special and focused attention to it.’ “And it seems to me that this is what he is doing now.”
Young also noted the increased security laws passed after the September 11, 2001 terrorist attacks in the United States: although airport and border security had already been legalized, the new laws spoke of “politics of the time.”
In this case, she said, a new law could help direct rallies to “more convenient” places such as outside federal government buildings or constituency offices, where protesters can convey their message directly to policymakers.
COVID-19 hospital protests ‘a moral shock’ for exhausted healthcare workers in Canada
Some health workers on Monday, exhausted after 18 months of working on the front lines of the pandemic, called the protests a moral shock and frankly disgusting.
Constitutional law experts agreed, with Bakan from UBC saying it was “disgusting” that patients and healthcare workers feared for their safety.
Even if the motivation for Trudeau and Singh is political, Young said their commitments to strike through legislation make sense.
“(Trudeau) is responding very directly to many voters who are fed up with images of ambulances unable to get to hospitals, and are generally fed up with what they perceive as selfish, right-wing behavior. “of those who are against vaccination,” Young said.
“That being said, we do not yet know whether the legislation we are proposing will address this properly or will go too far. We have no details. And the constitutionality is in those details.”
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