Policing Protest: Who Gets to Break the Law?

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By: Emily Handley & Khalil Qasem

Introduction

The criminalization of peaceful protests as violent conduct has become an increasingly concerning issue in Canada. The imposition of criminal language on protest action delegitimizes activism by framing it as violence, and in turn legitimizes police intervention against activists. Thus, the result is the criminalization of protest action, where “peaceful protest” is defined by law enforcement, restricting activism to behaviour sanctioned by the very systems being protested. Any action regarded as outside such parameters is punished or restricted, regardless of its validity or actual violence. If civil disobedience aims to act against systemic harms, it must be asked how the criminalization of protest prevents action against those systems.This blog will discuss the legal and rhetorical criminalization of protest, how the justice system redefines democratic participation as disorder and obscures the proportionality between protest tactics and the injustices they challenge.

Historical and Legal Context

Canada has an existing and established record of protests, and the use of violence against protestors is equally well-established.^[i] In recent years, Canada has seen blockades to prevent fracking that were escalated by police, such as the Mi’kmaq blockades in Elsipogtog in 2013.^[ii] By stating that the land New Brunswick wished to frack was unceded territory, protestors formed a blockade.^[iii] When an issued injunction was refused–despite continued peaceful protest–police approached the blockade with “dogs and snipers.”^[iv] Officers shot rubber bullets, beat and arrested over 40 protestors.^[v] This case demonstrates the escalation of violence by law enforcement. While harm may have resulted from both sides, police were instigators in both scenarios, initiating violent action due to a peaceful protest which restricted access to property.

This is problematic in two ways. First, it prevents protestors from presenting action that is unsanctioned by the court, despite a central purpose of protest to express discontentment with hegemonic systems. Second, in some cases, it is unconstitutional. The Canadian Charter of Rights and Freedoms (the “Charter”) protects the right to peaceful protest under section 2(c), which states that everyone has the fundamental “freedom of peaceful assembly.”^[vi] Escalation of violence by law enforcement does not respect this right. Further, it often prioritizes the desires of corporations or property regulations rather than respecting rights to protest.

The Language of Criminality and the Media

Not only is there physical violence that results from these escalated conflicts, but the aftermath can also be equally harmful to protest groups. Reporting of protest groups, by the media or data sources, for example, will often criminalize protest action using extremist or criminalizing language. Arising from the Elsipogtog blockades of 2013, RCMP reports used language such as “violent Aboriginal extremists” and protestors with “criminal intentions of the eco-extremists.”^[vii]Such language from official reports of the event demonstrates the extreme bias with which protests are recorded. Despite evidence of a peaceful protest that was escalated by the court and law enforcement, reports use criminalizing language. This disseminates the harmful narrative that protestors are inherently violent and criminal.

The effect of this narrative is the delegitimization of protest action. When protestors are labeled as committing criminal acts, pursuing judicial action against them is justified. Further, using criminalizing language, such as “violence”, “criminal intentions”, “terrorists” or “extremists” allows the public to disregard legitimate action. This usage of language also promotes fearmongering about protesters actions. Criminalizing language and protest suppression work in tandem to delegitimize protest action and keep it from the public eye. The ultimate effect is a narrative to the public that skews the purpose and action of protestors and law enforcement. By reinforcing a lack of public sympathy and labelling legitimate political action through criminalized language, the media aims to weaken protests.

While protests may be reported using criminalizing language, they may also not be reported at all. Large media outlets can have their own political agendas or may be owned by billionaires–such as the Washington Post owned by Jeff Bezos since 2013.^[viii] Thus, protest suppression works in tandem with the criminalization of protests, resulting in the silencing action and producing fearmongering.

Proportionality and Moral Comparison

Arguably, when protesters engage in actions like graffiti, sit-ins, or brief disruptions, the state often responds as though such acts constitute grave threats to social order. Yet, the scale of these actions pales in comparison to the harms being protested: deforestation, climate collapse, and the continuing theft of Indigenous land. The moral imbalance is apparent: a spray-painted wall can be scrubbed clean, but ecological and colonial destruction leaves permanent scars. The proportionality principle in the justice system asks whether the means used and the harms caused are balanced, but the law often inverts this principle when it comes to protest.[ix]

From a moral standpoint, one can understand how civil disobedience becomes justified when legal channels fail to address ongoing injustice. As thinkers from Henry David Thoreau[x] to Angela Davis[xi] have argued, resistance becomes a moral duty when legality upholds harm. The narrative of criminalization collapses the distinction between destruction and disruption. If the law protects harm, resisting it can be a duty. Sometimes the only way to force those who wield state violence to change is through acts that will be called crimes. It treats halted weapons shipments and blocked ports as morally equivalent to the atrocities those weapons enable. Cases like University of Toronto (Governing Council) v. Doe et al., 2024, show how courts continue to struggle with the balance between protest and property. In granting an injunction to remove student encampments, the Court emphasised order and ownership over expression and collective conscience.[xii] The reasoning reflects a broader discomfort with proportionality: acts of dissent that challenge institutional complicity are treated as legal transgressions, while the harms being protested such as genocide, displacement, and environmental destruction remain beyond the law’s reach. The result is an enduring asymmetry, where disruption is criminalized more readily than injustice itself.

Case Studies

Case 1: Palestine Student Encampment Injunctions

Recent injunctions against pro-Palestine student encampments across Canadian universities illustrate how the law’s protective impulse serves property over principle. Courts framed these peaceful occupations as trespass or mischief,^[xiii] granting universities swift orders to clear the spaces. Yet these encampments were based in political expression to challenge university complicity in ongoing occupation and genocide. The judicial reasoning emphasized the uninterrupted use of campus property, while largely ignoring the moral urgency of the cause.^[xiv] By prioritizing campus management and public access under section 1 of the Charter, the Court allowed the University to avoid addressing the moral and political urgency of the protesters’ demands. In other cases, law enforcement’s rapid mobilization reflected priorities rooted in maintaining institutional authority rather than preventing harm.^[xv] Public discourse echoes this framing, depicting students as lawbreakers instead of legitimate voices attempting to challenge hypocrisy. The result is a chilling reminder: those demanding justice for systemic violence are met with the full power of the state, while the structural violence they oppose remains untouched by law.

Case 2: R v Cavanaugh

In a case at the British Columbia Court of Appeal, the appellants–Romilly Cavanaugh, Jocelyn Pierre, and April

Thomas–were convicted of criminal contempt for violating an injunction while participating in a protest against the Trans Mountain Pipeline in 2020.^[xvi] Ms. Cavanaugh zip-tied herself to the gate of the Trans Mountain Drill Site,^[xvii]Ms. Pierre had climbed onto a bulldozer that was turned off,^[xviii] and Ms. Thomas was also present as a “legal observer.”^[xix] All three appellants were arrested and eventually convicted.

The case, while simple in its facts, seems to effectively demonstrate: (i) the escalation of force by law enforcement; and (ii) the prioritization of property rights over harm caused to protestors. Despite no evidence in the court case of the three appellants causing harm outside of attempting effective protest action, law enforcement used force that was reinforced by the court’s conviction.

Conclusion: Reimagining Protest and the Law

Protests should be understood as a democratic corrective, not a criminal threat. In moments when the government fails to protect public interests or uphold justice, collective resistance functions as an accountability mechanism. Reframing protest through this lens means recognizing dissent as integral to democracy. Effective protest is a form of public participatory oversight rather than unlawful disruption.

Legal reform must follow this recognition. Mischief and obstruction laws should be reinterpreted to distinguish between malicious harm and disruption aimed at public debate. Charter protections for freedom of expression and assembly must be strengthened to include acts of civil disobedience that confront systemic injustice. Courts should exercise restraint in issuing injunctions that pre-emptively neuter protest, particularly where the protest addresses state or corporate wrongdoing.

Ultimately, criminalizing protests erodes the moral consciousness of society. It substitutes dialogue for control, and engagement for punishment. Decriminalizing protest or upholding the proportionality principle will acknowledge that dissent is not the enemy of law but its growing morality. When the state punishes those who expose injustice, it confesses its own moral failure.

Image Description: A diverse group of protesters march through an urban street in Canada, holding blank signs and Canadian flags, expressing unity and a call for a cause.

Endnotes:

^[i] Chris Kortright, “150 Years of Resistance” (11 July 2017) 46:4 Brairpatch at 12–14.

[ii] Hayden Dahm, “Mi’kmaq Indigenous Campaign Prevents Hydraulic Fracturing in Elsipogtog, New Brunswick, 2013” (5 June 2014) online (database): <nvdatabase.swarthmore.edu/content/mi-kmaq-indigenous-campaign-prevents-hydraulic-fracturing-elsipogtog-new-brunswick-201> [perma.cc/785Z-A8ZX].

^[iii] Ibid.

^[iv] Ibid.

^[v] Ibid.

^[vi] Canadian Charter of Rights and Freedoms, s 2(c), Part 1 of the Constitution Act, 1982, being Schedule B to the Canadian Act 1982 (UK), 1982, c. 11.

^[vii] Angel Moore, “Elispogtog Anti-Fracking Blockade Had ‘Violent Aboriginal Extremists’ According to Former RCMP Intelligence Analyst” (2 December 2020), APTN News, online: <aptnnews.ca/national-news/rcmp-analyst-intelligence-reports-elsipogtog-anti-fracking/> [perma.cc/V5E5-TN7M].

^[viii] David Folkenflik, “Bezos’ Changes at ‘Washington Post’ Lead to Mass Subscription Cancellations – Again” (28 February 2025), NPR, online:<npr.org/2025/02/28/nx-s1-5312819/washington-post-bezos-subscriptions-cancellations> [perma.cc/H25R-WWQT].

^[ix] Department of Justice Canada, “An Opinion on Reform Changes with Respect to the Principles and Purposes of Sentencing…718.1 – Proportionality” (last modified 20 January 2023), online: <justice.gc.ca/eng/rp-pr/jr/orc-orp/p6.html> [perma.cc/3ZSC-RLL2].

^[x] Henry David Thoreau, “Civil Disobedience” (1849), online (blog): <blogs.law.columbia.edu/uprising1313/files/2017/10/Civil-Disobedience-by-Henry-David-Thoreau.pdf> [perma.cc/XU3F-RFT9].

^[xi] Simon Hattenstone, “Angela Davis on the Power of Protest: ‘We Can’t Do Anything Without Optimism’” (5 March 2022), The Guardian, online: <theguardian.com/us-news/2022/mar/05/angela-davis-on-the-power-of-protest-we-cant-do-anything-without-optimism> [perma.cc/5EQV-UAYJ].

^[xii]University of Toronto (Governing Council) v Doe et al., 2024 ONSC 3755, online: < https://canlii.ca/t/k5l9q >.

^[xiii]Ibid at para 123.

^[xiv]Ibid at para 249.

^[xv] Adam Carter, “Police Dismantle Pro-Palestinian Encampment at York University”, (6 June 2024) CBC News, online: <cbc.ca/news/canada/toronto/york-university-encampment-1.7226697> [perma.cc/ZM2G-EQX9].