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Supporters of the Wet'suwet'en hereditary chiefs perform a round dance at a blockade at a CN Rail line just west of Edmonton Alta, on Wednesday February 19, 2020. Protests raise some of the most important and thorniest questions at the intersection of constitutional rights and politics in a democratic society.

JASON FRANSON/The Canadian Press

Jennifer Klinck and Madelaine Mackenzie practise constitutional law at Power Law in Vancouver.

On Tuesday, Prime Minister Justin Trudeau addressed the House of Commons regarding the government’s intention to engage in dialogue with Wet’suwet’en hereditary chiefs and other Indigenous leaders in order to de-escalate the growing resistance to the construction of the Coastal GasLink pipeline on Wet’suwet’en traditional territories. Solidarity protests have sprung up across the country in the form of rallies, demonstrations, occupations and blockades.

That same day, Conservative Party Leader Andrew Scheer called upon the government to take more forceful action (i.e. police force) to end the solidarity protests.

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Meanwhile, courts have issued injunctions requiring the Wet’suwet’en hereditary chiefs to grant access to Coastal GasLink workers, as well as to prevent solidarity protests from interfering with major transportation routes. Arrests of some Wet’suwet’en land defenders in the course of enforcing an injunction only ignited more demonstrations.

Elsewhere, enforcement has been cautious and limited, even after Mr. Trudeau’s call for a peaceful dissolution of the blockades on Friday. During a press conference, Mr. Trudeau said that talks with Indigenous leaders had not been productive, but that the government will continue to be open to dialogue and is committed to finding a peaceful solution.

Political and public rhetoric about the “rule of law” has been invoked by those who support and those who oppose the protests. As Canadians work through these competing positions, an understanding of the constitutional freedom of peaceful assembly can offer some clarity. Protected under section 2(c) of the Canadian Charter of Rights and Freedoms, freedom of peaceful assembly is one of our most fundamental – and ignored – constitutional rights.

Protests raise some of the most important and thorniest questions at the intersection of constitutional rights and politics in a democratic society. These questions can get mired in confusion due to a common misconception: that freedom of peaceful assembly is the same as freedom of expression. Indeed, speaking about the current situation, Mr. Scheer referred to “the right to free speech.”

But freedom of peaceful assembly is different from freedom of expression (protected by section 2(b) of the Charter). The former protects expression that takes a particular form (assembly) and is exercised collectively. Equal freedom of expression alone is not enough to permit all perspectives to compete fairly in the “free marketplace of ideas.” Rather, unequal distribution of wealth and social standing amplifies some voices and silences others. In short, freedom of peaceful assembly gives marginalized groups a way to make themselves heard.

Underlying the protests are complex questions of Indigenous consent to resource development projects, as well as which Indigenous representatives are authorized to give consent. As Mr. Trudeau acknowledged, these protests are happening in a context of long-standing calls for justice from Indigenous communities. There’s no doubt those concerns are exacerbated by frustrations over unfulfilled promises of reconciliation.

In grappling with these issues, there is a dramatic imbalance between the ability of industry and government on the one hand, and the Wet’suwet’en hereditary chiefs and their supporters on the other, to access conventional expressive platforms.

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This is precisely the context in which the Charter’s freedom of peaceful assembly is most meaningful. It enables those who lack big advertising and lobbying budgets to make themselves heard through the strength of their numbers, as well as through symbolically chosen actions, times and locations.

To respect freedom of peaceful assembly, governments and the community must tolerate a degree of disruption, because it is the disruptive nature of public protests that amplifies their messages. The location of protests may be particularly significant even though, or specifically because, it compounds public inconvenience; in this case, targeting major transportation routes conveys opposition to the idea that economic development must always trump Indigenous rights.

Even when a protest exceeds constitutional protection, the purpose of freedom of peaceful assembly helps to define the lawful state response. Peaceful assembly rights are not typically interpreted to include physical obstructions (unless incidental to the right to be assembled in a particular place at a particular time). Nevertheless, law enforcement’s response must be proportionate and seek to uphold, not suppress, peaceful assembly.

Finally, freedom of peaceful assembly often operates where law ends and politics begin. Protesting is how marginalized groups can demand to be heard in the face of systemic injustice. For this reason, we should not be surprised to find that simplistic appeals to the rule of law are often unhelpful: the very problem may be unjust laws.

The dynamic political power of freedom of peaceful assembly is that, through it, demonstrators can garner public support to change the law. The government has opted for dialogue and limited enforcement of injunctions because that is what a critical mass of the public believes is right. This is what the freedom of peaceful assembly is intended to generate: political engagement on the justice of the (legal) status quo.

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