Two Constitutional experts in the Maritimes disagree over the legality of protests last weekend against pandemic restrictions.
"We have to let people freely express what they think," said UNB's Nicole O'Byrne,"especially in difficult times – to the extent that they're not causing harm to other people."
Hundreds of people opposed to pandemic restrictions gathered in Fredericton on Saturday and Moncton on Sunday, despite a ban on public gatherings in effect until Jan. 31, under the provincial emergency order.
Two men were arrested at the Fredericton protest for allegedly disturbing the peace, according to Fredericton police, and are facing a number of criminal charges in addition to fines. They were released on promises to appear in court in March.
Several other tickets were issued to organizers and participants of the protest for violating the emergency order, said a spokesperson for the force, and more fines are likely, pending a review of images recorded at the scene.
The demonstration in Moncton Sunday was peaceful, said the RCMP, and none of the 1,200 to 1,500 participants was arrested.
A judge will probably have to make a final call on this, said O'Byrne, but her opinion is that Constitutional rights, such as freedom of expression and peaceful assembly, rank higher than the province's conflicting pandemic law against assembly.
"We have to protect free speech," said O'Byrne, "to the point where it makes a lot of us uncomfortable."
The alternative, she said, is to live in an Orwellian state where thought and expression are suppressed.
But another law professor who specializes in the same area, feels differently.
Wayne MacKay of Dalhousie University agreed that expression and assembly are important rights, but said emergency restrictions are reasonable limits to those rights in light of the threat to public health.
"When the rights of the individual start to interfere with the rights of the larger public in terms of their health and well–being the courts have come down on the side of protecting the rights of the larger public," MacKay said.
In most cases to date, where people have tried to challenge pandemic restrictions, said MacKay, courts have upheld them.
On social media last week, cabinet minister Dominic Cardy implored police to do something to prevent the planned weekend rallies.
O'Byrne's view is that was inappropriate.
"There's no justification for political interference in police operations," she said.
Police officers are answerable to the law alone, she said, quoting the English lawyer and judge Tom Denning, and have leeway to use their professional judgment.
"They can't preemptively halt a protest where there may be wrongdoing," said O'Byrne. "They have to wait til the wrongdoing occurs then go in and keep the peace."
It seems appropriate, she said, that police ended up arresting a few people for allegedly disturbing the peace and issuing some fines.
But in Nova Scotia, the government did take a preventive approach, said MacKay.
When a group was planning a "freedom" rally on Citadel Hill, he said, the province got an injunction to stop it from taking place.
Police do have some discretion, said MacKay, but you can't violate the law.
"I think that's what Cardy was getting at," he said.
Another important thing, said MacKay, is that enforcement should be fair and equal.
That's not always happening, he said.
Some people who host house parties receive tickets, for example, while others do not.
And arrests were made at the Fredericton protest, but not the Moncton one.
While the Moncton march was peaceful, it would have posed a greater public health risk, said MacKay, because it was larger.
The government is in a difficult position, said O'Byrne, trying to balance competing interests.
The health system may need protection, she said, but she challenged the idea that an "emergency order" should still be in place two years into the pandemic.
Here, too, MacKay had a different opinion.
"If this were to go on indefinitely," he said, "I would have some sympathy with the arguments of threats to our democracy. But this is a pandemic and it's a crisis and it needs to be dealt with in a different way from normal times."
O'Byrne said the government has plenty of other options to reduce the risk to public health which don't infringe on rights and freedoms.
She suggested revoking privileges, such as access to licences for hunting, fishing, bingos and other charity events, for those who refuse to be vaccinated and have no legitimate medical excuse.
"The government still has a lot of room here," she said.