Welcome to “Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t!”
In this episode, Kyla Lee from Acumen Law Corporation discusses a case involving the Freedom Convoy and the criminal offence of counseling mischief—raising serious concerns about the boundaries between free speech and criminal conduct in the context of protests.
Key Points Discussed
The Legal Context
During the Freedom Convoy protests, Artur Pawlowski became a prominent figure, particularly for his involvement in the Coutts blockade in Alberta. He was charged with counseling mischief after giving a speech at a pub where he urged attendees to “hold the line” and continue the blockade.
While the Criminal Code provisions on mischief contain exceptions for speech related to legal rights or social issues, Pawlowski argued that his speech was protected under free expression and that the attendees were not acting solely because of his remarks. The court disagreed, and his appeal to the Supreme Court of Canada was dismissed.
Why This Case Matters
The Blurred Line Between Speech and Crime
Pawlowski’s case raises broader issues about how the law treats protest-related speech. When does expressing support or providing information about a protest cross into criminal counseling? Without clear guidance, the line remains dangerously blurred.
Risks for Other Protesters
While the Freedom Convoy has been widely criticized, this case sets a precedent that could impact peaceful protests, particularly those by marginalized groups such as Indigenous communities, racialized individuals, or those facing systemic discrimination. These groups are more frequently targeted by law enforcement and face harsher consequences.
Missed Opportunity for Legal Clarity
The Supreme Court could have:
-Established a clear legal test distinguishing lawful protest speech from counseling mischief
-Protected vulnerable communities from potential overreach by law enforcement
-Reaffirmed the importance of free expression in democratic protest movements
By leaving the lower court’s ruling intact, the Supreme Court left these critical questions unanswered, exposing protesters to increased legal uncertainty and potential harassment.
Topics Covered
-The boundaries between counseling mischief and free speech
-The impact of protest-related criminal charges on marginalized communities
-The need for a clear legal framework to protect protesters’ rights
-The role of the courts in safeguarding free expression in the context of civil disobedience
