The case of R v Pawlowski, 2024 ABCA 342 explores the boundaries of the right to protest in a democratic society. Artur Pawlowski was convicted of inciting mischief due to a speech he gave during a protest that blocked the Coutts border crossing in Alberta, Canada. This protest was in opposition to COVID-19 public health measures.
In his speech, Pawlowski encouraged the protesters to “hold the fort” and not “break the line,” urging them to continue the blockade, which the court determined was mischief under the Criminal Code. The case raised significant questions about the balance between upholding the right to protest, as part of the broader right to freedom of expression, and the need to maintain public order and prevent harm.
One of the central issues in the case was whether Pawlowski’s speech was a form of “expression” protected by section 2(b) of the Canadian Charter of Rights and Freedoms. This protection, he argued, provided him with “legal justification” for his actions under section 429(2) of the Criminal Code. While the trial judge dismissed Pawlowski’s argument due to a lack of formal Charter notice, Justice Slatter, in his concurring judgment, argued that this procedural issue should not have precluded a full consideration of Pawlowski’s defence. The specific notice requirement cited by the trial judge, found in the Constitutional Notice Regulation, applies only when seeking remedies under sections 24 or 52 of the Charter. Since Pawlowski did not seek such remedies, the regulation was not relevant.
However, even if the procedural hurdle of notice had been cleared, the court ultimately determined that inciting criminal acts, even if motivated by political beliefs, falls outside the protection of the Charter. While peaceful protest is permitted, the court found that inciting others to commit mischief, like blocking a highway, crosses the line of legitimate protest and cannot be justified as an exercise of freedom of expression. The judges made a clear distinction between voicing political opinions and actively inducing unlawful behaviour. Importantly, the court’s analysis was focused on the content and intent of Pawlowski’s speech in the context of an existing illegal blockade, and not on the political motivations or potential “good cause” behind the protest.
The court also rejected Pawlowski’s argument that his actions were protected under section 430(7) of the Criminal Code, which states that “no person commits mischief … by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.” This section is designed to protect activities such as those carried out by pollsters or journalists, if done solely for the purpose of communicating information. However, the court held that Pawlowski’s speech was intended to incite continued illegal action, exceeding the scope of simply conveying information. This conclusion underscores the point that section 430(7) provides a content-neutral exception to the mischief provision and cannot be used as a shield for inciting criminal activity.
Further, Justice Slatter highlighted the importance of defining the scope of “expression” under section 2(b) of the Charter. He argued that the meaning of “expression” should be interpreted within the context of the Charter’s text, which does not inherently include criminal physical acts. Justice Slatter acknowledged the complexity of determining precisely what acts are covered by the concept of “expression,” introducing the idea of a spectrum of conduct. He explained that certain activities, such as violent acts and threats of violence, are clearly excluded from the protection of “expression,” while others fall into a grey area requiring a nuanced assessment of whether restrictions on those acts can be justified in a free and democratic society.
To further underscore the limitations of the right to protest, Justice Slatter referred to existing case law that establishes blockades as an unacceptable form of protest. He cited the Behn v Moulton Contracting Ltd. case, which confirmed that accepting self-help remedies like blockades undermines the rule of law and can erode public faith in the justice system. He emphasised that blockades, though frequently presented as a form of protest, are inherently aggressive, carry the potential for violence, and are intended to intimidate and restrict the movement of others. Justice Slatter affirmed that Canadian law protects peaceful protests but not the mass obstruction of public highways.
Finally, it is worth noting that although Pawlowski had filed a separate Charter challenge related to the Critical Infrastructure Defence Act, the trial judge did not address this issue [97, footnote 1]. This point, while not directly relevant to the court’s decision on the incitement charge, underscores the complexities of navigating the legal landscape surrounding protest and the potential for overlapping legal issues.
In conclusion, the Pawlowski case offers a valuable analysis of the balance between safeguarding freedom of expression and ensuring public order. It emphasises that while the right to protest is fundamental to a democratic society, this right does not extend to inciting unlawful actions that threaten public safety, even if pursued in the name of political objectives. The case demonstrates that the right to protest, while essential, must be exercised responsibly and within the boundaries set by the law.
