In a pair of blog posts, Brent Rathgeber explains his concerns with some of the tactics used by Idle No More protesters.

Last Wednesday, Native Protestors blocked the QE II near Gateway Boulevard fully and then partially for a little less than 2 hours.  Then during the afternoon commute, the same protestors set up a blockade on St. Albert Trail at Sturgeon Road.  As St. Albert is a bedroom community of Edmonton, I represent many commuters.  My office has been inundated with e-mails and phone calls asking why the RCMP allowed this admittedly peaceful protest to proceed. According to the St. Albert “Gazette”, the demonstration happened with the cooperation of the RCMP, who had met in advance with the protestors and were on scene to manage traffic.  Apparently, the RCMP share Edmonton Police Service’s theory that managing a protest is a better tactic than stopping it.

I am not so sure. In the first place, acquiescing to an illegal activity does nothing to prevent further illegal activities. And make no mistake; the police were enabling an illegal activity.   Section 430 of the Criminal Code clearly defines the offence of “Mischief” when one willfully “obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property”.  Moreover, you can be charged with “Intimidation” when you compel “another person to abstain from doing anything that he or she has a lawful right to do” including one who “blocks or obstructs a highway”, which is “a road to which the public has the right of access” (Section 2).

A hallmark of a free society is our Charter protected rights of expression and assembly.  Accordingly, I defend the rights of peaceful assembly without equivocation.  However, one’s freedom to demonstrate cannot break the criminal law; one’s freedom to protest cannot trump another’s right to the lawful use of public property to get home after work.  As enlightenment philosopher John Locke so famously declared: “my liberty to swing my fist is limited by the proximity of your chin.”

Blake Richards is similarly concerned.

That being said, some of the militant activists hiding behind the Idle No More banner are doing all they can to threaten the progress being made between our government and First Nations leaders. Canadians are growing increasingly frustrated and disappointed with the actions of those who blockade highways and railways. The blockades must stop. They are counterproductive, and an impediment to progress.

From a philosophical standpoint, violating the law is fairly central to the idea of civil disobedience.

Such protests are, of course, not unique to aboriginal causes. Farmers in British Columbia conducted a blockade of a private property on an entirely unrelated matter this month (the blockade ended Thursday at the RCMP’s behest). Farmers have used convoys in the past that have tied up or otherwise impeded traffic in the process of protesting government policy. (Farmers also protested the coalition in 2008.) And at least one such protest has occurred with support from some of Mr. Richards and Mr. Rathgeber’s colleagues (see story below).

Ultimately, we’re talking about tolerance: what should a democratic society be willing to tolerate and what should law enforcement be willing to tolerate before intervening? (From a policing standpoint, for the sake of maintaining peace and order, where is the line between letting a protest run its course and needing to enforce the law? At what point is it more troublesome to intervene than it would be to work around the situation?) Protesters who break the law probably have to accept the possibility of being arrested, charged or fined—though, with something like a highway blockade, working with law enforcement in advance might allow for reasonable compromises to be found. But protesters also have to keep in mind how the general public will view their actions: a protest might be meant to raise awareness, but it might hurt the larger cause if the action greatly angers and frustrates those directly impacted and is viewed unfavourable by the majority of those who read and hear the news. In that regard, Idle No More protesters might be smart to consider the complaints of Mr. Rathgeber and Mr. Richards, even if they disagree with their conclusions. Continue…