What many convoy protesters get wrong about constitutional rights and the Governor General

While Russia's invasion of Ukraine is expected to drive a wave of Moscow-sponsored online disinformation in the coming weeks and months, constitutional disinformation dominated much of the discussion in Ottawa during the occupation of the downtown core by anti-vaccine mandate protesters.

Many protesters upset with vaccine mandates came to Ottawa with a flawed understanding of the limits of constitutional freedoms and how the Westminster parliamentary system works.

The protesters who blockaded the city waved copies of the Charter of Rights and Freedoms in the air while chanting "freedom, freedom" in the faces of police officers and citizens trying to go about their business. They claimed they were free to protest in Ottawa indefinitely, to commandeer the streets to make their point.

Many of those participating and supporting in the blockade signed a memorandum of understanding issued by Canada Unity, one of the groups organizing the convoy. That MOU called on the Governor General and the Senate of Canada to somehow form a new government with the protesters themselves.

When the federal government eventually invoked the Emergencies Act to clear the city, many of those who had been blockading the city claimed that martial law had been imposed and their rights had been violated or erased.

Let's take a look at these claims and compare them with the facts on Canada's Charter of Rights and Freedoms and the Constitution.

The Charter of Rights is part of the Constitution. It outlines Canadians' rights and freedoms and limits to those freedoms.

The very first section of the charter "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

In legal terms, that means that the freedoms and rights laid out in the charter are not absolute. To use the most popular analogy, one person's freedom to swing their arms around ends at the tip of another person's nose.

When rights are limited, they must be "prescribed by law" — to extend the analogy, you can't prevent someone from swinging their arms around by cutting them off. Limits to freedom must be precise so that they can be measured up against a legal standard. 

The Oakes test is used to determine if limiting a charter right is reasonable and can be justified under the law. The Oakes test says that the goal of limiting a right must be urgent and significant and that the way a right is limited must be proportional.

The Oakes test also requires a rational connection between the objective a government is trying to achieve and the right it is limiting. The right can be limited only enough to reach the objective and the harm caused by limiting a freedom must be balanced by the objective. 

Martha Jackman, a constitutional law expert at the University of Ottawa, said that "the government has to meet all of" the conditions of the Oakes test.

"So if something is irrational, that's sufficient for the government to lose the ability to justify something, if it's irrational or if it's disproportionate," she said.