Law expert weighs in on justice camp's legal action over arrests

The Justice For Our Stolen Children camp says it's taking the province to court.

CBC Saskatchewan spoke to a law expert about what that constitutional challenge might look like.

Dwight Newman is a professor with the University of Saskatchewan College of Law and the Canada Research Chair in Indigenous Rights in Constitutional and International Law. He joined host Jennifer Quesnel on CBC Saskatchewan's Blue Sky. The conversation has been edited for length and clarity.

Quesnel: What do you make of this challenge?

Newman: We're seeing an example of some smart lawyering, to put the best case that the lawyer can to try to argue that there's been a violation of expression rights.

We'll have to see how that plays out in the courts.

Dan LaBlanc, who is acting as legal counsel for the Justice For Our Stolen Children camp, mentioned section 2B of Canada's Charter of Rights and Freedoms. What's that about?

The part of 2B at issue is the basic right to freedom of expression and freedom of expression is protected under Canada's Charter of Rights. Expression is taken by the courts, very broadly, to be anything that's done to convey any type of meaning or argument.

So there's very little doubt that there's expression at issue here. In fact, we are talking about expression on political issues, as Mr. LaBlanc referenced, and that does receive a fairly high standard of protection under the constitution.

Where things get a little trickier is that there can be limits put on expression. In particular, limits based on the place of expression.

People can't be restricted from expressing political messages, but there may be restrictions on where exactly they do that.

The group is saying it has the constitutional right to protest and be in Wascana Park with all these teepees, and the province is saying there's a bylaw against camping overnight and having open fires in the park. Which of these points would supersede the other?

That would be exactly what the court would have to test out.

We saw a lot of lower court case law around some of the Occupy protests a few years ago, and that also involved people camping overnight in parks where that was often prohibited by bylaws. Some of those came out in different ways. It depends a little bit on some of the exact facts involved in particular situations.

Some of the group's case appears to be based on the fact that six of its members were arrested and then not charged. What do you make of that?

There's a separate legal argument being put about that under section 9 of Canada's Charter of Rights and Freedoms, people have a right to not be arbitrarily detained or imprisoned. The argument in some ways will come down to whether it was a bona fide arrest for purposes of enforcement of the law.

The argument against it is that they were arrested then as soon as the protest disappeared they were released without charges. So there would be an argument that there was an arrest just to put pressure on them. But I think the police can respond with an argument that they were enforcing the law.

Those who were arrested are saying they do not want money as a result of this. What effect, if any, does that have on their constitutional challenge?

It doesn't change the basic issues. I think it could make their case look more sympathetic to a judge in practical terms. If they were there seeking a lot of money, it gives a different impression.

Clearly they're arguing a point of principle — one over which there's some disagreements in terms of whether they're allowed to carry out the protest activity in the location where they are.   

Similar protests are popping up in other cities. What does this particular challenge mean for future protests here in Saskatchewan?

The City of Saskatoon has responded quite differently and in some ways has tried to facilitate there being an opportunity for a protest to occur, and that has led to a more cooperative situation where that protest might be of a more limited duration.

The Regina situation is in part a continuation of another movement, Colonialism No More, that had tents outside the Indian Affairs Office for a period of time last year, and there hasn't been a cooperative attitude on any side around these and they've been of longer duration.

So we see there are ongoing Indigenous issues in Canada and it's not surprising that there would be protest activity around those. There are a lot of big issues at stake and I don't think this isn't the end of protest activity that we're going to see.

One of the ways there's democratic participation is through protest activity.