On Saturday, May 15, a Free Palestine caravan rally (people in their cars) was held in the south end of k’jipuktuk /Halifax to support Palestinian people in their struggle against the violence they are facing by the state of Israel. Meanwhile, on the Citadel Hill park in Halifax and other parts of Nova Scotia, there was another group, Freedom Nova Scotia (FNS), who were gathering to oppose public health restrictions and vaccinations, All told, there were 17 tickets issued to those at the free Palestine event and just 11 to those deliberately challenging the public health restrictions.
Police used an injunction order from May 14 as a basis for tickets and arrests at the Free Palestine event, just as they did for the FNS event. There were already grounds for ticketing people at an “illegal” gathering due to the May 13, Public Health Order (Order)*, which stated that persons in Nova Scotia were prohibited from:
(a) organizing an in-person gathering, including requesting, inciting, or inviting
others to attend an illegal public gathering;
(b) promoting an illegal public gathering via social media or otherwise; or
(c) attending an illegal public gathering of any nature, whether indoors or
outdoors.
With the injunction, the NS Government was seeking to go further. They sought to stop protest gatherings that violated the Order, and, additionally, to put any would-be violators at risk of not only $2,000 + tickets under the Health Protection Act, but also of being found in contempt of a court order.
But regardless of whether you look at the injunction or the Order, the Free Palestine gathering was in no in way challenging any public health restrictions through a caravan rally. The injunction does not actually name Free Palestine. It specifically names FNS and the Worldwide Rally for Freedom and Democracy (WRFD) in noting, “the Order will be posted on all social media platforms associated with the Respondent, Freedom Nova Scotia and Worldwide Rally for Freedom and Democracy.”
More importantly, the Order cannot be separated from Justice Norton’s decision, through which it was issued. The application by the NS government was for a specific type of injunction called a quia timet injunction, which translates to “because he fears or apprehends”. It’s a pre-emptive strike to stop actions before they start. In addition to the usual conditions that have to be met for an interim injunction, a quia timet injunction requires that, “there is a high degree of probability that the alleged harm will occur.” The alleged harm in present circumstances consists of activities that are a high risk of spreading COVID-19.
The entire basis for the decision to grant such an extreme pre-emptive strike power was to stop activities that were “anti-mask, anti-vaccine, anti-restrictions, and anti-lockdown,” and gatherings that are made up of “high risk activities”, which included “singing and shouting”. Justice Norton specifically noted high risk activities as outdoor activities, “if people are not distanced from each other or masked.” Singing and shouting inside your car, while others are singing and shouting in their cars are not high risk activities. If they were, every cluster of cars at a red light or in a traffic jam, where drivers and passengers may be talking loudly with each other or on their devices with windows open, would be an illegal gathering.
The decision also recounted how FNS and WRFD had been involved in organizing and gathering for a number of events since March 2021, where they promoted violations of public health restrictions – not wearing masks and not physically distancing – and deliberately breached the restrictions themselves. This was the pre-text for the injunction, that the target groups had already shown that they would participate in activities likely to spread COVID-19.
Such a back-story does not exist for Palestinian solidarity demonstrators. A quia timet injunction would very likely have failed if it was aimed at pre-emptively stopping a caravan rally where participants set out to actually follow the public health restrictions – that’s why they were in cars! Such an extreme order as a quia timet injunction only makes legal sense, in the present pandemic context, against a group that has intent to gather in unsafe ways and to promote gatherings that are a high risk of increasing the spread of COVID-19.
It must be kept in mind that the Canadian Charter of Rights and Freedoms is breached by the public health restrictions, including rights to liberty, expression, peaceful assembly and association. The NS government can only justify “reasonable limits” to such rights, which includes that restrictions must be only be what is minimally required to accomplish the government’s public safety or public health objectives. For example, requiring physical distancing by 6 feet+ and masking are justifiable limits on liberty, considering the pandemic. But stretching the injunction to include car caravans will illegalize any parade event where everyone stays in their cars, as well as traffic jams and stopping at red lights. It would likely also illegalize protests where all the participants are more than 10 feet apart and masked in a large space or where 4 people are masked and holding up signs at the four corners of an intersection. In all these cases, according established public health findings (being masked and at least 6 feet apart is safe), there is no reasonable risk of spreading COVID-19. According to both the Order and the injunction, even sharing such events on social media would be violations. Illegalizing these activities go beyond reasonable limits.
It should concern anyone wishing to safely organize a demonstration during the lockdown if the NS government has legislated what are essentially prohibitions against all protests during this time, let alone that they have done so through an ex parte court proceeding. That is why such abroad interpretation of the injunction and Order (previous and current) should be rejected.
Finally, the bigger picture must not be forgotten. Voices in solidarity with Palestinian people, whose live and homes and being destroyed, were silenced.
*The May 13 Order has now been replaced with a new Order, as of May 21, that extends the gathering limits and restrictions on “illegal public gatherings”.