Has Public Protest Gone to the Dogs?. A Social Rights Approach to Social Protest Law in Canada

• Author: Graham Mayeda
• Profession: Associate Professor, Faculty of Law, Common Law Section, University of Ottawa
• Pages: 383-412

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chapter 13

HAS PUBLIC PROTEST GONE TO THE DOGS?

A SOCIAL RIGHTS APPROACH TO SOCIAL

PROTEST LAW IN CANADA

GrahaM Mayeda*

A. INTRODUCTION

How should the law react to social protest? Should it faci litate it? Should it

limit it? This quest ion is particularly poignant tod ay, when protests such as

the Occupy movement, the Quebec student tuition protests, and the Idle

No More movement demonstrate the continued importance of protest as

a form of social action. In t his chapter, I argue that t he social rights ap-

proach to resolving social conf‌lict can be applied to develop a progressive

legal framework for dealing w ith social protest.

To determine the proper role of law in regard to social protest, I begin

by examining wh at “legal rights” a re.1 The traditiona l approach to rights

treats them as havi ng determinate content — each right can be given a

legal meaning. For inst ance, the right to privacy is the right to be free from

* Associate P rofessor, Faculty of Law, Common Law Sec tion, University of Ott awa.

1 I do not think t hat law can be reduced to an unde rstanding of the mea ning of legal

rights. Els ewhere, I have examined t he law from the point of view of our ex perience

of judgment (see Grah am Mayeda, “Uncommonly C ommon: The Nature of Common

Law Judgment” (2006) 19:1 Ca n JL & Jur 107 [Mayeda, “Uncommon ly Common”]) and

as the nexus of pr inciple and pragmati sm (Graham Mayeda , “Between Principle a nd

Pragmat ism: The Decline of Pr incipled Reasoning i n the Jurisprudence of t he Mc-

Lachlin Cou rt” in Sheila McInt yre & Sanda Rodgers, ed s, The Supreme Court of Canada

and the Achievement of Social Justice: Commitment, Retrenchment or Retreat (Markham,

ON: LexisNexis C anada, 2010) 41 [Mayeda , “Between Princip le and Pragmatism” ]. But

a ref‌lection on the role of soc ial rights in soc ial protest natura lly leads to a consider-

ation of the natu re and meaning of legal r ights.

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unreasonable intrusion into personal life by the State.2 Moreover, in the

traditional approach, right s holders can come into conf‌lict. When they do,

the role of law is to resolve their competing rights clai ms. The essentia l

paradigm of the law th at animates the tr aditional view is one of conf‌lict

and conf rontation. Two or more rights holders enter into conf‌lict, and the

conf‌lict must be resolved through a theoretical conf rontation between com-

peting rights holders underta ken in the abstract by legal tribuna ls.

In this paper, I compare this traditional approach to a social rights ap -

proach. The social rights movement, which expands t he panoply of rights

from traditional political rights to socio-economic r ights, is marked not

just by its broader conception of rights but by its understanding of what

rights are, how socia l conf‌licts ar ise, and how they should be resolved. The

fundamenta l approach adopted by the social rights movement is that social

justice is not just about balancing rights but about creating the conditions

for a truly deliberative form of democracy in which the law both ref‌lects

and plays an integral pa rt in social transformat ion. The socia l rights move-

ment considers rights discourse as a n essential par t of the achievement of

social justice.

For the social rights movement, conf‌lict need not be approached as a

competition between competing rights holders. First, r ights have shifti ng

meanings — they mean d if‌ferent things to dif‌ferent people depending on

who they are and the socia l conditions in which they live.3 Second, when

social conf‌lict a rises, rather than framing it as a conf‌lict between individ-

uals or between an individual and the State, a social rights approach sees

the conf‌lict as a transfor mative moment — i.e., an opportun ity to reassess

past interpretations of a right in light of newly emergent social circum-

stances and to engage the public in t he process of articulating the meaning

of rights in a part icular soci al context. In this way, a social rights approach

to law sees conf‌lict as contributing to t he strengthening of the social fabric

by engaging us in democratic deliberat ion.

The purpose of thi s paper is to consider how these dif‌ferent paradigms

frame the issue of socia l protest and to develop a legal framework for the

2 Hunter et al v Southam Inc, [1984] 2 SCR 145 at 159.

3 Nancy Fraser expl ains the varied u nderstandings of t he substance of justice cl aims:

“‘. . . class-accented appe als for economic redistr ibution are routinely pitted ag ainst

minority reco gnition,’ while femini st claims for gender just ice often collide with de-

mands for suppose dly traditional for ms of religious or commun al justice. The resu lt

is a radical he terogeneity of justice disc ourse . . . .” (Nancy Fraser, Scales of Jus tice: Re-

imagining Political Space in a Glo balizing World (New York: Columbia Universit y Press,

2009) at 2).