Condemning anti-vax hospital protests isn’t enough — we need action

OPINION: This must be a red line in our society: access to medical facilities cannot be blocked, disrupted, or impeded
By Matt Gurney - Published on Sep 13, 2021
People in Vancouver protest against COVID-19 vaccine passports and mandatory vaccinations for health-care workers on September 1, 2021. (Darryl Dyck/CP)

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Years ago, during a workplace dispute among stressed-out colleagues, a manager listened carefully to the problem at hand, nodded seriously, and said, “Well, someone needs to do something about this.”

What followed was an awkward silence as said manager spent a few long moments realizing that they were the someone.

I’ve often thought back to that moment as an instructive insight into human nature. We would often rather continue enduring an imperfect situation than rock the boat to improve it. Inaction, though, is not always a luxury we can afford.

As I write these words, just a few miles from me, protesters are outside the Ontario legislature, protesting against vaccine mandates, ahead of planned protests outside Toronto General Hospital. Similar protests last week rattled already stressed people seeking access to medical care or ailing loved ones at other hospitals. The protests also provoked massive outrage among medical staff and the broader public, who were furious that anyone would disrupt access to a medical facility. 

Let me make two clear statements that are not in conflict but will likely be perceived that way: I fully support vaccination and vaccine mandates as necessary steps during a public-health emergency. I also believe that it is urgent that the minority that disagrees be managed carefully. Note that I did not say capitulated to or coddled. But I see a bit too much eagerness and enjoyment in some of the people advocating a strategy of maximum confrontation with the anti-vaccine fringe. I entirely get the emotional impulse. But there is a very real danger of making the situation worse rather than better. This will require sober and considered action, and those saying otherwise or urging rash action need to brush up on the concept of blowback.

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On an individual level, strong action may be required — if anyone obstructs or impedes, in any way, access by anyone to a medical facility, that person should be stopped by law enforcement, using the necessary force. This has to be a red line in our society: access to medical facilities will not be blocked, disrupted, or impeded. Period. This isn’t a political issue; this is a rule-of-law issue. Our society functions because we, the people, have relinquished to the state the use of force (excepting reasonable self-defence), and we expect the state to preserve and protect society’s critical institutions. Health care is at the very top of a very short list of institutions that must, at all costs, be protected. The same argument that led us to lockdowns during a pandemic must apply as well to access during a protest: the hospitals must be kept open and running. That’s it.

But on a societal level, as satisfying as “Arrest them all!” might sound rolling off the tongue when condemning someone blocking a hospital entrance, there are millions of people who feel passionately about these issues. They’re wrong. But dealing with them will necessarily be a process of de-escalation and de-radicalization. 

I wrote here just a few weeks ago about how tired we all are and received wonderful feedback on that column. Well, here we are again, folks: Many of the people protesting vaccines and vaccine mandates are tired, exhausted, and frustrated, and guess what? So are all the people trying to figure out how to deal with them. I’m begging all of you to take a moment, even just a single moment, and consider this with some dispassionate intellectual detachment: Does this sound like a scenario that could just possibly get out of hand if mishandled?

And this brings us back to leadership. 

I spent some time this morning on the phone with a few smart people who are knowledgeable about civil liberties and the Constitution. Even jerks have the right to protest, one of them said to me with a laugh. They also have a right to protest loudly, raucously, and even profanely. In doing so, they may and often do outrage the sensibilities of broader society. But except when it comes to crowd control and the basic prevention of nuisances, law enforcement should always take a minimal stand when confronted with protests. The danger here is that the protests may tip over into blocking access to essential facilities. What is needed is clarity, both legal and practical, on what will be tolerated and what won’t be. And that clarity must be universally shared by all. 

It would not be impossible to establish such clarity, at least in terms of what’s permitted. My smart constitutional brains were all stumped when I asked whether there were something specific in the law that already guaranteed access to medical facilities. The consensus seemed to be that there ought to be but that earlier framers of the law might have taken that so for granted it might not be specifically spelled out in any existing law. Laws against harassment and intimidation could apply and already exist. There are laws about transportation infrastructure that can be engaged if roads and sidewalks are physically blocked, but hospitals themselves may be an odd omission from lists of critical protected infrastructure. 

If that’s the case, that’s fine. At the federal level, the Criminal Code could be amended (quickly and, I suspect, uncontroversially) to make this so. At the sub-national level, bubbles can be carved out around medical facilities, as is already the case with abortion clinics in British Columbia and Ontario. Barring that, someone can seek an injunction from a court on an emergency basis to achieve this — and it literally can be anyone. Ideally, it would be an attorney general or a health minister or any senior figure in a government. But it could also be a hospital or an association of hospitals or a doctor or a patient or you or me. Given that we are still in a federal election, God help us, it’s frankly surprising that one or more parties haven’t promised to pass some legislation at the federal level. Let’s see how long that lasts. 

(Wait, actually, never mind. About four minutes after I wrote this sentence, Justin Trudeau pledged to do exactly this. So, four minutes. It lasted four minutes.)

But the next challenge will be what’s tolerated in practice. This country has a long history of the police taking a fairly hands-off view of how they will choose, as an operational matter, to enforce the law or execute a court order. This seems like a million years ago now, but in 2013, an Ontario judge specifically criticized the OPP for refusing to clear an Indigenous protest off a rail line that the court had ordered reopened.

The real challenge, though, may be leadership. On Sunday and Monday, Premier Doug Ford and Health Minister Christine Elliott tweeted out condemnations of the hospital protests. That’s great, as far as it goes ... which isn’t particularly far. That’s what brought to mind that long-ago manager of mine wishing someone would do something without realizing that they were the someone. We elect leaders to lead. The buck stops with them. Now would be a good time, guys. Act calmly and cautiously. But act.

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