David Lindsay back in court this week fighting City of Kelowna protest injunction

Photo: Nicholas Johansen

A downtown Kelowna protest against COVID-19 measures in December 2020.

After he was sentenced to house arrest last month for assaulting two security guards at a Kelowna protest, David Lindsay has been back in court this week fighting for his right to keep protesting.

Since May 2020, Lindsay has helped lead protests against the government's response to the COVID-19 pandemic, at Kelowna's Stuart Park and elsewhere in the city. He was charged criminally for purposely walking into two security guards during a 2021 protest at the downtown Kelowna Interior Health building and after he was convicted of assault following trial, he was handed a four-month house arrest sentence.

One of the only exceptions of his sentence that allows him to leave his home is to attend court, and he's spent most of this week back in court fighting with the City of Kelowna.

Back in January 2023, the city filed a petition in the BC Supreme Court seeking an injunction to prevent Lindsay from holding his protests in any downtown park, between Recreation Avenue and Harvey Avenue, and west of Gordon Drive.

The Stuart Park protests were once a weekly event through the height of the pandemic, but they've become less frequent in recent years. But another protest is scheduled to return this weekend.

The city says Lindsay's protests are unlawful, as no permits or approvals have been granted, citing the city's Parks and Public Spaces bylaw, the Good Neighbour bylaw, the Outdoor Events bylaw, and the Traffic bylaw.

It claims the protests’ erection of tents, use of amplified sound systems, sale of merchandise and “standing and loitering” on public roadways are the primary bylaw violations involved.

The city also says it's received “numerous complaints from the public” about the protests, although Lindsay disputes this in his own court filing.

In that 105-page filing submitted last November that seeks to strike the city's petition entirely, Lindsay says the city has issued him more than 200 bylaw tickets amounting to more than $50,000 in fines.

In court Friday, Lindsay argued that the city's attempt to shut down his protests infringes on his Charter right to freedom of expression.

“The petition itself ... is frivolous, vexatious and an abuse of process. And that goes a lot to it's attempting to pigeon-hole me into their bylaw definitions that clearly don't apply,” Lindsay said.

“The parks bylaw, for example, applies to nuisances, disturbances and other objectionable situations, and protests are not objectionable. They are Constitutionally protected for a very strong reason. Protest does not fall into the category of a nuisance or a disturbance.”

Judge Briana Hardwick pushed back, noting the city isn't arguing that he can't hold protests, but that they're “events” which require a permit.

“The main argument is, is it or is it not an event? That's the main point,” Judge Hardwick said.

“The point here that lies for the court is, how do I reconcile what you say about your Charter rights and your freedom of expression, which are obviously well established, with municipal bylaws, and how I manage those together.”

Lindsay argued that you shouldn't need a permit for rights and freedoms.

“By the very fact that a permit is allegedly required, the only way that can happen is if you don't have the right or freedom in the first place,” he said.

“With the Supreme Court of Canada repeatedly recognizing that we have the Constitutional freedom to use parks for effective communication, that does not licence the city to force us to get licences in order to do that.

“Insofar as we have to tell the city or give them advance notice as they submit in their alleged policy, I submit that that would be considered unconstitutional.”

In his court filing, Lindsay claims that a “high-ranking official” with the City of Kelowna has told him the primary reason for the city's petition is that both the provincial and federal government are pressuring the city to stop the protests, “by threatening the [city] with denial of funding or project approval.”

While the civil matter was scheduled to wrap up Friday, another two days are expected to be needed in the case, which will be scheduled later this year.