The law of street protest in Canada

The events of the G20 weekend in Toronto raised important legal issues and exposed gaps in our law. Are street protests legal and when can the police break them up? Can the police have special powers when world leaders are in town? How did we go from guaranteed freedoms of expression and peaceful assembly to a third-world style detention centre for protesters and police “kettling” of citizens at Queen and Spadina? What is the law of street protest in Canada?

The starting point for any analysis is the guaranteed freedoms of expression and peaceful assembly in sections 2(b) and (c) of the Canadian Charter of Rights and Freedoms. We start here because these freedoms are secure from any government body, including the federal parliament and provincial legislatures.

There is no absolute freedom of assembly in Canada. First, the Charter itself limits it by guaranteeing only “peaceful” assembly. That’s why the government can restrict certain kinds of assembly that it considers not peaceful. Such restrictions do not infringe on the Charter freedom of assembly unless the courts disagree with the government’s interpretation of what’s “peaceful.”

Second, the Charter freedom of peaceful assembly is guaranteed only “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (s. 1 of the Charter). It means legislative acts or judge-made common law in Canada can limit even peaceful assembly, but they must have very good reasons. Legislative acts include federal and provincial laws and regulations as well as municipal by-laws.

Only law can limit a Charter right. A police officer cannot limit a Charter right on his or her own initiative without any authority in law. When the police break up a street protest, they can do it either because the protest is not peaceful or because law prohibits the protest for a good reason acceptable in a free and democratic society. Police officers may not break up a protest in any other circumstances. If they do, these officers will be breaking the law. But in Canada, it’s hard to tell when officers break the law for the following reason.

Laws regulating protests in Canada give the police a lot of discretion in deciding, first, what assemblies are peaceful, and second, when peaceful protests are not allowed. Police discretion contradicts the values of accessibility and precision that gave rise to the s. 1 requirement that limits on Charter rights be prescribed by law. The idea is that citizens should have a “reasonable opportunity to know what is prohibited” (Peter W. Hogg, Constitutional Law of Canada, Student Ed. 2007 at p. 798)—that’s accessibility of law, and that officials must not engage in discriminatory and arbitrary breaches of rights—that’s precision of law.

But in R. v. Hufsky and R. v. Ladouceur, the Supreme Court held that as long as police discretion comes from law, it meets the s. 1 standard of “prescribed by law,” even if the discretion is unfettered. So completely random stops of cars authorized by an anti-drunk driving law are capable of s. 1 justification, but pulling over a car merely on a hunch as in the recent landmark case of R. v. Harrison cannot be justified by s. 1 because it is not prescribed by law.

There are five types of law that regulate street protests, and all of them give enormous discretion to the police. First, s. 63 of the Criminal Code prohibits “unlawful assembly,” which it defines as “three or more persons” gathered in a way that causes reasonable people in the neighbourhood to be afraid that the assembly will either disturb the peace tumultuously or provoke others to do so. This provision apparently complies with the Charter guarantee of “peaceful assembly” because words “disturbing the peace” and “tumultuous” imply that the assembly is not peaceful.

Second, s. 31 of the Criminal Code gives the police a general power to detain people for “breaching the peace.” The result is that street protests that breach the peace may be dispersed. The breach of peace arrest power seems to restrict the freedom of assembly without infringing on the Charter’s guarantee of peaceful assembly. Again, the police have discretion in deciding what is a breach of the peace.

Third, municipalities can pass by-laws prohibiting street protests that are not peaceful because they interfere with interests merely local in nature. For example, a by-law may prohibit excessively loud protests. It’s unclear if such prohibition fully respects the Charter, where the word “peaceful” may have a more dramatic sense than merely something touching on city noise by-laws.

Fourth, the police can use their ancillary common-law powers to regulate protests (in Ontario, see s. 42(3) of the Police Services Act). At common law, the police have powers that are necessary to discharge their duties. One of the duties of the police is to preserve the peace. If it is necessary to restrict a street protest to preserve the peace, the common law gives this power to the police. Again, apparently such police restriction would not infringe on the freedom of peaceful assembly, and again the police has tremendous discretion.

Finally, municipalities, provincial legislatures, and the federal parliament and respective cabinets can pass laws, regulations, and by-laws restricting the freedom of peaceful assembly, but only for a good reason. For example, it may be reasonable and democratic to prohibit protests in residential areas after 11 pm, in construction zones, on highways, or inside courthouses or secret military installations. If protesters challenge such law, the government will have to justify it under s. 1 of the Charter.

In a 1978 pre-Charter case Dupond v. City of Montreal, the Supreme Court upheld a city ordinance prohibiting street protests. The court cited the following English law dictum: “A claim on the part of persons so minded to assemble in any numbers, and for so long a time as they please to remain assembled, upon a highway, to the detriment of others having equal rights, is in its nature irreconcilable with the right of free passage.” After the Charter, it is not clear if municipalities still have the power to prohibit street protests.

The word “peace” is a common thread in all the laws that regulate street protest. These laws either give the police powers to preserve the “peace” at its discretion or ignore the peaceful nature of the protest for other arguably higher goals.

When the police boxed citizens in at Queen and Spadina for hours, they could invoke any of three sources of authority to break up protests disturbing the peace: s. 63 of the Criminal Code, breach of the peace provisions of the Criminal Code, or common law ancillary powers to preserve the peace. All three would require the police to make a judgement that the protest was not peaceful. Since the statute delegates this judgement to the police or recognizes its common-law authority to make that judgement, the courts would likely defer to the police expertise to decide what is peaceful and what is not.

The police could also rely on a statute that allowed it to disperse even peaceful protests. According to witnesses, some officers cited the Public Works Protection Act (PWPA) when they detained citizens on the street. That law does limit the freedom to peaceful assembly in places designated as public works, and it would probably be justified under s. 1. After all we don’t want protests in a courthouse or maybe within the G20 fence. But justifying the mass detention at Queen and Spadina, which was hundreds of meters from the G20 fence, by the PWPA is futile. And it’s clear the police didn’t need the PWPA authority there as they had plenty of discretion under other laws.

The bottom line is our courts and legislatures have consistently failed to set out rules for police engagement of street protests. The statutes are either drawn in broad terms like “tumultuous” and “peace” or simply avoid regulating protests by deferring to broad police powers at common law. Canada is not a police state—far from it. Our ideal is the rule of law and protection of civil liberties. But just like with ideals, we shouldn’t take our eyes off frightening possibilities. In a police state, armed agents of the state are free to limit freedoms and rights as they please. Their discretion is completely unfettered, almost like the discretion our laws grant to the police in dealing with street protests.

Our police forces are professional, highly trained, and generally honest. But it is not their job to determine the content of the Charter freedom of peaceful assembly. Provincial legislatures and the federal parliament must step in and give clear guidance to the police when they can break up street protests. The police can make mistakes and may have its own institutional interests that are not necessarily the same as the public interest. The people have a right to clear notice of what is lawful, and we all have a fundamental freedom of peaceful assembly. Our legislators must set out with much greater precision what the police powers are in regulating street protests.

Pulat Yunusov is a Toronto litigation lawyer.

(Post sponsored by AdviceScene)

5 Comments on "The law of street protest in Canada"

  1. “our courts and legislatures have consistently failed to set out rules for police engagement of street protests.”

    I’m not so sure that I would say they have “failed.” They may have simply refused to interpret the law so narrowly that it would allow for so little discretion that police officers would be unable to do their jobs.

    Mistakes are/were made by the police, and we can’t ignore those mistakes. We ought to hold police to a higher standard than masked rioters as we keep the extraordinary stress and abuse that officers must have been facing in mind. We also need to balance the mistakes against the overwhelmingly good work that the police do/did.

  2. justkeptin | July 7, 2010 at 6:42 am |

    My beloved president Susilo Bambang Yudhoyono is come in g20 :D

  3. Three members of my dinner party on the G20 Saturday were arrested on The Esplanade while going home. They were held well into the evening of the next day, and never charged. Until they got out, we heard nothing concerning where they were held, if at all, and they were not allowed to call out.

    I had wanted that Sunday to exercise my right to peacefully protest what was going by attending outside the East Detention centre. I did not attend, however, because I afraid of one thing and one thing only: being arrested. I wasn’t afraid of protesters, or hooligans (there were none that day). I was afraid of the police.

    And so, I reluctantly declined to exercise my right to peacefully assemble with others. This has really bothered me. I was not involved in any of the protests, but the conditions within the detention centre and the manner in which people were arrested really called in me a strong feeling to speak out publicly. And yet, I was afraid to speak out against authority’s actions because of its considerable powers to arrest me.

    What I see is that police have far too much power. Police should not be in a position where they act as if they are in charge of us.

    The police watched the violent vandals, and yet did nothing. They then mass-arrested some 1100 persons not being violent. There is something very wrong with police judgment, and I find it increasingly disturbing that courts would apparently defer so much to them.

    As the police did not arrest those vandals, why should a peaceful protester have expected to be?

    A lot of people arrested complained that they would have dispersed, but that the police were herding them.

  4. I feel as though a lack of discretion on the behalf of police was the real problem (vs too much discretionary power) that Canadians were faced with on the G20 weekend.

    Members of police forces all over southern Ontario, and even further had collected to fill the streets with heavily armed, faceless visages of armor; not to keep the peace.

    It is my belief that once all independent inquiries have been fully completed, it will likely be revealed that many officers were instigating violent acts throughout the streets of Toronto (i.e. burning cruisers and smashing windows for the cameras in the only spot in the entire city that there were no police the entire weekend) in order to build up a media frenzy, and thereby giving themselves the ability to throw discretion out of the the smashed out cruiser windows.

    There are many similarities between the behavior of police “agent provocateurs” (the wording that Quebec police used when admitted during a press release) at the Montebello summit, where leaders from across North America had met and the police had dressed like protesters, and attempted to spark violence from within the protest.

    If it’s not what many would misguidedly label as “conspiracy” then it is at least complete incompetence on the part of police. Arresting people for not showing ID as they walk down their street, strip searching them and holding them for many hours in substandard conditions while they are constantly insulted is not what police are payed a chunk of our taxes for.

    We’re paying their cheques; a fact that police will undoubtedly forget 100% of the time they deal with a Canadian citizen.

  5. Brian Pfeiffer | February 25, 2014 at 7:34 pm |

    Does this mean for instance if I walk quietly alone with a flag and a sign in front of government buildings I am perfectly within my rights according to the Charter of Rights and Freedoms, allowing “peaceful protest” not to mention..alone is less than a gathering of 3 people.

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