RSS FeedThe 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)
CBC: UBC students tutored on Olympic security rights
I’ve already posted about PIVOT’s and the BC Civil Liberties Association’s mobilisation around Vancouver’s stringent (and possibly unconstitutional) anti-dissent Olympic laws. It now appears that UBC students (undergrads, I think) are now also taking it upon themselves to educate themselves on their rights with respect to the Olympics and how it’ll impact them (given UBC is where some of the games will be conducted, and thus site to both heightened security and protests).
Some University of British Columbia students will be getting extra tutoring to make sure they know their rights when the Integrated Security Unit arrives on campus for the 2010 Winter Olympics in February.
About 330 students are to be trained to staff a legal assistance hotline or act as observers of security operations during the Games. The Student Legal Fund Society has teamed up with the B.C. Civil Liberties Association to host the workshops.
Organizers of the workshops expect that some students will be involved in protests both on and off the campus, where UBC is hosting ice hockey events at the newly expanded Thunderbird Arena.
Emily Griffiths, president of the Student Legal Fund Society, said the group will put up more than $18,000 to train students, stressing that this isn’t about encouraging them to protest but about making sure their rights are protected.
“Because of the nature of the Olympics and the way that it affects students on campus and the ways that students on campus have been treated in the past by law enforcement, we are very nervous,” said Griffiths.
Memories of APEC
Griffiths was referring to the 1997 Asia-Pacific Economic Co-operation conference at UBC, when students protesting against several unelected national leaders were pepper-sprayed by the RCMP, and signs urging free speech and democracy were destroyed by police.
The police action led to the creation of the Student Legal Fund, to which each UBC student pays an annual fee, and to a public inquiry which found that police actions “did not meet an acceptable and expected standard of competence and professionalism and proficiency.”
B.C. Civil Liberties Association executive director David Eby said his organization also is putting up $18,000 to fund the student training.
“Our proposal is to provide know-your-rights workshops and legal observer training for students to do legal observing on campus during the Olympic period,” said Eby, “so that students are fully prepared during the Olympic period so we avoid another APEC-type situation.”
The Vancouver 2010 Integrated Security Unit is headed by the RCMP and includes members of the Canadian Forces and municipal police departments.
Policing Twitter
The New York Times reports that an American man has been arrested and charged with “hindering apprehension or prosecution, criminal use of a communication facility and possession of instruments of crime.” Pennsylvania State Police are referring specifically to Elliot Madison’s use of Twitter, the social-networking site that went from being something of an online inexplicability (messages can be no longer than 40 characters long, spaces included) to front-page news in June when the site became vital to organising anti-election protests in Iran. A largely American body of Twitterers then responded by using their own Twitter accounts to express solidarity with the Iranian protesters, many of whom were being arrested by Iranian police. In fact, the U.S. State Department went so far as to ask Twitter “to delay a planned upgrade that would have cut daytime service to Iranians who are disputing their election” (Reuters). Twitter co-founder Evan Williams eventually did comply, but he said the State Department’s request wasn’t why. He explained, “We did it because we thought it was the best thing for supporting the information flow there at a crucial time, and that’s kind of what we’re about – supporting the open exchange of information” (BBC).
Meanwhile, according to the NY Times, “On Thursday, F.B.I. agents descended on a house in Jackson Heights, Queens, and spent 16 hours searching it. The most likely reason for the raid: a man who lived there had helped coordinate communications among protesters at the Group of 20 summit in Pittsburgh.”
The article continues:
American protesters first made widespread use of mass text messages in New York, during the 2004 Republican National Convention, when hundreds of people used a system called TXTmob to share information. Messages, sent as events unfolded, allowed demonstrators and others to react quickly to word of arrests, police mobilizations and roving rallies. Mass texting has since become a valued tool among protesters, particularly at large-scale demonstrations.
And police and government officials appear to be increasingly aware of such methods of communication. In 2008, for instance, the New York City Law Department issued a subpoena seeking information from the graduate student who created the code for TXTmob. Still, Mr. Madison, who was released on bail shortly after his arrest, may be among the first to be charged criminally while sending information electronically to protesters about the police. [...]
Since the raid, no other charges have been filed against Mr. Madison. On Friday, Mr. Stolar [Madison’s lawyer] argued in Federal District Court in Brooklyn that the warrant was vague and overly broad. Judge Dora L. Irizarry ordered the authorities to stop examining the seized materials until Oct. 16, pending further orders. [...]
On Sunday night Mr. Madison said that the search of his home was an effort to “stifle dissent,” and added that several groups in Pittsburgh, including the summit organizers, had used Twitter accounts to describe events related to the meetings.
“They arrested me for doing the same thing everybody else was doing, which was perfectly legal,” he said. “It was crucial for people to have the information we were sending.”
This whole story begs several obvious questions. What exactly makes using Twitter to protest a G20 summit different from using Twitter to protest Iranian elections, such that US state entities will attempt to shut down the one and protect the next? How would this be different if Madison had used some other medium — or is what makes Twitter so dangerous, from the perspective of law enforcers, its ability to reach mass audiences immediately? If so, can legal action taken against Twitter users be applied against all forms of mass communications – most notably, cell phones? Is the current legal system even technologically-informed enough to be able to comprehend, let alone deal with, the tenacious mutability of the Internet specifically and community technologies generally? On exactly what rights can the social network users rely, or must these things always be decided on a case-by-case basis, at the whims of governing political discourses? Just who is responsible for the alleged crime in question – the creator of a given Twitter account, the viewers/readers/followers of that account, the creators of Twitter?
