Even if you have no intention of engaging in an illegal protest, you should be prepared to deal with the police and the legal system. This includes knowing what your rights are, what criminal charges are leveled against protesters, and what civil tools can be used to break up a demonstration.
Protesters and government authorities both have various tools at their disposal to conduct and influence civil disobedience movements. Particularly the rules around arrest, bail and sentencing have been used by both sides to achieve their version of justice.
Protesters have found that tools enhancing solidarity are useful to achieve their ends. For example, in some demonstrations, arrestees are counselled to refuse to give their names to police when being arrested. This reduces their ability to be released one by one, thus overwhelming jails and courts. This leads to mass publicity, public sympathy, and often release without charge (Frances Olsen, “Legal Responses to Mass Protest Action: The Dramatic Role of Solidarity in Obtaining Plea Bargains” (2003) 41 Osgoode Hall LJ 363). Hunger strikes have also proven themselves very powerful when undertaken by a group. However, this action carries the risk of a criminal charge for obstructing justice (described below).
However, protesters are not the only parties who can use the bail system to their benefit. Law enforcement has been accused of manipulating the bail system to impede and/or cripple civil disobedience movements in various ways. This includes, among other things, accusations that governments strategically arrest protest organizers prior to scheduled events and impose constitutionally questionable bail limitations on protesters to quell their rights of dissent and trap them in ever-increasing ambits of illegality (Esmonde at 339-358).
The police have a wide measure of discretion to determine how they will react to public protests. They have many tools at their disposal to break up an act of dissent and/or civil disobedience. Protesters have a history of being charged with the following offences:
Mischief: Mischief is an extremely broad charge. It includes destroying, damaging or rendering inoperative property, or preventing or interfering with its lawful use. Traditionally, mischief is carried out at a physical location, but it can also be carried out electronically (for example, by staging “virtual sit-ins” on a website).
Assault: Assault is a charge leveled against persons who use force against another person. It includes an attempt or threat to use force if the victim reasonably believes that it could be carried out. The force applied can be very minor, yet still qualify as an assault. It is more serious to commit an assault while trying to resist arrest.
Obstructing a Police Officer: Resisting or willfully obstructing a police officer in the execution of his or her duty is an offence. If you obstruct a police officer, it will almost certainly result in you being charged criminally.
Unlawful Assembly: If three or more persons assemble in a way, or behave in a way, that causes others in the neighborhood to be afraid that the assembly will either disturb the peace tumultuously or provoke others to do so, this can be considered an unlawful assembly. This is another extremely broad charge.
Causing a Disturbance: A person can cause a criminal disturbance in a number of ways, including fighting, screaming, shouting, swearing, singing or using insulting or obscene language, impeding or molesting another person, or loitering in a public place and in any way obstructing persons there.
Trespass: It is an offence to loiter or prowl at night on the property of another person near a dwelling house situated on that property. The essence of loitering is wandering without a precise destination. The substance of prowling is to move about stealthily, furtively, secretly, and clandestinely or move in small degrees.
Concealing one’s Identity: While you are permitted to wear a mask during a lawful protest, you cannot conceal your identity during a riot or and unlawful assembly. In addition, wearing a mask while committing an offence is an additional charge. Given the blurred line between legal and illegal protests, you should be cautious if wearing a mask to a large protest where matters may get out of hand.
If you are engaging in a protest or demonstration, you should be prepared to be arrested and/or detained.
Detention occurs when the police stop you and you reasonably believe that you are not free to leave.
Ordinarily, when a person encounters a peace officer, they are free to walk away. When that choice is removed (physically or psychologically), they are “detained”. If you are not sure if you’ve been detained, you can politely ask the police officer if you are free to go. Click here for more information on detention.
Arrest occurs when the police seize or touch your body to restrict your liberty through the use of force or circumstances that threaten using force. You can be arrested if the police have reasonable and probable grounds to believe that you committed an offence.
You have the right to be free from arbitrary arrest and/or detention. If you have been detained and/or arrested, you have the right to know why right away. The police must explain their reasons to you in clear and simple language. You have the right to remain silent and to speak with a lawyer. You should ask to speak to a lawyer immediately. Legal aid and duty counsel can help you if you cannot afford a lawyer.
More information on arrest and detention are located here.
If you are arrested and/or detained, the police may search you, and seize evidence.
Search incident to arrest: When conducting a lawful arrest without a warrant, the police can search you for weapons and evidence. This includes you, your clothes and anything you are carrying, including (in some circumstances) your cell phone. They can also search your “immediate surroundings” (for example, your car if that is where the arrest occurs). They are allowed to search you as long as they believe that the search is necessary for the safety of the police and the public, to protect evidence from destruction, or to discover evidence that may relate to your guilt or innocence.
Search incident to investigative detention: If police have reasonable grounds to suspect that you are connected with a crime and that detention is necessary, they may detain you and conduct a protective (external) “pat down” search. This must be reasonably necessary in the circumstances.
If you are charged with an offence in connection with dissent and/or civil disobedience, you are at risk of receiving a criminal record. Having a criminal record can have serious implications on your life. For example, it can limit your employment opportunities job prospects, and restrict your ability to travel in foreign countries.
There is a difference, however, between a finding of guilt and a conviction. If you plead guilty or are found guilty of an offence, the court will determine whether or not to enter a conviction. It may, instead of entering a conviction, grant you an absolute or conditional discharge.
If granted an absolute or conditional discharge, you are not “convicted” of a criminal offence. You will not have a criminal record stemming from that offence. If you have been granted an absolute or conditional discharge, you should ask the local police and the RCMP to have your records destroyed.
For more information on discharges, click here.
Increasingly, acts of dissent and disobedience are being controlled not by the state, but in the civil courtroom via lawsuits brought by powerful private actors.
Most often, acts of dissent and civil disobedience come before civil courts by way of injunction applications.
An injunction is a Court Order that prevents one party (a person or organization) from interfering with another’s legal rights. Injunctions play a critical role in the interaction between companies, the government, and protesters. Often, the focus of a protest (private companies and/or the government) will seek an injunction to limit or restrict protesters. For example, forestry companies have obtained injunctions preventing environmental protest groups from blockading logging roads, because it interferes with a contract giving them the right to log in an area.
Injunctions are usually granted to enforce a private right (the right of a person or corporation). However, they can also be granted to the government if it will further the public interest (Judicature Act RSA 2000 J-2, s 13(2)).
Injunctions can be temporary (also known as interlocutory) or permanent. They can be issued after notice is given to all relevant parties/protesters, or without notice to the opposing protesters (known as an ex parte application).
Once granted, injunctions can be enforced by the police. If given an enforcement order, a police officer will go to the demonstration and read out the injunction. If the protesters do not disperse, the injunction will be read once more, and remaining persons can be arrested and charged with contempt of court (explained below).
In order to successfully obtain an interlocutory injunction, the applying party (typically the corporation) must meet three requisites:
(RJR MacDonald Inc v Canada (Attorney General) [1994] 1 SCR 311).
When raised in the context of dissent, injunction applications raise significant concerns about access to justice. Of particular concern is the fact that private civil disputes do not involve the government, and thus, protesters have no recourse to the Charter’s protections. It has been argued that governments have intentionally adopted a “hands off” strategy to many protests in the hopes that private organizations will take action, thus privatising the disputes and constraining the matter in the less protective civil sphere (Michael Welters, “Civil Disobedience and the Courts: The British Columbia Approach” (2003) 12 J Evn L&P 1).
Another issue of concern is the increase in anticipatory injunctions. These actions, known as “Strategic Litigation Against Public Participation” (or SLAPP suits for short), seek to silence dissent before it occurs. SLAPP suits are particularly common in the context of aboriginal and environmental litigation (Mayeda).
When SLAPP injunctions are sought, they are often heard ex parte, since the protest organization has not actually conducted any protest yet. As such, protesters are not party to the injunction proceedings. They do not have the opportunity to review the case against them and present their arguments to the Court. Breaching the terms of a subsequent court order can have serious impacts for protesters – they can be sanctioned with jail time and an award of costs against them. SLAPP suits raise significant access to justice and fundamental fairness concerns.
Contempt is an offence caused by being disobedient or disrespectful towards the Court in a way that opposes the Court’s authority, justice, and dignity. It is a vague offence that can be invoked with considerable discretion.
There are two types of contempt: civil and criminal. Criminal contempt is more serious than civil contempt – while civil contempt typically results in a fine, criminal contempt can encompass a fine and jail time. The difference between civil and criminal contempt lies in the degree of defiance.
For any finding of contempt, the first three criteria outlined below must be satisfied. To qualify as criminal contempt, all four criteria must be satisfied beyond a reasonable doubt:
A person crosses into the realm of criminal contempt if their action tends to depreciate the authority of the court in the eyes of the public. This can happen in a number of ways. Protesters should be aware that contempt can become criminal if it affects the public interest.
Companies that lose money can sue protesters or the organizers of a protest in civil court for monetary losses. The following tort claims are most commonly brought against protesters:
Trespass: A direct entry onto the land of another. For example, a “sit-in” on the land owned by a private company may leave the protesters vulnerable to a claim in trespass. It is possible for a similar claim to be brought where the sit-in takes place on government property, but this engages complex questions on the nature of public property and Charter protections.
Nuisance: Infringing another party’s property interest without directly entering that property. Nuisance is only actionable if the party bringing the suit can prove they suffered damage or loss. For example, protesters targeting a corporation could conduct a demonstration next to the company headquarters playing loud music or slogans. This could constitute a nuisance if it caused loss or damage to the employees or business.
Loss by Unlawful Means/Interference with Economic Relations: This tort occurs when one party (A) uses unlawful means against a third party (B), with the goal of intentionally inflicting economic injury on the plaintiff (C). For example, a group of protesters who oppose a logging company may choose to focus their protest not on the logging company itself, but the customers who purchase products from the logging company to try and turn those customers away. In order to be actionable, the protest aimed at the customers must be conducted “unlawfully” (Daishowa Inc v Friends of the Lubicon (1996), 62 ACWS (3d) 674 (Ont CA)).
Inducing Breach of Contract: Protesters can be pursued if they knowingly cause the breach of a valid contract, and damage ensues. It is similar to, but does not completely overlap with, the tort of Interference with Economic Relations.
After 9/11, governments around the world — including Canada — passed sweeping legislation to combat the threat of terrorism. Unfortunately, many of these laws bleed into, and impact, persons who are not terrorists, but who are engaged in organized acts of civil disobedience. Many civil disobedience, aboriginal and environmental groups have been particularly vocal about their concerns. The sections below highlight some of the anti-terror laws a protester ought to be aware of.
Bill C-51 is the federal government’s most recent anti-terrorism bill. Like other anti-terrorism laws, Bill C-51 itself amends several other existing statutes in Canada. Among other things, it targets activities that “undermine the security of Canada”. This vague concept has raised considerable questions. Activities that “unduly influenc[e] a government in Canada by…unlawful means”, “interfer[e] with critical infrastructure”, or “interfer[e] with …the economic or financial stability of Canada” all fall within Bill C-51’s scope. Originally, Bill C-51 exempted “lawful” protests from this definition. This caused significant uproar among protest groups that engage in unlawful protests (including aboriginal and environmental groups). In response, the word “lawful” was removed from the exemption.
While some have praised this decision, others are less convinced. Legal experts are concerned now that the exemption is so large (permitting any act of protest, no matter how unlawful or potentially violent) that it completely impractical and will have no effect. In other words, the exemption is so broad that it may in practice become no exemption at all (Craig Forscese and Kent Roach, “Stumbling Towards Total Information Awareness: The Security of Canada Information Sharing Act”, Canadian Privacy Law Review Vol 12 No 7, June 2015 at 72).
Bill C -51 also authorizes the police to receive advance permission from a judge to violate the Charter. This is extremely concerning for all Canadians, but especially for protesters. Police officers often go undercover during demonstrations and pose as protesters. They have been accused of agitating protests and at times, inciting violence. Therefore, all protesters should be aware of this exceptional power.
The Anti-Terrorism Act was passed in the wake of 9/11 to prosecute and prevent terrorism offences. Its definition of terrorist activity is concerning to persons who engage in acts of civil disobedience:
Terrorist activity includes persons with a political, religious, or ideological purpose, doing anything with the intention of compelling a person or government to do something, and which intentionally causes a serious risk to the health or safety of the public, or which intentionally causes serious interference with a public or private essential service or facility. The section includes even attempting, threatening or counseling such conduct, or assisting someone after they have committed such an act. An environmental activist blockading a pipeline could easily fit within the bolded portion of the definition above.
The Public Safety Act, 2002 amended the National Defence Act to permit the Federal Government to establish (via an Order-in-Council) “Controlled Access Zones” from which anyone can be forcibly removed. The zones are established via an Order-in-Council. It is very difficult to challenge an Order-in-Council in Court.
An Act to Amend the Criminal Code is targeted at the fight against organized crime, but is not limited to this context. It authorizes the police to violate the law. For the same reasons outlined above in reference to Bill C-51, protesters should be aware of this power.
An Act to amend the Foreign Missions and International Organizations Act gives the RCMP the primary responsibility to ensure security at intergovernmental conferences. It gives the police broad powers “to ensure the security for the proper functioning of any inter-governmental conference.” It permits the police to take “appropriate measures, including controlling, limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstance” (section 10.1(2)).
An Act to amend the Criminal Code (Criminal Liability of Organizations) attributes criminal liability to organizations for the acts of their representatives or senior officers. It could be used against organizations whose members are engaged in civil disobedience.
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