Canadians have a fundamental right to freedom of expression and
freedom to protest, both cornerstones of a democratic nation. Yet there
are limits to these rights and protesters often end up butting heads
with the law.
Some high-profile clashes in recent years, such as
the Toronto G20 protests in 2010 or the widespread “Occupy”
demonstrations often turned ugly. Mass arrests and civil rights
violations sometimes resulted. Here’s what you need to know about the
law and your rights when protesting.
The Charter of Rights and Freedoms
legally enshrines your right to freedom of expression and freedom of
peaceful assembly. These freedoms are “guaranteed” in s. 1 of the
Charter, but they are not absolute.
First off, you have the
right to “peaceful” assembly. This means the government can infringe on
your right if a demonstration is somehow disruptive or violent. This is a
subjective measure and a government can only violate this right if a
court agrees with the government’s definition of “peaceful.”
the Charter only guarantees your freedoms within “reasonable limits
prescribed by law as can be demonstrably justified in a free and
democratic society.” This means that a government can also infringe on
your right to protest if it shows a compelling reason to do so.
When police can intervene
are several legal avenues in which police and governments can break up
or stifle a protest. These generally allow some degree of police
discretion since they depend on what is “peaceful.”
First, s. 63
of the Criminal Code defines unlawful assembly as a gathering of more
than three people that acts in such a way as to make reasonable
neighbours fear it will “disturb the peace tumultuously” or provoke
others to do so.
A riot is considered a form of unlawful assembly and a participant can face a maximum two years in jail.
Secondly, s. 31 of the code allows police to detain protesters for breach of the peace.
municipalities can have their own laws to restrict protests, possibly
with noise ordnances or bans against blocking roadways and
Fourth, police have their own common-law powers to preserve the peace, which can be invoked to prevent or break up protests.
laws or powers invoked to stifle a protest must be in accordance with
the Charter or demonstrate a good reason to infringe on Charter rights.
The “Riot Act”
not just an expression; this is a real part of British law dating back
to the early 1700s that was incorporated into the Criminal Code
(although it’s not officially called the “riot act”).
of the code says any legal authority such as a prison warden, mayor or
sheriff who sees an unlawful gathering of more than 12 people and
believes that the group is rioting, shall demand silence and say the
“Her Majesty the Queen charges and commands all
persons being assembled immediately to disperse and peaceably to depart
to their habitations or to their lawful business on the pain of being
guilty of an offence for which, on conviction, they may be sentenced to
imprisonment for life. GOD SAVE THE QUEEN.”
That message does not have to be read verbatim. The law says the speaker shall say those words or “words to the like effect.”
who hinders a legal authority from reading the “riot act” or does not
leave the riot site within 30 minutes has committed a criminal offence.
Use of force
32 of the Criminal Code says a peace officer can use or order use of as
much force as is reasonably necessary to suppress a riot and no more.
The law has no specific definition of “reasonable” since circumstances
Participating in a
riot is already a criminal offence, but doing so in a disguise can
invoke a stiffer penalty. A rioter wearing a mask or other disguise
faces a maximum 10-year sentence.
Generally speaking, picketing gets a lot of leeway since it falls under the Charter right of freedom of expression.
As long as a strike itself is legal, picketing is generally assumed to
be legal. Likewise, employees can’t face workplace discipline simply for
picketing, but are liable for any serious misconduct or illegal actions
while on the line
Much of the legal framework for lawful picketing is set out in the Supreme Court of Canada’s 2002 Retail, Wholesale and Department Store Union Local 558 v. Pepsi-Cola Canada decision.
In that particularly fractious strike, Pepsi-Cola workers not only
picketed at their workplace, but at retail outlets selling Pepsi
products and at the hotels of substitute workers. They also engaged in
“intimidating conduct” outside the homes of some management personnel.
case revolved specifically around that “secondary picketing,” but the
court decision essentially lumped “primary” and secondary picketing
together and said, “All picketing is allowed… unless it involves
tortious or criminal conduct.”
To elaborate, the justices added that “picketing which breaches the criminal law or one of the specific torts like trespass, nuisance, intimidation, defamation or misrepresentation, will be impermissible, regardless of where it occurs.”
access is a thorny issue as well, and other court cases have developed
as a result of picketers blocking traffic or deliveries. For example, a
2011 strike at the Sobey’s grocery chain saw the company seeking an
injunction against picketers blocking deliveries to warehouses. Trucks
carrying perishable goods were blocked for as long as eight hours.
The Ontario Superior Court essentially said that an employer seeking access to their property may have to endure a reasonable delay.
In many cases, employers and unions will settle on a reasonable period
in which to block entry. This is a where tempers can really flare, as
picketers come face-to-face, or face-to-car, with frustrated motorists
being forced to sit and idle.
being arrested, you have a right to know why. Ask the arresting
officer. If asked, you must provide your name and address; failure to
provide it can result in an obstruction charge. You don’t have to give
any additional information.
The Criminal Code: http://laws-lois.justice.gc.ca/eng/acts/C-46/FullText.html