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Protesting: your rights and the law

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.

Charter rights

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.”

Also, 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

There 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.

Third, municipalities can have their own laws to restrict protests, possibly with noise ordnances or bans against blocking roadways and thoroughfares.

Fourth, police have their own common-law powers to preserve the peace, which can be invoked to prevent or break up protests.

Any 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”

It’s 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”).

Section 67 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 following:

“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.”

Anyone 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

Section 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 will vary.

Disguised disallowed

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.

Picketing

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.

The 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.”

Property 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.

Arrests

If you’re 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.


Read more:

The Criminal Code: http://laws-lois.justice.gc.ca/eng/acts/C-46/FullText.html