Legal information for activists

Introduction

Section 2c of the Canadian Charter of Rights and Freedoms includes the right to demonstrate spontaneously (without giving an itinerary) and to interfere with the normal flow of traffic. Unconstitutional by-laws infringing on this right still exist in some cities and are respected by the public out of a desire not to confront the city. See case examples: Garbeau v. the City of Montreal, 2015 QCCS 5246; Bérubé v. Québec (City of), 2014 QCCQ 8967

Rules explained in the below sections are sometimes applied arbitrarily by the police force, which can lead to unconstitutional violations. The steps to invalidate them can be cumbersome and long. What is recognized as constitutional does not cease to be "unconstitutionally" applied in certain contexts, notably by profiling.

Police officers have discretionary power. The use of this can be justified objectively (according to the seriousness of the situation, the material circumstances, the proportionality to the seriousness of the offence), but also subjectively (according to the sincere belief to have valid and reasonable grounds excluding, in theory, stereotypes, prejudices etc).    See R. v. Beaudry, 2007 SCC 5 and  R. c. Godoy , 1999 1 SCR 311 [1]

According to the dictionary of Quebec and Canadian law of the CAIJ, a discretionary power is a "Faculty granted to a person called upon to make a decision within the limits of his competence, to choose among the possible decisions the one which seems to him the most appropriate according to circumstances."

Regulatory offenses and criminal offenses (see definitions below) are governed by common law rather than civil law. The common law is developed through the practice of the courts. It is therefore created by the recognition of precedent (an authoritative decision). ' A judgment that goes against past decisions could create a precedent if the judges decide to refer to it in their future decisions. In principle, the common law is constantly evolving by virtue of this vision giving authority to precedent.

Definitions

Acquittal	Decision of a court declaring a person is not guilty - CAIJ Quebec and Canadian Law Dictionary
Civil disobedience	“May include any action taken in contravention of a legal norm in order to expose its illegitimacy.” In other words, the refusal to comply with certain laws or to pay taxes and fines, as a peaceful form of political protest. - Ligue des droits et libertés
Civil suit	A breach of private law that contains the fundamental rules relating to persons, the family, property and obligations. It is the common law applicable to relationships between individuals. - CAIJ Quebec and Canadian Law Dictionary
Class Action	“Allows you to file a civil suit on behalf of all those who have experienced a similar situation.” - Ligue des droits et libertés
Constitutional Rights	The rights protected by the Canadian Charter of Rights and Freedoms. Some of these rights are protected under certain conditions. - Canadian Legal Information Institute
Criminal law	Law governed by the Criminal Code (all types of offences): can lead to the creation of a criminal record. - CAIJ Quebec and Canadian Law Dictionary
Criminal offence	No statute of limitations, harsher penalties than 'summary offences' - CAIJ Quebec and Canadian Law Dictionary
Crown Prosecutor (or Deputy Attorney General)	A lawyer in the service of the government who is responsible for representing the State before the courts in criminal or penal matters. - CAIJ Quebec and Canadian Law Dictionary
Direct Action	"Denounces and aims to stop a situation, decision, policy or project by means of action that proves to be illegal." - Ligue des droits et libertés
Discharge	When a person is convicted, a sentence that does not result in a criminal record. Unconditional discharge: the criminal record can be "erased" after 1 year, becoming invisible to the public. Conditional discharge: the criminal record can be "erased" after 3 years, with conditions (community service, no contact with certain people). - Ligue des droits et libertés
Injunction	An order of the Superior Court enjoining a person or, in the case of a legal person, partnership or association or other grouping without legal personality, its officers or representatives, not to do or to cease to do a certain thing or to perform a certain act. - CAIJ Quebec and Canadian Law Dictionary
Person without status	Person who has been refused asylum, person who did not leave when his visa expired, etc. - Ligue des droits et libertés
Political profiling	"Any action taken by a person or persons in a position of authority with respect to a person or group, for reasons of public safety, security or protection, that is based on factors such as political opinion, political belief, allegiance to a political group or political activity, without probable cause or reasonable suspicion, and that has the effect of subjecting the person to differential scrutiny or treatment. Political profiling also includes any action by persons in authority who apply a measure disproportionately to segments of the population because of, among other things, their real or presumed political opinions or beliefs.” -  Ligue des droits et libertés
Racial profiling	"Any action taken by a person or persons in authority with respect to an individual or group of individuals, for reasons of safety, security or public protection, that is based on factors such as race, color, ethnic or national origin, or religion, without actual purpose or reasonable suspicion, and that has the effect of subjecting the individual to differential scrutiny. More and more complaints of this type are being made to the Human Rights Commission. Racial profiling is, on balance, the result of intolerance, misunderstandings, lack of cross-cultural communication and preconceived notions by police officers." - Collectif opposé à la brutalité policière (COBP; Collective against police brutality)
Regulatory offence	“Regulatory offences are the least serious, such as disturbing the peace (section 175), participating in an unlawful assembly (section 66(1)) or being naked in a public place (section 174). A person convicted of such an offence is liable to a fine of not more than five thousand dollars and imprisonment for not more than two years less a day (section 787 (1))." They do not result in a criminal record. After 12 months, it is no longer possible to prosecute; if you do not receive the information that you are under arrest before this term, the process stops. - Ligue des droits et libertés
Social profiling	"With the goal of "cleaning up" the public space, social profiling is a form of discrimination that consists of police officers and other law enforcement officials imposing fines on people who do not "seem to conform to society" through the strict application of municipal regulations for minor infractions. Marginals, itinerants, punks, homosexuals, prostitutes, immigrants, the poor, etc. are all targets in order to "protect and serve us". This type of profiling is only meant to give the impression of a "beautiful image of the city" in front of tourists." - Collectif opposé à la brutalité policière

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Risk Assessment

Assess your risk and capacity for participating in actions that risk arrest.

Risk: can be defined by legal, social, physical or financial consequences. There are individual factors which may place some people at higher risk of harassment, violence, arrest and more when taking higher-risk actions. Furthermore, certain circumstances can keep people from doing as much as they wish they could safely. Factors/circumstances that may increase your risk or decrease your capacity when participating in actions include:

• Member of a marginalized group (BIPOC, LGBTQ2+ etc).
• Lack of experience and/or knowledge in de escalation 
• Absence of legal status in Canada (undocumented immigrants, International students)
• Having ties to the targeted group (i.e. parent who works for the bank) OR ties to a company highly supported by the targeted group
• Having past arrests
• Being a student who receives significant financial aid
• Staying in a shelter or supportive housing
• Critical medical or disability needs
• Mental health related factors
• Financial/work constraints

This is not an exhaustive list. Please take your own personal factors into account when assessing your level of risk.  

What are your rights?

​​​​​​​

Public vs private property

• Public sidewalks, in public parks, or on other property publicly owned by a government (not private businesses or individuals) is accessible to the public for protests.
• Research the owner of the place on which you plan to protest. Protests can take place on private property with the permission of the owner.
• It is legal to picket in front of a business by slowing down access to the business to present your position if people are able to enter and exit the business.
  
• On private property, the police can...
  
  • Evict you if requested by the owner
    
  • Declare the gathering unlawful and order the dispersal of the crowd under section 63 of the Criminal Code
    
  • Apply an injunction
    
  • Arrest you if you refuse to leave the premises (for contempt of court under s. 605(2) of the Criminal Code in case of an injunction or for trespassing at night under s. 177 of the Criminal Code)
    
  • Moving into a public space next to a property is sufficient, as long as you do not completely block access to the property.​​​​​​​
    
  • See this example case from Quebec City

Filming and identifying police

• You are allowed to film police. "Several court and disciplinary decisions have affirmed that police officers do not have the power to simply order a person to stop filming them, with one ruling affirming that police interference with an individual who is filming and/or photographing police is a 'significant abuse of authority.'"

If you are in a private space where the public generally has access – like a shopping mall or hospital– there might be rules about what you can or cannot record that might impact your ability to record a police officer. If you start filming in a private space and the person in charge of that space doesn’t want you to continue, you might be asked to leave.

What if the police ask for, or try to take, my phone?

• If the police ask you to hand over your phone, clearly tell them that you do not consent to them taking or searching your phone. If they insist, you can ask what legal grounds they have for seizing your phone.
• Police may seize your phone without a warrant if it contains 'evidence of a crime being committed.' They cannot search it without a warrant, but make sure your phone is locked so that content is not readily available. If they say they have a warrant, ask to see it.
• If a police officer asks for your phone because they think it has evidence of a crime, offer to provide your contact information, and state you will not delete the video so they can access it once they have a warrant. ​​​​​​Remember that filming an arrest can be considered evidence. See; Police Ethics Commissioner v. Ledoux, 2016 QCCDP 31

If the police continue to insist that they can seize your phone, you may consider offering to send the video to the police so that you can keep your phone. Upload photos/videos to the cloud or send them to a friend through an encrypted messaging service. If you know that the video/photo is saved elsewhere, then it could end your interaction with the police if you show them that you have deleted the copy on your phone.

• If an officer asks you to move for safety reasons, you can continue to film but you should move, which also goes for if an arrest is taking place to avoid being described as having interfered with an arrest.
• If someone you know is being arrested, take the names of those who recorded it and other witnesses
  
• Images taken during a protest can be used against the people protesting. Putting an icon (emojji) on the faces before publishing the photos taken is the best option when there is no way to get consent from the people photographed. Avoid Facebook or Instagram Live.
  

Revealing Identities

Section 5 of the Police Code of Ethics requires police officers to wear identification and to identify themselves when requested to do so by a person, regardless of the type of interaction.

You must identify yourself with your name, date of birth and address to police if:

You are under arrest or are receiving a ticket

You are driving a vehicle

You are a minor under the influence of alcohol

You are traveling through a certain place at night; could be charged with loitering in some places

Again, police officers are obligated to identify themselves if you ask.

NOT protected rights

• Blocking passersby, roads, or access to building entrances is an act of civil disobedience, and therefore these do not fall under protected constitutional rights.
• If the area is subject to an injunction that limits protest activity, protesters may be arrested if they choose to violate the terms of the injunction.
  • "Injunctions are increasingly being used by private companies (such as land developers and resource extraction companies) to try to ‘evict’ protesters engaged in lengthy blockades or occupations." - Canadian Civil Liberties Association (CCLA)
• "A protest that endangers others, damages property or significantly restricts essential services and processes within society is unlikely to receive constitutional protection." - (CCLA)
• If your protest is going to be large and disruptive, there are additional steps you may want to consider based on local/municipal noise and traffic laws. I.e. The hours of legal demonstration outside or in front of a residence as well as the number of people in it are often restricted.
  

• Yellow ribbons are often used to prevent demonstrators from proceeding to certain locations. Breaking these ribbons gives police a reason to arrest people for rioting under s. 64 of the Criminal Code or for obstructing police work under s. 129(a) of the Criminal Code. Police officers may also use their bodies to do so. 
  

  • ​​​​​​​​​​​​​​See: 

Doern v. Police Complaint Commissioner, 2001 BCCA 446;Buckley c. R., 2016 QCCS 4432;Richardson v. Vancouver (City), 2006 BCCA 36 

• The Canadian Charter protects the fundamental freedoms of all persons in Canada, regardless of their immigration status. Anyone can protest regardless of their immigration status. However...​​​​​​​
  
  • Being convicted of a criminal offence, depending on migration status, the offence charged or the sentence imposed, may lead to deportation, with or without an opportunity to appeal the removal order.
  • For those who are neither citizens nor permanent residents, the rules are the most severe (temporary residents or international students, for example). If the sentence is discharge D, there is no risk of deportation.
  • For those without status, people may fear deportation if police officers identify, detain them and transfer a person to the Canada Border Services Agency. This practice occurs even though it is not part of the roles imposed on police in the Immigration and Refugee Protection Act.

What if I'm arrested or detained?

• First, ask these questions: "Am I under arrest" and/or "am I free to go?" 
• Police can detain someone if they suspect they have committed a crime or to ticket. They must explain they are detaining for questioning or tell you the offence you have committed. Do not answer their questions.
• Physically resisting arrest can lead to criminal charges. Going completely limp does not count as resisting arrest. Holding onto something, pulling, or running does. 
• You have the right to be informed of the reason for your arrest. 
• You must give three pieces of personal information in case of detention or arrest. Refusing to identify yourself when arrested can result in an obstruction charge (criminal charge). Give your:

A: address

D: date of birth

N: full name

• ​​​​​​​​​​You have a right to make calls, more than one if necessary, to reach a lawyer. 24-hour legal assistance: 1800-842-2213
  
• The police will promise you they'll drop the charges if you cooperate. This is false.
• Cops may ask you to identify objects or people in photos. It's best to simply state you have nothing to declare.
• Police may use lies such as stating a witness or friend has reported you. Continue to remain silent. Police officers have extensive training in interrogation. They have the right to make false promises and to lie (legally).You have the right to a lawyer, and this service is free. REMAIN SILENT or simply respond to all questions from police with "I'll only speak in the presence of a lawyer." Police must stop questioning you until you have spoken to a lawyer. You have a right to speak to a lawyer in private. 
• If you are being detained, police can do a pat down search of your body to look for weapons.
• If you are being arrested, the police can seize and do a more thorough search of you and your belongings. 
• If you are being arrested, the police can seize your phone and they may be able to do a search of its contents. Tell the police you do not consent to a search of your phone. Police cannot force you to tell them your password or unlock your phone, and they can’t delete anything. 
  
• DO NOT say/sign/agree to any terms without an attorney there. In most cases you will need to sign a promise to appear.
  
• Write down the events in detail (time, place, movements, people present, physical descriptions, words heard or expressed, etc.) and do not rely solely on your memory, given the time required to be heard in court. Give this information to your lawyer​​​​​​

Contesting a statement of offence

Contesting a statement of offence is generally not covered by legal aid, unless a lawyer accepts to represent you free of charge. In theory, you must contest your statement of offence in writing within thirty days of receiving it. In fact, you can do so as long as there is no conviction.

• A statement of offence is automatically entered for a hearing in the municipal court and there is no notice of the hearing date. A conviction is almost inevitable. A Notice of Conviction is then mailed.
• Check the "not guilty" box on the back of the report or write it by hand. There is no obligation to write your version of the facts. It can be kept for the hearing before a judge.
• Write "I request disclosure of evidence" to obtain the documents that the prosecution has against you in order to prepare its defence.
• Make a copy of the ticket and keep proof you sent it. If there is a dispute, the court will send a notice of hearing. The trial must take place within 18 months of the statement of offence. 
• Write down your version of the events to contest it in court. The Crown must prove all of these elements against the accused in order to obtain a conviction.

Defending yourself against a criminal charge

Your appearance date is the first date on which evidence is presented. A date in the format will be established (to communicate and negotiate). Between court dates, it is difficult to communicate with the prosecutors. These meetings will allow us to negotiate if we go to trial, reduced sentences with a guilty plea, a withdrawal of charges, an acquittal without trial... If no agreement is reached, the terms of the trial will be discussed.

The prosecution must prove guilt, a reasonable doubt must be raised in the mind of the person on trial. Sometimes this means not presenting a defence. The accused does not always have to testify. If the person is found guilty, there will be a sentencing trial. It follows a guilty plea or conviction (which results in a criminal record).

Legal aid for defence may be available if income is low. Many lawyers refuse these mandates because of their low income. This can affect the quality of their defence because of the time spent on it. A legal aid mandate can be refused. In this case, it is possible to request a review within 30 days. A person can defend themselves alone but should consult a lawyer and/or get support from advocacy groups.

"The trial must be held within a reasonable time." (18 to 30 months maximum). The decision may be rendered on the spot or several weeks later.

Release and conditions

As soon as detention is no longer necessary to prevent the continuation of the offence, "in most cases, the arrested person will be released at the scene of arrest after the identification process." "A statement of offence may be issued to him/her on the spot or mailed to them later." - Droit de Manifester

"Often, especially in the context of mass arrests by encirclement, arrestees are held for long hours at the scene or on buses, then moved and released at some police station or elsewhere in the city. This practice, as well as the searches conducted, is abusive. It is often a means of repression designed to demobilize and deter people from participating in protests..." - Droit de Manifester

Police officers who issue a traffic ticket cannot impose conditions to be met. These can only be imposed when you are charged with a criminal offence.

In the case of a criminal offence, the continued detention of a person after arrest may be considered to:

1. identify them
2. collect or preserve evidence related to the offence 
3. prevent the continuation of the offence 
4. ensure the safety of victims or witnesses to the offence 
5. ensure the arrested person's presence in court.

Appearance before a judge must take place within a maximum of 24 hours. "The police officer may decide to release the person without having to go before a judge. The released person can then sign a document that details the charge against him or her, the conditions to be respected and the date of appearance before a judge, or he or she will receive a summons by mail with this information." - Droit de Manifester

Conditions imposed at the time of the charge might include, for example, obligation to keep the peace and be of good behaviour, house arrest, respect of a curfew etc. If not met: criminal charge of breach of condition. This adds a criminal charge to the file.

Taking care of your offence reports  

• Identify the municipal court in the jurisdiction where the ticket was issued (usually on the back of the ticket). Pay the fine or make a payment agreement by demonstrating limited financial capacity.
• In case of limited financial capacity, there is the possibility of negotiating a compensatory work agreement (volunteer work). The number of hours is calculated according to the amount of your debt. For the first $500 of the debt, $10 will be paid per hour of volunteer work. Then, up to $5,000 of debt, $20 per hour will be paid.

If found guilty 

• Pleading guilty or being found guilty on a traffic ticket does not result in a criminal record. The consequence is monetary. If a challenge to a traffic ticket is unsuccessful, additional costs must be paid by the guilty person. In case of inability to pay, arrangements can be made such as having property seized following a visit by a bailiff. Imprisonment for non-payment is only possible in cases where "the defendant has, without reasonable excuse, refused or neglected to pay such sums." Inability to pay would be a reasonable excuse. - Droit De Manifester
  
• Criminal charges against protesters are often hybrid (their prosecution may be summary or indictable depending on the choice of the prosecutor). "A criminal conviction generally results in a criminal record that may result in a bar to certain employment, citizenship, or foreign travel." A conviction of guilt with a discharge (with or without conditions) does not result in a criminal record. "However, a person who has obtained a discharge and is practicing a regulated profession (lawyer, nurse, etc.) must declare it to his or her professional order." -Droit de Manifester
• In the event of an acquittal or discharge, it is possible to request the destruction of the record compiled by the police department and restrict public access to the information contained in the court's computerized records through a request for destruction of the record.
• Each police department has its own procedures for submitting a request for the destruction of records. The time limits for making such a request are different for acquittals (2 months), unconditional discharges (12 months) and conditional discharges (36 months).
• A request for non-disclosure can also be made to make information about court proceedings inaccessible to the public.

The same deadlines as for the request to destroy the file apply. Information from a criminal record can be made inaccessible by applying to the Parole Board of Canada for a suspension of criminal records by completing an online form. If charged by summary conviction this can be applied for 5 years after the end of the sentence. If charged criminally this can be applied for 10 years after the end of the sentence. Demonstration of the benefits associated with such a suspension are required.

Minors

• For those between 12-18, if you are arrested you must not be detained in the same cell as adults. The police must contact your parents/guardians to inform them of your arrest as soon as possible.

Police must ask if you would like a parent or lawyer present before you provide a statement. All minors have the right to legal aid. You have the right to remain anonymous to the public. 

Your police record will be destroyed after some time if no further infractions are committed.

If your rights are violated  

• Record/document everything you can. Request and record the officer's badge #. Seek contact info from witnesses if appropriate. Speak to a lawyer.
• Keep paperwork, and take photos of any injuries. If you seek medical attention, ask the doctor for a physical and mental medical report. 
• File a complaint! You do not need to be a victim to do this. Complaints to the Police Ethics Commissioner must be made within one year of the date of the event (or its knowledge) by filling out a form.
  
  • If eligible, will be followed by signing a settlement that will close the complaint.
    
  • If no signature is obtained, the reasons why it is inappropriate will be provided (often considered invalid and causing the file to be closed). If the reasons are valid, there will be an investigation. 
    
  • If eligible, complaint goes to the Police Ethics Committee: an administrative tribunal that can impose disciplinary sanctions on police officers.' It' may take several years.
    
  • If deemed admissible, optional mediation proposed. If refused or mediation failed, investigation occurs.
  • Following investigation, refusal to proceed or proposed remedial action "to be implemented by the involved law enforcement agencies".
    
  • If police refuse or fail to act, referral to Human Rights Tribunal. Variable outcome of the trial (damages, implementation of a program, etc.). There are often long delays.
    
  • Independent Investigation Office (IIO) covers issues such as;
    
    • death and serious injury (which may result in death or serious physical consequences) or by firearm during a police intervention or while in the custody of a police force; 
      
    • allegations of sexual offences committed by a police officer in the performance of his or her duties;
      
    • any allegation of a criminal nature against police officers when the victim is Indigenous;
      
    • at the request of the Minister, any other criminal allegation against a police officer.
• A person cannot file a complaint directly with the IPB: it is up to the management of the police force involved to notify the IPB, which will complete an investigation report and submit it to the Director of Criminal and Penal Prosecutions, who will decide whether or not criminal charges will be laid.
  • Investigation for fault (according to the criterion of how a reasonable police officer would act in the same circumstances), harm suffered and causal link between the fault and the harm. Notice of action may be required (city must be notified of intent to sue)
    
  • If $15,000 or less claimed: goes to Small Claims (a division of the Court). No representation by a lawyer.
    
  • If more than $15 000 claimed, goes to the civil division of the Court or the Superior Court. Important fees to pay, notably representation by a lawyer. Legal aid is not available when there is a lawsuit for financial compensation, with a few exceptions.
    
  • Some protesters have already obtained small claims compensation following police interventions
    
• Class action (civil suit): Suing on behalf of a group that has experienced a similar situation
  
  • Representation by a lawyer is mandatory.
    
  • Outcome: out-of-court settlement or judgment
    
  • Possibility of compensation for all persons concerned

Reducing individual and group's risk

For individuals attending an action

1. Use a passcode, not a fingerprint on your phone 

2. If you think your action will risk arrest, write down #'s of family members, lawyer, bring medications and make childcare plans. Wear a bracelet if you have a disability, special needs or speak limited Eng/French. Bring ID as this could prevent you from having to go to the station following an arrest for identification.

3. Bring a pen and paper in case you need to record details of incidents that occur.

4. It might be helpful to bring a change of clothes in a plastic bag (in case cops use chemical agents). Cover as much of your skin as possible and avoid cotton, polar and wool as these absorb chemical agents. Bring tight glasses (ski or swimming) and a full protection mask.

5. Bring water and food! Do NOT keep anything on yourself you wouldn't want police to find (i.e. drugs. address book)

6. Turn off location tracking—you might have to do that in one or two different places in the settings.

7. Wear neutral colours and note that backpacks make profiling easier. Try to hide as many piercings and tattoos as possible. Try not to wear a sweater with a hood, or anything else that can be pulled.

8. Never leave a protest alone. Police will often look to intimidate attendees of a demonstration once it's finished by following them and targeting them with any possible reason to hand out a violation, and thus fill their notebooks with identified activists. (I.e. lack of reflectors on a bike, throwing a cigarette butt on the ground, having made noise etc). Do not leave a protest alone.

Groups preparing for civil disobedience actions

• Not all groups feel it is appropriate or safe to work with the police or government officials prior to their event. This is a decision that each group needs to make for themselves.
• If you intend to block traffic or set up a rally with speakers and sound equipment, you can consider applying for a permit to meet legal requirements before the event.
  • The process for planning large events may take a few weeks.
  • Visit your municipality’s website or contact your city hall for information on this process.
• Organizers can put a plan in place before the protest for a lawyer to be on call to assist in case there is a risk of arrest at your action. Organizers can also arrange for legal observers to attend the protest and provide support. 
• You can plan for all attendees to dress entirely in black to create a homogeneous block to protect themselves from profiling, protect the identity of those present and create solidarity within the group.

Legal information

Common reasons for arrest

1. Common nuisance (section 180 of the Criminal Code)  Causing physical injury or endangering the lives, safety or health of the public	Causing physical injury or endangering the lives, safety or health of the public
2. Mischief (section 430 of the Criminal Code)	Destroying or damaging property and interfering with use of property Vandalizing private property during a protest might lead to this kind of charge.
3. Causing a disturbance (section 175 of the Criminal Code)	Such as impeding others; fighting; screaming; shouting; swearing; using obscene language; obstructing people in a public place
4. You are publicly intoxicated (drunk or high) and are putting safety at risk
5. Participation in an unlawful assembly or riot (ss. 63(1) and 64 of the Criminal Code)	*An unlawful assembly is "a gathering of three or more persons who conduct themselves in such a manner as to cause the neighborhood to fear that they will disturb the peace or cause others to disturb the peace without reasonable cause. When such unlawful assembly begins to disturb the peace tumultuously, it becomes a riot." Courts have said a "breach of peace" will typically involve some level of violence and some risk of harm.  Being noisy or causing a non-violent disturbance is usually not enough for arrest. If you are arrested for breaching the peace, you should be released soon after the event (or at least within 24 hours), although sometimes you may be taken to another location by police. Breaching the peace is not a criminal offence so you will not be charged.
6. Obstructing police work (s. 129 of the Criminal Code)	Must be based on lawful police action. For example, refusing to identify oneself upon arrest, physically interfering or not obeying a clear order, preventing the arrest of another person.
7. Assault (ss. 265-270 Criminal Code)	Intentional use of force against another person directly or indirectly and without consent. There is a specific offence of assault against a police officer. If bodily harm is caused, the penalty is greater.
8. Preventive arrests	A police officer may arrest a person "whom he finds committing a breach of the peace or whom he believes, on reasonable grounds, is about to take part in or renew it" (article 31 of the Criminal Code). The violation must be imminent or about to be committed. "Mere suspicions, feelings, hunches, intuitions, conjectures or possibilities are not sufficient." An officer may also arrest, under section 494(1)... "(a) a person who has committed an indictable offence or who he believes on reasonable grounds has committed or is about to commit an indictable offence b) a person whom he finds committing a criminal offence (c) a person against whom he believes on reasonable grounds a warrant for arrest or a warrant for committal, in a form relating to warrants and set out in Part XXVIII, is enforceable within the territorial jurisdiction in which the person is found."
9. Failing to give accurate personal information upon arrest/ticketing	This being: full name, address and date of birth.

    8.1.1 Declaration of illegality

Often, a notice of dispersal is read before the police disperse. However, there is no obligation to do so.

• Tip: Discuss strategies for dealing with a declaration of illegality beforehand.
• Strategies that can be adopted when a demonstration is declared illegal:

1) You can "find out what the authorities are saying". 2) You can agree to disperse and act in relation to the police intervention when you are safe. 3) If the police do not act on valid grounds, you can file a complaint with the police ethics committee and publicly denounce the situation. You might consider intervening in a municipal council meeting, or organizing a demonstration to denounce the police intervention. 4) One can choose to refuse to disperse if the reason seems abusive (acknowledging the risk of arrest). Prepare yourself accordingly. Know your rights, have the contact of a lawyer, and think about the objects you carry (no address book, locked cell phone, no object that could be considered a weapon, no documentation related to your activism).

Municipal laws

When faced with a contradiction between rights and municipal by-laws, the amendment of municipal by-laws can be forced through...

• Legal challenges (i.e. Montreal and the P-6 by-law)
• Popular pressure (i.e. Rouyn-Noranda)

Strategies to oppose or challenge municipal bylaws that restrict the right to protest include  : 

• Challenge the bylaw
  
• Using political strategies
  
• Letter writing campaign, open letters, press releases
  
• Coalition work
  
• Documenting the use of the bylaw by police forces
  
• Use the judicial forum
  
• Collectively challenging the same bylaw
  
• Challenge the constitutionality
  
• Filing class actions (if appropriate)
  
• File political profiling complaints (if appropriate)

1. Disclosing the action plan or obtaining a permit	*Some cities have bylaws that require a permit or notification of authorities prior to holding a public event such as a demonstration. However, there is no obligation to disclose an itinerary to the authorities. This would constitute an obstacle to the right to demonstrate freely an infringement of the freedoms of expression and peaceful assembly. Spontaneous, surprise and unorganized demonstrations are protected by the Canadian charters and their legality has been confirmed by the courts. See: Bérubé c. Ville de Québec, 2019 QCCA 1764. "It is not because it disrupts daily life or hinders traffic that a demonstration is a nuisance or a disturbance of public order that must be repressed."  Also see: Villeneuve c. Ville de Montréal, 2018 QCCA 321  Streets, sidewalks and squares are not only used for traffic, but also for the exercise of freedom of peaceful assembly. The Bérubé and Villeneuve judgments conclude that prior requirements such as obtaining a permit or disclosing the itinerary to authorities are unconstitutional and invalid.
2. Obtaining liability insurance	Municipal bylaws require those organizing a demonstration obtain an insurance policy covering the event. "Such a bylaw requirement constitutes an impediment to the right to demonstrate freely" but, "Canadian and Quebec courts have not ruled on the constitutionality of this type of obligation in the context of demonstrations." -Droit de Manifester "Given that this requirement amounts, in the majority of cases, to an absolute prohibition on holding or participating in a demonstration, it is unlikely to pass the test of the courts." -Droit de Manifester
3. Obstructing traffic	Many municipal by-laws restrict the location of demonstrations and other collective activities. I.e. bylaw P1 "No person may impede or obstruct pedestrian or vehicular traffic by standing still, prowling or loitering on public throughfares and places, and by refusing to move on, by order of a peace officer, without valid cause." -Droit de Manifester For example, Montreal and Sherbrooke prohibit obstructing the movement, march or presence of citizens. See: Garbeau c. Montréal (Ville de), 2015 QCCS 5246 However... "the Superior Court recalls that demonstrating in the street is a fundamental right guaranteed by our charters and by international human rights instruments ratified by Canada.” Morever, "a temporary modification of the usual use of the street is a normal and acceptable consequence of the right to demonstrate and does not constitute an interference with the use of the public domain". See: Vanasse c. Montréal (Ville), 2003 CanLII 27737 (QC CS)
4. Noise bans	Municipalities generally have by-laws governing noise. Tickets may be issued for noise during demonstrations, for example, "to persons who have used a megaphone, chanted slogans or played music.”-CCLA. According to the courts, cities are entitled to prohibit noise that interferes with the peaceful use and enjoyment of the urban environment. The application of these by-laws is questioned (without being contested) when it comes to demonstrations or picketing activities.
5. Prohibition of abusive language	"The violent message conveyed peacefully is covered by the constitutional guarantee, while any message conveyed with violence is excluded." - Irwin Toy Ltd. c. Québec (Procureur général), [1989 1 R.C.S. 927 ] There is no substantive ruling on the prohibition of insulting or swearing at a police officer in the performance of his or her duties. A police officer may issue a statement of offence for insulting or swearing at a police officer based on municipal by-laws.
6. Prohibition of acts of violence	"Many municipal by-laws provide that a demonstration becomes illegal if an act of violence or vandalism is committed, even by a single person or a small number of people.” These bylaws are unconstitutional, infringing on the right to protest and the majority's freedom of peaceful assembly. In enforcing them, mass arrests and the declaration of the illegality of a demonstration infringe on the same rights. See: Garbeau c. Montréal (Ville de), 2015 QCCS 5246
7. Ban on face covering or masks	There are several municipal by-laws that prohibit the covering of the face during an event. Some of these have been challenged and are no longer in effect. "On two occasions, Quebec courts have ruled that provisions in municipal bylaws prohibiting the wearing of masks are unconstitutional." Other provisions prohibiting face veiling are still in effect. A blanket ban on masks during a demonstration is unconstitutional. "[T]here are already provisions in the Criminal Code whose purpose is to penalize disguising or wearing a mask 'with the intent to commit a criminal act' (section 351(2)) or for the purpose of 'concealing one's identity without lawful excuse' during a riot (section 65(2))."  See: Vancouver (City) v. Zhang, 2010 BCCA 450: "Since the choice of mode of expression is an integral part of the message, it is not for municipal or police authorities to determine the most appropriate and least intrusive way for protesters to exercise their freedom of expression."
8. Poster Ban	Posting signs in public spaces is regulated. See: Irwin Toy Ltd. c. Québec (Procureur général), [1989 1 R.C.S. 927 ]: "Freedom of expression protects the content of the message, as well as the vehicle for conveying the message, such as language, posting, leafleting, boycotting, picketing and demonstrating.” "Putting up signs is [...] a constitutional right." Cities are entitled to restrict the right to post signs in a reasonable manner. Such restrictions "shall in no case amount to absolute prohibitions. If they do, they are unconstitutional.” - Irwin Toy Ltd. c. Québec (Procureur général), [1989 1 R.C.S. 927 ]

Police powers  

Cameras and surveillance

• Demonstrations are often filmed (including through body cameras) and artificial intelligence and facial recognition technologies are used without guidance. "They can lead to serious abuses such as mass surveillance and the use of images for identification purposes in future investigations." -Droit de Manifester
• Police officers attend demonstrations out of uniform to gather information on certain people. They only have to identify themselves if they arrest you. For example, in the lead up to the 2010 G20 mobilization, 500 people were employed by the RCMP to monitor the mobilization. The surveillance methods used are not publicly available.
  
• Large events to attract police interest such as physical presence and/or social media monitoring.
  
  • I.e. It would be a reasonable precaution to assume a police officer might see any publicly-posted social media comment you make, particularly if you tag it with a hashtag associated with the event.
• Canadian spy agencies have spied on activists and people exercising their right to protest.
  
  • I.e. Tools like IMSI Catchers (which mimic cell towers to collect the numbers of those in the vicinity) might also in some cases be deployed.

Surveillance precautions if this feels relevant to you:

• You may wish to leave your cell phone at home (or keep it turned off and locked)
• Use a prepaid phone bought for the purpose.
• Turn off location tracking—you might have to do that in one or two different places in the settings.

Collecting personal information

• There is no requirement to carry identification in Canada. "However, if police officers have reasonable grounds to doubt the veracity of the information given, additional questions may be asked about the information and an identification card may be requested."
• When a person is arrested under the Criminal Code, he or she may be required to undergo additional identification procedures, namely fingerprinting and photo identification. Fingerprints are not required for "lesser summary charges such as unlawful assembly or disturbing the peace".
• In the case of tickets, the police can take a picture of the person.

Power to handcuff

• Police must use this power for the purpose of ensuring safety (their own, that of others or of the person arrested). They must be removed (handcuffs or zipties) as soon as the situation permits

Searching

• Only an officer of the same sex should be performing a search. Request this if an officer of another sex demands a search if you are under arrest.
• The police generally do not have the right to search you or your personal belongings while you are in the public space, unless you are in custody or under arrest. They can, however, seize evidence of an offence if it is in plain view.
• "While a cursory pat-down search is generally acceptable, a strip and body cavity search or cell phone search must meet much stricter criteria." - COBP
• If you aren't under arrest and police want to search you, state that you do not consent to a search and that doing so would be an abuse of power.
• There are 3 types of searches. A pat down for weapons, summary search (of pockets, belongings) or in rare cases a strip search to check all clothing and belongings. If you believe you are the victim of an abusive search, file a complaint. You may have your charges dropped or receive compensation.

See: Cloutier c. Langlois, [1990 1 R.C.S. 158], R. c. Stillman, [1997 1 R.C.S. 607] & R. c. Fearon, 2014 CSC 77

Police weapons  

Pepper spray

• If you are sprayed, don't rub your eyes. Rinse abundantly with water. A spray bottles with 50% water and 50% antacid (i.e. maalox, in drugstores) can relieve irritated eyes.

Tear gas

• Conventional gas has an apple smell and irritates the eyes, skin and mucus membranes. The more toxic version has a pepper smell and can Induce nausea and vomiting. Masks covered in lemon or lime juice can help prevent inhalation.
• Panicking can actually amplify the effects of the gases; they will otherwise not last longer than 15 minutes. Go to a well aired place and do not rub your eyes. Rinse all body parts exposed to the gas with water. Do not use milk, use water. Adding salt or baking soda can make this more efficient.

Flash bombs, rubber bullets, stun grenade & tear gas projectiles

• Used to disperse crowds, they are thrown into crowds and project an irritating powder. Protestors have sustained injuries from fragments of projectiles when they explode.
• Rubber bullets have caused a number of deaths and serious wounds such as skull fractures, loss of sight, permanent incapacity of certain body parts and damage to internal organs.

Advanced legal questions

• Conduct a search on the Canadian Legal Information Institute. It includes access to court judgments from all Canadian courts. The name of the parties and the court are particularly important information to find a decision. You can also search for a decision by keywords.

• Conduct a search on the free CAIJ website. The resource is based in Quebec, but has English translations and case information from other provinces too. Select the "Doctrine" tab and enter your search topic (the doctrine is the first source to consult for legal content since it often includes a compilation of laws and decisions related to the topic you are looking for). To learn how to find content in detail, click on the "Writing Rules" tab to learn more about the search operators. There are also legal terms definitions.

• Use the free resources posted on law school websites. See this example.
• Search for a by-law online by visiting your municipality's website and searching for "By-laws" in the search bar. See this example from Montreal. 

Learning from History: Police, demonstrations and politics

G20 Protests in Toronto

• "In two days, 1,140 people were arrested and detained for several hours in degrading and inhumane conditions. We now know that 95% of them were cleared or had their charges dropped months later. For many, the treatment they received, and the outcome, was a collective punishment to break the social protest movement." - Ligue des droits et liberte
• Foundations used by police (they prioritize the regulatory route over the criminal route)

-Art. 500 and 500.1 of the Highway Safety Code (obstruction of traffic)
-Art. 31 of the Criminal Code (breach of the peace)
-Sections 63 and 66 of the Criminal Code (unlawful assembly)
-Section 129 of the Criminal Code (obstructing a police officer)
-s. 270 of the Criminal Code (assault)
-Section 430 of the Criminal Code (mischief)

Constitutional challenges: Class actions for violation of constitutional rights. Alleged violations:
-Unlawful arrest, false imprisonment, unlawful searches, violation of the right to counsel, infringement of liberty, safety and dignity, infringement of freedom of speech, freedom of association and freedom of peaceful assembly.

-Individual actions for damages (civil suit)

-Factors limiting the exercise of freedom of expression

-Exclusionary factors related to the realities of individuals

-Constraints related to legislative requirements

-Arbitrariness (randomness and unpredictability) in police interpretation and application of regulatory requirements
-Police forces take advantage of the lack of legal information of protesters

Activist ways of coping (that have been mentioned): -continue to demonstrate

-create clearly visible surveillance teams "at demonstrations to document police brutality, violence and political profiling practices political profiling practices".

-educate about the right to protest
-denouncing political profiling (without it overriding the substantive demands of the groups)​​​​​​

Repression, discrimination and the 2012 student strike

• 3509 arrests from February 16 to September 3, 2012
• Many injuries and hospitalizations caused by police physical violence. "Many detainees have had to wait for hours without being able to eat, drink or go to the bathroom, to the point of being forced to urinate in their pants or in public. Some suffered dehydration and heat stroke. Others have been subjected to intrusive and abusive searches. Women report that officers have "felt their breasts in front of everyone," "lifted their dresses in public," and conducted pat-downs. "Testimonies report numerous incidents where abusive, racist, sexist, homophobic, contemptuous, degrading, paternalistic and condescending language was used. - Ligue des droits et liberte
• Massive use of lethal weapons of crowd dispersal including chemical irritants, tear gas, pepper spray , kinetic energy weapons, projecting rubber bullets and stunt grenades.
  

Lawyer Testimonials

• A person can be arrested and then immediately released. The police decide whether to keep the person in custody.
• If a person is detained, he or she will be detained until the case is submitted to the Prosecutor and there is an appearance in Court (the next day).
• The court appearance (the first date on which one is before a judge) takes place and there is disclosure of evidence (documents given to authorize the case).
• If there is an objection to the release, the person must wait until the "bail hearing" which must take place within 3 days of the appearance (can take place the next day, but not earlier).  
• At the bail hearing, the Defence will negotiate to obtain conditions of release (communicate if there are any conditions that could cause problems, e.g. working evenings, co-accused being roommates). If no agreement, the judge will decide.
• Example: Arrest on Monday, court appearance on Tuesday, bail hearing on Wednesday
• Generally in non-violent actions, the majority of people will be released (unless they have a pre-existing criminal record).