Legal information for activists

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