Legal information for activists
Introduction
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 long. What is recognized as constitutional does not cease to be "unconstitutionally" applied in certain contexts, notably by profiling. |
Police have discretionary power (see definitions section 2.0). It has great control over the choice of its actions. The power of police officers derives from the law (Police Act and Criminal Code) as well as from the common law (see definitions section 2.0). |
Examples of cases with differing results are included throughout this document. A judgment that goes against past decisions could create a precedent if judges decide to refer to it in their future decisions. The decisions presented in this document are or have the potential to constitute precedents. |
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 |
Common Law | Regulatory offences and criminal offences (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. - Lawyer Testimony |
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 |
Discretionary Power | 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." -Dictionary of Quebec and Canadian law of the CAIJ
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Discharge | When a person is convicted, a sentence that does not result in a criminal record.
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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 |
Risk Assessment [1]
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:
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 [2] [3]
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.
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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. |
On private property, the police can...
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Filming and identifying police [4] [5]
- 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.
- 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.'" [6]
What if the police ask for, or try to take, your 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. |
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. |
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. |
If someone you know is being arrested, take the names of those who recorded it and other witnesses |
Revealing Identities [7]
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. Police officers are obligated to identify themselves if you ask. |
You must identify yourself with your name, date of birth and address to police if: |
NOT protected rights
"A protest that endangers others, damages property or significantly restricts essential services and processes within society is unlikely to receive constitutional protection." - (CCLA) 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)
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.
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 you are arrested or detained? [8] [9]
First, ask these questions: "Am I under arrest" and/or "am I free to go?"
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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 |
The police will promise you they'll drop the charges if you cooperate. This is false. 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."
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If you are being detained, police can do a pat down search of your body to look for weapons.
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You have a right to make calls, more than one if necessary, to reach a lawyer. 24-hour legal assistance: 1800-842-2213
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Contesting a statement of offence [10] [11]
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. |
Steps to contest:
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Defending yourself against a criminal charge
Your appearance date is the first date on which evidence is presented.
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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.
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Legal aid for defence may be available if income is low.
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"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 |
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.
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In the case of a criminal offence, the continued detention of a person after arrest may be considered to:
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Appearance before a judge must take place within a maximum of 24 hours.
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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.
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Criminal charges against protesters are often hybrid (their prosecution may be summary or indictable depending on the choice of the prosecutor).
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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.
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A request for non-disclosure can also be made to make information about court proceedings inaccessible to the public.
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Minors [13]
- 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.
What if your rights are violated? [14] [15]
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Reducing individual and group's risk [16]
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! |
6. Turn off location tracking—you might have to do that in one or two different places in the settings. |
7. Do NOT keep anything on yourself you wouldn't want police to find (i.e. drugs. address book) |
8. 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. |
9. 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). |
Groups preparing for civil disobedience actions
1. 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. |
2. If you intend to block traffic or set up a rally with speakers and sound equipment, you can apply for a permit to meet legal requirements before the event.
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3. 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. |
4. 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 [17] [18]
1. Common nuisance (section 180 of the Criminal Code)
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2. Mischief (section 430 of the Criminal Code) |
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3. Causing a disturbance (section 175 of the Criminal Code) |
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4. You are publicly intoxicated (drunk or high) and are putting safety at risk |
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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.
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6. Obstructing police work (s. 129 of the Criminal Code) |
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7. Assault (ss. 265-270 Criminal Code) |
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8. Preventive arrests |
"(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 |
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Declaration of illegality [19]
Often, a notice of dispersal is read before the police disperse. However, there is no obligation to do so. |
Discuss strategies for dealing with a declaration of illegality beforehand.
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 [20] :
- 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)
Common Municipal Bylaws
1. Disclosing the action plan or obtaining a permit |
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. Section 2c of the Canadian Charter of Rights and Freedoms includes the right to demonstrate spontaneously (without giving an itinerary).
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2. Obtaining liability insurance [22] |
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3. Obstructing traffic [23] |
Section 2c of the Canadian Charter of Rights and Freedoms includes the right to interfere with the normal flow of traffic.
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4. Noise bans [24] |
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.
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5. Prohibition of abusive language [25] |
There is no substantive ruling on the prohibition of insulting or swearing at a police officer in the performance of his or her duties.
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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.”
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'7. Ban on face covering or masks' |
There are several municipal by-laws that prohibit the covering of the face during an event.
"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."
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8. Poster Ban |
Posting signs in public spaces is regulated.
"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.” Irwin Toy Ltd. c. Québec (Procureur général), [1989 1 R.C.S. 927 ]
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Police powers [26]
Cameras and surveillence
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Collecting personal information |
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Power to handcuff |
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Searching [28] |
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 [29]
Pepper spray |
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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.
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Flash bombs, rubber bullets, stun grenade & tear gas projectiles |
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Advanced legal questions
Conduct a search on the Canadian Legal Information Institute.
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Conduct a search on the free CAIJ website.
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Learning from History: Police, demonstrations and politics [30]
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 Activist ways of coping (that have been mentioned):
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Justifications used by police (they prioritized the regulatory route over the criminal route):
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Alleged violations of constitutional rights:
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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).
- ↑ www.bankingonabetterfuture.org
- ↑ Par la Protestor Legal Information Clinic
- ↑ Canadian Civil Liberties Association
- ↑ http://droitdemanifester-ldl.uqam.ca/category/pendant/vos-droits-et-obligations-lors-de-larrestations-ou-de-la-detention/
- ↑ Canadian Civil Liberties Association
- ↑ Canadian Civil Liberties Association
- ↑ http://unfuck.cobp.resist.ca/fr/documentation/brochure-guess-what-weve-got-rights
- ↑ Canadian Civil Liberties Association
- ↑ http://unfuck.cobp.resist.ca/fr/documentation/brochure-guess-what-weve-got-rights
- ↑ http://droitdemanifester-ldl.uqam.ca/apres/se-defendre-face-a-un-constat-dinfraction-ou-une-accusation-criminelle/
- ↑ unfuck.cobp.resist.ca/fr/documentation/brochure-guess-what-weve-got-rights
- ↑ Anonymous lawyer consultation
- ↑ http://unfuck.cobp.resist.ca/fr/documentation/brochure-guess-what-weve-got-rights
- ↑ Canadian Civil Liberties Association
- ↑ http://droitdemanifester-ldl-uqam.ca/apres/les-recours-en-cas-dabus-policiers/
- ↑ Canadian Civil Liberties Association
- ↑ Canadian Civil Liberties Association
- ↑ http://droitdemanifester-ldl.uqam.ca/pendant/de-linterpellation-a-larrestation/
- ↑ http://droitdemanifester-ldl.uqam.ca/pendant/lillegaite-dune-manifestation-et-sa-dispersion/
- ↑ http://droitdemanifester-ldl.uqam.ca/apres/strategies-contre-p-6-a-montreal/
- ↑ http://lois-laws.justice.gc.ca/fra/const/page-12.html#h-42
- ↑ http://droitdemanifester-ldl.uqam.ca/avant/obtention-dune-assurance-responsabilite/
- ↑ http://droitdemanifester-ldl.uqam.ca/avant/interdiction-de-gener-la-circulation/
- ↑ Canadian Civil Liberties Association
- ↑ Canadian Civil Liberties Association
- ↑ http://drpotdemanifester-ldl.uqam.ca/pendant/pouvoirs-policiers-de-filmer-ficher-menotter-et-fouiller/
- ↑ Par la Protestor Legal Information Clinic
- ↑ http://unfuck.cobp.resist.ca/fr/documentation/brochure-guess-what-weve-got-rights
- ↑ http://unfuck.cobp.resist.ca/fr/documentation/brochure-guess-what-weve-got-rights
- ↑ http://liguedesdroits.ca/wp-content/fichiers/bilan-version-longue-finale-10-juin-2015.pdf