Legal information for activists

Definitions

Acquittal	Charges by indictment (serious crime). “The most serious criminal offences in the [Criminal] Code, such as murder or dangerous driving causing death, are indictable offences. The Code provides a specific maximum sentence for each indictable offence and for some, a minimum sentence is also provided so that the judge cannot impose a lesser sentence." - Ligue des droits et libertés (League for Rights and Freedoms)
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

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?

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. The police force has enormous discretionary power to choose its actions.​​​​​​​

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.