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.

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.

To contest...

• "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.