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Protesters' Rights and Risks in Canada - excerpts from Lisa's special edition newsletter

Protesters' Rights and Risks is a special edition newsletter, excerpts of which are published here. For the full version, please contact me directly at 613.203.4874.

Nothing in this article should be relied upon as legal advice or information - the article is for general interest only and you must contact me directly for law that applies to your case.

The question is not so much what are protesters' rights as:

  • what do police consider protesters' rights to be, or even,
  • what do police consider their own rights to be, or importantly,
  • will the police view the protest as 'unlawful assembly' or as a 'riot', both of which are defined in the Criminal Code of Canada.

Within those contexts, let's look at some fundamental issues that can arise during protests. I'll relay the laws in a general way; the terms demonstration and protest are used interchangeably.
Do you have to identify yourself to police?

Yes, if they suspect you have broken the law (or you are driving). No, if they have no legal grounds to ask. Since you can't know if they have grounds (you don't know all the information the police may have and they are not obliged to tell you), it is safest to provide identification. Carry identification also in case you are arrested; it can help to get you released from custody faster, and avoid additional charges.

Do you have to answer police questions, beyond possibly identifying yourself?

No. You have a right to remain silent and usually it is best to do so, at least until you have spoken with a lawyer.

Do you have to consent to a police search?

No, but you should not physically resist a search. Firstly, because that has only one way to go. Secondly, you cannot know in the moment, with certainty, whether the police have legal grounds to search you or how extensively they can search. I can give you my opinion on this when I see the evidence after the fact, but be aware that judges at all levels come to different conclusions about whether a search was reasonable, except in the clearest of cases. If even judges cannot agree on what are reasonable grounds to search, police and protesters might not agree.

If the police search you without your consent, and it turns out they had insufficient legal grounds to do so, you have remedies to pursue later...(order the full version of this article to see excluded content).

Are there special laws for civil disobedience?

If we define civil disobedience as breaking the law to make a point, then no. All the regular laws, including criminal charges, apply...(order the full version of this article to see excluded content).

Types of charges that can result

Typical criminal charges include breach of the peace, mischief, assault, and resisting arrest. If very unfortunate, terrorism charges may be considered. Charges are also possible under provincial and municipal laws. When protesters are arrested, they are usually held in custody until they have a bail hearing. They can then be released on strict bail conditions, or they may even be held in custody until their trial months or, in extreme cases, years later.

Sentences for crimes relating to civil disobedience include an absolute discharge, a restitution order, a fine, probationary conditions, and a jail term. The resulting criminal record will be a common criminal record, without reference to social motives that may have been its genesis.

Civil contempt proceedings can be taken against protesters, as opposed to criminal charges. Jail terms are possible even through civil contempt proceedings.

How the civil laws apply

Police are reluctant to get involved in protests, even when laws have been broken. They want to avoid accusations that they are breaching the Canadian Charter of Rights and Freedoms, and so they leave it to the party - perhaps a private citizen or business - who is bothered by the protesters to apply for an injunction in civil court. This is particularly so if the potential criminal charges would be minor.

This way, if people continue to protest in the face of an injunction, the police can simply enforce the court injunction order, rather than having to exercise their own discretion to make arrests. Enforcement measures can be taken through civil or criminal contempt proceedings, or through the Criminal Code.

A police decision not to lay charges, but rather to leave it to the injured party to seek a civil remedy, results in high legal costs for the injured party. And some civil court judges are not happy about having to deal with these injunctions for what they say are offences that should be handled by police.

Whether or not they were pursued by charges, contempt of court proceedings, or an injunction, protesters could also be sued civilly for economic or personal injury damages they may have caused. They may thereby face multiple legal proceedings arising out of one protest.

Other Risks

History shows that ...(order the full version of this article to see excluded content).

Conclusion

Many laws can apply to a protest; this touched superficially on some of them. Remember - nothing in this article should be relied upon as legal advice or information - the article is for general interest only and you must contact me or another lawyer directly for law that applies to your situation.

Please contact me if you would like specific information regarding any legal matter. Send me a message through the contact form on my main website, or call me at 613.203.4874.