This article is part of Ask the CCLA, a new CCLA resource that allows individuals to submit their civil liberties questions to the CCLA online. We respond to the most interesting and timely questions on this blog periodically. To learn more, read past questions or submit your own, visit the Ask the CCLA page.
A community organization that I’m part of worked to organize a peaceful demonstration to oppose a pipeline that may be built nearby. Despite the fact that we were on the town hall lawn and hadn’t blocked anyone’s access to the space, the police showed up and told us that we had to leave because we didn’t have a permit. Two members of our group were arrested but later released without charges. In the past, we tried to apply for permits but no one responds to our requests. Does this mean we’re simply not allowed to protest there? What can we do about this?
The right to protest is constitutionally protected in Canada under sections 2(b) and 2(c) of the Canadian Charter of Rights and Freedoms which guarantee freedom of expression and freedom of peaceful assembly. Legitimate dissent, expression and protest are the hallmarks of a democratic society. CCLA believes that police have a duty not only to respect peaceful protests but to facilitate such protests. However, the right to protest, like all rights and freedoms protected under the Charter, are subject to limitations. Federal, provincial, and municipal governments can pass laws, regulations, and by-laws to limit protests if those limitations are “reasonable” and “can be demonstrably justified in a free and democratic society.”
For example, s. 63 of the Criminal Code prohibits “unlawful assembly,” defined as an assembly that will disturb the peace or provoke others to disturb the peace, and s. 31 of the Criminal Code grants police the power to arrest demonstrators who “breach the peace.” On their face, these laws appear to place reasonable restrictions on freedom of peaceful assembly and expression. However, police officers have a great deal of discretion to determine what actions breach the peace and may seek to place limits on rights that are more restrictive than the law suggests. As such, if you are organizing a peaceful demonstration, march, rally, or protest, it is best to research your municipality’s policies and by-laws and your local police department’s policies and guidelines.
For example, in Montreal, Municipal By-law P-6 was amended during student protests in 2012 (see more on this below). The amendments require demonstrators to provide local police with an itinerary and route of a protest before it begins. It also prohibits demonstrators from covering one’s face “without reasonable motive” at any gathering on public property. Failure to comply with the by-law can result in a fine of $500 to $3000. Municipal By-law P-6 has been fairly controversial, and although Montreal city councillors have voted to keep the by-law, in February 2015, a Montreal municipal court judge concluded that tickets issued to three individuals were invalid (several hundred students received tickets, but the case involved a challenge by three individuals). Some have seen this judgment as a victory for the right to protest, but this issue is still very much live. For more information, see here.
The CCLA has voiced concern about municipal bylaws that unreasonably constrain protest activity, particularly those in Montreal and Quebec City. In 2012, during the Printemps érable student protests, the CCLA strongly opposed amendments to Montreal bylaw P-6. The following year, we denounced the mass arrests of protestors under the bylaw. The CCLA has also intervened before the Quebec Superior Court in Villeneuve v City of Montreal, a case challenging the constitutionality of aspects of bylaw P-6; the decision in Villeneuve has not yet been rendered. The CCLA maintains that the requirement to notify police in advance about public gatherings (including their route and itinerary) creates an unnecessary obstacle to and stifles legitimate, peaceful protest. Further, it renders spontaneous, unstructured gatherings automatically “illegal.” In CCLA’s view, this is an unreasonable restriction on freedom of expression and peaceful assembly.
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