Q: I have been reading about the unrest in Egypt and thought of protests in Canada, such as the G20 conference. What is the law regarding protesters in Canada?
A: Unlike some other countries, Canada’s Charter of Rights and Freedoms does not give people an unrestricted right to gather and associate. It is restricted to permitting peaceful assemblies.
Canada is a nation founded on strict principles of order. Key words in our history are “peace, order and good government.” This is distinct from the United States, where the country was founded on “life, liberty, and the pursuit of happiness.”
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We just aren’t as freewheeling on such issues.
Bear in mind that the charter is subject to modifying language in Section 1. Specified rights and freedoms are enshrined “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Our rights are not limitless and are subject to restrictions, provided they are reasonable. Reasonable varies with the eye of the beholder.
Governments and police services can restrict the right of assembly if it is not peaceful in nature. You can disagree and have a judge decide. The police also have wide discretionary powers at an assembly or protest.
The phrase “read the riot act” stems from a British law called the Riot Act, whose provisions would be read to people as a warning to disperse or be arrested. In Canada, this act was used only a couple of times in history. Those old legal provisions have now been incorporated into the Criminal Code of Canada.
Under Section 31 of the Criminal Code, police have the right to arrest or detain people for “breaching the peace.” Any public protest that breaches the peace can be stopped by police and the protesters ordered to leave.
Section 63 of the Code contains a ban on “unlawful assembly,” which is three or more persons gathered in a way that causes reasonable people in the locale to legitimately fear that the gathering will seriously disturb the peace or incite other persons to do that.
Again, as the charter preserves only the right to “peaceful assembly,” this legal provision falls safely within the charter and does not breach it.
The Criminal Code is national but towns and cities generally have powers to regulate such activities inside city limits. Bylaws can be passed to regulate the size and type of demonstrations within a municipality.
There are no exhaustive definitions of peaceful assembly or proper protesting within Canada.
The decision of whether a protest is legal is left to the senior police officer attending the scene. Some critics have questioned whether this is appropriate. Shouldn’t citizens know what is right and wrong regarding protests before they start? Shouldn’t courts and legislatures define this, rather than leaving it to police officers at a scene that may be heated?
It is arguable that the people best equipped to decide what is legal are simply not making the call.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon. Contact:
