Notes from Quebec by Ethan Cox

Ethan Cox's picture
rabble's Quebec correspondent, Ethan Cox is a 29 year-old journo, pundit and incorrigible rabble rouser from Montreal. A former union organizer and student union executive, Ethan has also worked on a number of successful municipal and federal election campaigns, and was a member of Quebec central office staff for the NDP in the 2011 election. More recently he served as Quebec Director and Senior Communications Advisor on Brian Topp's NDP leadership campaign. He now spends his time writing for rabble, freelancing for outlets like the National Post, appearing regularly on CJAD radio in Montreal and working on a book about austerity. You can follow him on twitter @EthanCoxMtl

'There is no right to protest': Montreal police deny Charter rights

| March 23, 2013
Anarchopanda surrounded - photo: 99% Media

"This is approaching absurdist comedy," tweeted Montreal Gazette reporter Christopher Curtis Friday night, trapped in a police kettle from which Montreal's finest inexplicably refused to release him as his deadline approached.

"Did they really, actually arrest Anarchopanda????" replied well known Québécoise pundit Josée Legault.

Curtis never replied, no doubt caught up in extricating himself from police custody, so allow me to do so now: yes Josée, they really, actually did. Just call him Arrestopanda. At night's end the tally ran something like this: one panda, several rabbits, a few dozen journos and almost three hundred dull normals cuffed, processed and slapped with $637 fines. This after being held for hours in the cold kettles Montreal police formed around them.

 An obscene over-reaction regardless of circumstance, kettling has been ruled illegal by England's High Court. In Toronto, the senior police commander who ordered protesters kettled at the 2010 G20 summit has been charged with discreditable conduct and unlawful use of authority. The Toronto Police Service have committed to never use the tactic again after an independent review found it to be unlawful. Kettling is a particularly disturbing tactic because it only works on peaceful protesters who offer little resistance, making it insidiously offensive to the concept of free speech and free assembly.

 But, some would argue, once those damn kids started with the breaking of the windows and the throwing of the snowballs, what choice did the police have?

Sorry Dorothy, but we're not in Kansas anymore. The question of whether you can justify arresting hundreds of people because one or two did something objectionable is sooooo 2012.

Friday night, before the protest had even begun, and without so much as a hurtful word to serve as pretext, Montreal police descended on a crowd of protesters who were, without exception, peaceful and arrested the lot of them.

I don't go in for a lot of the alarmist stuff you see on Twitter and Facebook. I think Stephen Harper sucks, and I hate what he's done to our country, but I don't think he's a dictator or a fascist. I've always hated the SSPVM chant (the addition of an extra "s" to the name of Montreal's police service alluding to the Nazi SS) and I think such hyperbole often obscures, rather than illuminates, important issues.

So it's not for nothing that I tell you I woke this morning genuinely afraid. For the first time in my life I am afraid of what can happen to me, and to my friends and neighbors and strangers, if we exercise inalienable rights that we cannot, must not, forfeit. This is not hyperbole, it is fact, and the fact is that the world looks a great deal darker today.

How else to process the preventative arrest of 294 law abiding citizens for the sole crime of attempting to express their political views in a constitutionally guaranteed fashion? Worse, this is the third time Montreal police have moved in to preemptively arrest a protest in its entirety in the space of one week, this lovely new staple of police tactics having been trotted out at the annual anti-police brutality march on the 15th and again to pre-empt a student protest on Tuesday, when 45 people were arrested.

Last night's shameful spectacle came courtesy of Municipal By-Law P-6, the little known municipal counterpart to the universally denounced, and now repealed, Bill 78/ Law 12. The municipal bylaw shares the requirement that protests must submit their route for approval by the police 24 hours in advance. Among other goodies, it also allows Montreal's Executive Committee to prohibit any peaceful assembly indefinitely, at their discretion and without notice. It should be noted that this almost certainly unconstitutional bylaw was passed by a municipal government with all the credibility and moral authority of a turnip.

At last night's demonstration the police declared the protest illegal before it began for failing to provide a route and ordered protesters to disperse. However, they waited only seconds between giving that order and kettling protesters, giving them no chance to comply.

 Jean-Felix Chenier for voir.ca

But don't worry, say the police, they aren't infringing on anyone's right to protest, because no such right exists.

"Starting with the last three demonstrations, we have been intervening faster," Sergeant Jean-Bruno Latour, a spokesperson for the SPVM, told La Presse. "We do not want to hold citizens who wish to go to downtown Montreal hostage. The Charter [of rights and freedoms] protects the right to freedom of expression, but there is no right to protest." [Translated from French]

This rather jaw-dropping statement raised the ire of Véronique Robert, a criminal lawyer in Montreal. Her scathing rebuttal on the website of weekly newspaper Voir titled "Fear the police, not the protests" is a delicious take down of this absurd position, and if you read French I recommend reading it in its entirety. Here's a taste:

"This screwball assertion by an officer with the Montreal Police is scary, alarming and frightening, and leads to two conclusions: first, our police urgently need more law classes as part of their training. Second, things are not at all well in Quebec right now, and that frightens me." [Translated]

Robert goes on to patiently explain that peaceful assembly and protest is an integral part of freedom of expression, without which the right cannot exist. She points out that not only is our right to protest clearly and explicitly protected by our Charter, it is also protected by every document dealing with the protection of fundamental rights in the world, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

In 2005, the UN Human Rights Commission criticized, as it did again last year, mass arrests taking place in Montreal in the context of the last student strike, calling mass arrests by their very nature a violation of the right to freedom of expression. The commission called for a public inquiry into police actions, and questioned the article in the criminal code prohibiting illegal assembly.

"The state must ensure that the right to peacefully participate in a protest is respected, and that only those who have committed a criminal infraction during a protest are arrested." [Translated]

Robert concludes as follows:

"When the young, and the even younger, receive $614 [sic] tickets for participating in a public assembly, be afraid. When protest movements are bullied from the moment they are formed, be afraid. When the police detain citizens en masse for no reason, be afraid. When police conflate interrogation with arbitrary arrest for exercising a constitutional right, be afraid.

What should actually scare us, in Montreal, is the police and their totalitarian declarations. What we should fear is the state and our mode of governance. Not protesters." [Translated]

 Tim McSorley for Media Co-op
Photo: arij riahi

Strong words, but necessary ones. Robert is no wild-eyed radical, she's a criminal defence attorney, and is articulating a position shared by the vast majority of her colleagues. P-6 has been denounced by the Quebec Bar Association, representing the province's lawyers and prosecutors, and a march of lawyers against Law 12 last year drew over six hundred into the streets.

Right now, in Montreal, the very right to protest, that most fundamental right to freedom of expression, is under assault. If we give in, and stay home for fear of these preposterous tickets, we will have lost not just the battle but the war itself. Indeed, the worst part about these tactics is that they work. I know many friends who will no longer go to protests for fear of arrest and a ticket they cannot afford. What a sad state of affairs when the police bully and intimidate citizens out of exercising their right to criticize the government. So go to the demos, go to all the demos, and prove you will not let fear and intimidation win out. If you get a ticket, contest it. The legal resources to ensure you succeed are freely available. And no matter what you do, make sure to go to the demo on the 22nd of April, which I think should be branded as a manif in defence of our civil liberties. If there are enough people in the streets, the cops can't do a thing. Small crowds are what allow these abuses.

When our police force denies that we have any right to peacefully express our dissent, there is no recourse but to fight tooth and nail to protect our rights. This is far too important an issue to let slide.

 Peter-Thomas Kennedy/99media.org

Robert and I both expect legal challenges to this law, which will hopefully be struck down, but in the meanwhile I think it's time we made municipal bylaw P-6 an election issue.

Montreal has a municipal election coming up in November. With the implosion of the ruling Union Montreal party after revelations of widespread corruption, revelations which also tarnished the reputation of opposition party Vision Montreal, the election is more uncertain than any in my memory. 

Over the next year any number of politicians will be asking for your vote. Any time they do, make a habit of telling them that you will only vote for a party which commits to repeal bylaw P-6. This is for all the marbles folks, our right to freedom of expression is not negotiable. 

The PQ campaigned heavily on a promise to repeal the wildly unpopular Law 12, and now it's time to finish what they started. The repeal of Law 12 is a Pyrrhic victory if bylaw P-6 remains in force.

I'll close with an oldie but a goodie: If you're not outraged, then you're not paying attention.

 

If you are in Montreal, a major demonstration against bylaw P-6 has been organized for April 22 at 6PM, outside of City Hall. For more information or to confirm your attendance you can check out the Facebook event.

 

Twitter: @EthanCoxMTL

embedded_video

Comments

"The population has enough of demonstrations"' said a police source in an interview with the QMI Agency on Saturday. "People are asking us to put an end to these demonstrations as quickly as possible".

Such was reported in the Journal de Montreal. The mask has come off, hasn't it...  Their orders from the Silent Majority stoked up by right wing radio blowhards are plain. Destroy all demonstrations at all costs. Use any pretext to that end. Through their own words they stand condemned.


When I heard some right wing person on radio pester Ian Lafreniére over the fact that the Quebec City protest that followed the 5 March protest was smashed 'in the bud' and he kept telling Lafreniére "Why can't you do it here", and asked why is it Quebec does a better job in repressing its demonstrations despite having less experience with such, I knew what was going to happen. 22 March was the first applications of pure Quebec City rules. This is the Neoliberal Penality in action.

It is not ambiguous, the language is plain. Any group of three people or more on the public domain that does not give the police its itinerary is in violation of Article 2.1 of P6.

Right now, as predicted by the theory of Neoliberal Penality, we all over North America are under an authoritarian onslaught. That is not a theory, that is a fact. This is an onslaught that must be challenged. In the name of Liberty, our freedoms are being taken away.

Mr_R, the idea that P-6 is ambiguous is a red herring. To your knowledge, has P-6 ever been invoked to break up a group of friends walking down the sidewalk? If it were rewritten in a way to eliminate these supposed ambiguities, would you then support it? 

Do you have any evidence that the law is a pretext? There are similar laws on the books all over Canada and the world that have been followed for years. Establishing a relationship with the police and other city authorities before staging a large action has been considered a best practice for activists since forever, even in jurisdictions where it isn't required by law. 

It is not a law it is a bylaw that has not been constitutionally tested... and no one is following it, it has been violated millions of times. Even now there are groups of three people on the public domain refusing to give the police their itinerary!

This is simply a mechanism to destroy protests that the powers that be do not like, the slippery slope to "free speech cages"...

By the way, the "this is approaching absurdist comedy" line is half right; it has been absurdist comedy for quite some time. By the way, that Gazette reporter who told readers after 5 March that the SPVM abandoned mass arrests despite one having happened that night...

Or, we could make a good faith attempt to follow the law. Cool

Groups of three proposing different demonstrations from the same place at the same time going in different directions? Sounds like fun. Another suggestion was for someone to propose an itinerary they knew that the police would not like. This is one... Ste-Catherine against traffic down through the shopping area to say Peel and down to Rene-Levesque to occupy that strategic road at rush hour and then down University to incidentally disrupt people wanting to get to the Champlain Bridge and then de La Gauchetiere to be in front of the bank towers and branches... Someone could propose this with a video on them so we could hear the fuzz capo say "No". Then after that proceed without an itinerary and dare the fuzz do so something about it.

Sorry for the multiple post. New user, mea culpa.

Just out of curiosity, if 300 people protest, is it possible for each group of three to submit a separate intenerary prior to the protest? Conceivably, each gruop of three is going to get to and leave the protest using a different route. Each group of three might also have a specific issue they are protesting. After all, many grass-roots protests are based on coalition-type support rather than representing a single origanization.

Does the city have a legal obligation to consder each and every application to protest that it receives?After all, the official position is that it is ok to protest so long as you get approval beforehand,.

If so, then the city must have some system for approval and of course, if there are protests that cross paths, the police would need to confirm what each protest group was in fact protesting and their own separate itinerary.

Logisticially this would be a bit of a nightmare for the police, but consistent with the letter of the law.

 

Just throwing this out...

 

 

Just out of curiosity, if 300 people protest, is it possible for each group of three to submit a separate intenerary prior to the protest? Conceivably, each gruop of three is going to get to and leave the protest using a different route. Each group of three might also have a specific issue they are protesting. After all, many grass-roots protests are based on coalition-type support rather than representing a single origanization.

Does the city have a legal obligation to consder each and every application to protest that it receives?After all, the official position is that it is ok to protest so long as you get approval beforehand,.

If so, then the city must have some system for approval and of course, if there are protests that cross paths, the police would need to confirm what each protest group was in fact protesting and their own separate itinerary.

Logisticially this would be a bit of a nightmare for the police, but consistent with the letter of the law.

 

Just throwing this out...

 

 

Just out of curiosity, if 300 people protest, is it possible for each group of three to submit a separate intenerary prior to the protest? Conceivably, each gruop of three is going to get to and leave the protest using a different route. Each group of three might also have a specific issue they are protesting. After all, many grass-roots protests are based on coalition-type support rather than representing a single origanization.

Does the city have a legal obligation to consder each and every application to protest that it receives?After all, the official position is that it is ok to protest so long as you get approval beforehand,.

If so, then the city must have some system for approval and of course, if there are protests that cross paths, the police would need to confirm what each protest group was in fact protesting and their own separate itinerary.

Logisticially this would be a bit of a nightmare for the police, but consistent with the letter of the law.

 

Just throwing this out...

 

 

Just out of curiosity, if 300 people protest, is it possible for each group of three to submit a separate intenerary prior to the protest? Conceivably, each gruop of three is going to get to and leave the protest using a different route. Each group of three might also have a specific issue they are protesting. After all, many grass-roots protests are based on coalition-type support rather than representing a single origanization.

Does the city have a legal obligation to consder each and every application to protest that it receives?After all, the official position is that it is ok to protest so long as you get approval beforehand,.

If so, then the city must have some system for approval and of course, if there are protests that cross paths, the police would need to confirm what each protest group was in fact protesting and their own separate itinerary.

Logisticially this would be a bit of a nightmare for the police, but consistent with the letter of the law.

 

Just throwing this out...

 

 

Under the P6 bylaw the itinerary can be handed in immediately before the assembly. However, this leads to an obvious problem. It's the assembly that's supposed to require an itinerary, even if it stays fixed in place. An assembly is defined as three people or more. I suppose that the itinerary thus must be handed in the moment the third person shows up!  Three people gathering anywhere on the public domain without giving police the itinerary constitutes an Article 2.1 assembly under the bylaw and is banned. Groups of people going to bars, to the cinema, if it's three or more they must give police the itinerary. P6 is being violated in this way all the time. It is ridiculous. If P6 is being violated millions of times in this way, then this suggests it to be badly written and any application of this would seem to be arbitrary.

Unlike the case of an Article 2 assembly (pre-May 2012), Article 2.1 assemblies don't need to be dispersed as described in Article 4. As marching in an Article 2.1 assembly, as is the case of an Article 2 assembly, is not subject to any prohibition at all (refusing to obey the dispersal order in the event of a banned assembly is what is prohibited), those marching in these allegedly illegal demonstrations since last May have not done anything in violation of the bylaw. Simoneau was within his rights under the bylaw to do what he did (though he did not actually give a dispersal order in the usual way, simply he said that anyone who kept participating in the assembly would be arrested and would be "judiciarised"), but he was not required to do it, it was his own choice. Article 2.1 is being subject to constitutional challenge so what he is doing is using something that's probably unconstitutional to shut down protests.

I don't know what kind of legal challenges are pending for the kettling tactic, but it must be challenged, it violates Article 9 of the Charter.

P6 was promulgated in 2001 and changed in May 2012. I don't know if it's a good idea to abolish it completely as long as the Unlawful Assembly law is on the books in the Criminal Code. Without P6 the police would be more inclined to press criminal charges against people. I have seen the abuse of Unlawful Assembly by the police. I heard that they even declared such against the kettled prisoners... As I was told that freed prisoners were threatened with a weekend in jail if they were picked up again, I can only conclude that this would have been the pretext. Such would be an abusive misuse of the law.

My own suggestion (I am speaking of what would be feasible and what reasonable people should accept throughout society) would be to remove all clauses of P6 that do not mirror the Unlawful Assembly law and reduce the fines. That means Article 2.1, Article 5, Article 3.2. Article 3 is not necessary though 3.1 might make sense... I'd also get rid of Article 4. I think that if the police have the discretion to call an Article 2 demonstration without having to call for dispersal, it could be a sort of warning without requiring the messy and dangerous process of dispersal and permit the demonstration to be completed, unless things really degenerate. I would also have them stop using the word "illegal" to describe the demonstrations, simply have them describe such as a Article 2 assemblies under P6 and when they decide, to call for dispersal and tell people the consequences of not heeding said call. Words like "illegal" pretty much are a provocation to people in the assembly.

ah finally an interprétation of the charter that is worth the paper iz writen on. 

also, i'm not upset. and i am paying attention.

i dont really get up in arms,
untill the carbombs, and chatter of automatic wepons, ribon down the streets.

 

 

"Over the next year any number of politicians will be asking for your vote. Any time they do, make a habit of telling them that you will only vote for a party which commits to repeal bylaw P-6. This is for all the marbles folks, our right to freedom of expression is not negotiable. "

Agreed, but wouldn't it be better to bypass the politicians and repeal it via plebiscite?

You're not making a lot of sense Ijiji, QSC didn't refuse to hear a challenge last summer, they refused to hear a request for an urgent injunction which has a massively higher standard. I interviewed three legal experts about that ruling at the time and they all agreed that that ruling made sense from a legal standpoint, but that the law would almost certainly be struck down when a full appeal was heard.

Your precendents don't make any sense either, are you seriously arguing that anything goes so long as it was passed in law, even municipal by-law, and did not originate with the police? That's a grotesque misrepresentation of those rulings.

But again, my "opinion" happens to be shared by most jurists in Quebec, who have been quite vocal in voicing it. Yours is shared by no one. There's no point arguing it with you, if you disagree go complain to the Bar Association...

Ethan, the courts have not historically agreed with the idiosyncratic interpretation of the Charter you're putting forth here.  

The SCC has ruled more than once, for example, that "presribed by law" means that police discretion in limiting charter freedoms doesn't violate the Charter so long as it is granted by law and doesn't originate with the police themselves. See R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 SCR 621, R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 SCR 1257

It's of course possible that the some or all of Loi 12 will be or would have been struck down on Charter grounds. But this would be a landmark decision establishing an entirely new system for interpreting Charter rights. If the law were a prima facie Charter violation as you're claiming, the Quebec Superior Court wouldn't have declined to hear the challenge to its protest provisions last summer. 

You're entitled to your opinon on this matter, and you may even be correct in a policy sense--maybe it would be better policy to gaurantee the right to street demonstrations in a more absolute sense. Maybe it wouldn't. But your invocation of the authority of the Charter here in support of your argument lacks a basis in either statute or case law. The cop was right-- there is no such thing as a right to protest.

“to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” means not allowing hate speech and neo-nazi rallies. It DOES NOT mean effectively outlawing protests of any kind, as the Montreal police have done.

But don't take my word for it, the Quebec Bar Association (you know, the people who really know the law) and every civil liberties group in the world have denounced this law. As has the UN, repeatedly.

Sorry ijiji, but your point is nonsensical and you clearly gravely misunderstand the Charter. Rights are not subject to a balancing against their inconvenience to others, that's why they're rights. We have a right to demonstrate. Arresting everyone who peacefully attempts to express their opinion is CLEARLY not reasonable, nor can it be justified in a free and democratic society.

All right, contest time:

Who has just joined babble: Gérald Tremblay, or Jean Charest?

Or is ijij a team effort?

Only one answer per contestant, and no time limit.

 

Freedom of assembly is only gauranteed in the Charter  “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Requiring the submission of protest routes in advance is a reasonable public safety measure, is common in free and democratic jurisdictions all over the world, and has been repeatedly upheld by the SCC and other courts. 

There are definitely problems with the body of law governing street protests in Canada.  The supposed failure to regonize some absolute 'right to protest' would only be considered one of these problems by niche groups with an interest not in balance, but in promoting freedom of assembly to the detriment of other rights such as the right to a reasonable expectation of safety or to free passage on city streets. 

Scary indeed, and I'm almost ashamed to say I was relieve that something came up and I was unable to go to the protest. Not just because of the fine (and Ethan Cox, I'm not as sanguine as you are that the resources exist to fight it) but because having so stand kettled in the cold for four hours would make me very ill and I'd probably pee my pants, humiliating as that is. Not young any more. I haven't heard from the friends who were planning to go, but there are doubtless people I know who were arrested - including Anarchopanda, who is a Cégep prof.

One of the reasons kettling has been outlawed in the UK, apart from the obvious violation of the right to peaceful assembly, is that a man died in a kettle, and he wasn't even a protestor; he was a poor sod going to work.

I wonder why there are always so many rightwing comments after any piece in news media, even "Voir". (I have no illusions about "Voir" being progressive, it is an enternainment weekly with pretentions that sells culture as merchandise, but one would think it has a somewhat less red-of-neck readership than some other media. These arstles even dominate in commentary in my local neighbourhood (shopping) paper, although the voters here elected Québec solidaire, a leftwing NDP MP and Projet Montréal (mayor and council members).

Login or register to post comments