Attending protests may have more serious consequences for activists if proposed changes to the Identification of Criminals and the sentencing provisions in the Criminal Code are passed by the current government.


Even placard-holding and call and response chanting at a peaceful protests can bring activists into contact with the police. Sit-ins and location-based protests often result in many arrests, but many fewer charges. When the aim of the police is to remove people to end a protest, they can arrest protesters for committing mischief, a broad term that describes interfering with someone else’s property. Two examples would be trying to prevent the Olympic flame to pass through town uninterrupted, or protesting a speech by a dignitary. Whatever the cause, protesters may end up at police headquarters.

Many of the people arrested at protests are released as long as they don’t have outstanding warrants or court orders. They are not charged with any offence, and they leave police custody without leaving any more information than their name and address. Under the proposed legislation, they could be required to leave more — fingerprints and photographs.

This change does two things: it lengthens the stay of each person at the police station, and intimidates people who have never been in police custody. In the long-term, this practice may deter would-be participants in large-scale protests.

It can be argued that anyone involved in a lawful protest has no cause for alarm over their photos and fingerprints being taken. If there is no serious crime, the photographs can be expunged. However, because of the way the legal system works, having a photo removed from the record after being released might not be as easy as it sounds.

Most charges of mischief are considered hybrid offences. The decision on whether a hybrid offence is treated as a more serious indictable offence, or as a less serious summary offence is up to the government prosecutor who is assigned the case. Until that lawyer makes a decision, any hybrid charge is considered to be indictable. That means common charges at protests like resisting arrest or breaching a probation order are treated at the most serious level, so protesters arrested on minor offences, who may not even be charged in the end, will have had themselves photographed and fingerprinted. Right now, that doesn’t happen until charges are laid.

While authorities state that the fingerprints and photographs will be destroyed at the request of the individual if there are no charges laid, that process is likely to be cumbersome and delayed, leaving police with the documents in the meantime.

A second proposed change will penalize people who are unable to make arrangements for bail, or cannot agree to conditions for bail. It also involves a lot of math.

People who are charged with a crime are often held in remand until their case comes before the courts. They have not yet been found guilty and so are considered innocent in the eyes of the law. They are serving time, but have not yet been convicted of any crime. Because of this, their time is counted differently against any eventual sentencing.

Although similar to prison, remand does not offer many of the services and programs that Canada’s prison system provides for inmates. Remand is often overcrowded, with little access to health and education services, visitors, or treatment for drug and alcohol problems. In remote areas, such as the North, convicted and remanded prisoners are held together but people on remand still do not have access to all prison programs.

Because of the difficulty inherent in being imprisoned in remand, the court system currently counts time served in remand against the time a person is to serve in jail if they are found guilty. Two months in remand may count as four months against a 10-year sentence. Factors such as the reasons for any delay of a trial, the conditions in remand, or whether they were forced into solitary confinement for reasons that are no fault of the prisoner (eg. mental illness) all affect how the judge decides to count pre-sentence time served.

The Conservative government amendments would limit a judge’s discretion in granting credit for time in remand. Why should activists care about all this math? Because sometimes, activists can’t afford bail. Or, they are not able to agree to conditions the police or a judge may impose. They may be asked to stay away from a particular site, or to avoid associating with a particular group. When they will not agree, they are detained until trial, in remand.

78-year old Betty Krawzyck was arrested in 2006 for contempt of a court order. She was peacefully blockading Weyerhaeuser’s logging trucks in protest of the B.C. Liberals’ Working Forest proposal. At the time, the judge had the discretion to grant her credit or not against the 10-month sentence she was given. Under the Conservatives’ proposed amendments, the judge would not have been able to decide either way.

Under these proposed changes, activists will ultimately spend more time in prison, because there will be no adjustment for time spent imprisoned before being convicted.

For now, these two amendments are not yet law. Bill C-31, which contains the Identification of Criminals Act, has only passed First Reading. In contrast, the Orwellian-sounding Truth in Sentencing Act (Bill C-25) — which contains the sentencing provisions — has received Royal Assent on Oct. 21, 2009, though will not come into force until a later, yet to be defined date. Interestingly, the government rammed the bill through notwithstanding the fact that the Senate Standing Committee of Legal and Constitutional Affairs had suggested amendments to ensure that judges could still exercise discretion when it comes to counting pre-sentence time as time served. Undoubtedly denying judges this discretion will cause concerns for both activists and their counsel alike.

This article is the first of a new monthly column called Pro Bono.

Note: Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

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Pro Bono

Pro Bono is a monthly column written by lawyers and legal experts at Iler Campbell LLP that explores the murky legal waters activists regularly confront in doing their work.

Emily Hill

Emily Hill graduated from Osgoode Hall Law School in 2001. She currently practices in the areas of criminal defence, family and mental health law in Whitehorse, Yukon.