Can I be arrested for protesting?

Although there are police at a protest, you cannot be arrested for protesting

From Hong Kong to Vancouver, protests are featuring a lot in the news lately. If you are considering joining a demonstration, you probably want to know if you can be arrested for protesting.

This week, climate change protestors took over Burrard Street Bridge in Vancouver as part of demonstrations the group Extinction Rebellion organized. A total of 10 people were arrested, reportedly for obstruction of justice after they refused to leave the bridge.

The right to protest is a fundamental freedom and you should not have to fear legal repercussions for publicly voicing dissent. Nevertheless, there are some important principles to bear in mind should you take part in a march, demonstration or any kind of political protest.

You cannot be arrested for protesting

To answer the question this blog posed, no you cannot be arrested for protesting. The Charter of Rights and Freedoms protects your right to protest. Specifically, Section 2 which guarantees every Canadian citizen:

  1. freedom of conscience and religion;
  2. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
  3. freedom of peaceful assembly; and
  4. freedom of association.

Protesting is an essential part of our democracy. As such, they are protected under the Charter. Arresting someone simply because they are attending a protest would be a violation of these rights. However, arrestes still happen at protests. So why do they get arrested?

Typical reasons for arrests at protests

While police cannot stop protests from happening, they still have a duty to uphold the peace and protect public safety. You must act lawfully at a protest as you would any other day. Typical reasons for arrests at protests include:

  • Causing disturbance and loitering that in any way obstructs other people in a public place. These are summary offences punishable with up to six months in prison, a $5,000 fine or both.
  • Mischief: such as wilfully destroying property and obstructing, interruption or interfering with the lawful use of property by any person. This is an indictable offence punishable with up to 10 years in prison and/or a $5,000 fine. A Life sentence is possible, however, only in the most extreme circumstances.
  • Obstructing justice: willfully attempting in any manner to obstruct, pervert or defeat the course of justice. Punishable either as an indictable offence, with a maximum of two years imprisonment, or as a summary offence (maximum six months in prison and/or $5,000 fine).

Bear in mind a conviction will appear on your criminal record. This may affect your employability as well as your ability to travel, buy insurance and rent housing. It is a good idea to take the phone number of a lawyer with you to a protest.

Police powers at protests

While police are not allowed to stop a peaceful and lawful protest, we have seen police forces around the world use force to break them up. They may use tear gas and rubber bullets to disperse crowds. Canada is no different.

The legal justification police use to forcefully intervene and arrest protestors are:

  • Unlawful assembly is when a group of three or more people cause others nearby to fear that they will cause a disturbance, including violence against people or property. This is a summary offence and essentially a pre-emptive measure to prevent the following offence.
  • Rioting: a riot is an unlawful assembly that has “begun to disturb the peace tumultuously”. Rioters are liable to a maximum of two years in prison.

Can police arrest protestors to prevent violence by others

As we have seen, the police may arrest you for unlawful assembly if they think you may be about to disrupt the peace. However, a recent case demonstrates the conflict between keeping the peace and maintaining our rights and freedoms continues to present itself.

The Supreme Court of Canada was asked to decide a case involving Randy Fleming, who was arrested while walking to protest against a Six Nations occupation of a piece of Crown land. The police wanted to keep both sets of protestors separate so when they saw Mr. Fleming heading towards the protest they asked him to drop a Canadian flag he was carrying. As a result, when Mr. Fleming refused, police forced him to the ground before placing him in handcuffs and arresting him.

Although The Crown later withdrew a charge of obstructing a police officer Mr. Fleming claimed general damages for assault and battery, wrongful arrest and false imprisonment. The Crown claimed police arrested him becasue they had reasonable grounds to suspect Mr. Fleming’s safety was at stake if they allowed him to continue. 

The Supreme Court ruled the arrest was not authorized, and the police were liable for battery for their use of force in unlawfully arresting him.

What to do if you are arrested while protesting

Your rights, if you are arrested while protesting, are the same as if you were arrested for any other offence. You can read our guide on your rights here. They include your right to remain silent and your right to a lawyer.

If you are charged with a criminal offence and need assistance, call Acumen Law on 604-685-8889.

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