Legal debate of the day: peaceful assembly vs. unlawful assembly

Tina is in law school now. While it does deprive me of her daily presence, it leads us to having the most wonderful discussions on various aspects of law from her assignments. Her because she is learning all about it and enjoys it, and me because I like to act like I know everything. The intellectual stimulation is wonderful, and one of many reasons why Tina is so awesome.

But enough of Tina's 1337 l4w s|<i11z04z and general awesomeness. On to the topic itself:

Unlawful assembly:

Section 63

• (1) An "unlawful assembly" is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they
  • (a) will disturb the peace tumultuously; or
  • (b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

Section 66

• Every one who is a member of an unlawful assembly is guilty of an offence punishable on summary conviction.

Some other irrelevant stuff cut, but that's the crux of it, straight from the Canada criminal code. Basically, it says that if you're in a group of 3 or more (and actually part of the group in that you have the same intentions), and people have reasonable fear that you're going to disturb the peace or inspire others to disturb the peace, they can throw you in jail. Basically, it's designed to allow cops to break up a riot before it actually becomes a riot; not a bad idea if you think about it.

So the assignment question was basically, given some sample rather emotional protest scenario: a) would a protestor be able to be convicted, b) would it hold up to a charter challenge?

The first part is quite situation-specific. Did the person have common intent with the group, was there three or more, did they assemble, and would a REASONABLE PERSON nearby have fear at that point that the group would disturb the peace or inspire others to disturb the peace? If so, guilty, if not, not guilty. There's lots of arguments that could be made, but in the end, it'd be up to whomever to decide whether the fear was reasonable.

The second is the far more interesting point. Because, after all, the Charter of Rights and Freedoms, and many other such constitution-like documents, were designed specifically to allow people to protest peacefully, and it'd be pretty hard to justify a law that impinges on it.

Some relevant clauses:
2. Everyone has the following fundamental freedoms:

a) freedom of conscience and religion;

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

c) freedom of peaceful assembly; and

d) freedom of association.

Points b and d are weakly relevant, I think personally; after all, you have a right to express yourself in a group, and... well... group yourself with a group. But on the other hand, there's tons of exceptions for freedom of expression. And freedom of association doesn't mean you're not liable for your part in the group's actions if they're not lawful.

Part c is the real clincher: freedom of peaceful assembly. The law, by definition, applies to a peaceful assembly, because it addresses the FEAR of it no longer being peaceful. If it was actually no longer peaceful, it would be a riot. We have the right to assemble as long as we're peaceful about it. Period. It doesn't matter whether people are scared or not, or what could happen later. As long as we're not causing trouble, you can't touch us.

Of course, all charter clauses are subject to the "Great Backdoor".
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

This is a complex issue! The popular test for this is the Oakes test, which says:

1. There must be a pressing and substantial objective
2. The means must be proportional
   1. The means must be rationally connected to the objective
   2. There must be minimal impairment of rights
   3. There must be proportionality between the infringement and objective

Well, lets give it a try.
1. Pressing and substantial objective: preventing riots. Easy enough.
2.1 Rationally connected to the objective: Arrest people who could possibly riot. Sure! Apparently this is not too stringent a test, but yeah, it'd not be a hard sell to pass.
2.2 Minimal impairment: Hummmmm.... could you do this more minimally? On one hand, reasonable fear, and arresting those involved. But I'd definitely argue that you could set some far more specific thresholds for specific actions required before an assembly was unlawful. A reasonable person will fear a crowd of 10,000 no matter WHAT they're doing! Anyways, we have tons of specific laws which won't let us do any of the fun stuff at a riot anyways, so if those don't apply, how dangerous can it be? Plus, the penalty sure isn't minimal! Heck, I would ACTUALLY riot! At least then they have to give me a chance to disperse.
2.3 Proportionality: Yes, and no. Yes in that it breaks up potential riots. No in that it essentially gives a blank slate to arrest anyone assembling in a decent-sized group. The ability to peacefully protest is a VERY fundamental right in a democratic society, and far more important than the ability to save a few bucks by stopping trouble early.

I'd vote 2.2 and 2.3 combined set enough of a hurdle that the law would die without at least some clarification.

So, what else?

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Whee. This may not seem relevant, but it's a complex one by the definition of liberty in accorance with the principles of fundamental justice. This includes several principles, including that laws cannot be arbitary, so vague that you can't have a legal debate, overbroad, and if involving prison, must have an element of knowledge or intent.

Arbitrary? Not really. Vague? Perhaps: reasonable fear is certainly not defined, nor is it clear whether intent to cause fear is required (a whole discussion in itself!). Overbroad would be a subset of the section 1 argument. Intent is a good one.

This was our biggest issue here: does the law require intent, either to cause fear or to disturb the peace? I think the explicit definition of any common intent would say no, but the charter requires 'Yes'. If there's intent in the law, the law immediately becomes easier to justify.

Of course this can also be excepted by section 1.

So, that's my analysis. Or Tina's analysis. Or whatever.

Sadly, the courts disagree. The Quebec Court of Appeals rejected most of my arguments, though the majority opinion certainly didn't go to much effort in describing why. It scares me when someone says "*Obviously*" anything (here, that the law is proportional). In fact, the opinion seems downright stupid. There's nothing else the government could do than break up potential riots? Well how about not give the participants jail sentences? Not vague? What about the intent issue?

Oh well. So I'm wrong. I guess I'm strongly for protecting charter rights at all costs. They're one of those things that are hard to get back, so they should not be sacrificed so lightly.