An article of Quebec’s Highway Safety Code that was used to break up demonstrations has been repealed after a Quebec Superior Court judge held that it was unconstitutional in a ruling that reaffirmed that protesting in the streets is a constitutionally protected right.
Justice Guy Cournoyer acquitted Gabriella Garbeau, one of 150 protestors who were fined during a 2011 anti-police brutality march in downtown Montreal under Article 500.1 of Quebec’s Highway Safety Code, which prohibits anyone from using a vehicle or other obstacle to block a highway “during a concerted action intended to obstruct in any way vehicular traffic.”
In a ruling applauded by civil rights activists, Justice Cournoyer overturned a municipal court ruling and found that Article 500.1 was in violation of Garbeau’s right to freedom of expression and peaceful assembly as protected by the Canadian and Quebec charter of rights. Justice Cournoyer added that there “is no doubt” that these rights protect the right to express oneself on public roads even though “conveying messages” is not the primary purpose of city streets. But the “fact that they were historically used for expression showed” that public roads can be suitable “for exercising the right to freedom of expression,” noted Justice Cournoyer, heeding guidance provided by the Supreme Court of Canada in Canadian Broadcasting Corp. v. Canada (Attorney General),  1 SCR 19, 2011 SCC 2.
“This is really an important precedent, and it’s something that we want to use in another cases and share with other organizations in other countries,” remarked Cara Zwibel, director of the fundamental freedoms program with the Canadian Civil Liberties Association.
Under Article 500.1, organizers of demonstrations had to obtain authorization, as is the case in many cities across the country. But the prior approval scheme under Article 500.1 did not provide clear, “precise, and understandable” criteria that allowed organizers to know what requirements they needed to fulfil in order to obtain a permit, noted Justice Cournoyer. Nor did the law detail conditions under which the approval could be revoked. Indeed, the article did not even spell out who was responsible for approving or rejecting the application. “In fact, according to the evidence, no prior approval scheme was implemented nor established,” said Justice Cournoyer in his 92-page ruling in Garbeau c. Montréal (Ville de), 2015 QCCS 5246. “This process was not illusory, it was inexistent.”
The Attorney General of Quebec argued that the law implicitly stated that it was municipal police forces who were responsible for such decisions. But Justice Cournoyer noted that law did not explicitly confer the police with such powers. Nor does the law explicitly state that police were acting as a city’s representative, with the power to authorize demonstrations. At best there was an “informal process of tolerance” in which police exercised discretionary powers to manage and supervise protests, added Justice Cournoyer.
“The judge notes that one cannot rely on police to apply a law correctly when the article is so vague that it could lead to a constitutional violation,” noted Sibel Ataogul, a Montreal lawyer with Melançon Marceau Grenier & Sciortino who represented the Quebec Civil Liberties Union who were interveners in the case. “What’s also very interesting about the decision is that it clearly states that when the legislator delegates such powers to cities, as was the case here, they cannot sub-delegate such powers to the police forces. Police are there to ensure security but they should not be able to take the political decision of deciding who can demonstrate or not, especially without clear criteria.”
Justice Cournoyer also notes that a demonstration can be considered to be peaceful even though a small number of protesters might have committed criminal or regulatory offenses. He added that merely because a person was present at a time when illegal acts were committed during a protest one cannot necessarily conclude that the individual was either encouraging the illegal acts or was trying to help the perpetrators to flee.
“That is a very important finding of the decision because it clearly states that one cannot use violence by some protesters as a pretext to consider the demonstration unlawful,” noted Louis-Philippe Lampron, a law professor who teaches human rights at the Université Laval in Quebec City. “That is the problem with Article 500.1. It was far too easy to declare a protest illegal in spite of the importance of being to protest collectively in a democratic society. The judge underlines the danger of unduly limiting that right.”
According to Zwibel, protests are frequently declared illegal because of the illegal actions of a few individuals, and that “totally undermines” the right to express oneself and to assemble peacefully as it plays on the notion of guilt by association. “The finding that that the actions of a few don’t render an otherwise peacefully assembly no longer peaceful is really an important part of the decision,” said Zwibel.
That doesn’t mean that police will be hindered from arresting violent demonstrators, warned Marie-Claude St-Amant, a Montreal lawyer who represented Garbeau. The decision clearly states that if protesters are committing illegal acts that police should arrest those individuals but neither does it give them carte blanche to declare a demonstration illegal and breach the fundamental rights of “all protesters to express themselves,” said St-Amant, who also practices at the law firm Melançon Marceau Grenier & Sciortino.
Justice Cournoyer’s decision could have an impact on a class action that was launched following a series of mass arrests and fines, under Article 500.1, at a 2012 demonstration in Hull, added St-Amant. It could also have a bearing on another case that is challenging the constitutional validity of a Montreal by-law, known as P6, that requires protesters to give police their itinerary beforehand and prohibits protesters from wearing masks.
In the meantime, Justice Cournoyer gave the provincial government six months to change Article 500.1 and to set clear rules on pre-approval schemes.
“The ruling does not prevent the use of pre-approval schemes,” said Lampron. “The judge does say that it is possible to implement such a scheme but it must be based on clear criteria, and criteria that allow for the refusal of a demonstration only for valid reasons. That is the heart of the ruling.”
This story was originally published in The Lawyers Weekly.