A City of Montreal bylaw that forced protesters to provide an itinerary to police ahead of time was struck down by the Quebec Court of Appeal after it ruled that it was arbitrary, excessive, and unreasonable.

The appellate court ruling, described as a “significant administrative law case,” limits the discretionary powers a municipality can confer to police and sheds light on how the Charter protection of freedom of expression applies to demonstrations, according to civil rights lawyers.

“The decision underlines that one cannot rely on police to apply a law correctly when it is so vague that it could lead to a constitutional violation,” noted Sibel Ataogul, a Montreal lawyer with Melançon Marceau Grenier & Sciortino who successfully plead the case. “This really changes the landscape in Montreal. Thousands of people were arrested under this statute because they had not properly advised the police. So it’s a huge deal.”

In 2012, after weeks of student protests triggered by then Quebec Premier Jean Charest’s government to increase university tuition fees, former Montreal mayor Gérald Tremblay passed a controversial municipal bylaw, P-6, that amended existing regulations governing public order and made it illegal to wear masks or face coverings during demonstrations and to embark on a protest march without first sharing the route with police. The bylaw’s adoption spurred even further protests.

After a legal challenge by Julien Villeneuve, a college philosophy teacher better known as “Anarchopanda,” a costumed mascot of Quebec’s 2012 student protests, Quebec Superior Court Justice Chantal Masse on June 2016 struck down the ban on masks, ruling that article 3.2 of the bylaw was unconstitutional – a decision that the municipality did not contest. In a 124-page decision, Justice Masse however held that article 2.1, which compelled demonstrators to share the itineraries with police, was constitutionally valid and equally valid under administrative law, with some nuances. She held that spontaneous, unplanned protests cannot be declared illegal because sharing an itinerary with authorities in advance was not feasible. But in planned protests, where people have been invited in advance to attend a demonstration, a route must be filed, as required by the bylaw, held Justice Masse.

Villeneuve appealed, contending that that article 2.1 was vague and unreasonable, contrary to Justice Masse’s conclusion. Villeneuve also argued that Justice Masse, under the guise of interpretation, gave meaning to the article that it did not have and rewrote article 2.1, before examining its validity, thereby appropriating the role of the legislator. Moreover, Villeneuve maintained that article 2.1 breached article 3 of the Quebec Charter of Human Rights and Freedoms as well as articles 2b and 2c of the Canadian Charter of Rights and Freedoms.

The Quebec Court of Appeal overturned the lower court decision, and voided article 2.1 of the bylaw. In a 36-page decision in Villeneuve c. Ville de Montréal 2018 QCCA 321 that was issued on March 2nd, Appeal Court Justice Geneviève Marcotte concluded that the trial judge erred and interpreted and gave meaning to article 2.1that the legislator did not.

“It appears to me that article 2.1 has a reach that is as excessive and unreasonable as article 3.2 from an administrative law point, when we disregard the interpretation proposed by the trial judge,” said Justice Marcotte, a conclusion shared by Justices Paul Vézina and Marie-Josée Hogue.

The wording of the article was imprecise and its scope far too large as it obliged citizens to give police the itinerary and exact place of “every assembly, parade or gathering on public property.” On top of that, though article 2.1 does not explicitly delegate or directly hand police discretionary powers to apply the regulation (of the bylaw), the broad scope of the article confers to police the discretion to determine what is an illegal demonstration under article 2.1, noted Justice Marcotte. The wording of the article does not specify any criteria or provide any indication that restricts the scope of the article, leaving it to police to establish the conditions, added Justice Marcotte.

“This is a significant administrative law case because it narrows the powers of a municipality by saying that there has to be a reasonable amount of precision,” said Julius Grey, a well-known Montreal human rights lawyer. “There had been some jurisprudence in recent years that gave vast powers to municipalities and that interpreted the powers very broadly. There is a bit of a swing of the pendulum here.”

The ruling also touches on constitutional issues. Justice Marcotte notes however that since article 2.1 was held to be invalid under administrative law, its analysis of the constitutional validity of the article was “less pertinent.” Still, Ataogul asserts that the ruling is “really important” in terms of constitutional law because “they say you cannot rewrite a provision completely as a constitutional remedy.”

But Maxime St-Hilaire, a constitutional law professor Université Sherbrooke, is far from convinced or persuaded by the reasons. He contends that the decision does not “sufficiently or decisively” make the distinction between the limits of interpretations a judge can make and the limits of these modifications as a remedy. “The Court of Appeal suggests that there are limits to modification, notably when a judge adds to a text as a form of constitutional remedy,” said St-Hilaire. “But it does not indicate what the criteria are. There are no references, no criteria, no norms. A constitutional expert will have to wait for another ruling that will more directly broach the subject.”

Ataogul nevertheless points out that the appellate court held that article 2.1 did not pass the “proportionality test” established by the landmark ruling by the Supreme Court of Canada in R v Oakes, [1986] 1 SCR 103. “The appeal court held that the scope of the article was so broad that it was not rationally connected to its objective,” said Ataogul. “It is very rare for the courts to target the rational connections. What’s interesting here is that the Court of Appeal interpreted this notion rather restrictively, and held that it must be rather direct. That is not something we have often seen.”

The City of Montreal has said it not appeal the decision.

This story was originally published in The Lawyer’s Daily.