Less than a month after the Quebec Court of Appeal struck down a Quebec City municipal bylaw that compelled organizers of public demonstrations to submit their plans and itinerary to city police, the City of Montreal officially shelved its own controversial protest bylaw.
The landmark decision, commended as a “genuine advance” on the “least judicially explored freedom,” is the first decision by a Canadian appellate court that comprehensively examines the scope of the freedom of peaceful assembly (2c) as a separate Charter right, distinct from the freedom of expression (2b) or association (2d), according to legal experts.
“2c has been the kind of poor cousin of Charter rights,” remarked noted Finn Makela, a law professor at the Université de Sherbrooke. “There’s been very little serious judicial engagement, even in commentary, about 2c as a freestanding Charter right. It’s not always possible to trace precisely the boundaries of where one Charter right ends and another begins. But this is by far, since I’ve been following this, the ruling that takes most seriously article 2c as creating a freestanding Charter right.”
On May 2016 André Bérubé was fined $150 by the Quebec City Municipal Court for taking part in a political protest before the National Assembly in March 2013. Municipal Court Judge Jacques Ouellet found that Bérubé infringed section 19.2 of a municipal by-law, Règlement sur la paix et le bon ordre, that prohibits a person to hold or participate in an unlawful demonstration on the public domain. Under the by-law a demonstration is unlawful (1) if the time, place or itinerary of the demonstration is not given to police, (2) if the itinerary is not respected or (3) if there are acts of violence or vandalism. Bérubé appealed and like Judge Ouellet, Quebec Superior Court Justice Suzanne Gagné found that the first two subparagraphs of section 19.2 were valid under section 1 of the Canadian Charter of Rights and Freedoms.
The Quebec Court of Appeal overturned the lower court decisions and declared the section 19.2 of the regulation as contrary to the Charter, invalid and inoperative, and acquitted Bérubé of the charge against him.
“A demonstration is simultaneously the incarnation of the freedom of expression and the freedom of peaceful assembly, that overlap while remaining separate,” said Quebec Court of Appeal Justice Marie-France Bich in a 70-page ruling in Bérubé c. Ville de Québec 2019 QCCA 1764.
It is revealing that the constituent powers considered it important to guarantee the freedom of peaceful assembly by distinguishing it from the freedom of expression or association in the Charter, added Justice Bich. While it is often associated with other Charter freedoms, particularly freedom of expression, and is often exercised simultaneously, it possesses its own inherent virtues which underscores the importance of peaceful assembly regardless of the objective of the gathering, said Justice Bich.
“In general this guaranteed freedom is considered to be somewhat subsumed under the umbrella of freedom of expression,” noted Francis Villenveuve Ménard, a Montreal lawyer with Schurman, Grenier Strapatsas & Associés who has written about the right to protest. “Yet, as Justice Bich clearly explains, the freedom to peaceful assembly is distinguished from the freedom of expression in certain regards: it fundamentally protects the freedom of assembly (a collective dimension) in physical spaces (spatial dimension).”
The decision also underscores the importance of public spaces, be it the streets, sidewalks or parks, as a place of gathering for citizens to exercise their freedom of expression and peaceful assembly, added Ménard. They are not just places that allow the free circulation of individuals or merchandise but also spaces for expression. In short, they are also the natural landscape for protests, as Justice Bich pointed out.
Quebec City’s municipal by-law instituted a strict liability offence. That increases the implications and hampers freedom of expression and freedom of peaceful assembly, noted Justice Bich. Organizers of a peaceful demonstration that do not comply with the requirements set out in section 19.2 can be liable to penal prosecution. Mere participants too are subject to the regulation. They can only exonerate themselves from penal liability by establishing that they took every possible reasonable precaution to avoid committing the offence – something that is “totally unreasonable,” said Makela. “It’s just totally ludicrous to imagine that 500,000 people need to individually verify to ensure that the organizers of the demonstration complied with the measures,” said Makela. “So making a strict liability offense for participants is completely bonkers, and so I’m not surprised that the appeal court struck it down.”
The advance notice requirements too are problematic, added Justice Bich. It makes it unlawful, and “essentially prohibits, on pain of penal sanction,” spontaneous and surprise demonstrations even when they are peaceful.
The appeal court deemed that the objective of the by-law, safeguarding the protection of persons and property while ensuring access to the public domain for all citizens during demonstrations, was a pressing and substantial objective. The appeal court also considered that there was a rational connection between the requirement for advance notice and the objective that was sought. However it does not meet the minimal impairment requirement because it punishes peaceful demonstrations with a strict liability offence. In short, its deleterious effects outweigh its salutary effects.
Freedom of expression is not absolute, but restrictions on it requires careful and thorough analysis. The same holds true for restrictions on the freedom of peaceful assembly, especially when it is commingled with freedom of expression as is the case in demonstrations, and particularly so in political demonstrations that take place in the public sphere, said Justice Bich.
“The most interesting thing about the decision is the recognition that the right to protest is (encompassed) both by the freedom of expression and the freedom of peaceful assembly,” remarked Gabriel Babineau, a Montreal lawyer with Carette Desjardins who has written about the right to protest. “The right to protest should be protected by the freedom of peaceful assembly as well as freedom of expression because the right to protest has a collective dimension as it allows people who do not have much power and do not have much resources to be heard.”
In repealing the controversial P-6 bylaw, Montreal mayor Valérie Plante remarked that it “was the thing to do (to) support the right to protest.” It wasn’t always seen that way. The P-6, originally adopted in 1969 as a means to ensure public order, was amended during the height of the student protests against tuition increases in 2012 to include a ban on face coverings during demonstrations. And like the Quebec City bylaw, it compelled protest organizers to provide authorities with the route of their march.
Portions of the Montreal bylaw were already struck down by a successful court challenge, but for different reasons. In 2018 the Quebec appeal court held in Villeneuve c. Ville de Montréal 2018 QCCA 321 that parts of the bylaw were 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.
But questions linger over how the latest appeal court ruling will be taken up by the lower courts.
“We’re starting to finally have the courts give some genuine teeth to the Charter rights that protect citizens from state surveillance and power,” said Makela. “Where I’m going to be interested is to see where this heads. But all bets are off as to whether it eventually gets taken up — or not — by Superior Court judges.”
An amended version of this story was originally published in The Lawyer’s Daily.