Law in Quebec

News about Quebec legal developments


demonstrations

  • Landmark decision issued by Quebec appeal court over the freedom of peaceful assembly

    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.

    (more…)

  • Quebec Court of Appeal voids bylaw forcing protesters to provide itinerary to police

    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.

  • Right to protest in the streets is a constitutionally protected right

    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), [2011] 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.”

Law in Quebec
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