Legal Rights – Theory and Practice
What are we trying to do?
- Provide a basic outline of canadian criminal law as it affects people involved in political work. Empower activists by clarifying the law and legal procedures.
- Act in solidarity by relating our interactions with the state, police and legal system to our power to act collectively through a variety of strategies and tactics. Focus on acting in solidarity with those people at higher risk of mistreatment and oppression.
- Recognize that rights in theory do not always equal rights in practice and that our own experiences, common sense and best judgement are the key ingredients in any encounter with the state.
Police Encounters
Identification
In general, we do not have to carry ID in Canada or identify ourselves to police, even if we are not citizens. Three exceptions:
- Drivers of motor vehicles (not passengers), have to show their driver’s license if pulled over for a driving related reason. Cyclists must also identify themselves if pulled over for a traffic ticket (but not necessarily with a driver’s license).
- If you go to a place where minors are not allowed (like bars or restricted movies), you have to show ID proving your age to police enforcing these laws inside the location.
- If you get a ticket for a provincial offence, like a by-law infraction, the police have to be satisfied of your identity to issue the ticket. If the police are not satisfied that you are who you say you are, they can ask for ID. Refusal can lead to arrest. (For identification if you are arrested, see the section on Arrest).
Police officers are required to identify themselves while on duty by providing their names and/or badge numbers (although they don’t necessarily have to wear their badges).
Detention
In general, we have no obligation to speak to the police or answer their questions – WE ALWAYS HAVE THE RIGHT TO REMAIN SILENT. If you do not want to speak with an officer, you can ask “Am I free to go?” If the answer is yes, you can walk away if you feel comfortable doing so.
If the answer is no, you are under detention. The courts have said that police have a right to briefly detain people if they have articulable cause, meaning some objective facts which give the officer reasonable cause to suspect that you have done something criminal. This is supposed to be more than just a ‘hunch’. But as with all rights in practice rather than theory, whether you were lawfully detained will not be decided until you go to trial on any offences. If you are never charged, you may never know if you were lawfully detained or just harassed.
The police can also detain you if you are going to be arrested. Either way, once you are not free to go, you can do the things described below in the section on Arrest.
If you do decide to speak with an officer, whether you have been detained or not, remember that they do not have to tell you if they are investigating a particular incident or person. Do not talk about or identify others. Do not lie, it can get you into more trouble later.
Search and Seizure
We have the right to be free from unreasonable search and seizure. The police are not supposed to search unless:
- You have been arrested. Once you are under arrest, the police can search you personally to ensure their safety and preserve evidence. This should be a basic ‘pat down’ search, not a strip search. If the police find things they consider evidence during the search, these things may be seized until trial. Be careful about what you carry with you to demonstrations (see below). If it seems as though you will be strip searched, step up any demands for a lawyer and know that an officer of the same sex (according to their definition of your sex) should be present during the search.
- Individuals and cars can be searched if the police have reasonable grounds to believe that you are in possession of illegal drugs or weapons and it would be impracticable to get a search warrant.
- The police have a search warrant. A warrant must contain the correct location, date and time, and a list of what they are searching for (it has to be something in particular). Call a lawyer immediately if you are shown a warrant. If police officers come to the door and you are going to speak with them or want to look at a warrant, you can step outside and close (but not lock), the door behind you.
- Private property (i.e. homes, offices) can be searched without a warrant only if the police have reasonable grounds to believe that a crime is in progress or they are in ‘hot pursuit’ of a fleeing suspect or escapee. This situation can include response to a 911 call.
Despite these exceptions, NEVER CONSENT TO A SEARCH. Do not physically interfere if the police insist on searching anyway, but keep repeating , “I do not consent to this search.” Ask for the officers’ badge numbers and names. Again, whether the search was lawful will not be determined until you get to court, but your non-consent may help you if evidence found as a result of an illegal search is to be used against you at trial.
Arrest
The police can lawfully arrest you only if:
- There is a warrant for your arrest.
- The police have reasonable grounds to believe that you have committed an indictable or hybrid offence.*
- The police find you committing any offence, indictable or summary.
Remember, if you are not arrested, but are not free to go, you are being detained.
Upon either arrest or detention, you are supposed to have the right to:
- Be informed of why you are being held and what, if any, offence you are being charged with.
- A lawyer (see below).
- Although the police may not tell you so, you have the right to REMAIN SILENT. Do say that you are going to remain silent and would like to speak with a lawyer. Do give your name and address if you choose to. Do not answer any other questions. Do not sign anything presented to you before you have spoken with a lawyer. If you are held in detention with others, do not discuss your conduct or actions, or the circumstances of your arrest – keep all conversations in jail focused on what to do from now on (see Solidarity below).
*There are two kinds of offences in canada’s Criminal Code: indictable, which are more serious offences with harsher penalties, and summary conviction offences, which are less serious and carry lesser punishments. The kind of charge also determines what level of court you will appear in (i.e. you only have the right to a jury trial if you charged with certain indictable offences, otherwise you are tried by a judge). Most offences start off as hybrid or mixed, meaning that the prosecutor, the Crown Attorney, decides (“elects”) whether you will be tried by indictment or summarily, usually some time after you have been charged and the police and Crown have provided you with disclosure (the evidence they intend to use to prosecute you, such as police notes).
Limitation periods
A summary offence charge must be laid within 6 months of the alleged offence; there is no limitation for indictable offences. But keep in mind that all hybrid offences are deemed indictable until the Crown elects otherwise so for most offences there is really no limitation period.
Right to counsel (a lawyer)
If we are arrested or detained, we have the right to a lawyer. The police are supposed to tell you that you have this right and to give you an opportunity to exercise it reasonably quickly. You should be given access to a phone in privacy. If you do not have a lawyer, the police should give you the number for a 24 hour ‘duty counsel’ line through which you can reach a lawyer who can give you basic advice immediately. The Common Front Legal Committee will try ensure that everyone has the phone number of the legal office to call in case of arrest.
Once you have asked for a lawyer, the police are supposed to stop questioning you. Remember that although the police can ask you questions, you do not have to answer. If you answer questions, remember that any statements you do make may wind up in court later.
Being charged and released
If you are going to be charged with a criminal offence, you can be:
- Not arrested but issued a summons to go to court on a particular time and date.
- Arrested and released from the police station by signing a ‘promise to appear’, which can include conditions. Do not sign a promise to appear before talking to a lawyer, especially one with conditions that you cannot or will not follow, such as not associating with your friends or members of your organization, not going to demonstrations or not returning to the place where you were arrested. Breaking your release conditions can be a separate criminal offence. Be patient – you can often get better release conditions at a bail hearing in court than you can negotiating on your own with the police at the station. However, don’t put yourself in a particularly harmful situation to hold out (for example, if you need immediate medical attention and you need to get out to get).
- Arrested and held for a bail hearing (this is supposed to happen within 24 hours). Unless you are charged with a very serious offence or are already out on bail for other serious charges, the presumption is that you are supposed to be released without conditions.* Activists have found that this ‘right’ is often abused in political arrests. If the Crown doesn’t want you released, they may try to ‘show cause’ as to why you should not be released at all or why you should only be released with conditions by arguing that you will not come to court or are a danger to society. A criminal record can be a factor, as can living far away from the place where you were arrested. Bail conditions may require you to have a surety – a person who knows you and agrees to take responsibility for ensuring you come to court for trial (they will have to show money or assets which are paid to the court if you don’t show up for trial). In some cases, sureties can be required by the court to have very close supervision over the charged person, including living in the same place. See the section on Sureties for more information on how to pick a good one in advance.
That thorny issue of non-identification
Keep in mind that in the ordinary course of things, people are not released from detention unless the police are certain of their identity. This means that if you are choosing to not identify yourself while in custody, it is unlikely that you will be released under a nickname or anonymously. In a mass arrest situation in which many people refuse to identify, this may change, but we have not had enough experience with this sort of jail solidarity in canada to be able to give more certain advice.
*A reverse onus situation is where the assumption is reversed: the charged person has to show cause why they should be released. This happens if you are charged with murder or a few other extremely serious indictable offences; you are charged with any other indictable offence and were already out on bail on other indictable charges; you are charged with an indictable offence and do not ordinarily live in canada or you are charged with Failing to attend court or Failing to comply with release conditions after you were released for any other outstanding charges.
Common Charges
Below are some of the common criminal offences activists are charged with. As you read the descriptions, please remember that there is a huge difference between being charged with something and being convicted of it.
Assault – This offence involves any direct or indirect application of force on another person without their consent – mere touching may be enough. It also includes attempting or threatening by acts or gestures to apply force to another person. [Hybrid – ss. 265-266]
Assaulting a peace officer (Assault Police) – This is an assault on a peace officer. The maximum penalties are the same as for assault, but sentencing tends to be higher. Also includes an assault with attempt to resist or prevent the lawful arrest of yourself or someone else. [Hybrid – ss. 270] This is what you’re charged with when the cops beat you up.
Obstruct Police – resisting or obstructing an officer in the lawful execution of their duty, which basically means physically interfering. [Hybrid – s. 129] This is the most common charge for resisting your own arrest in a physical way or de-arresting others (again assuming the arrests are lawful). Passive non-cooperation should not be considered interfering – you don’t have to help the cops arrest you (i.e. make them drag you rather than walk), but you can’t make their job harder (i.e. run away).
Obstruction of Justice – includes indemnifying a surety (which means agreeing to pay off a surety if the person skips bail) or if you are a surety, accepting a fee or allowing someone to indemnify you [Hybrid – s. 139(1)]. Also includes the more general offence of attempting to “obstruct, pervert or defeat the course of justice” [Indictable – s. 139(2)].
Mischief to property – To be convicted of this offence you must wilfully destroy or damage property or render property dangerous, useless, inoperative or ineffective or obstruct, interrupt or interfere with the lawful use, enjoyment or operation of property. This is a very common charge and captures a wide variety of actions – note especially that both damaging actual property and simply interfering with the use of property can be mischief. [Hybrid – s. 430. There are separate offences of Mischief over and under $5000, depending on the value of the property the mischief was committed to.]
Breach of the Peace – This is not actually a charge – you cannot be convicted of ‘breach of peace’. This section of the Criminal Code gives the police the right to arrest you to prevent a breach of the peace. They are supposed to release you when the danger is over and in any case within 24 hours.
Causing a disturbance – Includes fighting, screaming, shouting, swearing, singing or using insulting or obscene language in public (not in a home). Also includes being drunk and as well by impeding or molesting other persons. Keep in mind that we have constitutional rights to freedom of assembly and expression which can be used in court as a defence to this charge. [Summary conviction – s. 175(1)]
Intimidation – This is an old anti-union law which prohibits blocking or obstructing a highway (road) and “watching and besetting” (i.e. hanging around all the time) homes or workplaces. Also committed by threatening to commit violence against someone, or following them on a road in “disorderly manner”. [Summary conviction – s. 423]
Unlawful assembly - You can commit this offence by getting together with at least 2 other people with the intent to carry out some common purpose and then assembling in a manner that causes people nearby to fear that (a) you will “disturb the peace tumultuously” (which basically means ‘violently’), or (b) you will needlessly and without reasonable cause provoke others to “disturb the peace tumultuously”. [Summary conviction – ss. 63 and 66]
Participating in a Riot – A riot is an unlawful assembly that has actually begun to disturb the peace tumultuously. [Indictable – ss. 64-65] If a sheriff or sheriff’s deputy etc., reads a proclamation after a riot has started (the “Riot Act”)and you are still around after 30 minutes you will have committed a much more serious offence. This is also true if you interfere with the reading of the magic words. [ss. 67-68]
Note: Both participating in a riot and unlawful assembly are crimes of mere presence. All the Crown needs to demonstrate is that you were part of the “common purpose” (i.e. you were participating in the demo or action), and that you stayed after it became an unlawful assembly. You don’t actually have to have done anything to contribute to the “tumultuous” nature of the assembly. Although the police will usually announce that an assembly has become unlawful (usually by ordering you to disperse) it is not an essential part of the offence.
Disguise with Intent – Wearing a disguise (i.e. a mask) with the intent to commit an indictable offence is an offence in itself. [Indictable – s. 351(2)]
Conspiracy – The essence of this charge is the making of the agreement by at least two people to commit an indictable or summary offence. Nothing has to actually happen – the agreement itself is the crime. You do not have to do anything other than make such an agreement. Be careful about where you talk, and who you talk with and what you say when planning actions. [Indictable if you agree to commit an indictable offence; summary if summary – s. 465].
Counselling offences – Counselling someone to commit an offence, even if they do not commit it can get you convicted of these offences. If they do commit it, you can be charged as a party (see below). [Indictable if indictable offence, summary if summary – ss. 22 and 464]
Being a party or accessory – Includes aiding and abetting others in committing an offence, including after the fact. The result is the same as if you had done the acts yourself. If you are merely passive (i.e. do nothing to stop someone from committing an offence), you should not be found guilty as a party.
Weapons offences
Restricted and Prohibited Weapons – Restricted weapons are mainly various handguns and rifles, but prohibited weapons also include switchblade knives, spiked wristbands, blowguns, mini-handguns, brass knuckles and other things such as Mace, teargas, pepper spray, nunchaku sticks and other devices used in martial arts, dart guns, stun guns, electric probes, and crossbows, among other weapons, including a vast array of firearms. Mere possession in your home, car, or on your person of these weapons is sufficient to be prosecuted under the Criminal Code.
Carrying or being in possession of a weapon, or an imitation weapon, “for a purpose dangerous to the public peace or for the purpose of committing an offence” is an offence under the Criminal Code (“weapons dangerous”). A “weapon” is broadly defined in the Code so as to include many objects which are not designed as weapons such as kitchen knives, a hockey stick, punk rock fashion accessories or pieces of pavement. This open-ended definition is extremely important for activists engaged in direct action, particularly those prepared to defend themselves against police violence, to understand. Similarly, an assault using something that is not necessarily a weapon will be charged as Assault with a weapon (a Hybrid offences which carries high penalties – s. 267).
While Attending a Public Meeting – This offence describes a situation in which “every one who, without lawful excuse, has a weapon in his possession while he is attending or is on his way to attend a public meeting…” There is obviously a serious risk of arrest and conviction for activists who attend these gatherings while possessing prohibited or restricted weapons, but there is also a real danger of arrest and a possibility of conviction where a person is in possession of ambiguous objects like pocket knives, large rings or studded belts which might be found to be weapons.
Consequences
First, keep in mind that it may take a long time for charges to be dealt with – it can take many months to get to trial and there are regular court appearances before trial which you may have to attend.
If you are convicted, judges in canada have wide discretion when it comes to sentencing and they can order lots of punishments short of prison: a discharge (a finding of guilt but no conviction record), probation, conditional sentences (i.e. house arrest), a fine or suspended sentence. Only extremely serious charges carry minimum prison time and the maximum jail terms for most offences are rarely, if ever, ordered. A criminal record, or in some cases a pending charge, can have also affect your life in other ways, particularly for travel (especially to the US) and employment.
At the Action
Whether or not you are a trained and on-duty legal observer, always bring a paper and pen. Use them to:
- Write down the names of arrested persons and their phone numbers (if you know them), their friends phone numbers, their condition before they disappeared from the scene, the words spoken by police during their arrest, their words, the number of the car or wagon they are put into, etc., badge numbers and or descriptions of police involved in the arrest.
- Write down police badge numbers of those that are aggressive, those who make arrests or are just on the scene, since sometimes there may be testimony from police who were not in fact at the scene at all.
- Record licence plates of vehicles (and/or squad car numbers if police vehicles) and the description and location of vehicles.
- Record any racist/sexist/ableist/transphobic/homophobic language/actions of the police, again with badge numbers and descriptions.
TAKE DOWN INFORMATION BEFORE THE SHIT HITS THE FAN. You must anticipate, because once the action starts you will not necessarily have time to get enough down. As soon as possible after an incident or arrest (whether your own arrest or someone else’s) – sit down and write out everything you remember about the incident – particularly details like times, locations, movements, statements or conversations, etc – you will be surprised how quickly you can forget details, and the trial may not be for another year or two. Keep these notes in a safe place until after the action and then get them to a trusted legal person.
See the section on indymedia for information on photographs and videocameras.
Bring the number of the legal committee or a lawyer’s phone number. Write it in permanent marker somewhere on your body even if you think you have it memorized.
If you are taking medication or use medical equipment, bring it with you. Any medication should be clearly labelled with a pharmacy label. See the Legal Guide for People with Disabilities and Health Issues for more information on dealing with medical needs.
What not to Bring
Remember that the police have a right to search you if you are arrested and that you may be searched otherwise, lawfully or not.
- Don’t bring any illegal drugs. Be prepared to lose any legal drugs as well.
- Remember what might be construed to be a weapon ;
- Make your decision on whether you are bringing ID. Even if you are planning on identifying yourself, you may wish to take one piece of photo ID only and leave the rest of your wallet behind.
- Leave behind your address books and any other stuff that you don’t want the police to see. There is no need to assist the police with their intelligence gathering.
