History of Public Protest in Canada

Irina Ceric wrote in the International Encylopedia of Revolution and Protest on the history of law and protest in Canada:

Moments of protest and rebellion have always challenged systems of power and authority, but particularly since the rise of the liberal democratic state, laws and legal institutions have mediated the tensions and contradictions between individuals, social movements, and the existing order.In the Canadian context, the ongoing history of law and social protest has been shaped by the evolution of a legal framework inherited from England but continually altered by the demands of settlement and nation building, and more recently, by constitutional rights guarantees. While criminalization of dissent, particularly of street demonstrations and other forms of collective action, remains a key issue in studies of the relationship between law and protest, law has also become a tool of resistance in itself, either in conjunction with or instead of other forms of mobilization. Many of the provisions which still constrain political protest and assembly in Canada, such as riot, unlawful assembly, and breach of peace, ﬁrstarose under English common law and, beginning in the nineteenth century, subsequently developed as public order offenses in an attempt to replace treason and seditious libel as the primary, and increasingly unpopular, political crimes committed.Some of these offenses can only be described as archaic. For example, it appears that the earliest recorded deﬁnition of an unlawful assembly stems from the reign of King Henry VII (1485–1509).

Sir William Holdsworth’s English Law concludes that unlawful assembly and its allied offenses (such as riot) began to acquire their modern characteristics at the end of the sixteenth century, based partly on the treatment of these offenses by the Court of Star Chamber. By 1986, when the Public Order Act was introduced, public order law in England had become “depoliticized,” in that the explicit political crimes such as treason and sedition were no longer prosecuted in favor of resort to the “ordinary” criminal offenses to deal with out-breaks of disorder (Smith 1987). Nonetheless, the old common law offenses of riot and unlawful assembly continue to be deployed in England, a notable example being the police response to the1985 coal miners’ strike.Canadian criminal law traces its genesis to English law (the inﬂuence of the French civil code having been relegated to civil matters in what would become the province of Québec),and the early colonial era reﬂects this inﬂuencein instances of social unrest. A representative example arose in 1788 in the district of Ferryland in what is now Newfoundland, when 114Irish immigrants were convicted of riotous or unlawful assembly, with some sentenced to transportation (deportation) or banishment,following clashes among the Irish Catholics in Ferryland – divisions which were exploited and exacerbated by the town’s Protestant merchants and employers. The English and Canadian criminal justice systems have, perhaps not surprisingly, diverged considerably since the colonial period.

In “The Birth of a Criminal Code: The Evolution of Canada’s Justice System”,Desmond Brown argues that the particular economic and social conditions in colonial North America initially resulted in short, concise proscriptions on criminal behavior that became more comprehensive over time as life in the colonies itself became more complex and stratiﬁed. It was not until almost three decades after Confederation, however, that the ﬁrst Criminal Code of Canada came into force in 1893, with common law offenses abolished only in 1953,thereafter precluding further resort to the some of the political crimes inherited from England.The public order offenses have remained almost unchanged since the inception of the Criminal Code, yet both the unlawful assembly and riot provisions remain relevant and are regularly charged and prosecuted to varying degrees across Canada. Unlike the now disused charges of seditious libel and treason, riot and unlawful assembly (as well as general provisions such as mischief and breach of peace), are predicated on the claim of proscribing the manner of political speech rather than its content – in other words, by criminalizing political action or even the very assembly of the disaffected, rather than searching for evidence of seditious or treasonous intent in their words. The fallout from two key events signaled this evolution in the Canadian state’s legal practice: the sedition trials following the 1919 Winnipeg General Strike which engendered public scrutiny of such political crimes,and the debate over the repeal of the Criminal Code’s unlawful association provisions following the trials of Community Party leaders in the early 1930s (MacKinnon 1977).

Nonetheless, the resilience of public order offenses, as reﬂected in their resurgence in the face of increased political activism in the last decade and the failure of challenges to the constitutionality of the unlawful assembly provisions, demonstrates that the legal regulation of political activity has not entirely escaped its repressive roots. Despite the constitutionally protected status of political speech and peaceful assemblies, the actual regulation of such activities reveals a pattern of criminalization and repression in which the utilization of criminal charges has played a central role. Historically, the use of criminal law, including unlawful assembly, riot, and picketing-related charges, has followed the trajectories set by expressions of political, social, and economic dis-sent and disruption, peaking at moments when protests and resistance boil over onto the streets, including two main spikes: the ﬁrstduring the Great Depression and the second during the last decade. During the 1930s, perhaps not surprisingly, disputes arising out of strikes, unemployed workers’ movements, and emergency relief related protests formed the bulk of public order prosecutions. Palmer (2003)argues that “the ways that law was actually challenged most directly in the 1930s was in the class-related but union-separated struggles of the jobless, the homeless, and the relief-dependent poor. Such victims of the capitalist marketplace’s vicissitudes sustained a creative arsenal of resistance and opposition that ﬂaunted the laws of the land in the same way that the laws of the market had bluntly bypassed their needs”.

The creativity in tactics cited by Palmer is evident in the range of marches, occupations,protests, and other collective actions which would give rise to criminal charges. Although the reported cases from the 1930s are primarily related to the actions of unemployed workers,media archives suggest a parallel targeting of socialist and communist organizers, and there was certainly an overlap between these movements.A key example is the Québec case of
R. v. Pavletich, which arose from a May Day meeting at a Ukrainian Temple in 1932. Police moved into arrest the speaker, sparking off a confrontation that began with the throwing of rocks at the ofﬁcers, use of a ﬁre hose against the assembled crowds, warning shots ﬁred by ofﬁcers, andﬁnally, the arrest of 32 people.The decades following the Depression saw few public order prosecutions, although strikes and other labor actions continued to be criminally proscribed, as did the activities of religious minorities, including the Doukhobors in British Columbia and Jehovah’s Witnesses, particularly in Québec. Nonetheless, the 1954 parliamentary debates on the public order provisions of the Code reveal the ideological cleavages then still evident in Canadian politics. One member of Parliament from the Co-operative Commonwealth Federation, Angus MacInnis, framed his opposition to the riot and unlawful assembly offenses in broad terms, maintaining that “useful as these provisions might be in time of trouble, they will not of themselves maintain an orderly society. We have riots, and we have riots only when economic and social conditions have brought people to the point of desperation. These are the basic causes of this sort of disturbances of the people.”By 1970, however, a different sort of political action captured attention across Canada. Members of the Front de liberation du Québec (FLQ), a leftist movement with the aim of independence for the province of Québec, had been engaging in illegal activities for close to a decade, including bombings and robberies; but the kidnappings of James Cross, a British trade commissioner, and Pierre Laporte, a Québec cabinet minister, in October of 1970 raised suspicions of a broad insurgency.

Led by Prime Minister Pierre Trudeau,the Canadian government invoked emergency legislation suspending civil liberties and arrested close to 500 people, the majority of them later released without charges. Some FLQ leaders,however, were tried twice on charges of seditious conspiracy, and although none were convicted of those charges (convictions on other criminal charges were upheld), the October Crisis represents the apex of legislative and judicial responses to political activity in modern Canada.Only a few years later, however, and despite sporadic prosecutions for political protests and strike-related activities, the relative lull in social activism in the 1980s and early 1990s was reﬂected in the minimal deployment of public order criminal charges. But this situation changed dramatically again in 1997 with the resurgence of political activism by a new generation of activists clustered around the emerging anti-globalization and urban anti-poverty movements, and a concomitant revival in public order prosecutions across Canada, but particularly centered in Toronto and Montreal. Dozens of small local or regional protests and other actions have attracted criminal sanction, as have larger gatherings such those opposing the Free Trade Area of the Americas meeting in Québec City in2001 and the Organization of American States Ministerial in Windsor in 2000; however, the number of incidents does not even approach the number of individuals affected, as many of the smaller events throughout Québec actually involved the arrests of hundreds of people and the cumulative prosecution of almost 2,000 people in the last decade.Although it has always been the case that the voices of the poor and powerless are heard in the streets and workplaces, this recent trend suggests that the signiﬁcance of the public order offenses has grown in tandem with the rise of protest and public demonstrations as the primary expressive vehicles for marginalized groups and individuals.

As Stoykewych (1985) argues, in the current Canadian context, “the public demonstration can be seen as a functional corrective to a capitalist-democratic form of order that, by restricting the scope of discourse within its representative institutions in order to preserve the legitimacy of its decisions, denies many of its citizens the possibility of meaningful political participation.” Despite the centrality of public protest as an embodiment of political speech,the limits on state sanction of such protest have not been greatly reduced by the inclusion of rights of assembly and expression in the 1982Canadian Charter of Rights and Freedoms, and the regulation or outright criminalization of demonstrations and other expressive activities continues to constitute a signiﬁcant restraint,despite the focus on expressive form rather than content. It was not until 2000, for example,that a Charter challenge to the Criminal Code’s unlawful assembly provision reached a provincial appeal court, and the resulting judgment is notable for its explicit rejection of the notion that a pre-Charter statute or doctrine merits reexamination on constitutional grounds. Nonetheless,in the modern Canadian context, the deployment of unlawful assembly and other public order offenses has resulted in a cumulative impact that has criminalized dissent nearly as effectively as a content-based sanction would, particularly during eras of increased political mobilization. Constitutional rights guarantees have also had a negligible effect on the broader political con-text informing judicial and policing policy. The limits of constitutional rights are reﬂected in the Canadian state’s repeated use of force against Indigenous activism, particularly land claim disputes, such as the deployment of military personnel in Mohawk territory in 1990 and the killing of protester Dudley George in an Ontariopark in 1995. More recently, as in other liberal democracies, the introduction of antiterrorism legislation in late 2001 created a chilling effect on legitimate but potential unlawful advocacy.

Encyclopedia of Canadian Laws

History of Public Protest

History of Public Protest in Canada

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History of Public Protest in Canada

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Further Readings

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