Dissent, Disobedience and Justice

Why Use Dissent or Civil Disobedience?

Why do people turn to protest and civil disobedience? Is it ever justified? These questions have been debated for hundreds of years. More often than not, the answer involves the foundation of our entire society: the social contract. The social contract is a theory of our how society works. It is an (implied) agreement between a government and the people it serves: We collectively agree to limit our freedoms and obey laws passed by the government, and in exchange, we enjoy a safe, orderly, respectful community. In a democracy, a key feature of the social contract is that the government respects and listens to our voices.

Sometimes, the government fails to live up to its end of the bargain. Laws are created to entrench existing power structures rather than better the community. Governments use their authority to imbed their own privileges rather than serve the people. Powerful legislators use law to legalise the suppression of minorities. As a result, our laws do not reflect or serve the public. The system itself becomes a barrier to justice, rather than an avenue by which justice is accessed.

In these situations, the public has historically turned to acts of dissent and civil disobedience. These movements, and their leaders, are often mired in controversy. Sometimes, as in the case of Gandhi, Martin Luther King Jr, and Nelson Mandela, we look back on their actions as morally justified and worthy of respect and admiration. On other occasions, we view demonstrators as disruptive extremists or criminals to be condemned. Often, this distinction is only revealed through the benefit of hindsight.

The paragraphs below discuss what dissent and civil disobedience are, how to engage in these acts, and the laws you should be aware of. 

If you are interested in learning more about your protest rights, please check out Leo McGrady's Guide to the Law of Protest in British Columbia (Leo McGrady, "Guide to the Law of Protest in British Columbia: ''Cedar as Sister': Indigenous Law and the Common Law of Protests", Guide (2013)) <online: here>). While it is prepared specifically in relation to British Columbia indigenous protests, the principles and criminal law are widely applicable across many different situations and jurisdictions in Canada. 

Dissent vs Civil Disobedience - What's the Difference?

Dissent and Civil Disobedience are both forms of protest, but they are not the same. While they can take many forms, generally speaking, the difference lies in lawfulness.

  • Dissent is lawful objection to a law, policy or action. It often, though not necessarily, involves engaging in protests, or marches for which a legal permit has been obtained.
     
  • Civil disobedience is the active, professed refusal to obey certain laws, demands, or orders.  In other words, it is a form of protest that involves breaching the law.

Civil disobedience may be direct or indirect. Indirect disobedience involves violating a law which is not the object of the protest (for example, marching in a protest without a permit). Direct disobedience involves violating the law that you are protesting (for example, Rosa Parks refused to give up her bus seat in accordance with the law).

There are many different ideas as to what “true” civil disobedience looks like. Most definitions require that civil disobedience be:

  • clear (identifying the law or policy being opposed);
  • open (non-secretive or covert);
  • peaceful (non-violent); and
  • and accepting of arrest and punishment.

What Does Civil Disobedience and/or Dissent Look Like?

There are no rules limiting what dissent and civil disobedience must look like. It can involve thousands of people or one individual.  Protest movements are often characterized by their innovation and ability to respond to the specific issue being opposed. Some common examples are as follows:

  • A demonstration is action by a mass group of people in favor of a cause. A demonstration can be legal (if conducted with a permit) or illegal (if done without a permit). They can be nonviolent or violent – or may unexpectedly descend into violence. If conducted illegally, the demonstration is characterized as civil disobedience. If it descends into violence, it arguably falls outside the boundaries of “civil disobedience” (click here for more information on the boundaries of civil disobedience). 
     
  • A march is a very common type of demonstration. It is an expression of solidarity and dissatisfaction with a policy, practice or law. Often protesters will march from a designated start point to a significant endpoint (for example, Parliament buildings or a targeted company) where speakers are then heard. 
     
  • Sit-Ins involve one or more people “taking over” a given location and refusing to leave until they are evicted, arrested, or until their requests have been met.  The “Occupy” movements that arose in the wake of the Global Financial Crisis are an example of this form of protest.
     
  • A blockade is a demonstration that cuts off material, people or communications from a particular area. Blockades have been used by aboriginal groups who dispute Crown logging rights on disputed lands, and environmental groups challenging corporate practices.
     
  • Boycotts involve inciting support from the public to voluntarily stop using or buying a product, or dealing with a person, organization, or country. For example, the Palestinian-driven Boycott, Divest and Sanction (BDS) movement seeks to encourage the public to, among other things, boycott buying Israeli goods.

In recent years, an increasing number of protest movements have moved online (e-sit-ins or spamming campaigns).

What Laws Should You Be Aware Of?

The Constitutional Right to Peaceful Protest

Dissent is constitutionally protected by the Canadian Charter of Rights and Freedoms. It engages our freedom to peacefully assemble, associate with others, and express ourselves, all of which are expressly protected:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

Whenever these freedoms are restricted because of government action or policies (for example, through laying criminal charges, or through the effect of a municipal bylaw), Charter rights are engaged. Just because we have these freedoms, however, does not mean that the government is unable to regulate them. Government laws and actions regularly limit expression, assembly and association. These restrictions, however, must be reasonable (for more information on reasonable limits, click here). 

As an example, most municipal governments have bylaws stipulating that demonstrations occur with a permit. A demonstration conducted without a permit may be shut down by the police.  The bylaw and the police action engage our Charter rights. However, the government may justify the bylaw and the police action to a Court as being reasonably necessary to maintain public order and balance the rights of the protesters against those held by the broader public.

To put it another way, if you are a protester whose feels their right to engage in dissent was limited, you may raise this issue in Court. Your claim will be successful if the Court accepts that your rights or freedoms were infringed, and rejects the government’s attempt to demonstrate that the limit was reasonably justified. For more information on the operation of these freedoms, the reasonableness of an infringement, and the Charter generally, click here.

Protesters regularly rely on Charter arguments when they appear in Court. It is important to remember, however, that Charter arguments cannot be made if the government is not involved (for example, if the dispute involves demonstrators and a corporation, and there is no issue with police or other government involvement).

Laws Used to Stifle Protest

On paper, there is a clear distinction between dissent (protesting while obeying the law) and civil disobedience (protesting by disobeying the law). In practice, however, the line between legality and illegality can be blurred. This is especially the case in large demonstrations where a small group of violent protesters can hijack a protest and blanket the entire group with a cloak of illegality.

For this reason, even if you have no intention of engaging in an illegal protest, you should be prepared to deal with the police and the legal system. This includes knowing what your rights are, what criminal charges are leveled against protesters, and what civil tools can be used to break up a demonstration. The following paragraphs outline this information.

Criminal Law

The police have a wide measure of discretion to determine how they will react to public protests. They have many tools at their disposal to break up an act of dissent and/or civil disobedience.  Protesters have a history of being charged with the following offences:

  • Mischief: Mischief is an extremely broad charge. It includes destroying, damaging or rendering inoperative property, or preventing or interfering with its lawful use. Traditionally, mischief is carried out at a physical location, but it can also be carried out electronically (for example, by staging “virtual sit-ins” on a website).
     
  • Assault: Assault is a charge leveled against persons who use force against another person. It includes an attempt or threat to use force if the victim reasonably believes that it could be carried out. The force applied can be very minor, yet still qualify as an assault. It is more serious to commit an assault while trying to resist arrest.
     
  • Obstructing a Police Officer: Resisting or willfully obstructing a police officer in the execution of his or her duty is an offence. If you obstruct a police officer, it will almost certainly result in you being charged criminally.  
     
  • Unlawful Assembly:  If three or more persons assemble in a way, or behave in a way, that causes others in the neighborhood to be afraid that the assembly will either disturb the peace tumultuously or provoke others to do so, this can be considered an unlawful assembly. This is another extremely broad charge.
     
  • Causing a Disturbance: A person can cause a criminal disturbance in a number of ways, including fighting, screaming, shouting, swearing, singing or using insulting or obscene language, impeding or molesting another person, or loitering in a public place and in any way obstructing persons there.
     
  • Trespass: It is an offence to loiter or prowl at night on the property of another person near a dwelling-house situated on that property. The essence of loitering is wandering without a precise destination. The substance of prowling is to move about stealthily, furtively, secretly, and clandestinely or move in small degrees.
     
  • Concealing one’s Identity: While you are permitted to wear a mask during a lawful protest, you cannot conceal your identity during a riot or and unlawful assembly. In addition, committing an offence while wearing a mask is an additional charge. Given the blurred line between legal and illegal protests, you should be cautious if wearing a mask to a large protest where matters may get out of hand.

Arrest and Detention: What to Expect

If you are engaging in a protest or demonstration, you should be prepared to be arrested and/or detained.

  • Detention occurs when the police stop you and you reasonably believe that you not free to leave. Ordinarily, when a person encounters a peace officer, they are free to walk away. When that choice is removed (actually or psychologically), they are "detained". If you are not sure if you’ve been detained, you can politely ask the police officer if you are free to go. Click here for more information on detention.
     
  • Arrest occurs when the police seize or touch your body to restrict your liberty through the use of force or circumstances that threaten using force. You can be arrested if the police have reasonable and probable grounds to believe that you committed an offence. Click here for more information on arrest.

You have the right to be free from arbitrary arrest and/or detention. If you have been detained and/or arrested, you have the right to know why right away. The police must explain their reasons to you in clear and simple language. You have the right to remain silent and to speak with a lawyer. You should ask to speak to a lawyer immediately. Legal aid and duty counsel can help you if you cannot afford a lawyer.

More information on arrest and detention are located here.  

Search and Seizure: What To Expect

If you are arrested and/or detained, the police may search you, and seize evidence.

  • Search incident to arrest: When conducting a lawful arrest without a warrant, the police can search you for weapons and evidence. This includes you, your clothes and anything you are carrying, including (in some circumstances) your cell phone. They can also search your “immediate surroundings” (for example, your car if that is where the arrest occurs). They are allowed to search you as long as they believe that the search is necessary for the safety of the police and the public, to protect evidence from destruction, or to discover evidence that may relate to your guilt or innocence.
     
  • Search incident to investigative detention: If police have reasonable grounds to suspect that you are connected with a crime and that detention is necessary, they may detain you and conduct a protective (external) “pat down” search. This must be reasonably necessary in the circumstances.

Criminal Charges and Criminal Records: What to Expect

Having a criminal record can have serious implications on your life. For example, it can limit your employment opportunities job prospects, and restrict your ability to travel in foreign countries.

If you are charged with an offence in connection with dissent and/or civil disobedience, you are at risk of receiving a criminal record. There is a difference, however, between a finding of guilt and a conviction. If you plead guilty or are found guilty of an offence, the court will determine whether or not to enter a conviction. It may, instead of entering a conviction, grant you an absolute or conditional discharge.

If granted an absolute or conditional discharge, you are not “convicted” of a criminal offence. You will not have a criminal record stemming from that offence. If you have been granted an absolute or conditional discharge, you should ask the local police and the RCMP to have your records destroyed. For more information on discharges, click here.

Civil Law

Injunctions

An injunction is a Court Order that prevents one party (a person or organization) from interfering with another’s legal rights. Injunctions play a critical role in the interaction between companies, the government, and protesters. Often, the focus of a protest (private companies and/or the government) will seek an injunction to limit or restrict protesters. For example, forestry companies have obtained injunctions preventing environmental protest groups from blockading logging roads, because it interferes with a contract giving them the right to log in an area.

Injunctions are usually granted by Courts to enforce a private right (the right of a person or corporation). However, they are also granted to the government if it will further the public interest (Judicature Act RSA 2000 J-2, s 13(2)).

In order to be given an injunction, the group seeking the injunction (typically, the government or a corporation) must convince a judge of three things:

  1. There is a serious issue to be tried (or, in some cases, that they have a strong case on the surface).
     
  2. Irreparable harm will result if the injunction is not granted. Irreparable harm is more than just lost money – this can be compensated later. Irreparable harm includes things like lost clients or damage to the company’s reputation.
     
  3. The entity seeking the injunction will suffer greater harm the injunction is not granted, than the protesters will suffer if the injunction is granted (RJR MacDonald Inc v Canada (Attorney General).

Injunctions can be temporary (also known as interlocutory) or permanent. They can be issued after notice is given to all relevant parties/protesters, or without notice to the opposing protesters (known as an ex parte application).

Once granted, injunctions can be enforced by the police. If given an enforcement order, a police officer will go to the demonstration and read out the injunction. If the protesters do not disperse, the injunction will be read once more, and remaining persons can be arrested and charged with contempt of court. 

Contempt of Court

Contempt is an offence caused by being disobedient or disrespectful towards the Court in a way that opposes the Court’s authority, justice, and dignity. It is a vague offence that can be invoked with considerable discretion.

There are two types of contempt: civil and criminal. Criminal contempt is more serious than civil contempt – while civil contempt typically results in a fine, criminal contempt can encompass a fine and jail time.  

The difference between civil and criminal contempt lies in the degree of defiance. For any finding of contempt, the first three criteria outlined below must be satisfied. To qualify as criminal contempt, all four criteria must be satisfied beyond a reasonable doubt:

  1. Did the Court issue an injunction [Order] prohibiting certain acts?
     
  2. Did the particular accused know about the terms of the injunction [Order]? Knowledge includes willful ignorance. Personal service of the copy of order is not required. It is sufficient if the evidence shows the respondent had knowledge of it.
     
  3.  Did the accused do one or more acts amounting to disobedience of one or more of the terms of the injunction? Disobedience must be proved to be “deliberate” or “willful”.
     
  4. Did the conduct of the accused amount to a public defiance or violation of the order so as to make the contempt criminal as opposed to civil?

A person crosses into the realm of criminal contempt if it tends to depreciate the authority of the court in the eyes of the public. This can happen in a number of ways. Protesters should be aware that contempt can become criminal if it affects the public interest.

Tort Claims and Protesters

Companies that lose money can sue protesters or organizers of protest in civil court for monetary losses. The following tort claims are most commonly brought against protesters:

  • Trespass: A direct entry onto the land of another. For example, a “sit-in” on the land owned by a private company may leave the protesters vulnerable to a claim in trespass. It is possible for a similar claim to be brought where the sit in takes place on government property, but this engages complex questions on the nature of public property and Charter protections.
     
  • Nuisance:  Infringing another party’s property interest without direct entering that property. Nuisance is only actionable if the party bringing the suit can prove they suffered damage or loss. For example, protesters targeting a corporation could conduct a demonstration next to the company headquarters playing loud music or slogans. This could constitute a nuisance if it caused loss or damage to the employees or business.
     
  • Loss by Unlawful Means/Interference with Economic Relations: This tort occurs when one party (A) uses unlawful means against a third party (B), with the goal of intentionally inflicting economic injury on the plaintiff (C). For example, a group of protesters who oppose a logging company may choose to focus their protest not on the logging company itself, but the customers who purchase products from the logging company to try and turn those customers away. In order to be actionable, the protest aimed at the customers must be conducted “unlawfully” (Daishowa Inc v Friends of the Lubicon (1996), 62 ACWS (3d) 674 (Ont CA)).
     
  • Inducing Breach of Contract: Protesters can be pursued if they knowingly cause the breach of a valid contract, and damage ensues. It is similar to, but does not completely overlap with, the tort of Interference with Economic Relations.

Bylaws and the Right to Protest

In addition to civil and criminal laws that exist across Canada, municipalities pass bylaws that can impact one’s right to protest. While peaceful protest may be an important right in Canada, there are municipal bylaws across the country that may be used to limit protest, or may have the effect of limiting protest.

In Alberta, under the authority of the Municipal Government Act RSA 2000, c M-26, municipalities have passed by-laws that address activities related to protesting or dissent. Other provinces have similar authorizing legislation. These by-laws may not be passed directly to control protests, but nevertheless they may affect where, when and how people protest.

For example, the Calgary: Parks and Pathways By-law (20M2003) has been invoked on more than one occasion to shut down dissent and civil disobedience in Calgary.  This bylaw restricts on how, when and what a person can do in a Calgary “Park” (which includes playgrounds, cemeteries, natural areas, fields, pathways, trails and park roadways).

Among other things, the Parks and Pathways Bylaw sets park hours, and bans persons from entering any park when it is closed to the public. It stipulates that no one can “camp” in a Park without a permit. People may not disturb other’s use or enjoyment of a Park, or act inconsistently with the Park’s purpose. A person cannot operate an amplification system, do anything likely to attract a crowd, or take part in any procession, drill, performance, ceremony, concert or public gathering in a Park except where specifically allowed by the Director. The Director can grant such permits, but is entitled to place restrictions on, or revoke, the permit at any time. Failing to abide by this bylaw will render a person guilty of an offence and liable to pay a fine up to $10,000 or imprisonment up to six months.

  • In R v Pawlowski, 2009 ABPC 62, 2011 ABQB 93, 2014 ABCA 135 a man was charged with violating Calgary Parks and Pathways Bylaw for engaging in street preaching activities and using an amplification system. He challenged the bylaws as being contrary to his religious and expressive freedoms provided for under section 2 of the Charter. His challenges were largely successful before the Alberta Provincial Court, but he lost some ground in an appeal to the Court of Queen’s Bench. The Alberta Court of Appeal dismissed Mr. Pawlowski’s further appeal, agreeing with the City that any Charter breach was saved by Charter section 1 (click here for more information on how Charter claims are adjudicated).
     
  • The same bylaw was invoked to shut down the Calgary “Occupy” Protests in 2011 in Calgary (City) v Occupy Calgary (Bullock) 2011 ABQB 764. On October 15, 2011, a group of individuals called “Occupy Calgary” set up a number of tents on the grassy portions of Olympic Plaza. Though the number of individuals and the number of tents varied over time, the Occupy Calgary encampment was continuous. The City of Calgary applied for an injunction to enjoin occupiers from continuing to breach sections 4 and 9 of the Parks and Pathways Bylaw, and for an order to immediately remove the tents, structures and other materials from Olympic Plaza. Chief Justice Wittman held that the Court may deny an injunction where there are exceptional circumstances. If the injunction would breach the occupiers’ Charter rights then an injunction would not be granted. The City conceded that the occupiers’ freedom of expression was violated BUT the Bylaw was seen as a reasonable limit (under Charter section 1) on the occupiers’ Charter rights, particularly because the limit was not absolute – occupiers could apply for a permit, or occupy the park during the daytime without structures.

The City’s injunction request was granted. The Court noted that refusal to comply by occupiers would likely result in civil remedies for contempt of court. Per Chief Justice Wittman (para 51):

Many of the values and rights we cherish today have been the subject of debate and fierce protest in years past. Society does not easily change for the better, and it is often necessary for individuals with strong views to take extraordinary steps to make their voices heard. The Occupy Calgary group has been, if not entirely organized, certainly passionate and peaceful. The City of Calgary has also exercised restraint in the manner in which it has dealt with the group, up to and including the way in which it acted in the conduct of this proceeding and the remedy sought. I hope that in the days that follow the granting of this application, both sides continue to act in a measured, conscientious and peaceful manner.

  • In the city of Victoria, BC, a similar bylaw was successfully challenged by a group of homeless persons who erected nighttime shelters in the city’s parks.  In Victoria (City) v Adams 2008 BCSC 1363, affirmed 2009 BCCA 563 a number of homeless persons in Victoria BC brought an application to have a city park bylaw declared unconstitutional because it violated their Charter right to life, liberty and security of the persons in ways that were arbitrary and overbroad. Their claim was successful. The Court held that the tenting ban was unconstitutional. The decision was guided by evidence demonstrating that the number of homeless persons exceeded the City’s shelter space. However, it is important to note that the creation of a homeless “tent city” in protest of the bylaw precipitated the lawsuit.
     
  • The Calgary: Community Standards Bylaw 5M2004 limits how a protest can be conducted. It restricts a person’s ability to make loud noise, movement, or activity in public. The appropriateness (or not) of the reasonableness and effect of the sound or noise on the public is a question of fact to be determined by a Court.

A person can challenge municipal bylaws using the Constitution. In addition to the section 2 Charter arguments outlined above (click here), a person can challenge bylaws on the basis of constitutional authority, or jurisdiction. To explain, the law that you have been charged under must be passed by a level of government that has the authority to so. If the wrong level of government passes a law, it is “ultra vires” and will be struck down. For example, only the federal government (Parliament) can pass criminal laws. In Westendorp v The Queen, [1983] 1 SCR 43 Calgary tried to pass an anti-prostitution bylaw (it banned prostitution from the streets). The Supreme Court of Canada held that this was actually an attempt to pass criminal law, which is outside the jurisdiction of the City/province to pass. The bylaw was ultra vires, and found to be of no force or effect under.

Protest and Anti-Terrorism Laws

After 9/11, governments around the world -- including Canada -- passed sweeping legislation to combat the threat of terrorism. Unfortunately, many of these laws bleed into, and impact, persons who are not terrorists, but engage in organized acts of civil disobedience. While these anti-terror laws can have impacts any civil disobedient, aboriginal and environmental groups have been particularly vocal about their concerns. The sections below highlight some of the anti-terror laws a protester ought to be aware of.

  • Bill C-51 is the federal government’s most recent anti-terrorism bill. Like other anti-terrorism laws, Bill C-51 itself amends several other existing statutes in Canada.  Among other things, it targets activities that “undermine the security of Canada”. This vague concept has raised considerable questions. Activities that “unduly influenc[e] a government in Canada by…unlawful means”, “interfer[e] with critical infrastructure”, or “interfer[e] with …the economic or financial stability of Canada” all fall within Bill C-51’s scope. Originally, Bill C-51 exempted “lawful” protests from this definition. This caused significant uproar among protest groups that engage in unlawful protests (including aboriginal and environmental groups). In response, the word “lawful” was removed from the exemption.

While some have praised this decision, others are less convinced. Legal experts are concerned now that the exemption is so large (permitting any act of protest, no matter how unlawful or potentially violent) that it completely impractical and will have no effect. In other words, the exemption is so broad that it may in practice become no exemption at all (Craig Forscese and Kent Roach, “Stumbling Towards Total Information Awareness: The Security of Canada Information Sharing Act”, Canadian Privacy Law Review Vol 12 No 7, June 2015 at 72).

Bill C -51 also authorizes the police to receive advance permission from a judge to violate the Charter. This is extremely concerning for all Canadians, but especially protesters. Police officers often go undercover during demonstrations and pose as protesters. They have been accused of agitating protests and at times, inciting violence. Therefore, all protesters should be ware of this exceptional power.  

  • The Anti-Terrorism Act was passed in the wake of 9/11 to prosecute and prevent terrorism offences. It’s definition of terrorist activity is concerning to persons who engage in acts of civil disobedience. Terrorist activity includes persons with a political, religious, or ideological purpose, doing anything with the intention of compelling a person or government to do something, and which intentionally causes a serious risk to the health or safety of the public,  or which intentionally causes serious interference with a public or private essential service or facility. The section includes even attempting, threatening or counseling such conduct, or assisting someone after they have committed such an act. An environmental activist blockading a pipeline could easily fit within the bolded portion of the definition above.

  • The Public Safety Act, 2002 amended the National Defence Act to permit the Federal Government to establish (via an Order-in-Council) “Controlled Access Zones” from which anyone can be forcibly removed. The zones are established via an Order-in-Council. It is very difficult to challenge an Order-in-Council in Court.

  • An Act to Amend the Criminal Code is targeted at the fight against organized crime, but is not limited to this context. It authorizes the police to violate the law. For the same reasons outlined above in reference to Bill C-51, protesters should be aware of this power.

  • An Act to amend the Foreign Missions and International Organizations Act gives the RCMP the primary responsibility to ensure security at intergovernmental conferences. It gives the police broad powers “to ensure the security for the proper functioning of any inter-governmental conference.” It permits the police to take “appropriate measures, including controlling, limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstance” (section 10.1(2)).

  • An Act to amend the Criminal Code (Criminal Liability of Organizations) attributes criminal liability to organizations for the acts of their representatives or senior officers. It could be used against organizations whose members are engaged in civil disobedience.