#OccupyWallStreet - "the right to peaceful assembly"

As I am intending on going to the art gallery tomorrow to visit/participate in #OccupyVancouver I thought I should check into some of the legal issues at stake in protesting. As Canadians we have the right to peacefully assemble. Note that we do not have the right to assemble as such, only peacefully assemble. In fact even the right to peaceful assembly may limited with "good reasons." The way all this is written up in both the charter and related legal documentation results in the reality that the police have HUGE amounts of discretion in both their interpretation of the laws regarding protests as well as the physical situational realities.

Laws regulating protests in Canada give the police a lot of discretion in deciding, first, what assemblies are peaceful, and second, when peaceful protests are not allowed. Police discretion contradicts the values of accessibility and precision that gave rise to the s. 1 requirement that limits on Charter rights be prescribed by law. The idea is that citizens should have a “reasonable opportunity to know what is prohibited” (Peter W. Hogg,Constitutional Law of Canada, Student Ed. 2007 at p. 798)—that’s accessibility of law, and that officials must not engage in discriminatory and arbitrary breaches of rights—that’s precision of law.

But in R. v. Hufsky and R. v. Ladouceur, the Supreme Court held that as long as police discretion comes from law, it meets the s. 1 standard of “prescribed by law,” even if the discretion is unfettered. - lawiscool.com

Does anyone else find this disconcerting? Throughout the related legal documents the ambiguous terms like peace, reasonable, justified, tumultuous, are used repeatedly. The result of Canada's failure to more specifically define words like peace and tumultuous is that the police have all the power in protest situations because it is at their personal and corporate discretion whether your actions and language are peaceful... The bottom line is that they can effectively disperse a protest or assembly whenever they want because they are granted enough discretion under the law to be able to act first and explain later. The result is that they may be influenced significantly by personal or government or even corporate influence rather than the public or social good or opinion. When in doubt the police enforce "peace" not freedom but peace without freedom is no peace at all, it is soulless mandatory order. Real peace, the peace that we want and need, must be more than a lack of physical violence.

The final analysis by lawiscool.com:

Canada is not a police state—far from it. Our ideal is the rule of law and protection of civil liberties. But just like with ideals, we shouldn’t take our eyes off frightening possibilities. In a police state, armed agents of the state are free to limit freedoms and rights as they please. Their discretion is completely unfettered, almost like the discretion our laws grant to the police in dealing with street protests.

Our police forces are professional, highly trained, and generally honest. But it is not their job to determine the content of the Charter freedom of peaceful assembly. Provincial legislatures and the federal parliament must step in and give clear guidance to the police when they can break up street protests. The police can make mistakes and may have its own institutional interests that are not necessarily the same as the public interest. The people have a right to clear notice of what is lawful, and we all have a fundamental freedom of peaceful assembly. Our legislators must set out with much greater precision what the police powers are in regulating street protests.

All of this is particularly interesting due to recent Vancouver riots and the Toronto G20 fiasco... Tomorrow will be interesting. I'll be out there in the morning, Silas and Danielle are hopefully driving in after work, let us know if you will be there. Get your church involved.