Blogosaurus Lex

Well, it’s almost time for the Olympics, and with that comes all kinds of interesting happenings. As is always the case with big, national events, though, everyone has an opinion. Fortunately for us, we live in a democracy…and one in which numerous rights are protected by a Charter of Rights and Freedoms, no less. So that means we can express all those opinions…right? Well, yes…but…

As is so often the case with legal issues, there is an “it depends” factor. Just as poor Carol and Mike Brady (of the Brady Bunch) had to balance all the opinions and actions of a gaggle of children, so, too, must our society balance competing interests, rights, and laws. If Greg, Marcia, Peter, Jan, Bobby, and Cindy had been permitted to do and say as they pleased, whenever they pleased, the household would have quickly fallen apart.

In the past few months, the Olympic Torch Relay has been winding its way across the country. People line the streets in support; they yell and cheer. People line the streets in protest; they yell and hold up banners. At more than one leg of the Relay, some demonstrators were questioned, some detained, some even charged with an offence. At one leg in particular, a woman who was walking down a sidewalk, yelling (obscenity-free) protest slogans was, stopped, questioned and, when she refused to provide ID, handcuffed. This story raises some questions. Were some (or all) of these demonstrators’ rights being infringed? In our attempts to keep our household from falling apart, are we striking the correct balance?

In examining these questions, a good place to start is Marilyn’s blog post about Police Powers. As she notes, the police need sufficient power to enforce laws. However, they must do so in a way that is reasonable and respects people’s rights (meaning the police cannot stop you unless they have a good reason).

One of the rights people have, is a right to silence. As explained by Pivot Legal Society (Vancouver), a non-profit legal advocacy organization, who produces a “Rights Card” on this topic:  you can refuse to talk to police or answer their questions, unless you are in a bar or a cinema, driving a car, or the police say you broke the law (and they have to tell you which law that is). In those cases, you must give your name, birth-date and address, or show ID, but you do not have to say any more. Another right is the freedom of peaceful assembly (s.2(c) of the Charter). This protects the rights of people to meet for a lawful purpose. This includes public parades, demonstrations, meetings to exchange ideas and information, and meetings to protest government actions. In addition, there is freedom of expression (s.2(b) of the Charter). This protects attempts to communicate a message or to convey meaning. This, of course, refers to speech, but it is important to note that things such as news media, art, music, and picketing are also considered a form of expression

These freedoms are fundamental to our democratic structure. Without them, the public would not be able to voice their opinions and hold our governments accountable for their actions.

Here comes the “but”….

This does not mean that the government (or the police) cannot stop you under any circumstances. There are limits. Assembling, speaking, and acting in the name of an idea or of a cause does not allow a person to infringe upon the freedom of others. The rights of one person end where the rights of another (either a person or society as a whole) begin. The state can limit the exercise of your rights when it is reasonable and justified in a free and democratic society (s.1 of the Charter). For example: people cannot break laws just because they happen to be assembling and/or expressing themselves. One such law is the offence of “Causing a Disturbance” (s.175 of the Criminal Code of Canada).

And this brings us back to the Olympic Torch Relays. Protesters were questioned, stopped, and/or detained by reason of this offence. Some were even charged. But were they all really causing a disturbance?

There are two general requirements to causing a disturbance. The first is that you have to commit one of numerous possible acts. Options include:

• fighting, screaming, shouting, swearing, singing or using insulting or obscene language; being drunk; or impeding or molesting other persons, (all of this, though, as long as you are not in a someone’s dwelling);
• openly exposing or exhibiting an indecent exhibition in a public place; and
• loitering in a public place and in any way obstructing persons who are in that place.

Secondly, this act must be committed in or near a public place.  In addition, as the Supreme Court said in R. v. Lohnes, the conduct must cause an “overtly manifested disturbance” which amounts to an “interference with the ordinary and customary use” by the public of the place in question.

Let’s look at some examples. In R. v. Green, the accused began singing in the Legislative Assembly, during the final reading of a controversial Bill. At the time, the Legislative Assembly was in “state of disarray which included continuous noise, cheering, shouting, flapping of arms, jeering and cat calls by various members”. So, although one of the acts had been committed, given the environment at the time, this was not enough to be a “disturbance”. In R. v. Mudarth, the accused shouted profanities at a bus driver and refused to leave the bus.  The passengers had to be transferred to another bus. Given how the regular use of the passengers was so largely disturbed, the accused was found to have caused a disturbance.

So how does this apply in terms of the Torch Relays? Here are some facts:

• the relays generally occurred on public streets;
• streets are sometimes used for public gatherings, and they were on the days of the relays; and
• the environments were generally loud and chaotic, with lots of people walking on the sidewalks, yelling, and shouting different things (supporters and demonstrators alike).

Now here are the sub-questions and possible twists:

• if demonstrators just stand in one spot, chanting and waving banners, should they automatically have to show ID if approached by the police (i.e.: have they caused a disturbance)?
• if demonstrators keep pace with the torch runner, on the sidewalk, chanting and waving banners, should they automatically have to show ID if stopped by the police (have they now caused a disturbance)?
• if such a demonstrator refused to show ID, should the police be allowed to handcuff that demonstrator?
• would it be different if that demonstrator walked on the street while keeping pace with the torch?
• either on the sidewalk or on the street (and standing still or keeping pace), would it matter exactly what the demonstrator said (or what a sign/poster says)?
• would the police be allowed to stop someone in order to prevent a disturbance from occurring (for example, if they detained a demonstrator to either just stop the demonstration or to let the torch get a good distance further ahead)?

You be the judge.

…and have fun kids!

Articles about protests at Olympic Torch Relays:

• The Edmonton Journal:  (see 5:55)
• The Victoria Times Colonist
• Toronto Global TV
• a list of protests: http://noii-van.resist.ca/?p=1786

For more general information on this topic, see:

• The Olympic Protester’s Legal Guide, published by Lawyers Rights Watch Canada (LRWC)
• The BC Civil Liberties Association publication on becoming a Legal Observer during the Olympic games
• A Right to Demonstrate? The Freedoms of Expression and Peaceful Assembly – published by Éducaloi