Table of Contents
X. SOME CRIMINAL AND CONSTITUTIONAL CONSIDERATIONS
Police intervention in the demonstrations of May 2 and 4, 1997 was motivated by the need to keep public highways open to traffic. The criminal law relating to mischief and the constitutional law conferring basic rights and freedoms on all Canadians are relevant to this intervention.
1. Mischief and Related Criminal Law
RCMP management relied on paragraph 430(1)(c) of the Criminal Code of Canada321 in deciding to end the obstruction of traffic by demonstrators in both Saint-Sauveur and Saint-Simon:
430. (1) Every one commits mischief who wilfully
[.]
c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property[.]
This offence is punishable by a penalty contemplated in subsection 430(4):
Every one who commits mischief in relation to property, other than property described in subsection (3),
a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
b) is guilty of an offence punishable on summary conviction.
As New Brunswick Provincial Court Judge Harper noted in R. v. Colford322, a case arising out of a demonstration that was quite similar to the events under review:
"[The] right of free passage for all in order to permit overland travel from one point to another was considered so vital to the peace order and good government of Canada that a special section of the Criminal Code was enacted to safeguard it."
After citing paragraph 430(1)(c), he continued:
"Thus it is, that any person who wilfully.blocked the highway.is guilty of a criminal offence.324"
The Criminal Code also grants peace officers the power to make arrests and, where necessary, use appropriate force, when so doing. The relevant provisions follow:
25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law:
[.]
b) as a peace officer or public officer,
[.]
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
26. Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.
27. Every one is justified in using as much force as is reasonably necessary
(a) to prevent the commission of an offence
i) for which, if it were committed, the person who committed it might be arrested without warrant, and
ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or
(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).
In assessing the actions of both the police and the demonstrators, I have found the reasoning of Provincial Court Judge Harper in the Colford case helpful. In that case, the New Brunswick government introduced legislation that resulted in Aboriginals in the province being subjected to sales tax. Aboriginal protesters erected roadblocks in various locations around the province. Ultimately, the Attorney General directed the RCMP to open the highways. Judge Harper described the events as follows:
[3] Accordingly, two helicopters, two borrowed police vans, one bus containing a 32 member tactical squad; (equipped with radios, coveralls, shields, batons and vests); 44 uniformed officers from various detachments across the province; two identification specialists; and approximately 30 marked "blue and white" RCMP vehicles were assembled and proceeded to Kingsclear which is approximately nine miles west of Fredericton on the Trans-Canada highway.
[4] Prior to their departure from Fredericton detachment office; (which is in a very modern building which also houses the provincial headquarters of "J" Division); the personnel on the ground were briefed by Superintendent Wayne Wawryk. He instructed them that they were to proceed in convoy to the site in question. Upon arrival, he would speak with Chief Steve Sacobie, Chief of the Kingsclear Band of Indians, and if the barricade was not removed, he would arrest the chief and this would be the signal for the remainder of the force to press forward and to arrest any one found upon the roadway, but not to arrest any one off to the side of the road or in the ditch. They were to use whatever force was required. By the same token they were instructed not to chase any one and to permit those who would try to leave voluntarily to do so. The superintendent and Staff Sergeant Ouellette were to advance first, followed by the uniformed officers spread shoulder to shoulder horizontally across the travelled portion of the roadway in two lines, one behind the other. The tactical squad would remain in the rear until later.
[5] All went according to plan. The convoy stopped east of the blockade; the uniformed officers formed up, and the superintendent and staff sgt walked together in advance of the rest. At the same time Chief Sacobie approached them from the vicinity of the barricade and shook hands with the staff Sgt. The superintendent speaking loudly, told Sacobie he had been blocking the road; someone to the side said something and Wawryk immediately placed Sacobie under arrest. No means of voice amplification was used and it is not clear who among the crowd may have heard what Supt. Wawryk said. The chief was arrested very shortly after the announcement and the uniformed men advanced and arrested 28 or 29 persons in all.
[6] In accordance with the plan, each officer decided individually whether or not to arrest a particular person and when he did he merely told the person he was arresting "you are under arrest for mischief" and did not further attempt to read from any Charter warning or other card. The arrested persons were then taken back to the vicinity of the vans where they were photographed by polaroid cameras with their arresting officers and then either placed in one of the vans or in a marked police car for transport to Fredericton detachment for processing. When the police arrived at Kingsclear the barricades consisted of wooden sawhorse type obstacles; together with a school bus, assorted other vehicles and numerous private cars. There was a crowd present which was amorphous and highly fluid as the R.C.M.P. convoy drew near. People were continuously coming and going from the eastern barricade as events progressed.
[7] There were approximately 25-40 people at or near that obstacle when the superintendent spoke with the chief. Some 20-40 feet beyond and to the west there was a ceremonial drum set up in the center of the road and a group of persons gathered in a circle were near it beating the drum and chanting. Some considerable distance to the west of those groups a tractor and flat-bed trailers were placed at an angle across the highway so as to block it, and there were 10-20 people around it at the time the first arrests were made. These persons later dispersed before the officers on foot reached that point. No one saw any person enter the flatbed which was driven away as the officers approached. On the instructions of Supt. Wawryk the vehicle was chased by an R.C.M.P. car and the driver arrested.
[8] No weapons, sticks, stones, or any other implements were either brandished or found in the possession of the demonstrators. No one resisted arrest; (although some made menacing gestures at first as the police approached); and the entire protest was extremely peaceful. According to plan, the officers first cleared the roadway of demonstrators and then removed the physical barriers. The entire arresting procedure took approximately five to 10 minutes, and following this the barricades were removed and the prisoners and uniformed officers returned to Fredericton where those arrested were processed. The tactical squad remained and moved in to secure the highway.
In these circumstances, Harper Pro. Ct. J. had to decide whether the individuals charged were guilty of mischief. His Reasons for Judgment continued:
[20] The law relating to mischief committed by way of obstruction of a highway is thus clear. Having said that, the court must now consider the practical application of the above general statements of the law to the facts that appertain to the instant case. How does one conclude beyond a reasonable doubt, that any one particular person was personally involved in the blockade of the highway to such an extent that he or she wilfully became a principal; an accomplice; or a party to the blockade of the highway, by way of aiding or abetting that incident and thus guilty of the offence charged?
[21] Under the present facts I have no doubt that there was much confusion at or near the site of the blockade at the time that the arrests were effected. The crowd was waxing and waning as people came and went. Young persons were present both alone and with their parents or parent. Many persons were on that paved portion of the roadway utilized for the general passage of vehicular traffic; others were on the paved shoulders and still others in the adjacent ditches with many in the course of travel from ditch to roadway and vice versa.
[22] It will probably never be known exactly who it was who committed the physical acts of placing the sawhorses and other wooden obstacles on the roadway. Some of these persons may have been active participants in the blockade at one time or another, but at the time of the arrival of the police were "off duty" and thus either absent from the site or on the shoulder, in the ditch or elsewhere in a position to watch the action yet not at that time being active participants. There is also a very strong probability that many of those who were present were curious as to what was going to happen and anxious to see what occurred yet not having any active desire to participate in any meaningful way. How then, to separate the criminals from the curious?
[23] I think that it is safe to say that one of the criteria mentioned by Superintendent Wawryk in his briefing to the police before the convoy departed for Kingsclear is worthy of note to use as a basic guideline. The court must assume that those persons who were not directly on the paved roadway as well as those who attempted to leave the site as soon as the police began making arrests must be given the benefit of the doubt and not considered as persons liable to be convicted.
[24] True it may well be that many of those individuals had been active participants to the crime prior to the time that the police began arresting any one, but the fact remains that the court is not in a position to adjudicate upon their prior motivation, as any conviction must be based upon solid evidence existing at and immediately after the order to commence arrests was given. There is also no doubt in my mind that the evidence against each accused must be weighed individually, in accordance with the facts adduced by each arresting officer in turn.
[25] It cannot be over-emphasized that the blockade in question was (generally speaking), a very peaceful demonstration. There were no weapons seen in the possession of any of those who were present, nor was there any threat of using weapons. From the evidence adduced before me not a blow was struck, although more than one person initially faced up to the police in a "threatening manner". This proved to be mere bravado, however, and as soon as the arrests were effected all submitted peacefully and were very co-operative thereafter. That did not make the events legal. This court wishes to make if very clear to all, that any mode or manner of civil disobedience which results in a violation of the Criminal Code is an offence against the law of the land, and renders any party wilfully contributing to its commission liable to punishment.
Harper Pro. Ct. J. noted the failure of Superintendent Wawryk, to use a loudspeaker to warn the demonstrators:
[35] There is no doubt in my mind that the court's duty would have been made much simpler had Superintendent Wawryk utilized one of the electronic public address loud speakers with which all marked police cars are equipped when first he addressed the crowd. Then the evidence would have been very clear as to whether or not those near him heard his warning. As the record stands it is very dubious as to whether or not any person there heard what he said apart from Chief Sacobie and those very close to where the chief was.
[36] In any event, the evidence indicates that there was very little (if any) opportunity for the crowd to dissipate during the very short time frame between the arrival of the police, the statement of Wawryk and the first arrest. As to what effect a loud warning may have had one can only speculate. In any event, I have adopted the position that the obstruction was a fait accompli well before the arrival of the police and that they could have quite legally commenced arresting those involved without any warning whatsoever326.
As a result of my investigation, I have no hesitation in concluding that some demonstrators, at some point in time, were committing mischief by obstructing traffic on a public highway.
In limiting my finding to "some demonstrators" whom I am unable to identify, I am expressly indicating that the evidence does not lead me to conclude that every demonstrator was engaged in committing mischief.
Similarly, I have no hesitation in concluding that RCMP management was authorized by the terms of the Criminal Code to make the decision to end the obstruction of traffic by demonstrators in both Saint-Sauveur and Saint-Simon.
2. Constitutional Considerations
As previously indicated, the constitutional guarantees contained in the Canadian Charter of Rights and Freedoms are relevant to my assessment of the conduct of the RCMP members involved in the events at Saint-Sauveur and Saint-Simon on the weekend of May 2 to 4, 1997. I note that a total of 76 complainants (75 of whom signed the petition summarized in Appendix "A") allege, in a general way, that the conduct of the RCMP during the events under review amounted to an infringement of constitutional rights.
A) Freedom of Expression : Paragraph 2(b) of the Charter
"Everyone has the following fundamental freedoms:
. (b) freedom of thought, belief, opinion and expression.."
In Irwin Toy Ltd. v. Quebec (Attorney General), 327McIntyre J. stated that "freedom of expression has long been recognized in Canada as a principle of fundamental importance and even before the adoption of the Charter, the courts of this country had elevated the principle to virtual constitutional status."328
"Expression" is not limited to the use of words. In Irwin Toy, the majority of the Supreme Court of Canada said:
"Expression" has both a content and a form, and the two can be inextricably connected.329
Activity is expressive if it attempts to convey meaning.330
Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee.331
Not every form of expression is entitled to the constitutional protection afforded by paragraph 2(b) of the Charter; clearly, for example, violence is not a protected form of expression.332
The Supreme Court of Canada has said that freedom of expression seeks to promote three elements: 1) seeking and attaining the truth, 2) participation in social and political decision-making, and 3) individual self-fulfilment for all members of society.333 When a party demonstrates that its activity satisfies one of these criteria, the activity must be regarded as a protected form of expression.
Based on the cases referred to above, I find that a demonstration, being a "public meeting, march etc., for a political or moral purpose"334 is, prima facie, a protected form of expression. According to the analysis developed by the Supreme Court of Canada, the next question to be addressed is whether the RCMP activity in issue, in this case the decision to end obstruction of the highway and the implementation of that decision, restricted the demonstrators' freedom of expression. In Irwin Toy, it was held that ".where the government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression."
However, even when analysis shows that the purpose of the RCMP activity was not to restrict freedom of expression, the effects of the RCMP activity must be examined to determine if there was a violation of that freedom.
Finally, if it is established that either the purpose or effect of the RCMP activity violates the freedom of expression, the Crown bears the burden of proving that the restriction on the freedom of expression is reasonable and demonstrably justifiable in a free and democratic society.
In the events under review, the demonstrations expressing discontent with the government decision to close the schools took place, at least in part, on public highways and had the effect of obstructing those highways. In Committee for the Commonwealth of Canada v. Canada336, the Supreme Court of Canada was called upon to consider the propriety of use of public property as a platform for expression. In general terms, it was held there that the interests of the State, representing the public at large, had to be balanced against the interests of the citizens exercising their freedom of expression. A majority of the judges agreed that such a balancing of interest was necessary but were divided three against three on the precise approach to be taken.
Lamer C.J., speaking for Sopinka J. and Cory J. made the following observation:
"For example, if a person tried to picket in the middle of a busy highway or to set up barricades on a bridge, it might well be concluded that such a form of expression in such a place is incompatible with the principal function of the place, which is to provide for the smooth flow of automobile traffic. In such a case, it could not be concluded that freedom of expression had been restricted if a government representative obliged the picketer to express himself elsewhere.337
I find that the RCMP decision to end the obstruction of public highways was not inconsistent with the freedom of expression protected by the Charter. However, I find that the conduct of some members involved in implementing this decision was, in some measure, inconsistent with the freedom of expression protected by the Charter. In limiting my finding to "some members" whom I am unable to identify, I am expressly indicating that the evidence does not lead me to conclude that every member of the RCMP who participated in the events conducted themselves in a manner inconsistent with the freedom of expression protected by the Charter.
B) Freedom of Peaceful Assembly: Paragraph 2(c) of the Charter
"Everyone has the following fundamental freedoms:
. (c) freedom of peaceful assembly.."
The freedom of peaceful assembly is generally considered to be a variant on freedom of expression.338 The freedom of peaceful assembly is designed to protect a specific method of expression, i.e. group expression. However, freedom of peaceful assembly, like freedom of association (paragraph 2(d)), does not give individuals the right to do as a group what they are prohibited from doing individually. "People, by merely combining together, cannot create an entity which has greater constitutional rights and freedoms than they, as individuals, possess."339
Arguably, citizens can make use of highways and public parks to express themselves on "matters of public interest". However, that right is not absolute: it must be "exercised in subordination to the general comfort and convenience, and in consonance with peace and good order."340
Again, I find that the RCMP decision to end the obstruction of public highways was not inconsistent with the freedom of peaceful assembly protected by the Charter. Again, I also find that the conduct of some members involved in implementing this decision was, in some measure, inconsistent with the freedom of peaceful assembly protected by the Charter. In limiting my finding to "some members" whom I am unable to identify, I am again expressly indicating that the evidence does not lead me to conclude that every member of the RCMP who participated in the events conducted themselves in a manner inconsistent with the freedom of peaceful assembly protected by the Charter.
C) Right to Security of the Person : Section 7 of the Charter
"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
The Supreme Court of Canada has recognized "that security of the person.must encompass freedom from the threat of physical punishment.."341 [emphasis added] Accordingly, this constitutional protection extends to ".both the physical and psychological integrity of the individual". A threat alone can constitute an infringement of an individual's right to security of the person.
If the conduct of a police officer leads an individual to believe that physical punishment or suffering is imminent, that individual's right to security of the person has been infringed unless the conduct can be justified by reference to the "principles of fundamental justice." Therefore, a police officer who uses a dog to make an arrest must ensure that there are reasonable grounds for the force deployed so that the individual does not feel unjustly threatened by the presence of the dog.
Again, I find that the conduct of some members involved in the events of May 2 to 4, 1997 at Saint-Sauveur and Saint-Simon was, in some measure, inconsistent with the right to security of the person protected by the Charter. In limiting my finding to "some members" whom I am unable to identify, I am again expressly indicating that the evidence does not lead me to conclude that every member of the RCMP who participated in the events conducted themselves in a manner inconsistent with the right to security of the person protected by the Charter.
D) Unreasonable Search and Seizure: Section 8 of the Charter
"Everyone has the right to be secure against unreasonable search and seizure."
In general terms, this right is based upon an individual's "reasonable expectation of privacy"342 in the ". circumstances of the particular case".343 The place of search is a key factor in determining the reasonable expectation of privacy. In this respect, the only complaints under consideration involve allegations of improper or unjustified searches of vehicles at roadblocks or checkpoints.
A police officer can, without cause, compel the driver of a vehicle to produce a driver's licence and evidence of insurance coverage. The Supreme Court of Canada has held that this does not constitute an unreasonable search within the meaning of section 8 of the Charter because there is no intrusion on a reasonable expectation of privacy. (Cf. Hunter v. Southam Inc., [1984] 2 R.C.S. 145).344
A reasonable individual would expect to be required to produce for inspection documents that provide evidence of a right or a privilege.
However, a further search of the vehicle may intrude upon a reasonable expectation of privacy and, therefore, infringe this constitutional right if the police officer conducting the search does not have reasonable and probable grounds to believe that a crime has been committed, is being committed or is about to be committed.
Some complaints received by the Commission allege, in a general way, that, throughout the course of the weekend under review, members of the RCMP conducted vehicle searches without cause. On the basis of the information revealed by my investigation, I cannot find that members of the RCMP conducted searches that infringed the right to be free from unreasonable search.
E) Rights in Cases of Arrest or Detention: Section 10 of the Charter
"Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right.."
Police officers are not bound to be precise when informing an individual of the reason for arrest; it is sufficient if the individual generally understands the seriousness of the situation and, therefore, can obtain meaningful advice from counsel.
In general, I am concerned about the failure of members of the RCMP who participated in the events at Saint-Sauveur and Saint-Simon to consistently respect these fundamental legal rights. In other parts of this report, I have specifically addressed these matters in relation to individuals who were placed under arrest.
End Notes