The right to protest

Quebec police violated constitutional rights of protesters: judge

A Quebec Superior Court ruling strikes down a law used to kettle and arrest peaceful demonstrators
Photo: Mario Jean / MADOC

In 2012, at the height of the Quebec student strike, the Quebec government made the unprecedented decision to deal with increasing social unrest by effectively outlawing protests. Today Quebec Superior Court ruled that the practice violates the Constitution, striking down one of the most commonly used tools for police to arrest peaceful protesters and affirming the legality of demonstrations which block traffic.

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Today Justice Guy Cournoyer of Quebec Superior Court ruled on the case of a protester arrested and ticketed in 2011 under article 500.1 of the Highway Safety Code, which outlaws “any concerted action” intended to block traffic.

In a ruling striking down this article of the code, Cournoyer wrote that it “restricts the rights to freedom of expression and peaceful assembly protected by the Quebec and Canadian charters [of rights and freedoms]. This limitation is not justified in the context of a free and democratic society.”

He gave the government six months to amend the code to bring it into conformity with his ruling. This decision is expected to lead to the dismissal of all outstanding charges and tickets filed under the law.

It all started back in 2012 with the controversial Bill 78, which was tabled by the Charest Liberal government in a bid to break the ongoing student strike. It required organizers to seek prior permission from police for all gatherings of more than 50 people, and gave police the right to reject or modify the route of a protest.

That bill was so unpopular that it backfired on the government, reinvigorating the protest movement and spurring tens of thousands of Quebecers, even some who disagreed with the students’ position on tuition, to join nightly “casseroles” protests against the law.

Due to its unpopularity, the bill was rarely used by police, and was repealed by the PQ government as one of its first acts after winning power in the fall of 2012.

But police have been using a parallel municipal bylaw in Montreal, and an obscure part of the Quebec Highway Safety Code ever since to shut down certain protests, often surrounding and arresting all participants before they begin in a practice known as “kettling.”

In February a Municipal Court judge in Montreal cancelled a series of tickets issued under bylaw P-6, which was amended in 2012 to include many of the same provisions as Bill 78, ruling that it was improperly applied, and its wording was so vague that certain parts of it could not be enforced. Following that decision the city of Montreal cancelled all outstanding tickets issued under the bylaw.

Despite the legal setback, Montreal mayor Denis Coderre insisted at the time that the bylaw remained valid if applied properly. Coderre has been dismissive of concerns that police were violating the civil liberties of protesters since his election, and is a fierce advocate for the type of preemptive police interventions against peaceful protests which today’s court ruling found to be unconstitutional.

But the problems for the Coderre administration in Montreal, and the Quebec government, may only be beginning.

Since 2012 thousands of protesters have been kettled, arrested and handed major fines for the crime of participating in peaceful protests. Many of them are suing the city or province. Now, with both of the legal tools used to arrest them invalidated by the courts, the two levels of government face an uphill battle to defend themselves against civil suits filed by protesters who allege that their rights were violated.

Bottom line? The province and city have been using unconstitutional and misapplied laws to violate the constitutional rights of Quebecers for at least three years.

Now it’s likely that they will pay the price, as these court decisions pave the way for large awards and settlements for those who are currently suing the city and province. The economic impact of this systemic violation of rights will likely far exceed the sum of any other costs associated with the strike once all the cases are heard.

Despite the February ruling, bylaw P-6 remains on the books in Montreal. This decision should spur renewed calls for the mayor to scrap the bylaw, whose contents mirror the provincial law which was struck down today, and appear to violate the civil liberties of citizens in the same ways.

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