Freedom of Expression Limited By G20

June 29, 2010

The G20 summit has brought our world’s most powerful leaders to Toronto. Discussion topics for the summit relate to international finance and development. Toronto will be hosting leaders from the United States, North Korea, South Korea, France and Germany, and that is just to name a few. Throughout the summit the world will be watching Toronto. The concentration of power and attention creates an ideal platform to advocate for a notable cause. Many protesters will take the opportunity to amplify their voices and be heard on the world’s stage. Will Canada’s Charter of Rights of Freedoms serve as a barrier between these protesters and potential criminal charges?

Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees everyone the fundamental freedom of thought, belief, opinion and expression, including the freedom of the press and other media of communication. The purpose of this guarantee was defined by the Supreme Court of Canada in R v Keegstra. The three core reasons the right to freedom of expression is important are;

  1. 1. To ensure the free flow of ideas in a democratic society
  2. 2. To ensure free debate in order to allow truth to prevail in the market place of ideas
  3. 3. To ensure citizens’ ability to self realize through expression is not restricted

Any expression that furthers the aim of any of these three purposes will be aggressively protected by the Charter. The topics protesters seek to bring attention to are likely to fall under one of the three types of speech listed above. An expression includes any kind of activity that conveys, or attempts to convey meaning. All forms of expression, except for violence, are protected. The expression of protesters at the G20 summit will only be protected by the Charter if the chosen form of expression is non-violent. Protesters are not permitted to throw things at passers-by, assault people or damage property. Protesters who choose to participate in violent forms of expression will not be protected by the charter.

In Reference re Public Service Relations Act, the Supreme Court of Canada stated that although the freedom on peaceful assembly is a separate and distinct right, it is closely related to the freedom of expression. Sections 2 (c) of the Charter, guarantee everyone the fundamental freedoms of (c) peaceful assembly. The right to assemble is recognized as a human right, a political freedom and a civil liberty. The freedom allows citizens to assemble in public places in the context of a protest. Gathering together in a large group for a peaceful protest is a protected Charter right.

However, neither of these guaranteed freedoms is absolute. The limitation on all our rights is set out in Section 1 of the Charter which states; “

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The scope of a person’s right is limited by the rights of others. The rights of individuals to assemble and express must be balanced against the right of society to peacefully enjoy public places. Before taking the opportunity granted during summit, be sure you know the scope of your rights, and their limits. For example section 63 (1) of the Criminal code states;

63. (1) An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

Lawful assembly becoming unlawful

(2) Persons who are lawfully assembled may become an unlawful assembly if they conduct themselves with a common purpose in a manner that would have made the assembly unlawful if they had assembled in that manner for that purpose.

This section makes it a criminal offence for people to gathered together to conduct themselves in a way that will cause an atmosphere of violence. An atmosphere of violence can be created by yelling threats, charging or creating loud noises. Protesters do not have to participate in violent behaviour themselves to cause an atmosphere of violence. Also, the fact a group of protesters intended to lawfully assemble for a peaceful assembly is irrelevant. It is made clear by section 63(2) that a lawful protest can turn into an unlawful protest if three or more people in the group conduct themselves in way that creates an atmosphere of violence. Regardless of the reason you have gathered together downtown during the G20 you should refrain from yelling threats, charging or pushing others and throwing things. These types of acts are likely to cause a fear of violence in those around you. The freedom of expression guaranteed by the Charter is limited by the right of others not to walk the streets in fear. Even spectators and innocent bystanders must behave during the G20. Section 65 of the Criminal Code, states;

Everyone who takes part in a riot is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

This section makes it a criminal offence to participate in any conduct that will cause an atmosphere of violence. A riot is a disturbance of public peace that is disorderly, noisy, and turbulent. When a spectator observes protesters throwing rocks, picks one up and joins in, they can be charged under section 65. A spectator can be charged under this section for participating in non-violent activity such as, marching or making loud noises, provided the groups conduct as a whole can be classified as a riot.

It is still a criminal offence to cause a disturbance when the nature of disturbance cannot be classified as a riot. According to the Canadian Criminal Code, causing a disturbance is a criminal offence. Section 175(1)(a) provides:

  1. 175. (1) Everyone who, not being in a dwelling-house, causes a disturbance in or near a public place,
  2. (i) By fighting, screaming, shouting, swearing, singing or using insulting or obscene language,
  3. (ii) By being drunk, or
  4. (iii) by impeding or molesting other persons,
  5. is guilty of an offence punishable on summary conviction.
  6. This section creates an offence that further limits the way protesters can lawfully express themselves. During the G20 summit the public’s ability to enjoy peace and tranquillity in public places will limit protesters ability to express their concerns. A disturbance occurs when the ordinary peace and behaviour that can be expected in a location is disrupted. When the crowd at the perimeter fence is calmly observing, protesters ought to refrain from trying to get the crowd rowdy. Encouraging others in the crowd to engage in violent behaviour and damage property will cause a disturbance. Protester should refrain from aggressive behaviours, such as yelling obscenities, which may entice those around them to participate in disruptive behaviour. Peacefully protesting at the G20 summit is lawful and unlikely to cause a disturbance. Protesters are encouraged to march, hold signs and banners, and sing songs. It is important to remember that your freedom to assemble and express yourselves is not absolute. There are limits on the forms of expression protesters can lawfully engage in. If you or anyone you know has been charged with an offence relating to the G20, contact Kostman and Pyzer to ensure your rights are protected.

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