The International Human Rights Framework on the Right of Peaceful Assembly

Canada is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR) in July 2019. Article 21 governs the right of peaceful assembly, providing that:

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Canada is also a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.

Canada is a member of the Organization of American States, but has not adhered to the 1969 Inter-American Convention on Human Rights.

The Domestic Legal Framework on the Right of Peaceful Assembly

Constitutional Provisions

According to Section 2(c) of the Charter of Rights and Freedoms contained within Part I of Canada's 1982 Constitution Act, everyone has the "fundamental" freedom of "peaceful assembly". The Canadian Supreme Court has referred collectively to the Section 2 freedoms as protecting rights fundamental to Canada’s liberal democratic society.Mounted Police Association of Ontario v. Canada (Attorney General) [2015] 1 S.C.R. 3, para. 48.

Section 2(c) includes the right to participate in peaceful demonstrations, protests, parades, meetings, picketing, and other assemblies.Ontario (A.G.) v. Dieleman (1994) 20 O.R. (3d) 229 (Ont. Ct. (Gen. Div.)), pp. 329-30; R. v. Collins [1982] O.J. No. 2506 (Co. Ct.); Fraser v. Nova Scotia (A.G.) (1986), 30 D.L.R. (4th) 340 (N.S.S.C.).The provision protects the right to demonstrate on public streets.Garbeau v. Montréal, 2015 QCCS 5246.The freedom also protects the ability to wear masks during a peaceful demonstration.Villeneuve v. Montréal, 2016 QCCS 2888.However, it does not protect a particular venue for assembly.Attorney General of Ontario v. 2192 Dufferin Street, 2019 ONSC 615. 

Section 2(c) guarantees the right of peaceful assembly; it does not protect riots and gatherings that seriously disturb the peace.R. v. Lecompte, [2000] J.Q. No. 2452 (Que. C.A.)In one Ontario Supreme Court case, the judgment held that the right does not encompass the right to physically impede or blockade lawful activities.Guelph (City) v. Soltys [2009] O.J. No. 3369 (Ont. Sup. Ct. Jus), para. 26.

National Legislation

In some cities and towns across Canada, a permit is required to hold a demonstration.

The Legal Framework on Use of Force During Assemblies

The Use of Force

International Legal Rules

Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:

In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.

All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.

National Legislation

With respect to riots, under Section 32(1) of Canada’s 1985 Criminal Code (as amended), every police officer

is justified in using or in ordering the use of as much force as [he or she] believes, in good faith and on reasonable grounds,

(a) is necessary to suppress a riot; and
(b) is not excessive, having regard to the danger to be apprehended from the continuance of the riot.

The Use of Firearms

International Legal Rules

According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life. 

National Legislation

Section 25(4) of the Criminal Code specifies that a police officer is "justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested", if: 

a)    The officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested; 
b)    The offense for which the person is to be arrested is one for which that person may be arrested without warrant; 
c)    The person to be arrested takes flight to avoid arrest; 
d)    The officer believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer or any other person from imminent or future death or grievous bodily harm; and 
e)    The flight cannot be prevented by reasonable means in a less violent manner.

State Compliance with its Legal Obligations

Views and Concluding Observations of United Nations Treaty Bodies

In its 2015 Concluding Observations on Canada, the Human Rights Committee expressed concern about reports of "increased repression of mass protests" in Canada,

such as those which occurred during the G-20 summit in Toronto in 2010, and in Quebec in 2012, and the disproportionate number of arrests of participants.

The Committee called on Canada  to "effectively protect the exercise of the freedom of peaceful assembly and avoid restrictions that are not proportionate".

The 2018 Universal Periodic Review of Canada under the Human Rights Council did not address the right of peaceful assembly.

Regional Jurisprudence

The Organization of American States has not specifically addressed the right of peaceful assembly in Canada.

Views of Civil Society

The Canadian Civil Liberties Association (CCLA) has reported that:

In the spring of 2012, the province of Quebec experienced widespread student protests and a general strike by many postsecondary students opposed to a government-proposed university tuition hike. The ensuing “Printemps érable” (or “Maple Spring”) involved not only a large number of frequent protest actions, but also a multilayered response by police, legislators and the courts. The response included police use of pepper spray, stun grenades and rubber bullets, mass arrests of demonstrators, the enactment of extraordinary antiprotest laws, and the use of the courts to attempt to silence dissent and end the student protests. The multifaceted government response was met by a multifaceted civil society response.

Downloads

Canadian Charter of Rights and Freedoms - Download (549 KB)
Human Rights Committee Concluding Observations on Canada (2015) - Download (222 KB)
CCLA Report Take-Back-the-Streets-Quebec 2012 - Download (1 MB)