The Suppression of Riots, Manifestly Unlawful Orders, And The Prevention Of Serious Mischief Under Sections 32 & 33: Episode 37 of the Ideablawg Podcasts on the Criminal Code of Canada

Although sections 32 and 33 pertain specifically to the suppression of riots, these sections continue the various Code protections afforded to a person enforcing the law but with a twist. Section 32 provides for a justification for the use or the ordering of force by a peace officer providing the force is applied in good faith, is necessary on reasonable grounds to suppress a riot and such force is not excessive in the circumstances.  So far, these sections seem familiar and comparable to previously discussed use of force sections. However, the difference is in the added language as sections 32(2) and (3) provide protection for those who obey orders to suppress a riot in both a martial law scenario (subsection 2) and a more general situation (subsection 3).  Subsection 4 protects citizens in the use of force in suppressing a riot in exigent circumstances involving “serious mischief.” Finally, subsection 5, deems the question of whether the order to use force is “manifestly unlawful or not” as a question of law.  

Section 32 reads as follows:

 (1) Every peace officer is justified in using or in ordering the use of as much force as the peace officer 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.

(2) Every one who is bound by military law to obey the command of his superior officer is justified in obeying any command given by his superior officer for the suppression of a riot unless the order is manifestly unlawful.

(3) Every one is justified in obeying an order of a peace officer to use force to suppress a riot if

(a) he acts in good faith; and

(b) the order is not manifestly unlawful.

(4) Every one who, in good faith and on reasonable grounds, believes that serious mischief will result from a riot before it is possible to secure the attendance of a peace officer is justified in using as much force as he believes in good faith and on reasonable grounds,

         (a) is necessary to suppress the riot; and

         (b) is not excessive, having regard to the danger to be apprehended from the continuance of the riot.

(5) For the purposes of this section, the question whether an order is manifestly unlawful or not is a question of law.

Subsection 1 only provides protection to a peace officer that uses or orders necessary force. Although the term “uses” is self evident, the word “orders” requires further discussion as it relates to subsection 2 and 3 and the protection of those who “obey” such orders to use force. Clearly, the section provides protection not only to those directly involved in suppressing riots but also those who are indirectly involved by giving the order or commands to suppress a riot. Why should this be the concern of a Criminal Code protection? The answer lies in the historical consideration of these sections and are, of course, very much related to the historical view of riots and those preventing them.

For this historical viewpoint, the first place to turn is to James Fitzjames Stephen, British jurist and the “father” of our codified criminal law. As I have discussed in previous blog, Stephen was a staunch supporter for codification of criminal law in England just at the time the Dominion of Canada was developing national laws. Although England did not follow Stephen’s recommendation, other commonwealth countries besides Canada did. In his treatise “A History of the Criminal Law of England, Volume 1,” Stephen devoted a chapter on suppression of riots. Anyone who has a smattering of awareness of the history of England, knows that riotous behaviour appears to be a regular feature of that history. This familiarity with the mob appears to be the catalyst for much of English common law and Canada, at least in this instance, appears to be the beneficiary of this propensity. According to Stephen, every citizen had a right and duty to protect public peace as “violence in all forms was so common, and the suppression of force by force so simple a matter, that special legislation did not seem necessary in very early times.” Despite this belief, as early as the 14th Century, legislation was in place relating to riots and was quite similar in tone and composition to the riot sections found in the Code today. Historically, twelve members of the community comprised the magic number for a riot, which is telling considering twelve is also the number required to constitute a valid jury. However, in the Code, an unlawful assembly under s. 62, which is not necessarily a riot, requires only an assembly of three or more persons. An unlawful assembly becomes a riot, pursuant to s. 63, where that assembly begins “to disturb the peace tumultuously.” But the ability to disperse a crowd through governmental proclamation required the mob equal twelve or more individuals. I will have more to say on this aspect when we arrive at those riotous sections.

In any event, it is clear that suppressing a riot has a long and tumultuous history and therefore the protections required, from preventing a riot to ordering the prevention of riots, are firmly within the Code protection/justification sections. This brief look back also explains why 32(2) applies to those suppressing a riot in accordance with military law as historically, riots, seen as a form of treason against the Crown, were typically suppressed by military force. Protection is required as a riot can turn into a revolution, which can in turn change the government and those supporting the old government by suppressing the riot of the newly formed government might find themselves on the wrong end of the law. Thus, s. 32(2) in certain circumstances can protect those who are merely following and obeying orders. This protection also extends to citizens who assist peace officers in suppressing riots under subsection 3.

The urgency suggested by this obligation to suppress a riot unless the order to do so is “manifestly unlawful” in accordance with the section reflects the historical seriousness with which these potential dangerous gatherings were treated.  However, as indicated in subsection 2 for the militia and subsection 3 for citizens, the justification of following orders is not available if the order is “manifestly unlawful.”  This phrase appears only in this section of the Criminal Code although the word “unlawful” is no stranger to the Criminal Code, typically meaning an act contrary to statute, be it criminal or regulatory. The word “unlawful” has a further meaning when connected to a predicate offence as it then also requires that the underlying unlawful act must be objectively dangerous as per the 1992 SCC DeSousa case. The descriptor “manifestly” is defined in the dictionary as easily understand or recognized by the mind.

A brief review of case law on the use of the term reveals that the phrase, “manifestly unlawful,” is a term often used in military law in relation to the requirement to follow superior orders, particularly where superior orders are conflicting. Under Article 19.02 of the Queen’s Regulations and Orders for the Canadian Forces (QR&Os) deals with "Conflicting Lawful Commands and Orders" and according to the notes accompanying the QR&Os, it is usually clear if an order from a superior officer, which includes a non commissioned member, is lawful or not. If however it is unclear or the subordinate does not know the law, then the subordinate must obey the command unless it is manifestly unlawful.

Of course the issue then becomes evident to whom? Does the law require the unlawfulness of the order be manifestly evident to the person following the orders – as in a subjective test – or manifestly evident to the reasonable person – as in an objective test? Although, an argument could be made that this determination requires a subjective assessment of the subordinate’s state of mind, according to military interpretation, “manifestly unlawful command or order is one that would appear to a person of ordinary sense and understanding to be clearly illegal,” requiring an objective test albeit in the context of the circumstances of the case. This phrase is important for military law as if a soldier follows a manifestly unlawful command, he or she is liable for his or her actions under civil or criminal law.

In the 2009 Matusheskie case, the Court Martial Appeal Court of Canada considered the term “manifestly unlawful” and found that the threshold for finding an order “manifestly unlawful” was very high. In support of this finding, the Court looked to the SCC discussion of the defence of following superior orders in the Finta case relating to Finta’s war crimes committed in WWII. As Justice Cory explained in Finta, “manifestly unlawful” is an order that “offends the conscience of every reasonable, right thinking person; it must be an order which is obviously and flagrantly wrong.  The order cannot be in a grey area or be merely questionable; rather it must patently and obviously be wrong.” The determination of “manifestly unlawful” is as stated in subsection (5) a question of law.

Finally, the gravity of riots permits citizens, who are unable to secure the attendance of a peace officer, to take into their own hands the suppression of a riot under subsection 4 if the actor believes “serious mischief” will otherwise result. The phrase “serious mischief” is again unique to this section, although of note the term did appear under the pre-2010 Alberta Rules of Court in relation to ex parte motions. Under the old Rule 387 an ex parte motion may only proceed if the applicant establishes that the delay caused by regular proceedings might “entail serious mischief.” The new rule 6.4 considers whether or not “undue prejudice” would be caused to the applicant. In other jurisdictions, the phrase is also used in a similar civil context and refers to “irreparable or serious mischief” caused by not proceeding by way of ex parte motion such as in s. 441(3) - now Rule 6-3(3) - of the Saskatchewan Queen’s Bench Rules. This suggests that the “mischief” or harmful behavior must be dangerous indeed.

Section 33, requires a peace officer and those assisting a peace officer to “disperse” or arrest those persons who do not comply with a proclamation under s. 67 or has committed an offence under s. 68. These sections, which we will discuss more specifically in later episodes, refer to the proclamation or order to disperse, which must be read by a government official, under section 67, where twelve or more persons (recall the 14th Century English laws on riots) are “unlawfully and riotously assembled.” Section 68 refers to offences committed when those ordered to disperse under s. 67 fail to do so.

Sections 32 and 33 are part of English common law history and remind us of a more unstable time when mobs could oust the rule of law. The societal harm when that possibility occurs is neatly reflected in Shakespeare’s historical play, Henry VI Part 2 in Act 4 Scene 2 wherein the line “the first thing we do, let’s kill all the lawyers” is spoken as a call to anarchy and disorder and a reminder to those law abiding members of the audience to take heed.