Episode 56 of the Ideablawg Podcast on the Criminal Code of Canada – Sections 63 to 69 – Dealing With Our Tumultuous Past

In this episode, we are discussing sections 63 to 69 of the Criminal Code found under “Unlawful Assemblies and Riots.” These sections, outlining a regime for crowd control, read and sound like a slice of our historical past. Yet, in a world where we regularly use public space to collectively express our opinions, these sections challenge this concept. Although we recognize the need for a safe public space in which to express our opinion, we want that safeness to be seamless and embedded into the public environment. We have, in many ways, a love-hate relationship with public gatherings. The excitement and thrill of being part of a crowd or experiencing with our neighbours a precious moment cannot be underestimated. But the fear and loathing we have of images of looting, arson and violence is a real and natural fear of a crowd out of control. The question raised by this Ideablawg Podcast is where we should draw the line and criminalize crowd behaviour. This podcast will not answer that question. As I have said before, the Criminal Code underlines our societal values. It highlights those acts we find reprehensible and worthy of criminal sanction.  Whether these sections are reflective of who we are and what we deem criminal is a worthy question to ask albeit not one with a clear or easy answer. 

In the first step of understanding these sections, I will turn to a previous blog I wrote in 2012 entitled “Reading The Riot Act.”  In that blog, I posited that riots are embedded in our human psyche. In support of that position, I referenced a number of notable historic events where riots figured prominently for a variety of reasons. I also connect the sections presently in our Criminal Code with the now repealed UK Riot Act of 1715, which had the long title of An Act for Preventing Tumults and Riotous Assemblies, and for the more speedy and effectual Punishing the Rioters. The Act was originally a response to the increasingly common “rebellious” assemblies which threatened the “King’s Peace.” Be that as it may, our sections in the Code mimic the language and intent of this 300-year old law. This Act was ultimately repealed in 1973. 

Eventually, the UK replaced the Riot Act with another legislative instrument, the Public Order Act 1986. That Act abolished the common law offences, to which our offences are more akin, in favour of a modern version of assembly-based offences. These new offences are explicitly connected to the use or threat of “unlawful violence.” There are varying offences dependent on the size of the assembly. There is a “riot,” involving 12 or more people who share unlawful violence as a common purpose (s.1). Then a “violent disorder,” involving 3 or more people (s. 2) and an “affray,” which is directed to an individual (s. 3).  There are other offences, which could fill a podcast or blog, but I will refrain from that critical analysis in favour of our own legislation. 

In fact, our legislation also outlines varying degrees of behaviour but not to the extent of the newer UK version. Section 63 criminalizes an “unlawful assembly.” Such an assembly involves three or more persons “with intent to carry out any common purpose” who: “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.” Section 64 takes this one step further by creating the offence of riot in which the unlawful assembly “has begun todisturb the peace tumultuously.” 

The defining term for these offences is the word “tumultuously.” It is the lynchpin of the offence but is not defined in the Code and carries with it those historical connotations from the Riot Act. To understand the meaning of this word, case law is needed. In the Berntt case, involving the Vancouver Stanley Cup Riot in 1994, the defence argued the term “tumultuously” was overly broad and vague. The word failed to provide a clear understanding of the essential requirements of the crime. Without such clarity, the accused’s ability to make full answer and defence, as found in s.7 of the Charter, was compromised. 

The British Columbia Court of Appeal, in deciding the issue, referred to the 1992 Supreme Court of Canada decision in R. v. Nova Scotia Pharmaceutical Society in which Justice Gonthier emphasized the importance of using clear language in our legislation to permit meaningful legal debate. However, language, according to Justice Gonthier, is not a panacea for unclear laws as

Semantic arguments, based on a perception of language as an unequivocal medium, are unrealistic.  Language is not the exact tool some may think it is.  It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance.  All it can do is enunciate some boundaries, which create an area of risk.  But it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made.  Guidance, not direction, of conduct is a more realistic objective. 

With guidelines comes context and, in the end, the BCCA found the word “tumultuously” must be read in conjunction with the other words used in the offence such as “riot” and “unlawful assembly.” Accordingly, “tumultuously” connotes a violent disturbance as opposed to an uproarious, perhaps even jubilant, crowd. History also imbued the term with particular meaning as the crimes, through their very definition, related back to common law England and the Riot Act. Interestingly, the discussion of boundaries and limits is exactly what the crimes of unlawful assembly and riot are all about: it is the lack of boundaries and limits that marks the behaviour as crimes as opposed to a Canada Day event on Parliament Hill where the crowd gathers in celebration. 

Sadly, Ryan Berntt, the accused in question, was shot in the head by a police officer’s rubber bullet during the riot and sustained brain damage. In the end, it is individuals, both in the crowd and out, who suffer the most. It is the individuals, not the crowd, who stand charged or must face the inevitable morning after clean-up. Perhaps this sobering reality is worth remembering. 

Concealment of identity is another aspect of the offences under sections 63 and 64. These offences are found under section 65(2) for disguised rioters and section 66(2) for disguised persons in an unlawful assembly. The sections speak of someone wearing “a mask or other disguise to conceal their identity.” This offence can be viewed as an aggravated form of the offences involving rioting and unlawful assembly. The objective of criminalizing concealment is to protect the lawful investigation of crimes connected to sections 63 and 64. Someone who is rioting while wearing a disguise cannot be identified for purposes of arrest and prosecution. The offences also recognize the psychology behind rioting. Being anonymous can embolden some people to do acts they would not otherwise do. However, in an age of privacy, being unseen has value. Again, our laws must ensure that we are punishing concealment for the right reasons. Unlike section 351(2), which criminalizes the use of a disguise “with intent to commit an indictable offence,” sections 65 and 66 create an offence with no such specific intent. An individual may be convicted by the mere fact they are disguised while part of the riot or unlawful assembly. The intent required under s. 63 is to simply carry out a “common purpose,” not even requiring an unlawful common purpose as under the parties section in s. 21(2).

Another historical throw-back, still retained in these sections, is the requirement of an official who receives notice of a potential riot to disperse the unruly crowd through the reading of a proclamation as specified under section 67. This unenviable task requires the official, which includes a mayor or penitentiary official, to “command silence and thereupon make or cause to be made in a loud voice a proclamation in the following words or to the like effect” as follows:

Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business on the pain of being guilty of an offence for which, on conviction, they may be sentenced to imprisonment for life. GOD SAVE THE QUEEN.

By virtue of the definition of who shall read this proclamation, it becomes clear that this section may assist in the circumstances of a so-called “prison riot” (see Thorne v R, 2004 NBCA 102 for an example of the reading of the proclamation during such an event). Of course, should the crowd fail to respond to this announcement within 30 minutes of its reading, the rioters are subject to prosecution under s. 68. Further, anyone who wilfully “opposes, hinders, or assaults” the reader, with force, will be subject to further repercussions under section 68(a). To add salt to the metaphorical wound, under s. 69, a peace officer who “receives notice” of a riot (not an unlawful assembly) is guilty of an offence should they not take “reasonable steps” to suppress the riot unless they have a reasonable excuse. This highlights the political significance of this section as it evokes images of those officials, sympathetic to the cause, who thus oppose the Crown or the government through inaction and passive acquiescence.

Reform of these sections seems sensible, yet the omnibus Bill C-75, which is due for t 3rd reading in the House does revise these sections but little. The Bill amends the punishment sections to hybridize the offences, permitting a Crown to elect to proceed by summary conviction as opposed to the straight indictable offence they are currently. This is hardly the kind of reform needed. Despite the Berntt decision and the narrowing of the meaning of the actus reus required to commit the offence to include violence, we need to ensure that in words and in aspect these sections reflect the kind of restrictions society expects and wants. The continued use of archaic terminology fails to adequately notify the citizens who are deeply connected to this kind of offence, the parameters of legal and illegal assembly. 

To make my point, I too will turn to history by discussing Rex v Pattersonan Ontario Court of Appeal decision from 1930. First, I want to reiterate that this decision applies the same sections in place today. Patterson was convicted of participating in a riot and the majority of the court of appeal upheld this conviction. Patterson was a labour unionist leading 800 unemployed people through the streets of Hamilton. We can all appreciate the desperation of the “dirty thirties” and the Great Depression that drove this event. The issue here was the parade through the streets involved a “restricted area” for which the crowd did not receive police permission to march through. Permission was sought but denied and Patterson deliberately decided to lead his people into the area. The mischief caused by those actions, according to the police, was to tie up traffic in the area and create an “unmanageable” crowd. Even so, there was no “physical violence doing bodily harm.” 

The majority decision of Justice Middleton, upholding the conviction, emphasized that although “the object of those who assemble may be perfectly innocent, even highly commendable, yet, if the circumstances, in the mind of the ideal, calm, courageous, and reasonable man, are such as to lead him to fear that the public peace is in danger, it is the duty of those assembled to disperse.” As result, Patterson was properly convicted. In contrast, the dissenting opinion of Justice Magee viewed the incident quite differently. The police advised the crowd that if they “conformed” to their direction to stay out of the restricted area, there would be “no interference.” However, should Patterson disobey their direction, there would be “trouble” and arrests would ensue. In terms of the restriction itself, according to Justice Magee, there was no proof as to why the area was restricted and on what legal basis. In fact, there was some evidence that the Chief of Police wanted no parade at all and if it did happen, Patterson would “suffer.” The dissent emphasized that even if Patterson may have been in breach of some City by-law, it was far from a criminal offence as,

So far as the evidence before the Court goes, the men were entitled, like other citizens, to go along any street so long as they conducted themselves properly. From beginning to end there is no hint that they did not obey the ordinary traffic regulations or that there was any difficulty or undue interference with others or by others with them. They excited no hostile feelings. They gave no evidence of intention even to resist the police. They expected arrests, but there is no indication that they intended to do otherwise than submit to arrest, as the appellant in fact did, and as others do, to test the legality of the acts of persons assuming authority. The police officer says there was no violence. Section 87 of the Code is aimed at disturbance of the peace tumultuously or provoking it. Here nothing of the sort was intended or occurred. There was not even disturbance of traffic, except that caused for a few minutes by the police themselves unwisely stopping the procession at the intersection. 

This decision is a stark reminder that a protest is truly in the eye of the beholder. As Justice Fish said in paragraph 71 of R v Levkovic2013 SCC 25 that  

Indeed, the doctrine against vagueness cannot be satisfied by inaccessible laws.  It is not enough for laws to provide guidance to legal experts; laws, as judicially interpreted, must be sufficiently intelligible to guide ordinary citizens on how to conduct themselves within legal boundaries.  As McLachlin C.J. explained in Mabior (in a passage more fully set out above): “It is a fundamental requirement of the rule of law that a person should be able to predict whether a particular act constitutes a crime at the time he commits the act” (para. 14). 

 It is time for our laws on assembly to reflect this sentiment to ensure that our right to peaceably assemble remains articulable to the people for whom this form of public expression is a fulfillment of their democratic ideals. We also need to ask whether there are there better ways to control a crowd and whether there are other, less intrusive, offences available in the Criminal Codeto combat such unlawful conduct.

 Crowds, protests and even uprisings have different purposes depending on the time, place and space of the event. Just like people, crowds are complicated and engage all of the behavioural tools we have available in our society. Although difficult, to respond in an effective legislative manner requires a thoughtful review of the past and of the human condition. Thoughtful, but perhaps not dispassionate, as we need to recognize a crowd for what it truly is, which is an emotional expression of the inner workings of our society. The Code, as a societal document, must be a meaningful part of that discourse.