Listen carefully, and beneath the blaring horns of the so-called “Freedom Convoy” downtown Ottawa, you hear it — shifting language that the protest is becoming “unlawful.”
Prime Minister Justin Trudeau was one of the first officials to shimmy up to the shift, telling Canadians watching question period on Wednesday afternoon that the demonstration is “becoming illegal.”
Diane Deans, currently running for the mayorship of Ottawa and chair of the city’s police services board, described the people still blockading and roaming the streets as “mercenaries that are unlawfully protesting and occupying our communities.”
Chief Peter Sloly of the Ottawa Police Service also referenced “unlawful” activities by some. Municipal councillors have repeatedly described the protest as an “occupation” and “siege” of the city.
What does an 'unlawful assembly' mean?
Protesting in Canada is a constitutional right. But there is a caveat: the protest in question must be a “peaceful assembly” in order to be legal.
That legal protection, according to the Department of Justice website, “does not protect riots and gatherings that seriously disturb the peace.”
The Criminal Code specifically defines an unlawful assembly as:
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.
Gatherings that started off as lawful can become unlawful if they meet those conditions.
An unlawful assembly can officially become a riot when the individuals gathered have “begun to disturb the peace tumultuously.”
Effectively, an unlawful assembly is when people gather with the intent to disrupt the peace — a riot is when they actually follow through and do so.
Anyone taking part in a riot can face up to two years in prison.
A “justice, mayor or sheriff, or the lawful deputy of a mayor or sheriff” has the power to declare a riot.
Paul Champ, an Ottawa lawyer who specializes in Charter rights and constitutional law, said the power to declare a riot is rarely exercised under Canadian law and he’s skeptical that would be the route for the city. He said one other option some are discussing is getting a court injunction to move the convoy.
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Even with that though, Champ noted there is no power to make the police enforce an injunction.
“They don’t have to follow it,” he said, adding police have the authority to gauge whether enforcing the law might be too risky.
He questioned, though, Sloly’s assertion that police would not be able to prevent anyone else from coming into the city on the weekend, when crowds are expected to swell once more.
“They can totally do that,” he said. “It’s common law power to prevent disturbance of the peace.”
Errol Mendes, a professor of constitutional law at the University of Ottawa, said past activities by police at large-scale protests show there are additional measures at hand.
For example, police erected physical barriers and secure zones at the G7 Summit in Quebec City and the G20/G8 Summit in Toronto.
Mendes said he didn’t want to question the decisions made by police based on the information they are working with. But he said he hopes officials are looking at the range of possibilities available.
“What I’m urging people to do is see what happened in other cities,” he said. “The answers are there.”
What other options could there be for police?
The biggest question dogging officials over the past week, however, has been: what more can be done?
Sloly initially said that enforcing the law could carry risks to his officers.
He has since said police are pivoting to a “surge and contain” strategy and that “unlawful” conduct will be investigated and prosecuted.
Sloly said on Thursday that other options, such as additional support from politicians, or even from the Canadian Forces, could be needed. The RCMP has also been stepping up their assistance at the request of the city over the past 24 hours, he added.
Additional support could come in a variety of forms.
The cost of policing the protests is currently estimated by Ottawa police to stand at $800,000 per day.
A federal program called the Nation’s Capital Extraordinary Policing Costs Program sets aside roughly $3 million each year over five years for National Capital Region police facing extraordinary circumstances.
A government source told Global News that officials are open to upping the amount of money made available to the city once the total costs of dealing with the demonstration are clear.
Ottawa city councillor Catherine McKenney, who represents the downtown ward of Somerset, wrote a letter to Prime Minister Trudeau and RCMP Commissioner Brenda Lucki on Thursday, urging them to have the RCMP take over policing from the Ottawa force.
“The residents living in downtown Ottawa have been abandoned. Now we are told that more trucks are expected to arrive this weekend to reinforce the convoy’s numbers,” McKenney wrote in their letter.
A spokesperson for Public Safety Minister Marco Mendicino said there continue to be discussions about whether local police will require additional RCMP involvement.
Additional officers were provided to the city on Thursday evening, and the RCMP has said officers from its Ontario and Quebec divisions are also being deployed.
“The exact number will fluctuate based on identified need and any operational developments,” said a spokesperson for the force.
The RCMP do not provide frontline policing in Ontario, as they do in a number of other provinces.
Instead, the force’s role in the province focuses on federal matters: organized crime, counterterrorism, protection services, and domestic security matters, typically through the Emergency Response Team.
The Emergency Response Team is a specialized tactical force called in for “high-risk” operations, including “resolving armed and barricaded persons incidents.”
Some of those members are already deployed, Global News has confirmed.
Will the military get involved?
Defence Minister Anita Anand was blunt: “The Canadian Forces are not a police force.”
“As such, there are no plans for the Canadian Armed Forces to be involved in the current situation in Ottawa in a law enforcement capacity,” she said in a tweet.
Calling in the military would be a rare and extraordinary decision.
A military legal official told Global News this would typically happen via the National Defence Act: specifically, two sections in the law, one of which was used during the 1990 Oka crisis.
That deployment of the military came at the request of the Quebec premier at the time under Part VI of the National Defence Act, which states the military can be called in to support police as an “aid to civil power.”
Under that section, the attorney general of any province can call on the Canadian Forces “for service in aid of the civil power in any case in which a riot or disturbance of the peace, beyond the powers of the civil authorities to suppress, prevent or deal with and requiring that service” is either happening or likely to happen.
There is also Section 273.6, which outlines the powers of the executive branch of government to deploy the military. Under that section, the federal cabinet or the defence minister alone can “authorize the Canadian Forces to perform any duty involving public service.”
In that case, the cabinet or the minister can “issue directions authorizing the Canadian Forces to provide assistance in respect of any law enforcement matter” in the following two circumstances: “the assistance is in the national interest,” and “the matter cannot be effectively dealt with except with the assistance of the Canadian Forces.”
However, both Trudeau and Anand have said deploying the military is not “in the cards” at this time.
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