The Right to Disassembly
by Carla Green
On April 5th, 2013, a cold early-spring day in Montréal, I interviewed a young activist during a protest, walking briskly alongside her as the march circled a public park. Police and their cars blocked every intersection where protesters might deviate from the park’s periphery to roam around the city, as Montréal protests often do. There was a blaring, unintelligible announcement over police loudspeakers. Then the riot cops charged; they encircled the crowd, their shields between us and them, faces blank. “Excuse me,” I said, “I’m a journalist. I came here as a journalist.”
“This protest has been declared illegal under municipal bylaw P-6,” an oversized megaphone announced in French.
No one was surprised. Municipal bylaw P-6 was the reason people were protesting. Over the past three years, P-6 has been used to control and suppress over a dozen protests in Montréal. It gives the police a range of different strategies for arresting and ticketing protesters, and has been used as a tool to target certain political activists and movements whenever it suits the authorities. In other words, P-6 is a textbook anti-protest law.
In order to understand P-6, one must first understand the Québec student movement, which has a half-century long history of activism in response to provincial governments attempting to impose tuition hikes. Time and again, legislators have proposed tuition hikes; students have protested and gone on strike; and inevitably the legislators have backed down.
The most recent eruption began in 2011, when the conservative provincial government — led by Liberal Jean Charest — proposed a tuition hike. As before, student leaders threatened a strike, and, a couple months later, they followed through. Despite the tens of thousands of students on strike through the spring of 2012, the government wouldn’t back down. Gradually, non-students started going to the protests in solidarity, and over time, the protests morphed into something about much more than the tuition hike: mining in northern Québec and austerity and indigenous land rights. Hundreds of thousands of people poured out into the streets monthly.
While all this was happening in the spring and summer of 2012, a Charest-led conservative provincial government voted in emergency legislation: Law 12. It had several provisions restricting picketing and how student unions could organize, but it also included this anti-protest clause:
When [the relevant police force] considers that the planned venue or route poses serious risks for public security, the police force serving the territory where the demonstration is to take place may, before the demonstration, require a change of venue or route so as to maintain peace, order and public security. The organizer must then submit the new venue or route to the police force within the agreed time limit and inform the participants.
If a “senior officer, employee, or a representative, including a spokesperson” of a student union violated Law 12, that person could be fined up to almost twenty-eight thousand dollars for a first offense, and double that for any offense thereafter. An offending student union could be forced to pay up to almost a hundred thousand dollars. The resulting backlash — the New York Times published an Op-Ed that called the law “draconian” — led to early elections and a new provincial government, which made (empty, as it turned out) promises of solidarity with the students, starting with the repeal of Law 12.
After Law 12 was repealed, Montréal’s local police force still had a more-than-adequate tool for protest repression: P-6. While the provincial government had been busy drafting what would become Law 12, Montréal’s municipal government had quietly amended P-6 — officially, the Bylaw Concerning the Prevention of Breaches of the Peace, Public Order, and Safety, and the Use of Public Property — a bylaw that had already been on the books for over a decade. Municipal legislators added a series of amendments to P-6 that, taken together, drastically curb freedom to protest in Montréal. Under the new bylaw P-6, if a public gathering of people doesn’t disclose its planned route to the police, it can be declared illegal; if protesters wear masks, the protest can be declared illegal; if the protest “disturb[s] the peace, public order, and safety,” it can be declared illegal; and if protesters “molest or jostle citizens…or obstruct their movement, pace, or presence,” the protest can be declared illegal. When a protest is declared illegal under P-6, protesters get aggressively herded into a kettle, and fined up to five hundred and eight dollars for a first offense — and nearly twenty-four hundred dollars for a third or greater offense.
Following P-6’s makeover in May of 2012, some people stopped going to protests entirely because they were were worried that a P-6 charge would give them a criminal record (an unfounded, but persistent rumor); because they couldn’t risk an encounter with the police; because they couldn’t shoulder hundreds of dollars in fines; or because, for health reasons, they could not tolerate being kettled and waiting for hours in the cold before being released. Others have begun complying with bylaw P-6: Some organizers get protest routes pre-approved by the Montréal police, warn protesters not to wear masks, and even change protest routes to appease the police or municipal legislators.
“It’s so obviously a way to take the wind out of the sails of social movements,” Aaron Lakoff, a Montréal activist and journalist, told me. “They know that they can start doing that by attacking the radical base. And then you get the more moderate, reformist elements to comply. It starts to create division within the movements too.” Lakoff been kettled and ticketed multiple times under P-6 for participating in protests that defied its provisions. When he went to one protest last year, trailed by a couple of younger community journalists he was informally training, he was skittish, and frustrated at his own skittishness. “I couldn’t risk getting arrested again,” he explained. “But it’s just a hard thing, because I want to tell people ‘Get the best report possible, don’t listen to what the police tell you, the police will say go over there, but you’re there to get a story, and the police don’t have the right to stop you.’ We live under supposed freedom of the press.”
Of course, not all protests — or protesters — are created equal. P-6 isn’t applied evenly across the population. Last June, everyone kettled on April 5th, 2013, was called to the Montréal courthouse for a preliminary court date. I filed into the building alongside hundreds of other activists — a kind of impromptu kettle reunion. The group was rowdy, with chanting and foot stomping. One anarchist activist banged a garbage can on the ground, making a delightfully deafening sound.
At precisely the same moment, just a couple blocks away, another group of people were also exercising their right to free speech: the Montréal police force. Along with other municipal employees, Montréal police officers walked out of work to protest plans for pension reform. They gathered on the steps of City Hall, and spilled out into the street. Amid cheers and blaring sirens, the protesters started a bonfire in the middle of the street. An observer tweeted that they’d woken up children in a nearby daycare. One firefighter sprayed City Hall with a fire hose. They were rowdy.
Lots of Montréal residents weren’t happy with the protest. Some who were otherwise perfectly content with the city’s police officers said that their actions were inappropriate, undignified. Montréal’s mayor called the protest “unacceptable.” But it was not declared illegal under P-6.
During the height of the protests in the spring and summer of 2012, a couple of celebrities emerged. One, Anarchopanda, née Julien Villeneuve, is a philosophy teacher and (surprise) anarchist activist. At some point during the student strike, he started attending the protests in a panda suit. “Originally it was just to put myself in front of the riot squad in the suit when they charged, to try to confuse them and maybe lessen the violence,” he told me. “But very quickly, it turned into a gigantic media frenzy sort of thing.” Over time, Villeneuve and his panda suit have become infamous in Montréal as a poster child for the opposition to P-6, in part because the bylaw bans masks — his panda head was confiscated during one protest. Though Villeneuve is too well-known to enjoy the benefits of anonymity, that’s not the case for everyone who wears masks to a protest. “If you take part in a protest that’s ‘illegal’ for one reason or another, and your picture is in the paper the next day and your boss might fire you,” he said, “well, you might want to be masked.”
Villeneuve has also been a leading force behind coordinating legal challenges to P-6, including a series of class action lawsuits that were filed after hundreds of protesters were kettled by the Montréal police. He also submitted a constitutional challenge of the bylaw, drafted as soon as P-6 was amended, based on the impact that he thought it would have on freedom of expression and right to protest. Since then, he’s updated the challenge, with proof that most of what he predicted has happened, he said. It was heard in court late last summer, and the judge is expected to give a decision later this year.
Other legal challenges to P-6 have also been in the works, and in February of 2015, anti-P-6 activists scored a major victory. The fines of three people ticketed under P-6 in March, 2013, were voided by Montréal’s municipal court. In the decision, the judge said that the tickets issued were riddled with errors, and that the clause they’d been ticketed under — requiring protest routes to be provided to the police — was fundamentally flawed, agreeing with the protestors’ argument that they couldn’t have given the protest route to the police beforehand, because they didn’t know it. A couple of weeks later, the city announced that it wouldn’t appeal the judge’s decision, and would be voiding almost two thousand tickets that had been issued under P-6 since it was amended in 2012.
Still, as a law, P-6 still isn’t going anywhere. At least, not as a result of this court ruling. In a speech announcing that the development, the mayor of Montréal emphasized that: “It’s the application of P-6 — and not its validity as a law — that are being put into question here,” he said. “This decision will allow us to do better when applying P-6 in the future.”
Villeneuve agrees with the mayor that P-6’s validity as a law wasn’t challenged by the judge’s ruling. Unfortunately, he said, the ruling seems to suggest that P-6 is valid in principle, as long as its application doesn’t involve kettling and mass ticketing. But he remains hopeful that P-6 will be declared unconstitutional, forcing the bylaw to be repealed, not just tweaked.
Even if P-6 is eventually repealed, it won’t be the end of protest repression in Canada. As lawyer and activist Irina Ceric notes in her thesis on the topic, Canadian laws regulating public assembly can be traced back to the Canadian Criminal Code’s roots in the English Common Law. Treason, sedition, riot, and unlawful assembly were outlawed as a group under English Common Law. Treason and sedition fell into relative obsolescence after the creation of the Canadian Criminal Code in 1893, but riot and unlawful assembly got taken along for the ride. As Ceric says in her thesis, “both the unlawful assembly and riot provisions remain relevant and are regularly charged and prosecuted to varying degrees across Canada.” There are countless examples to this effect over the past century of Canadian history. Just two years ago, when Parliament passed a law criminalizing the act of wearing a mask or any other means of identity concealment in a ‘riot’ or unlawful assembly (whether a protest is unlawful, or a riot, is determined by police on the scene). Conviction carries a ten-year prison sentence.
Every time an anti-protest law is applied, the authorities make a decision about what the protesters’ intentions are, and whether they should be allowed to continue to exercise their right to freedom of speech. The existence of anti-protest legislation creates a framework for some people to be denied that right, and punished for daring to attempt to exercise it.
That fact — that anti-protest legislation stands fundamentally at odds with the right to freedom of speech — is not why the judge dismissed the defendants’ fines. The righteousness of P-6 as a law isn’t being questioned by anyone in authority. I’m relieved to not have a fine in the hundreds of dollars hanging over my head, but I haven’t mistaken the dismissal for a true reaffirmation of the right to freedom of speech in Montréal, either.