Know Your Rights Workshop Series: Your Right to Protest — Assessing Impacts, Accessing Legal Support, and More

Michelle (sitting, center-left) and Kareem (standing, center) from the Law Union of BC present a know-your-rights workshop, with community member Herb Varley (sitting, right)

Your Right to Protest: Assessing Impacts, Accessing Legal Support, and More

On January 31 at the Carnegie Community Centre Theatre, Michelle and Kareem from the Law Union of BC presented a legal education workshop on the right to protest, with co-presenter Herb Varley, members of the community with personal experiences of criminalization under various contexts, including during a protest. The presenters provided an informative and approachable workshop while calling on and honouring the different kinds of knowledge already present in the room.

Civil disobedience: What is it?

For those who plan and participate in protests or actions involving civil disobedience, having access to legal support is important. Civil disobedience is the strategic refusal to comply with certain laws or obligations as a form of peaceful protest. These actions are planned and carried out by groups of people, and include sit-ins, hunger strikes, peaceful blockades, and marches. 

The blockading of railways across so-called Canada as a response to the current RCMP raids at Unist’ot’en is a strong example of civil disobedience–people across the country are mobilizing to stop the flow of goods and the productivity of one of the Canadian state’s most important historical assets–the railway, while sending a clear message that the blockades and, ultimately, the anti-pipeline actions are protests against environmental destruction, settler-colonialism, and capitalism itself. Well-coordinated acts of civil disobedience bring together the symbolic–resistance against centuries of Indigenous displacement by occupying the railways that wind through their lands–and the material–physically preventing goods, trains, and capital from moving and making more profit.

Although acts of civil disobedience are meant to be peaceful, people still risk being arrested for engaging in them. If people are risking arrest for a protest, they need to know that legal aid has been planned by the organizers, and that they will be monitored by peers and supported in the event of arrest and potentially trial and jail.

Those engaging in a civil disobedience protest:

  • Should be aware if there is a risk of arrest so that they are prepared, as well as to give them the option of withdrawing from a protest if they decide that they cannot be arrested for various reasons (e.g. are caretakers or guardians, are under certain conditions of probation, are undocumented, etc.)
  • Should be aware of how to secure legal aid
  • Should be accounted for by organizers during and after a protest, and supported through arrest, jail, or trial

Organizers and participants of a civil disobedience action must discuss:

  • If risking arrest and being arrested fall in line with their long-term and short-term objectives
  • If they have the resources to support people who are arrested
  • If people participating in the action are prepared to be arrested
  • What are the costs and benefits of being arrested at an action?

The potential impacts of an arrest:

What are some potential impacts of being arrested? These are some considerations when deciding whether or not you would like to risk arrest.

  • Will I get a criminal record?
  • Will this impact my immigration status? 
  • Can I be deported?
  • Can I lose custody of my children because of this?
  • Employment and housing prospects
  • Impact on existing probation, parole, bail conditions
  • International travel
  • Do I have to pay for a lawyer?

Legal Aid is an option for those who have little or no income.

It is also important to consider your own medical or individual needs. If you require any kind of drug, including medication, or experience a disability, inform organizers and legal support providers. Police misconduct is commonplace, and it can’t be guaranteed that you will have access to substances or accessibility needs.

On the day of the protest:

Before you go:

  • Bring: Photo ID, pen/paper, prescription pill bottle with 24-48hrs medication
  • Do not bring: Phone, weapons, drugs, wallet
  • If you must bring your phone, use long numeric password, NOT fingerprint or facial recognition
  • Don’t talk to the police!
  • Stick to the plan!

Interacting with the police

Your legal rights in theory are very different from your rights in practice. An interaction with the police can play out very differently than expectations built on laws and codes of conduct. Police misconduct and brutality continue to occur despite legal protections for protesters and anyone interacting with police. 

When dealing with the police, stay calm and assert your understanding of your rights and the law. Never physically interfere with the police if they are detaining, searching, or arresting you since you can incur additional charges. Try to gather as much information as you can, such as the name, badge or car numbers of the officers involved, and if the police intend to lay charges on you.

In any situation in public, whether or not you are involved in an active protest action, do not speak to police except to ask if you are being detained. If the police tell you that you are free to go or that you are not being detained, or if they avoid your question, the police have no right to hold you further. You do not have to identify yourself or answer any questions. You are free to leave.

Police can detain you without arresting you, but they must have reasonable grounds to believe that you are connected to a specific criminal activity. You must be told that you are being detained or that you are not free to go, after which you cannot leave. Do not answer any questions without a lawyer. 

If you are being arrested, you must identify yourself with a name, address, and date of birth. If you lie about these details, you may be charged with obstruction. You have the right to ask for the reasons for your arrest and be told of the reasons. You have the right to speak to a lawyer immediately after being arrested–if you are denied this right, you may appeal your charge and likely win. Police also commonly breach your right to be read your rights upon arrest, so make sure to ask them what your rights are. 

If necessary, you have the right to make more than one phone call in order to reach a lawyer

  • You can ask to call the 24/7 Brydges Line if you do not already have the number of a lawyer on-hand before heading into a protest or situation in which arrest is possible
  • You are entitled to multiple phone calls until you reach a lawyer. Once you reach a lawyer and have a conversation with them, the police may continue to question you, as your right to speak with a lawyer will have been fulfilled. 
  • Phone number: 1-866-458-5500 (call no charge)

Herb Varley (standing, centre) speaking on his own experiences with criminalization and police discrimination for his activism work and responding to questions from presenters Michelle and Kareem. Herb is a prominent Indigenous activist and community member in the DTES.

Types of Arrest

Arrest with a warrant: If the police claim to have a warrant for your arrest, you may request to see it.

Arrest under the Mental Health Act: Under the MHA, police can detain you at a hospital if you are perceived by police to be acting in a way that is dangerous to yourself or others. You may also be taken to a sobering unit (“drunk tank”) for 4 to 24 hours if you are unable to care for yourself, are a danger to yourself, or causing a disturbance while inebriated.

Breaching the peace: This means you are causing a disturbance that involves the potential for violence. This in itself is not a criminal offence; you may be arrested and must be released after being removed from the area.

I am being arrested. What do I do?

If you are arrested, you do not have to speak to police. It is advised that you don’t talk to police about anything, even if it seems like they are trying to engage you in a friendly conversation. The only information you need to give is your name, date of birth, and address. Police are allowed to lie as a way to intimidate you into giving them information, including threatening you with more severe legal consequences for not talking. Do not talk to police without the presence of a lawyer.

You have the right to remain silent and the right to counsel. It doesn’t help you to engage in conversation with police in order to diffuse the situation or appear friendly. Identify yourself, invoke your right to speak to a lawyer (“counsel”), and remain silent!

If you are not under arrest, you can state that you do not consent to a search. However, if you are under arrest, police may search you and your belongings without your consent and seize your possessions, including your phone. If possible, try not to bring your phone during a protest. 

If you are arrested during a protest, you may or may not be taken to jail (put into custody). Likely, you will be released on your Promise to Appear in court at a later date. Promises to Appear include conditions of release, such as requiring you to return to court on the scheduled date and to “keep the peace and be of good behaviour.” If you don’t follow these conditions, you may also be charged with a Breach.

If you are put into custody, state your right to speak to a lawyer immediately. 

Common charges

  • Mischief, unlawful assembly, obstructing a police officer, resisting arrest, trespassing, etc. 
  • Note that passive resistance (such as going limp when being arrested) does not mean you are resisting arrest.
  • More serious charges include assault, assault with a weapon, assault of a peace officer, etc. 
  • The Crown may or may not proceed to charge and prosecute you if you are arrested

Law Union of BC

This presentation was given by Michelle Silongan and Kareem Ibrahim of the Law Union of BC, a progressive organization of lawyers, law students, legal workers, activists and community members who seek to use the law as a tool for social change. With thanks to Herb Varley for speaking on their personal experiences and knowledge of how the legal system works for people on the ground.

For more information, feel free to contact them:

Herb: (herb.varley@gmail.com

Michelle: (silongan@stlawbc.ca)

Kareem: (kareem.ibrahim@mail.mcgill.ca