May 18 marked the tenth anniversary of the hasty adoption of the “special law” fabricated by the Liberal government of Jean Charest to put an end to the student mobilizations of spring 2012. If there has already been much talk of the tenth anniversary of the strike student in recent months, little has been said about this dark episode for the right to demonstrate in the province.
Just 10 years ago, the National Assembly adopted in less than 24 hours Bill 78, which became Bill 12, to force strikers back to class and short-circuit student protest. At the same time, the City of Montreal amended its by-law P-6 in order to oblige the disclosure of the route of the demonstrations, to prohibit covering the face and to allow the distribution of more salty fines.
We then witnessed a very special consultation between the Government of Quebec, the City of Montreal and the police forces in order to repress demonstrations deemed disturbing. A maneuver that was decried not only by many citizen organizations, but also by the Barreau du Québec, the Human Rights Commission and by the UN, which, the day after a wave of arrests during demonstrations held after adoption of Bill 12, rebuffed the Quebec government.
This disturbing moment was however quickly swept under the carpet; swallowed up by the end of the strike, the change of government and the repeal of the law, as of September 2012. Swept under the rug, except by the activists who, for years, held their own through legal proceedings time-consuming and costly, to ensure that the abusive limitation of the right to demonstrate observed during the strike is not permanent.
Jacinthe Poisson coordinates the work of the League for Rights and Freedoms on the right to demonstrate. Challenged by this issue since her own arrest at the G20 in Toronto in 2010, the jurist and activist points out that there have been, thanks to militant perseverance, major victories since 2012: since 2015, there has been no more mass arrests by encirclement during demonstrations. By-law P-6 was repealed in 2019 (after leading to the arrest of thousands of protesters between 2012 and 2015), as was section 500.1 of the Highway Safety Code, which prohibited obstructing traffic except as part of a demonstration previously authorized by the authorities. Certain weapons used by the SPVM to disperse demonstrations, and which caused serious injuries to demonstrators in 2012, are no longer used. But many obstacles remain.
The League of Rights and Freedoms has demonstrated in a report that there is a shift from the criminalization of demonstrations to their heavy regulation, mainly through municipal regulations. “Almost all municipalities in Quebec have regulations strictly governing the right to demonstrate,” points out Jacinthe Poisson. For example, we see the requirement to give directions, to obtain a permit, to obtain liability insurance, the ban on making noise, using loudspeakers, posting political …” These constraints have a demotivating effect.
However, case law warns municipalities against such excessive regulation. Regarding the obligation to disclose the itinerary, the Quebec Court of Appeal affirmed in 2019 in Berube c. Quebec city — a decision partially invalidating section 19.2 of the Peace and Good Order By-law of the City of Quebec — that such an obligation unjustifiably interferes with the freedoms of expression and peaceful assembly; adding that the integration of police services in the preparation of a demonstration had “something contradictory” to the exercise of these freedoms.
However, the municipalities continue to adopt such by-laws — moreover, we learned this week that the City of Quebec has still not repealed the unconstitutional provisions of section 19.2 — which outlines a strong tendency to control the scope of the dispute.
Jacinthe Poisson points out that still in February 2022, while convoys of truckers were invading the national capital, the City of Quebec was quietly modifying its internal regulations in order to give the director of the police department the power to establish and modify the rules for occupying the public domain during demonstrations. “This is a very broad power, which can even be exercised to prevent a demonstration. It more or less went under the radar because we said to ourselves: oh! The convoy of truckers, we can understand that the City wants to prevent skids. But these types of regulatory changes remain, regardless of the political cause…”
The right to demonstrate does not only serve to protect demonstrations that bolster public opinion. If we believe in the existence of this right, we must believe in it at all times. However, the repression of the 2012 strike showed it well: the demonstration is tolerable as long as the clamor of the street does not threaten the ambitions of power. And when the balance of power shifts, the arsenal is in place to quell the dispute. It is for this reason that we must keep an eye on the deployment of these systems ahead of crises.