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Marie-Ève Sylveste, Professor, Civil Law section, University of Ottawa
June 12, 2012
PHOTO CAPTION: Montreal’s police force made 34 arrests deemed “preventative” over the Formula 1 Grand Prix weekend.
The City of Montreal’s police service (SPVM) made 34 “preventative” arrests this weekend surrounding the events of Montreal’s Grand Prix, as well as augmented identity controls and searches in the metro and onsite at the Grand Prix.
In so doing, the SPVM has suggested that arrests can be made in virtue of article 31 of the Criminal Code without them ending up in charges. Not only are we of the opinion that the Criminal Code does not allow for preventative arrests, but we are also very concerned to observe that police officers have been incessantly multiplying their recourse to such measures in Canada over recent years, and as such, have acted as though it’s the most normal thing in a democratic society.
Are we witnessing the rise of a preventative state?
Article 31 of the Criminal Code [transl. note: see p.50 of Criminal Code]
In accordance with article 31, “every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace.”
According to the leading case Brown vs. Durham Regional Police Force in Ontario’s Court of Appeals, article 31 of the Criminal Code does not all for an arrest for an apprehended breach of the peace. A criminal act must have been committed or again be on the point of being committed.
Moreover, even if by virtue of common law there exists a form of preventative arrest power to ensure public security, it is extremely limited: the apprehended breach must be imminent, founded, and the risk that it be materialized must be real and substantial. This power must furthermore be exercised with respect of basic human rights, such as the freedom of expression, the freedom of association and of peaceful assembly. To paraphrase the courts, we need to feel in security, but we must, above all, be free.
The courts have had the opportunity to pronounce themselves recently on the preventative arrests made in the midst of the mass arrests that took place at the G20 summit in Toronto. For example, in the Puddy arrest, the Provincial Court of Ontario indicated that conducting preventative arrests during protests boils down to penalizing dissidence. The Court added that it could actually be the hijacking of the political message belonging to people who have the right to peacefully protest by discrediting their message and delegitimizing it through mass arrests.
Charged with investigating the G20 events, the Office of the Independent Police Review Director of Ontario also insisted that preventative arrests can only be made by virtue of the common law under specific conditions: they must rest on objective bases that lead to believe that a breach of peace will be committed, that is to say that there is sufficient grounds to believe that a breach of the peace is imminent.
For over 10 years now, Canada have been the object of harsh criticism concerning its recourse of mass arrests and, more recently, of preventative arrests made during peaceful protests. In 2006, the UN’s Human Rights Council stated that it was preoccupied [transl. note: our link] ”with the information according to which the police, particularly in the City of Montreal, would have proceeded to making mass arrests of protesters”. The Inter-American Commission on Human Rights of the Organization of American States added, by referring to the UN’s Human Rights Council, that “[States] should make sure that each individual’s right to peacefully participate in demonstrations of social protest be respected and that only those who have committed penal infractions during these demonstrations be arrested”.
Recently, the Quebec Bar Association also challenged the legality of preventative arrests in a letter sent to Prime Minister Stephen Harper asking that a public independent inquiry into the G20 events be held.
Preventative arrests are illegal and arbitrary when no criminal act has been committed or when no breach of peace is imminent. These arrests are susceptible of directly harming fundamental rights protected by our Charters of Rights and Freedoms, especially when they are combined with the practice of political profiling, of penalizing political dissidence, and of dissuading dissuading peaceful demonstrations.
We can neither punish nor arrest people for infractions that they have yet to commit or are not on the point of committing. Democracy demands that we take risks and that police power be strictly controlled.
Translated from the original French by Translating the printemps érable.
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