Movement Defense: Legal Information for Wet’suwet’en Solidarity
All around the world, people are answering our Call for Solidarity.
There have been many requests from around so-called “Canada” for movement legal defense information. Here is a primer. This only applies in the context of Canadian colonial law.
This is not legal advice! This is movement-based legal defense information, which takes into account different lived experiences with state violence, the politicized nature of struggle, and the need for collective instead of individual defense strategies. In this regard, movement legal defense can be different from a lawyer’s legal advice. If seeking legal advice, speak to lawyers who have themselves been active in social movements.
The following information has been produced by Harsha Walia and edited by Irina Ceric, adapted from various legal resources produced by movement-based legal collectives in Ontario and BC, including the Movement Defense Committee and Olympics Resistance Network Legal Committee, as well as previous work by Mac Scott, Garth Mullins, Alissa Westergard-Thorpe, Irina Ceric, and Harsha Walia. This guide was NOT created by Unist’ot’en or their lawyers and is for informational purposes only.
BEFORE YOU GO:
- Don’t bring illegalized drugs, weapons or your address book with you to a direct action; it will make the cops’ jobs easier! If you are bringing your smartphone, make sure that it locks with a code (the longer the better), and turn off any facial recognition or fingerprint recognition unlocking.
- Do not talk to the cops, unless you are legally required to do so. If you are detained or arrested, you won’t be able to ‘convince’ them otherwise and may implicate someone else. Find out if there is a designated movement-side police liaison at the action and talk to them instead.
- Let people know if you do not want to be in an arrest-able situation, but always plan for the possibility of arrest. Have a jail support plan. Make sure someone (friend, family, member of affinity group), knows: the legal numbers to find information about you in case of an arrest; if work or family should be contacted; if pets need to be fed; if children or Elders or others need care arranged; medication needs etc.
- Legal rights are rarely reality. Keep your comrades close, and ensure people’s heightened vulnerabilities/lived experiences of state violence are taken into account in your affinity group.
Regardless of your legal immigration status if the police or immigration officers are asking you questions for any reason, first ask if you are free to go. If they say yes – then walk away. You are free to leave any such encounter unless you are being detained or arrested.
If you feel the police are not being clear, then specifically ask if you are being detained. You do NOT need to provide ID (see the list of enumerated grounds below). Also be aware of answering any questions regarding your immigration status as that is usually how they figure out your status.
You do not have to identify yourself (only ever name, address, birthdate) to police unless:
- You are arrested or are being given a ticket (for a municipal or provincial offense) or appearance notice,
- You are driving a vehicle (you must show your driver’s license, passengers don’t have to identify themselves), or
- You are in a bar or movie theatre (you must prove you are old enough).
Lying or refusing to identify yourself when you must, can lead to further charges of obstruction. Activists who refuse to identify themselves when being arrested will usually be held in custody until they identify themselves or the Justice of the Peace orders them to identify.
If the police stop you and start asking you questions, ask if you are free to go before you answer anything. If the police say “no,” then you are being detained. Specifically ask if you are being detained. Ask why you are being detained — the police must tell you the reason, remember this reason. Take the officer’s name, department, and badge number. Remember you do not have to identify yourself or answer their questions if you are being detained. The police can pat you down, but only to look for weapons if there are reasonable grounds to believe that there is a safety risk.
The police can arrest you only if:
- They have seen you committing an offense or have reasonable grounds to believe you have committed an indictable or hybrid offense,
- They have a warrant for your arrest,
- You have breached the peace or are drunk in a public place, or
- They have reason to believe you are about to commit a terrorist act.
Note: Apprehension is also possible under different provincial mental health legislation.
Remember to ask if you are free to go. If you are arrested, you have the right to be told what you are charged with and that you have a right to a lawyer of your choice. You have to identify yourself (name, address, birthdate only); do NOT provide additional information. Regardless of your legal immigration status, you are not required to answer any questions about your status to police.
Legally, the police are only allowed to use as much force as is necessary to arrest you or ensure that the situation is safe. Make sure to note the arresting officer’s name and badge number and document any visible injuries.
If you are being arrested, any pulling, running or physical struggle will probably result in additional charges. Using passive resistance or going limp does not count as resisting arrest. Sometimes people are released right away with an appearance notice for court, but this is usually only for minor charges when they are sure of your identity, appearance in court, and that you won’t continue to break the law.
Dealing with the Police:
Get the police name, department, and note the date and time of police interaction. Beyond identifying yourself (in the circumstances listed above), you do not need to answer any other questions or make a statement. Choosing to exercise your right to remain silent will not be held against you by the court, although the police might try to convince you otherwise. Anything you say to the police will be used as evidence against you. Trying to say you were not at fault may not help you. Never speak to the police about other people.
Police officers are allowed to lie in questioning; they may claim that your friends have told them what happened. The police are not allowed to promise you anything for your cooperation or confession. You are not required to take a lie detector test, they are inadmissible in court and the police will not release you just because you pass such a test.
It is better not to say anything to the police than to lie – lying can lead to charges of obstruction. So it is always best to remain silent, especially under arrest, and ask to speak to your lawyer.
Search and Seizure:
The police cannot search you unless:
- You are arrested (the police can do a full search of you and your possessions, but only to find and prevent the destruction of evidence, and for the safety of officers – searches must not be abusive),
- You are detained (the police can pat you down to feel for weapons that they have a reason to think you might use against them or yourself),
- You have a prior search clause or they have a search warrant,
- You consent to a search (so never give consent to a search).
The most common way police overstep with searches is by asking for your consent to search your belongings or person. So always tell the police you are not consenting, even if you think the search might be legal. Do not consent to searching yourself such as turning out your own pockets or giving yourself a pat-down. It is probably not a good idea to physically resist a search, but make sure witnesses hear you refusing the search. Your refusal may make anything they find inadmissible. Strip searches should not be done by an officer of the opposite sex or in a public area, and the police are not supposed to conduct strip searches routinely.
The police are allowed to stop you if you are driving, but are only allowed to search your car if:
- You consent (so never give consent to a search of your car),
- You have committed a criminal offense, you are arrested, or there is something in your car that gives them a reasonable cause for doing a search, such as the smell of pot or beer bottle caps.
Breach of the Peace:
This gives the police the right to arrest you to prevent or stop a breach of the peace but isn’t a charge in itself. There is no record of the charge. They will usually release you soon after the action unless they are going to charge for breaking some other law, and in any case within 24 hours. It is a commonly used police tactic to use breaching charges so the police can round people up, put them in police vehicles, drive them far from their original location, and release them there.
Causing a disturbance:
This offense includes fighting, screaming, shouting, swearing, singing, using insulting language, impeding or molesting people, or loitering in a public place and obstructing people. It has to be in or near a public place.
You can commit this offense by getting together with at least two other people, intending to carry out some common purpose, in a manner that causes people nearby to fear that you will “disturb the peace tumultuously”, or without a reasonable cause, provoke others to “disturb the peace tumultuously”. Tumultuous involves an element of violence. Although the police will usually announce that an assembly has become unlawful (usually by ordering you to disperse) it is not essential.
This is an unlawful assembly that in fact “has begun to disturb the peace tumultuously”. If a sheriff or sheriff’s deputy etc., reads these certain magic words – even if you cannot hear them- after a riot has started and you are still around after 30 minutes you will have committed a much more serious offense.
Note: Both riot and unlawful assembly are crimes of mere presence. All the Crown needs to demonstrate is that you were part of the “common purpose” (e.g., you were participating in the demo or action), and that you stayed when it became an unlawful assembly. You don’t actually have to have done anything to contribute to the “tumultuous” nature of the assembly.
Contempt of court:
Contempt of court covers a number of things that are considered disrespectful or disobedient of the court. These can range from things done in the courtroom (like swearing at the judge) to disobeying a court order (eg: an injunction). Deliberately violating the terms of an injunction (a court order usually obtained by a corporation against land defenders) can lead to our arrest for contempt of court. For example, if police read out the injunction and order people to leave the area and you choose to remain, you could be arrested for contempt.
Contempt of court is a unique, common law (judge made) offense that is not a Criminal Code offense. There are two kinds of contempt – civil and criminal – and both are meant to punish “willful” and “deliberate” behaviour that interferes with the administration of justice. For contempt to be considered criminal, there must be conduct amounting to “public defiance” which demonstrates “contempt” for the justice system.
If you are charged with contempt, you will be tried by a superior court judge, not a jury, and will have the opportunity to present a defense. The possible penalties if found guilty of criminal or civil contempt are the same: fines or terms of imprisonment. Sentences for contempt arising out of civil disobedience and land defense have ranged from a hundred dollars in fines to jail terms. Contempt convictions do not result in criminal records because they are not Criminal Code offenses but they can be entered onto other police databases.
Intimidation by blocking a road:
Involves blocking or obstructing a highway without lawful authority, to prevent people from doing something they have a lawful right to do.
Resisting or obstructing a Peace Officer:
You can be charged with this if you resist or willfully obstruct a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer. This includes resisting arrest – but going limp or refusing to unlock is not resisting. Holding onto a pole or struggling against arrest is resisting. Locking down when the officer has placed you under arrest is resisting.
As a general rule, anything you do more than you would do if you were unconscious that is not cooperating with the arresting officer is probably resisting arrest. Anything you do to interfere with an officer in the execution of their duty is considered obstruction, e.g. laying down in front of a police car or getting in the way of an arrest.
Assaulting a Peace Officer/resist arrest:
This is an assault of a peace officer engaged in the execution of his or her duty or a person acting in aid of such an officer. This offense includes resisting or preventing the lawful arrest or detention of you or another person. If the officer exceeds his or her powers so far as to exceed his or her duty and authority, the officer is no longer acting in the execution of duty.
Includes willfully destroying or damaging property, rendering property dangerous, useless, inoperative or ineffective, or obstructing, interrupting or interfering with the lawful use, enjoyment or operation of property. This would include spray-painting, chaining doors shut, or blockading entrances.
Assault by trespass:
You are deemed to have committed assault if you trespass on property and resist an attempt by the owner or someone acting under the owner’s authority, to prevent your entry or to remove you. While this does not apply to public spaces, many government buildings and offices as well as malls are considered at least partly private, thus this charge would apply. If you do not resist removal by going limp or voluntarily leaving, your trespass is just a provincial ticket-able offense, not a criminal charge.
AFTER AN ARREST:
If you are being taken into custody, ask to speak to your lawyer immediately and tell the police you want to remain silent. The police may keep asking questions, but you do not have to answer them. Do not make any statements or sign any declarations. Do not discuss your case with anyone while being held in jail, and do not ask others about their cases. The police may have someone planted in the cells posing as prisoners, or a prisoner may act as an informer. Custody may also involve strip searches though that is usually selectively done. Strip searches must be conducted by an officer of the same sex as you and in private.
You must be brought before a justice of the peace “as soon as practicable” and in any case within 24 hours. You might be released from the police station either by the “officer in charge” or by a justice of the peace if one is brought to the station or by teleconference. You may be released in the following ways:
- by the police once you have identified yourself . A notice to appear will be sent to your house by the police and you may be asked to sign a promise to appear (these releases often come with conditions).
- by the Justice of the Peace, possibly with conditions on your promise to appear, or after a bail hearing in court- you may have to post bail, have a surety sign for you or agree to conditions
If you decide not to identify yourself or to provide your address when you are arrested, you will likely be held for a bail hearing and will likely have additional charges of obstruction laid. You have a right to reasonable bail, and unless there are special circumstances (if you have another case pending or you are non-resident of Canada) it is up to the Crown to demonstrate why you shouldn’t be released. The court may refuse release if it believes: you are likely to commit an offense or you will not show up for trial.
People arrested at political events are sometimes given release conditions that restrict what they can do after leaving custody, even if that action would normally be legal. These include non-association orders with others or not being allowed to participate in any further (even lawful) protest. These can later be challenged, with some difficulty, but you may be kept in custody until you sign them and if they are violated you may be taken back into custody. It’s always a good idea to speak to a lawyer before signing any conditions.
Youth have the same basic legal rights as adults do. However, if you are aged 12 to 17, you are a “young person” under Canadian criminal law. When dealing with a young person, a police officer must first consider measures that do not involve arresting, such as a warning or talking to the young person’s parents. If the young person is detained or arrested, he or she must be kept separate from adult detainees. The police must also take extra caution in making sure the young person understands his or her right to call a lawyer and ensure a parent or adult friend is present before trying to get a statement. Police officers must also contact the young person’s parent or guardian and let them know the reason for arrest and the place that the young person is being detained..
Non-citizens include foreign nationals (with or without status) and permanent residents. Regardless of your immigration status, if the police or immigration officers are asking you questions for any reason, first ask if you are free to go. If you are being detained or arrested by police, you never need to answer questions about your status.
It is highly improbable that permanent residents or Protected Persons will be detained for immigration reasons (they need a specific warrant). People without any legal status in Canada (including visitors) could be detained by immigration. People without status can only be arrested and detained if the immigration officer knows your name, and has reason to believe you are inadmissible and they have reasons to believe you are either a danger to the public or unlikely to show up for hearings, appointments or removal.
If you are detained by immigration, you are required to answer the immigration officer’s questions truthfully and fully. Lying to an immigration officer can be grounds to remove you, and may make it so you cannot come back to Canada for two years. If detained under immigration law, the non-citizen has a right to a detention review within 48 hours or so.
You have the right to contact counsel regardless of your status once detained and you should contact criminal and immigration counsel. Always contact counsel before signing anything and exercise you right to remain. Note: certain, though not all, criminal charges and/or convictions can eventually lead to inadmissibility proceedings and removal from the country.