I’m contacting you because I support the Occupy Movement and I’m very concerned about the evictions of Occupy communities that have already begun to occur in Canada and that are very likely to escalate in the next few days.  Today, I discussed the eviction issue with a colleague of mine who is a Criminology professor and lawyer (he knows the pertinent sections of the Criminal Code very well).  Below, I will summarize a few key points he made to me, points that might be helpful to you as you plan, strategically, how to respond to whatever your municipal government might be cooking up.

I will also paste, below, sections from an email my colleague sent me (citing specific sections of the Criminal Code), concerning: 1) Defense of Dwelling and 2) Right of Assembly.

Note that I myself am in no way a legal expert (I am a philosophy professor).  So, unfortunately, if you require clarification or legal interpretation concerning anything I’ve sent, I would be competent to provide neither.  But if you have specific questions, I would be happy to forward them to my colleague.  My colleague also indicated that he would be willing to talk to lawyers involved with this, if this would be helpful (and if he’s not overwhelmed with too many requests).

Also, note that I wrote the summary below very quickly, so it may have some errors or gaps in it.  I apologize for this; but it seems very important that I get this out quickly!

Finally, note that you have my permission to use portions of this email in any way you deem helpful (including distribution to other Occupy communities).

In solidarity,

 [Name Redacted]

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The first thing you should be aware of: the police are on precarious legal ground when they try to evict occupiers who are dwelling in tents.  The legal issue: the rights of an individual to peaceable possession of a dwelling.  Specifically:

1. The Criminal Code of Canada specifies that an individual has the right to defend his or her dwelling against trespassers.

2. There is legal precedent establishing that an occupied tent qualifies as a dwelling (R. v. Howe [No. 2][1983] N.S.J. No. 398; 57 NSR [2nd] 325 [N.S.C.A.]; see especially J.A. Morrison’s rationale set out at paragraphs 11-12 and 16)#

This means that the police – and the municipal authorities – are nervous about the legality of going in and forcibly removing people from tents.

Recommended Strategy: It is crucial that you fight the eviction notice on legal grounds.  An eviction notice is given to someone who already was in peaceable possession of a dwelling (otherwise, why would it be necessary to ‘evict’ them?).  Municipalities will try, via eviction notices, to make the claim that protesters have lost peaceable possession (once you’ve lost this status, there is very little you can do).  They will also try to force protesters to take down their tents, etc.  You should resist this (peaceably, of course), as taking down your tent constitutes loss of peaceable possession of your dwelling.

The second thing you need to be aware of: while everyone has, according to the Canadian Charter of Rights and Freedoms, the right to peaceful assembly, there are provisions in the Criminal Code that, in certain circumstances, make assembly a crime.

You probably know this well already, but, just in case you don’t: the police have no authority to interrupt or disperse a peaceful (lawful) assembly; but, if this assembly becomes “tumultuous” (i.e., causing fear in persons of the neighbourhood of the assembly), it is then an unlawful assembly.  At this point, the police have the power to read, to the crowd, the riot act.  Once this is done, the unlawful assembly becomes – legally – a riot.  Once this takes place, the situation is akin to “Martial Law”: the individual police officers are not only permitted to use force (batons, pepper-spray, etc.); they are also obliged to do precisely what their commanding officer tells them to do.  And note that possible punishments for participating in a riot are much more severe than those for participating in an unlawful assembly.

Strategy: if one’s municipality wanted to ‘play dirty’, they would do everything they could to provoke an assembly into becoming tumultuous (unlawful).  As you can imagine, there are various ways of doing this (remember G20?).  This must be prevented at all cost.  All assembly, and all resistance, must be peaceful.  Also, it is crucial that evidence of the assembly’s peaceful status be accumulated (e.g., video evidence).  This could be extremely important evidence down the road, should prosecution and/or defense, in court, become an issue.

The email excerpts below offer much more detail on what I’ve summarized briefly above, with specific references to sections of the Criminal Code.

1. Peaceable Possession of a Dwelling

Here are the sections in the CRIMINAL CODE OF CANADA, RSC 1985, c. C-46 (that’s the legal citation), on defence of a dwelling.

I think I should start with section 40, which lays down the basic rule.

Defence of dwelling

40. Every one who is in peaceable possession of a
dwelling-house, and every one lawfully assisting him or
acting under his authority, is justified in using as much
force as is necessary to prevent any person from forcibly
breaking into or forcibly entering the dwelling-house
without lawful authority.

So the obvious issues would be:

1. is a tent a “dwelling-house”?

I gave you the case from New Brunswick which contains the quotation from the Nova Scotia Court of Appeal — which says that a tent is a dwelling-house — because I haven’t been able to find the decision from the Nova Scotia Court of Appeal online. I wouldn’t worry about it, the quotation is enough for now. [SEE FOOTNOTE ABOVE!]

and

2. is an occupier living in a tent in a park in Toronto in “peacable possession” of his tent and dwelling house?

My view — of course this is a very general view, and it would depend upon the precise circumstances of the case — but my general view is that they have peaceable possession. That is why the city is trying to get an order – if the city gets an order, they will argue that the occupier’s right to possession of the tent and land is legally contested — and is not peaceable. That would mean that the occupier has lost his right to defend his tent.

So that’s the basic provision in the Criminal Code. But let me go further, and give you the following section, which helps to explain why this is so significant. I don’t know why I didn’t use the term when I spoke to you, but of course the idea behind s. 40 is that someone who comes into your dwelling without your permission is a trespasser. This includes the police.

Now take a gander at s. 41:

Defence of house or real property

41. (1) Every one who is in peaceable possession of a

dwelling-house or real property, and every one lawfully
assisting him or acting under his authority, is justified
in using force to prevent any person from trespassing on
the dwelling-house or real property, or to remove a
trespasser therefrom, if he uses no more force than is
necessary.

Assault by trespasser

(2) A trespasser who resists an attempt by a person who is
in peaceable possession of a dwelling-house or real
property, or a person lawfully assisting him or acting
under his authority to prevent his entry or to remove him,
shall be deemed to commit an assault without justification
or provocation.

I think this is what concerns the police. This section clearly gives an occupier in peaceable possession of his tent the right, not merely to defend himself from anyone who enters his dwelling house, but the additional right to enlist the aid of other people in helping him to remove the trespasser.

If you are a police officer, properly informed of the law, and a potential trespasser, this has to make you very nervous. I can’t read the minds of the chiefs of police and the crown attorney’s office — but I have had 30 years at the bar, in litigation. and if they asked me for my advice, I would tell them that they are in a very precarious position, legally.

Of course all of this is based on the claim that the tent is a dwelling house — and if you sleep there, that’s the most important thing — though obviously if you eat there, and have company come in, etc., etc., that would all point to the fact that it is a residence. Think of the homeless people in the park in Victoria, and the special facts that apply to them. They are in a very strong position in this
regard and really they should be using this terminology. They should be saying things like: “I’m living here, this is my house, and the police and the city have to respect that …”

The other thing is that they need to maintain peaceable possession.

My practical advice, on the basis of all of this, is that the occupiers need to fight against any order that removes the tents or other structures in which people are living. Because that is a prelude to the end — if the city deprives them of peaceable possession, these sections of the Criminal Code don’t apply, and it will be much easier for the politicians to order the police to come in and clear the park.

I should mention that there is a definition of “dwelling house” in section 2 of the Criminal Code. But let’s leave it here for now. I don’t want to swamp you with details, and I think you simply want the basic provisions. So let’s leave it at that, on the dwelling house.

2. Assembly

Here are the relevant provisions from the Criminal Code on unlawful assemblies. I think I should give you most of the relevant provisions.

I spoke about three stages when I spoke to you, but maybe it’s better to break it into four stages.

STAGE ONE; LAWFUL ASSEMBLY

I think we begin with a lawful assembly, which is where we are today.

STAGE TWO: UNLAWFUL ASSEMBLY

A lawful assembly becomes unlawful when it causes other people to fear, on reasonably grounds, that it will disturb the peace TUMULTUOUSLY.

This brings the following section of the CRIMINAL CODE OF CANADA, RSC 1985, c. C-46, into play:

Unlawful Assemblies and Riots

 

Unlawful assembly

63. (1) An unlawful assembly is an assembly of three or
more persons who, with intent to carry out any common
purpose, assemble in such a manner or so conduct
themselves when they are assembled as to cause persons in
the neighbourhood of the assembly to fear, on reasonable
grounds, that they

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without
reasonable cause provoke other persons to disturb the
peace tumultuously.

Section 63 has other subsections, but we don’t need to discuss them, at this point.

The punishment for participating in an unlawful assembly is in section 66:

 

Punishment for unlawful assembly

66. Every one who is a member of an unlawful assembly is
guilty of an offence punishable on summary conviction.

This is what the American system calls a misdemeanor. It
is a less serious offence, punishable by up to six months
in prison.

STAGE THREE: RIOT

If an unlawful assembly becomes tumultuous, it becomes a ”riot” under 64.

 

Riot

64. A riot is an unlawful assembly that has begun to
disturb the peace tumultuously.

I didn’t explain the punishment correctly, when I spoke to you. If you participate in a riot, as opposed to an unlawful assembly, you have committed an indictable offence. A felony. And the punishment goes up to a maximum of two years.

The relevant provision is section 65:

 

Punishment of rioter

65. Every one who takes part in a riot is guilty of an
indictable offence and liable to imprisonment for a term
not exceeding two years.

The thing is that this is for participating in a riot,
before they have “read the Riot Act”.

STAGE FOUR: RIOT, AFTER THE ASSEMBLED PERSONS HAVE BEEN
ORDERED TO DISPERSE (AFTER THE RIOT ACT HAS BEEN READ)

So let me go back a step. Once an unlawful assembly has begun to disturb the peace tumultuosly, it becomes a riot. This triggers section 67, which requires that a person in authority read the so-called “riot act”.

 

Reading proclamation

67. A person who is

(a) a justice, mayor or sheriff, or the lawful deputy of a
mayor or sheriff …

who receives notice that, at any place within the
jurisdiction of the person, twelve or more persons are
unlawfully and riotously assembled together shall go to
that place and, after approaching as near as is safe, if
the person is satisfied that a riot is in progress, shall
command silence and thereupon make or cause to be made in
a loud voice a proclamation in the following words or to
the like effect:

Her Majesty the Queen charges and commands all persons
being assembled immediately to disperse and peaceably to
depart to their habitations or to their lawful business on
the pain of being guilty of an offence for which, on
conviction, they may be sentenced to imprisonment for
life. GOD SAVE THE QUEEN.

The justice or mayor or sheriff doesn’t have to use the exact words of the section. Something to the same effect is enough.

The punishment for taking part in a riot AFTER THE ASSEMBLED PERSONS HAVE BEEN ORDERED TO DISPERSE is contained in section 65.

 

Offences related to proclamation

68. Every one is guilty of an indictable offence and
liable to imprisonment for life who

(a) opposes, hinders or assaults, wilfully and with force,
a person who begins to make or is about to begin to make
or is making the proclamation referred to in section 67 so
that it is not made;

(b) does not peaceably disperse and depart from a place
where the proclamation referred to in section 67 is made
within thirty minutes after it is made; or

(c) does not depart from a place within thirty minutes
when he has reasonable grounds to believe that the
proclamation referred to in section 67 would have been
made in that place if some person had not opposed,
hindered or assaulted, wilfully and with force, a person
who would have made it.

This is the severe provision that I mentioned. There are really two offences here. The first consists of interfering (my word) with the authority making the proclamation. The second is refusing to disperse. Basically the assembled persons have 30 minutes to leave.

I have issues with 68(c), which looks unconstitutional, but let’s leave that for now.

I should also mention the provision that I mentioned, regarding peace officers (the police), who have a special duty to suppress a riot.

 

Section 69

Neglect by peace officer

69. A peace officer who receives notice that there is a
riot within his jurisdiction and, without reasonable
excuse, fails to take all reasonable steps to suppress the
riot is guilty of an indictable offence and liable to
imprisonment for a term not exceeding two years.

I think the principle behind this is simply that the authorities can do whatever they have to do, to suppress a riot.

Once a riot starts, and the proclamation has been read, you’re into war. And of course you don’t want to go there.

I think the occupiers need to educate themselves, and be aware of these provisions. Really I think their legal goal at this point is to avoid any escalations, and keep their assemblies lawful. Really I think the essence of it is that they have respected the peace and will continue to do so. They have no intention of disturbing the peace.