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Read them the Riot Act (and seven other legal options to help disperse the protest crowd)


In a memo to city council, city solicitor David White outlined an overview of laws that may apply in this case.

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The City of Ottawa’s legal department has offered city councillors eight potential legal avenues to help dispel protesters, starting with, quite literally, reading them the Riot Act.

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In a memo to city council, city solicitor David White outlined an overview of laws that may apply in this case.
The first is declaring the protest to be a “riot” under Section 67 of the Criminal Code .

Under the section, a justice, mayor or sheriff or a deputy who receives notice that 12 or more people are “unlawfully and riotously assembled together” can go to that place, approach as close as is safe and read what is colloquially known as “the Riot Act” in a loud voice:

“Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitation or to their lawful business on the pain of being guilty of an offence for which, on conviction they may be sentenced to life in prison.”

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This proclamation ends with, “God Save the Queen.”

It may not even be necessary to make the proclamation, says the memo, which was silent on whether it should be read while wearing a powdered wig.

However, there has been no indication from the police whether making the proclamation would increase their existing enforcement powers “or be of any additional benefit for their ongoing operations,” the memo said.

The second option is requesting the assistance of the armed forces under Section 277 of the National Defence Act .
Under the act, where there is a riot or where a disturbance is likely to occur, the attorney general may write to the chief of defence staff, who, subject to the direction of the minister of defence, can call out part of the armed forces. Soldiers would be empowered to act as constables and are peace officers under the law. Duties could include patrolling areas to protect people and property, but soldiers are not considered to be in the service of the local police.

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The third option is invoking the 1988 Federal Emergencies Act , which succeeded the War Measures Act. The Governor in Council —  the federal cabinet — may declare a public order emergency after consulting with the lieutenant governor. However, there are limitations. A public order emergency can’t be declared if the effects of the emergency are confined to one province.

The Governor in Council may make orders or regulations, including prohibiting a public assembly that “may reasonably be expected to lead to a breach of the peace.”

The fourth option allows the head of a municipal council or the lieutenant governor in council (the provincial cabinet) to declare an emergency under the Emergency Management and Civil Protection Act .

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Under Section 4 of the act, municipalities can make orders that fall under the scope of their authority. Under Section 7, the provincial cabinet or the premier can declare an emergency throughout the province, or in one part, and may make orders, including closing public or private places. This was recently invoked during the pandemic.

As it stands, police have not advised the city of any gap in their existing powers that might be addressed under an emergency declaration, said the memo.

The fifth option is using administrative monetary penalties . The City of Kingston used these in 2020 to address large student gatherings associated with bylaw violations.

However, the city memo notes that Ottawa operates a system of fines under the Provincial Offences Act and is set by the Ontario Court of Justice.

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Kingston also took steps to release the names of the 18 who had attended a “general nuisance party.” However, Ontario’s information and privacy commissioner has been of the view that municipalities should not release names proactively — and it’s not clear if this would be a deterrent in this case.

The sixth option, civil remedies and injunction relief , can be sought by a party in a civil action. The city may also commence a civil action seeking damages against protesters and organizers for civil conspiracy, public nuisance and trespass.

Section 12 of the Emergency and Civil Protection Act provides the right of action to recover money spent against any person who caused the emergency. When an injunction is in place, contempt of court proceedings can be initiated and the terms of the order can be enforced by police.

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There are risks. Success depends on the particulars of the order sought, particularly if it engages the Charter of Rights and Freedoms, said the memo. If the injunction is not ordered or if the requested scope is reduced, it “may be misunderstood or misrepresented as judicial condonement of the unlawful conduct in question.”

The seventh option is regulations about storing and handling fuel . These are enforced by other levels of government, but the city’s use and care of roads bylaw prohibits spilling substances on a highway. The bylaw can be enforced by bylaw officers or police, but so far there’s been no evidence of any violations.

The eighth option is auto insurance regulations . The city’s legal team said it couldn’t comment on coverage issues that may arise between the owners and operators of the trucks and their insurers.

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White notes that none of these eight legal measures provides a resolution to the situation — but one or more could be used as part of the overall strategy in concert with police who are working under the Police Services Act while respecting constitutional protections under the Charter of Rights and Freedoms.

The legal department’s staff has been working with colleagues at the Ottawa Police Service, but the legal department does not and cannot provide legal advice to police on the exercise of their enforcement powers, he said.

City council also has no legal authority to direct the police service. The police services board may not direct the police chief in respect to operational decisions under the Police Services Act.

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