The right to protest and conduct picket activity is guaranteed under sections 2(b) and 2(c) of the Canadian Charter of Rights and Freedoms. These sections of the Charter guarantee freedom of expression and freedom of peaceful assembly, respectively. In some ways, these rights may be limited, if the expression is aimed to promote hatred or violence, for example, or if protesters engage in criminal conduct such as mischief.
The offence of mischief occurs where the accused intentionally (1) destroys or damages property, (2) renders the property dangerous, useless, inoperative or ineffective, (3) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property or (4) obstructs, interrupts or interferes with any person’s lawful use, enjoyment or operation of property. This means causing damage to a vehicle or blocking an entry or roadway for an excessive amount of time may have criminal consequences. Even producing excessive noise may interfere with a person’s enjoyment of property and the activities that may take place there. On the other hand, the interruption or interference with the operation of business as a result of peaceful picketing that is not obstructive, does not necessarily constitute the criminal offence of mischief. For example, an employer’s use, enjoyment or operation of property is not protected if the activity engaged in is a lawful strike.
Let’s discuss a case where the offence of mischief was made out in Ontario for “obstructive” protesting. The case of R v Prowse (1992) was a case before the Ontario Court of Justice where the accused was charged with committing mischief by intentionally obstructing a transportation company’s railway tracks. This was done through the placement of a barricade over the tracks, which the accused was shackled to. The accused was ultimately sentenced to 10 days imprisonment after entering a guilty plea. The court stated that despite the fact that this may have been a form of protest and expression, it was also important to consider the fact that the protesting had significant consequences in terms of the use of public resources, including the use of police and the necessary removal equipment. The property of the transportation company was also inoperative for five hours. In determining that a term of imprisonment was an appropriate sentence, the court considered the fact that there was a high degree of planning, the barricade was fabricated, and someone was likely going to pay the fine on behalf of the offender if it were imposed.
Have you been charged after a protest or think you may have been engaging in activity that could constitute mischief? Call us at DeMelo Law and we can discuss this further.
