Potential Legal Risks of participating in multi-day camp:
Below is some basic legal information regarding the potential legal risks of participating in a multiday encampment. It is not legal advise but simply for your information. We absolutely cannot guarantee anything in the legal process and everyone who participates is assuming full responsibilities for their actions.
Everyone needs to be responsible for their own safety and well-being and, to the degree possible, other participants as well.
What are the potential legal risks of participating in a multi-day camp?
It’s very difficult to say what the police and legal response to a multi-day camp will be. Most of it will depend on the security/police response on the day of, the number of people involved, the tone and atmosphere of the event, and the public and political pressure supporting or trying to shut down the camp. There is a good possibility that participants will simply be allowed to stay and as long as the camp remains peaceful and no physical or property damage is done. This is by far the most desired outcome but one that cannot be guaranteed. The rest of this assessment is in the event that the camp is deemed to be illegal.
Most likely police officials will give several verbal warnings about the legality of the camp before any arrests are made. Generally if you leave when asked you won’t face any legal charges. However, this cannot be guaranteed.
If you do not leave after you have been asked by police you will generally face one of the following outcomes:
- Police simply allow you to keep staying.
- You are taken into police custody, released and given a citation for trespassing. (A trespassing ticket is like a traffic ticket. It is not a criminal offense but simply a fine. It may come with conditions like not returning to the camp.),
- You are taken into police custody, arrested, and charged with a criminal offence
- You may face civil consequences (such as being sued for trespass)
Those who are arrested may be released at the scene or taken into custody. Although likely to be released within 24 hours, depending on the person’s circumstances and the seriousness of the charges and conduct leading to the arrest, the individual may be released under certain conditions (including a cash deposit) or release may be denied.
Be aware that if you have unusual circumstances (citizenship or immigration issues, or have outstanding warrants, or have had previous interactions with the criminal justice system) your situation could be handled very differently. We strongly encourage people in these situations to consult a lawyer, and recognize that your situation could be very complicated for yourself, and the rest of the group.
Q: What will I be charged with if I’m arrested at the camp? Will participating in this action result in a criminal record?
A: Again there is a good possibility that police officials will simply allow people to be at the camp without threat of criminal action as long as the camp is peaceful and no property damage is done. If police do decide to remove people and you stay past police warnings there are some of the common criminal offences activists have been charged with. As you read the descriptions, please remember that there is a huge difference between being charged with something and being convicted of it.
If you are arrested you may face any combination of the following possibilities:
- Simply released without any charges.
- Released and given a trespassing ticket (similar to a traffic ticket)
- Charged with a criminal offence. In that case you may be:
- Found not guilty,
- Given an absolute/conditional discharge (found guilty of an offence but not convicted, this will appear on your criminal record for a 1-3 years), or
- Convicted of a criminal offence and given probation with or without conditions, community service, fines and/or prison. This would appear on your criminal record until you received a pardon.
It is impossible to say which of these situations will occur.
For most civil disobedience activities, if you do not have a previous record, an arrest will result in simply being released, given a trespassing ticket or given a conditional or absolute discharge, probation or a fine. While these are the general outcomes for this type of activity we cannot guarantee any result. People participating in this action should be prepared for all options including criminal conviction.
If found guilty of a criminal offense, you will have a criminal record.A criminal record may make it more difficult to travel (including to the US), cause immigration difficulties, and have an impact of some kinds of employment and education.
The Criminal Code is divided into two basic categories: (1) summary offences (less serious) and (2) indictable offences (more serious).
Unless specified, summary conviction offences are punishable by a maximum fine of up to $5,000 or six months in jail or both. If you are unable to pay the fine, you can face further incarceration of a period not exceeding six months. These are maximum penalties. For first time offenders that are convicted of the crimes most likely in this activity, criminal convictions will likely result in community service, fines or at the most extreme end of the spectrum, jail time for a short period.
Various penalties are imposed for each specific indictable offence.
Note there are also Hybrid offences in which the Crown chooses the mode of prosecution (summary conviction v. indictable offence).
Most Likely Charges for this Type of Activity:
Mischief under $5000
Contrary to s.430 of the Criminal Code, mischief may occur when a person intentionally destroys or damages property, renders property dangerous, useless, inoperative or ineffective, or, obstructs, interferes or interrupts in the lawful use, enjoyment or operation of property. The definition is broad and can also capture a range of conduct.
Mischief is either an indictable or a summary conviction offence. If indictable, the maximum punishment is two years imprisonment.
Mischief over $5000
- Also either indictable or a summary conviction.
- If, indictable the maximum sentence is ten years imprisonment.
- The amount (over or under $5000) refers to the property where the mischief is committed, not the value of any damage.
Assault by trespasser
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.
The owner must be in peaceable possession of property, meaning that the possession must not be seriously challenged by others.
There are other possible charges especially if you perform actions outside of the action protocol (ie. Violent activity, swearing. etc.).
These charges include:
Assault, Causing a disturbance, Unlawful assembly, Intimidation by blocking a road, Riot, Resisting or obstructing a peace officer and Assaulting a peace officer/resist arrest (see below for the details of those charges)
Q: What will happen if I am arrested?
A: You will be read a caution similar to “You are under arrest for possession of a controlled substance. You are not obliged to say anything, but anything you do say may be given in evidence. You have the right to retain and instruct counsel in private without delay.”
Don’t worry if you don’t understand the meaning of the Caution. The best option for you now is to *say absolutely nothing.* Remaining silent is your right. Our advice is to say ‘I wish to remain silent and I wish to talk to a lawyer’. However, you should provide your name, address and date of birth.
Try to remember what you have been arrested for so that you can inform your lawyer.
You will be transported to a police station. The officers may try to engage you in conversation on the way. *Say absolutely nothing*, or say ‘I wish to remain silent and I wish to talk to a lawyer’. It’s your right.
Once in police custody you will likely be placed in a holding cell and potentially taken for photographs and fingerprinting. The only information you should give the police are your name, address and birthdate. Beyond this simply repeat ‘I wish to remain silent and I wish to talk to a lawyer’.
Q. How long will I be held?
A. Normally you can’t be held in jail more than 24 hrs. But keep in mind that they can keep you longer if the police encounter some problem with identification, have too many people to proceed more swiftly or wish to hold you for a bail hearing. Generally, most people are processed within six to 12 hours following arrest. Depending on the circumstances,you may be held for a bail hearing, which may extend your time in police custody.
Q: How can my prior arrests or convictions affect me in this action?
A: If you’re on probation or parole, have a warrant for your arrest, on bail, have outstanding charges, or have been found guilty of criminal conduct,you should consider not participating in the action. All of these situations could be legally complicated for yourself and others at the camp.
Q: What’s the procedure for collecting property I’m arrested with?
A: We ask that you do not carry anything but the essentials with you. Everything you have on your person or in your bag will be inventoried and catalogued piece by piece, which slows processing down for everyone else. If you forget and bring personal property with you, it should be returned when you get released. If you end up going to court, you may have to return to the police station to collect your property. DO NOT BRING DRUGS OR ALCOHOL. Do bring government issued photo id.
Medical Conditions – IMPORTANT
Q: What should I do if I’m willing to risk arrest but need to take medications?
A: If you have medication that you need to bring with you, carry it in your prescription bottle. If possible, get a letter from your doctor indicating that they have prescribed this medication to you and why.
Q: I’m a government employee. Would my job be at risk legally if I’m arrested?
A: Possibly. Seek legal advice.
Q: If I have a family member who’s one day hoping to work for the government, will having this kind of arrest affect a family member’s ability to be employed by the federal government?
A: Possibly, depending on the position. Seek legal advice.
Q: Could getting arrested impact my college admissions?
A: Possibly, depending on the program and institution. Seek legal advice.
Some educational programs ask about arrests, others about “charges” and still others only convictions. The applications also range widely in their opinions of summary charges, (which is the worst case to what we’re anticipating arrestees will be charged with) and whether you must report incidents that have been sealed or expunged. Many schools also ask that you provide an official statement of the charges and/or disposition of the case, obtainable from your lawyer, the court, or the relevant law enforcement agency.
Others possible charges (although depending on the conduct, charges other than those listed are also possible)
This offence involves any application of force on another person without their consent – mere touching is enough. It also includes attempting or threatening, by acts or gestures, to apply force to another person. (Hybrid – ss. 265-266)
Breach of the Peace
This gives the police the right to arrest you to prevent 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 event or action, and in any case within 24 hours.
Causing a disturbance
This offence 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. (summary conviction – s.423)
You can commit this offence 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. (Summary conviction – ss.63 and 66)
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. (summary conviction – s. 423)
This is an unlawful assembly that in fact “has begun to disturb the peace tumultuously”.(Indictable – ss. 64-65)
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. Although the police will usually announce that an assembly has become unlawful (usually by ordering you to disperse) it is not an essential part of the offence.
Resisting or obstructing a peace officer
You can be charged with this offence if you resist or wilfully 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 – 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 lawful execution of their duty is considered obstructing police. This could include laying down in front of a police car or getting in the way of an arrest. You could also be charged with this offence if you uncover an undercover officer. (Hybrid – s. 129)
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 offence 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. (Hybrid – ss. 270)
The essence of this charge is the decision by at least two people to commit an indictable or summary offence. Nothing has actually happened – the agreement itself is the crime. You do not have to do anything other than make such an agreement. Be careful about where you talk, to whom you speak with and what you say when planning actions. (Indictable if you agree to commit an indictable offence, summary if summary- ss . 22 and 464)