Legal Workshop

Compiled by the Libertas Legal Collective

Booking role-play

As people enter the space for the workshsop, the facilitators (and volunteers) will "book" the participants - getting their name, ID, searching them, etc. This should be as realistic as possible (perhaps costumes, a camera, fingerprints, etc.).

Introduction and go-round

Have participants introduce themselves, debrief the role-play, and describe what they would like to get out of the workshop.

Solidarity

Solidarity involves a broad range of behaviours and tactics to take care of each other and support one another using group decison making.

Before arrest - preparing with your affinity group to have a legal point person who will be in contact with the legal team, inform yourselves about the law, plan for the possibility of arrest and consequences, and any non-compliance tactics you may want to use (e.g., leaving ID with the point person).

During arrest - focus outwards - notice who is witnessing the arrest, what are the circumstances, think of ways to support the people being arrested, stay grounded and help others stay grounded.

After arrest - Get in touch with the legal team, report the arrest, write down information (times, badge numbers, etc...) as soon as possible.
Before detention - think about the things you may need in detention (medicine, etc...), the people who should be contacted (family, work...) or things that should be done (feed pets...).

During detention - communicate with the people who you are detained with and support each other - identify vulnerable members of the group and try to find ways to protect them from oppression. Use group decision-making to decide if you want to engage in non-compliance (e.g., refusing to identify, passive resistance, refusal to wear clothes, hunger strikes, etc...) or other tactics, and what the goals of such tactics are. Don't pressure others into using non-compliance tactics. For people on the outside, this means not forgetting about people on the inside, and letting them know we are there for them, even if they are in for a while.

After detention - don't be afraid to talk about your experiences - detention can be traumatic, and you may not feel the effects right away. Be there to support others when they leave detention.

Court solidarity - the trial can be a llllllllooooooonnnnnnnggggg process, especially if you plead not guilty, and you will need to support each other throughout both inside and outside of court. This will also involve helping to raise funds for defence, and helping to keep track of everyone as they go through the system. There is nothing more depressing than being the one person in a large group who happened to get charged with a political "crime", and finding yourself alone during your court appearances. Be there to support your brothers and sisters.

Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Obviously, there is a difference between our rights in theory and our rights in practice - it is up to you decide when and how you wish to assert and excercise your rights. It is a reality of the system we live under that those who are the most oppressed outside the legal system are also oppressed within the system, and there are no easy answers as to how to mitigate that oppression in the existing model (that is why we advocate revolution...). In general, when interacting with police or other agents of the state, it can be useful to assert your rights when you feel they are being violated, but fighting or arguing with them is often pointless and may make you the target of greater oppression. Sometimes the best time to fight the violations of rights is afterwards in the courtroom, or in the court of public opinion. The following is quoted from the Charter:
2. Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Interaction with the police

Role play: interacting with police - officer approaches, tries to get information, ID and search bag, pockets.

Speaking to police

in general, you are under no obligation to speak to police officers or to answer their questions. (certain exceptions, such as when driving...)
ask if you are under arrest, if not, make it clear you wish to leave, try to walk away
right not to be arbitrarily detained or imprisoned.
right to remain silent
Remember: it is probably better to say nothing than to lie to the police - lying can lead to charges of obstruction. The police are trained professionals and have many techniques for gathering information that may not be obvious to you - any information you give them can and will be used against you (both in court and outside of court) - even seemingly unimportant comments help them to make connections between people and groups in our movements, or to become more familiar with our modes of communication. Even if, for whatever reason, you decide to talk to the police, DO NOT TALK TO THE POLICE ABOUT OTHERS - let other people decide if they want to share information about themselves with the police.

Identification

There is no obligation to carry or show identification in Canada, EXCEPT:
if you are driving a motor vehicle - must show licence, insurance, registration - passengers do not need to identify themselves
if you have committed a by-law infraction or other ticketable offense, you are under obligation to identify yourself - refusal can lead to charges of obstruction and/or failure to identify and you can be arrested or detained until you identify yourself
if you are in a location not accessible to minors (bar, restricted movie, etc...) you may have to show proof of age
Police officers are under the obligation to identify themselves, at least by giving you their name and badge number - don't hesitate to ask them to identify themselves, and write down the number (or memorise it).

Search and Seizure

The police do not have the right to search you or take your stuff unless
you are under arrest
they have a search warrant
they have reasonable grounds to believe you have an illegal weapon or narcotics in your possession (the way you look, talk or dress and the company you keep are NOT reasonable grounds for a search).
Always refuse to give consent to a search - make it clear to the police and to any witnesses that you are refusing - if the police believe they have the right to search you, they will do it anyways, but your refusal may make anything they find inadmissable and may allow you to pursue sanctions against the officers for illegal search and seizure. Although you should always refuse a search (even if you think it might be lawful), it is rarely a good idea to physically resist a search. You technically have the right to defend yourself against unlawful searches, but police have the right to use necessary force to make you comply with a search if they have reasonable grounds to believe it is lawful. It is usually safer to let the police search you and then fight about this in court.

In particular when it comes strip-searches, you have the right to be searched by an officer of the same sex, and in relative privacy. Strip searches should not be used as a form of intimidation or punishment.

Role play - police at the front door for a noise complaint. Go out on to the sidewalk, speak to them on public property - they have no right to come onto private property without consent unless:

they have reasonable grounds to believe a crime is in progress
they are in hot pursuit of a suspect/escapee
they have a search warrant
If they have a search warrant, ask to see it as well as their identification - write down names and badge numbers, and call your lawyer as soon as possible. Make it clear that you do not consent to the search, but do not interfere with the search (you could be charged with obstruction). Keep a list of anything they take with them or damage.

Arrest and detention

The police can arrest if:
they have a warrant for your arrest or are aware that a warrant for your arrest is outstanding
they have "reasonable grounds to believe" that you have committed an indictable offence
10. Everyone has the right on arrest or detention
a) to be informed promptly of the reasons therefor;
b) to retain and instruct counsel without delay and to be informed of that right; and
c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
This right includes, according to the courts, the right to be informed of the availability of free duty counsel and to be allowed telephone calls in private to your own lawyer or duty counsel. Even though duty counsel is available, you have the right to talk to the lawyer of your choice. You also have the right to be informed that you have a right to remain silent and that anything you say may be taken down and used in evidence against you.

Silence

YOU SHOULD REMAIN SILENT. AND REQUEST TO SPEAK TO YOUR LAWYER IMMEDIATELY. DO NOT WAIVER. DO NOT SIGN ANY DECLARATIONS. DO NOT DISCUSS ANYTHING ABOUT YOUR CASE. DO NOT EVEN DISCUSS AN ALIBI. Choosing to excercise your right to remain silent will NOT be held against you by the court, although the police might try to convince you otherwise...

The police are trained professionals have many little tricks to try to make you talk. You have to insist that you do not wish to discuss anything about the charges. Moreover you will be unwise to get into discussions about other things. Don't assume that casual discussions are not a way to gather information about you or the charges. IN THE CELLS DO NOT DISCUSS YOUR CASE WITH ANYONE. Also, don't ask other people about their cases, and remind them not to talk if they start to tell you things you don't need to know. The police plant themselves in the cells posing as prisoners or they get other prisoners who are seeking some benefit for themselves to act as informers - Canadian courts have a long history of accepting testimony from such informants.

You might decide not to identify yourself. Or you may decide to identify yourself but not to provide your home or work place address. There can be very practical reasons why you would not wish the police to have this information. If you refuse to provide this type of information then you will likely be held for a bail hearing in the court.

Court appearances

You must be brought before a Justice of a 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.

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 once you have signed a promise to appear (maybe with conditions - up to you to decide if you can live with them)
-by the justice of the peace, possibly with conditions on your promise to appear (see Greenberg conditions)
-after a bail hearing in Court - you may have to post bail, have a surety sign for you or agree to conditions (curfew, limits on activities, travel, etc...)

Of course, you may also be held until your trial, but if you don't have a prior record and the charges aren't too serious, you will undoubtedly be released. You have a right to reasonable bail guaranteed by the Charter, and unless there are special circumstances (like you have a case pending for something else...) it is up to the Crown to demonstrate why you shouldn't be released. There are three reasons for refusing to release someone:
you are a danger to society
you will not show up for your trial
releasing you would bring the justice system into ill repute (we are not sure exactly what this means either...)

Consequences

1. The length of the process can be a killer - if you plead not guilty, your trial and appeals could last for years (literally!) - many people plead guilty just to save themselves the hassle... If you are found guilty:

-absolute/conditional discharge
-suspended sentence (you don't have to serve your sentence unless you commit another crime within a given amount of time)
-probation (with conditions...)
-community service
-fines
-prison
-any combination of the above...

If convicted, you will have a criminal record which is publicly accessible to anyone who asks. Consequences of a criminal record:
travel/immigration difficulties - getting visas to enter other countries may be more difficult - U$ immigration and border guards are particularly not impressed by records for political 'crimes'.
may reduce chances of some kinds of employment (say goodbye to your dream job with CSIS or the RCMP) - although the Quebec Charter prohibits discrimination based on criminal records unless it has some relation to the type of employment. However, a conviction for civil disobedience might look good on resume for a job at Greenpeace...
while you are serving your sentence, you cannot be a candidate in Quebec elections (in federal elections, you are only inelegible while you are in jail...).
all else being equal, a criminal record could have an effect in a child custody battle

Common Charges

- Assault - This offence involves any application of force on another person without their consent - mere touchingis enough. It also includes attempting or threatening by acts or gestures to apply force to another person.

-Assault Police - This is an assault on a peace officer. The maximum penalties are the same as for assault, but sentencing tends to be higher.
Assault by Trespass - Resisting the lawful use of force to eject you from private property.

-Resisting Arrest - Going limp is not resisting. 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 unconcious that is not cooperating with the arresting officer is probably resisting arrest.

-Assault to resist arrest - The arrest may be your own or that of someone else. The arrest must be legal for this charge to be made out. However, this is also a hard one to beat, since the courts tend to lean over backwards to find an arrest is legal. One is allowed to use "reasonable force" to resist an illegal arrest of oneself. Certainly you have a right to assist someone where the police are using excessive force. The problem is convincing the courts that excessive force was being used.

-Obstruct Police - Anything you do to interfere with an officer in the lawful execution of their duty. 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.

-Mischief to property - To be convicted of this offence you must wilfully destroy or damage property or render property dangerous, useless, inoperative or ineffective or obstruct, interrupt or interfere with the lawful use enjoyment or operation of property etc. This would include spraypainting or chaining doors shut, as well as blockading entrances, etc...

-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. Sometimes you will simply be dropped off in the suburbs and left to make your own way back to town.

-Causing a disturbance - You have to do this in or near a public place and not be in a dwelling house. You can do it by fighting, screaming, shouting, swearing, singing (presumably the wrong songs) or using insulting or obscene language. Also this can be done by being drunk and as well by impeding or molesting other persons. There are other methods as well. This is the charge they trot out when they don't like the chants at your demonstration or they claim that your picket is impeding the traffic (pedestrian or vehicular).

-Intimidation - Blocking or obstructing something - for example, a highway. Also committed by threatening to commit violence against someone, or following them on a road in "disorderly manner". There is a special offence for intimidating an "internationally protected person" (all the leaders, and most of the delegates at the Summit would qualify).

- Unlawful assembly - You can commit this offence by getting together with 2 other people (at least) with intent to carry out some common purpose and you assemble in a manner that causes people near by to fear that (a) you will "disturb the peace tumultuously" or (b) you will needlessly and without reasonable cause provoke others to "disturb the peace tumultuously".

-Riot - This is an unlawful assembly that makes it. That is one that in fact "has begun to disturb the peace tumultuously". If a sheriff or sheriff's deputy etc., reads certain magic words after a riot has started and you are still around after 30 minutes you will have committed a much more serious offence. This is also true if you interfere with the reading of the magic words.
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. 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.

-Conspiracy - The essence of this charge is the making of the agreement to commit an offence. Nothing has to actually happen, the agreement itself is the crime. This is why you always need two people to accomplish this crime. You have to agree to commit a summary or indictable offence. You do not have to do anything other than make such an agreement. Be careful about where you talk, and who you talk with (try to exclude agents from your planning meetings -- they have a way of hearing things that are not said) and what you say (do not agree to do anything unlawful).

-Counselling offences -They can get you for advising others to commit offenses.

-Being a party - If you even encourage someone to commit an offence you could be convicted of being a party to the offence (e.g., cheering someone on as they spraypaint a wall). The result is the same as if you had done the acts yourself. Certainly doing anything to assist in the commission of the offence will make you a party. Helping people after, to escape or hide, etc., can also get you in trouble. If you are merely passive, ie., do nothing to stop someone from committing an offence, you will not be found guilty as a party.

-Disguise - wearing a disguise (e.g., mask) with the intent to commit an offense is an offense in itself.

-Weapons offenses
Restricted and Prohibited Weapons - Restricted weapons are mainly various handguns and rifles, but prohibited weapons also include switchblade knives, spiked wristbands, blowguns, mini-handguns, brass knuckles and other things such as Mace, teargas, pepper spray, nunchaku sticks and other devices used in karate, dart guns, stun guns, electric probes, and crossbows, among other weapons, including a vast array of firearms. Mere possession in your home car, or on your person, of these weapons is sufficient to be prosecuted under the Criminal Code.

-Carrying or being in possession of a weapon, or an imitation weapon, "for a purpose dangerous to the public peace or for the purpose of committing an offence" is an offence under the Criminal Code. As mentioned above, a "weapon" is broadly defined in the Code so as to include many objects which are not designed as weapons and could include a kitchen knife, hockey stick or piece of broken glass.
While Attending a Public Meeting - This offence describes a situation in which "every one who, without lawful excuse, has a weapon in his possession while he is attending or is on his way to attend a public meeting..." There is obviously a serious risk of arrest and conviction for activists who attend these gatherings while possessing prohibited or restricted weapons, but there is also a real danger of arrest and a possibility of conviction where a person is in possession of ambiguous objects like pocket knives, large rings or studded belts which might be found to be weapons. A picket sign attached to a stick would not normally be a weapon unless used as one, but signs attached to what might otherwise be considered heavy clubs or spears could be viewed by the police as weapons dangerous to the public peace.

Observation Paper And Pen: Use them to:
-write names of arrested persons and their phone numbers, their friends phone numbers, their condition before they disappeared from the scene, the words spoken by police during their arrest, their words, the number of the car or wagon they are put into, etc., badge numbers and or descriptions of police involved in the arrest;
-write down police badge numbers (of those that are aggressive, those who make arrests or are just on the scene, since sometimes there may be testimony from police who were not in fact at the scene at all. Of course, photographs and sound recordings are also useful;
-record significant conversations;
-record licence plates of vehicles (and/or squad car numbers if police vehicles) and the description and location of vehicles.

TAKE DOWN INFORMATION BEFORE THE FIT HITS THE SHAN. You must anticipate, because once the action starts you will not necessarily have time to get enough down. As soon as possible after an incident or arrest (whether your own arrest or someone else's) - sit down and write out everything you remember about the incident - particularly details like times, locations, movements, statements or conversations, etc - you will be surprised how quickly you can forget details, and the trial may not be for another year or two.

Cameras: There is no general right to privacy in Canada. You can take any person's picture without his or her permission. The camera is a powerful weapon. At rallies and demonstrations, etc. they are essential. Use them to:
provide some deterrence to police brutality. The sound of shutters clicking in those tense moments sometimes can prevent the police from doing things which they might otherwise do;
-take pictures of the licence plates that you want to record;
-take pictures of the police, both plain clothes, "old clothes", and uniformed. Later witnesses may want to identify the officer who did the dirty deed;
take pictures of those you only suspect are police. They may show up later in more interesting circumstances;
-take pictures of those who seem to be provocateurs;
-take pictures of any "incident", including arrests. These can be useful in the press and in court;
-get shots of the general lay out. This helps in court too.

Remember that cameras have a tendency to fall out of hands when they are capturing scenes that are damaging to the public image of the police. Often one finds that one obtains an excellent picture of a policeman's palm print rather than the scene one tried to photograph. However, when there are many cameras it is possible to get pictures of these "accidents" where cameras are destroyed or of the police officer posing his palm for a photograph.

Bring enough film! Preserving the photographic evidence for the court is critical. The main problem is that of "continuity". This means that in the court it is necessary to show a continuous chain of possession of the film, negatives and prints. This must be done to counter any suggestion that these items have been tampered with. It is necessary to have the negatives so that it can be established that the prints are in fact derived from the negatives etc. Also, it must be shown that the prints made were not selected to avoid the more damaging evidence (or to provide only the damaging evidence).

Lawyer's Phone Number: Written in permanent marker somewhere on your body.

What to Leave Behind

Even the innocent are arrested (and arrest includes the right to search) so:
leave any illegal drugs behind;
remember what might be construed to be a weapon ;
make your decision on what I.D. to leave behind (if not all);
leave behind your address books and any other papers that you don't want the police to see. There is no need to help them complete their charts on who is connected with whom.