Quebec Superior Court Strikes a Blow Against P-6

Controversial Bylaw Curbed in Favour of Protester Rights

Although the P-6 bylaw was originally instituted in 1969 following a string of protests in Montreal, its modern incarnation came to be as a response to the sustained student-led demonstrations of 2012. File Photo Willie Wilson

The Superior Court of Québec dealt a blow to Montreal’s controversial P-6 bylaw on Wednesday, in a judgement that expanded protester’s rights during demonstrations, and curbed police powers to declare these demos illegal.

In her ruling, Justice Chantal Masse modified article 2.1 of the bylaw, which requires that an itinerary be provided to police by organizers of a demonstration.

As a result of the judgement, that article will no longer apply to protests deemed to be “spontaneous,” or those without prior planning.

Justice Masse also invalidated outright article 3.2 of P-6, which says that “no person who participates in or attends an assembly, parade or gathering on public property may cover their face without a reasonable motive, namely using a scarf, hood or mask.”

Justice Masse wrote that article 3.2 had an overreaching scope that left too much discretion to police, which “renders it arbitrary and, as a result, unreasonable and void.”

The judgement came after a four-year-long legal battle initiated by Anarchopanda—the panda mascot that became a symbol for the right to demonstrate during the 2012 Maple Spring student movement.

In an interview with The Link, Anarchopanda said Wednesday’s ruling was positive for protesters’ rights, but that questions remain about the updated guidelines for itineraries.

“On [article 3.2] it’s amazing, because we won all the way, and now people can wear whatever mask they want in a protest, which is what we were aiming for,” Anarchopanda said. “The itinerary is the more complicated part … the definition of a spontaneous protest is somewhat narrow, and it will need to be tested on the street.”

The Service de Police de la Ville de Montréal was reached to see if riot police tactics would be modified in light of Justice Masse’s ruling, but they declined to comment.

Superior Court Ruling: Article 3.2 Invalidated

In her ruling Justice Masse found that article 3.2 of P-6—which banned any form of face-covering during protests and assemblies—was an unreasonable limit on freedom of expression and peaceful assembly.

In particular, Justice Masse that the article was too broad in its definition of which events would fall under its purview. For example, Masse pointed out that festive assemblies such as Halloween and Montreal’s Santa Claus parade could face limitations on masks in the same manner as protests, if the police chose not to tolerate their use.

The judge also acknowledged the reasonable motivations for protesters covering their faces in demonstrations, including a need to protect oneself from chemical agents often deployed by riot police—tear gas and pepper spray—and a desire to remain anonymous.

For activist Jennifer Bobette, a member of the Collective Opposed to Police Brutality, this last point is of particular importance. Bobette, who has received ten P-6 tickets since 2012, said she often covers her face in demonstrations to protect herself from political profiling.

“If you’re wearing a mask, your goal is not necessarily to break something,” Bobette said. “I wear a mask because I don’t want to be identified by the media and by police, because they’ll exercise their profiling on me. They know me, and when I’m recognizable in a protest, they come after me.”

Superior Court Ruling: Article 2.1 Modified

Justice Masse’s judgement on itineraries found that it was not unreasonable to expect an itinerary from protest organizers, and that any infringement on the right to demonstrate was balanced by the need for public safety.

In Masse’s view, an itinerary plays a vital role for law enforcement in the protection of public safety, and as such, article 2.1 remains mostly intact after this latest ruling.

Where it has been limited though is in the case of spontaneous protests held “as the result of a coincidence without a prior announcement or invitation, in any form, such as social media, signs or the distribution of leaflets, or simply by word of mouth,” or in demonstrations where there is “an urgent nature implying that it must unroll immediately.”

If these two conditions are present, article 2.1 will no longer apply, and an itinerary will not need to be provided to police. The judgement provides a few examples that fit the description of a “spontaneous” protest, including a march after a sporting event, or people converging in a location after a last-minute media report on a controversial figure’s appearance.

Sibel Epi Ataoğul, the lawyer who represented Anarchopanda in this case, says that there are many positive aspects to the ruling, but the decision surrounding article 2.1 raises some issues.

“It’s unclear right now—who’s burden of proof will it be to show that [a protest] is spontaneous or not?” Ataoğul said. “As far as [planned] protests are concerned, we’re still evaluating the decision to see if there’s anything else we want to do—whether we want to appeal or not.”

Despite some reservations about the status of article 2.1, Anarchopanda said Wednesday’s Superior Court decision was part of a larger movement towards the recognition of protesters’ rights.

“I think there is a general movement in our favour,” the iconic protester said. “We’ve been very successful in the courts so far, and I have no reason to believe that this trend is not going to continue in the future.”

History of P-6

Although the P-6 bylaw was originally instituted in 1969 following a string of protests in Montreal, its modern incarnation came to be as a response to the sustained student-led demonstrations of 2012.

As the Maple Spring protests showed no signs of ending, the Quebec government passed an emergency law known as Bill 78, which put several restrictions on demonstrations in the streets.

It was during this time that articles 2.1 and 3.2—the itinerary requirement, and the prohibition on faces being covered during protests—were added to the P-6 bylaw, in order to bring the municipal rules in line with the new provincial legislation.

When the Quebec Liberal Party lost to the Parti Québécois some months later, Premier Pauline Marois repealed Bill 78, but P-6 remained on the books at the municipal level, with all of its restrictions on protests still intact.

P-6 continued to be enforced by the SPVM in the years following 2012, and the bylaw’s notoriety continued to grow amongst protesters, human rights advocates and certain municipal political parties.

Infractions under P-6 carry fines ranging from $500 to $1,000 for first-time offenders, and up to $3,000 for repeat offences.

In February of 2015, a municipal judge modified the application of P-6, ruling that the failure to provide an itinerary for a protest to police should not constitute a ticketable infraction on its own.

While a demonstration where no itinerary was given would still be considered illegal, tickets could no longer be issued under article 2.1, leading to thousands of cancelled tickets in response.

Following that 2015 decision, Mayor Denis Coderre—an advocate for P-6—continued to defend the bylaw and its function in maintaining the safety of Montreal citizens.

In an interview with the Montreal Gazette, Coderre responded to the ruling by saying that “P-6 is still valid and in force. It is the application that was criticized, not its validity.”

Following Wednesday’s Superior Court ruling, in which the validity of P-6 was criticized, The Link reached out to the Coderre administration for comment.

City hall refused the request for an interview, citing the need for its lawyers to study the decision in detail and decide if an appeal would follow.