QUICK TAKEAWAY
An Unlawful Assembly is when three or more people meet at a location with the intention of carrying out a common action that they know will disturb others. According to s.63 (1) of the Criminal Code, this offence is treated as a summary conviction with a maximum penalty of less than two years in jail. If the unlawful assembly turns into a riot, participants can be charged with an indictable offence with the same maximum sentence. Wearing a mask during a riot carries a maximum sentence of 10 years in prison. The Canadian Charter of Rights and Freedoms guarantees freedom of peaceful assembly, but these rights are not without limits and do not extend to protect against threats of violence, acts of violence, the destruction of property or other unlawful conduct.
Table of Contents:
What Is an Unlawful Assembly?
An unlawful assembly is a gathering of three or more people who meet at a location in order to carry out a common action. According to s.63 (1) of the Criminal Code, those taking part in an unlawful assembly know that their conduct will cause others in the neighbourhood to fear, on reasonable grounds, that they will:
- disturb the peace tumultuously; or
- needlessly and without reasonable cause provoke other persons to join them in their actions.
The Right to Assemble and Protest
Section 2 of The Canadian Charter of Rights and Freedoms guarantees freedom of conscience and the freedom of peaceful assembly. But these rights are not without limits. The Supreme Court of Canada has recognized that freedom of expression does not extend to protect threats of violence, acts of violence, the destruction of property or other unlawful conduct.
When Does an Unlawful Assembly Become a Riot?
According to the Code, a “riot is an unlawful assembly that has begun to disturb the peace tumultuously.” An appeal court judge in British Columbia provided an explanation of what “disturb the peace tumultuously” means in R. v. Berntt when he noted that “when the word ‘tumultuously’ is used in the Criminal Code definition of riot it must connote in a general sense some elements of violence or force which may be exhibited by menaces of threats … historically, the crime of riot required some violence or terrorizing of the public and it is for such reasons that I am of the opinion as we set out above that Parliament in defining riot as an unlawful assembly that has begun to disturb the peace tumultuously intended the word tumultuously to mean something more than boisterous, noisy or disorderly conduct.”
What if I Wear a Mask During a Riot?
Section 65 (2) of the Code makes it an offence to cover your face or use another "disguise to conceal [your] identity without lawful excuse" during a riot.
What Is Needed to Convict
The Crown may be able to prove that you took part in an unlawful assembly by introducing videos and photos, or if you were arrested at the scene of the disturbance. It may be a defence to argue that the assembly was not an unlawful assembly in legal terms, but was instead just a demonstration that remained generally peaceful.
A further defence against the charge of unlawful assembly is provided by s.63 (3) of the Code, which states that you cannot be convicted if you had assembled at anyone's home to protect it from those intent on "committing an indictable offence therein."
What Penalties Can I Face?
The charge of taking part in an unlawful assembly is treated as a summary convictionUsed for lesser offences with a maximum penalty of not more than $5,000 or imprisonment of not more than two years less a day, or both.
Anyone convicted of taking part in a riot faces a maximum jail sentence of up to two years if the charge is prosecuted as an indictable offenceIndictable offences are more-serious criminal offences, or a less severe punishment if it is treated as a summary conviction.
Those found guilty of wearing a mask or other disguise to conceal their identity during a riot face a maximum sentence of 10 years in prison if the charge is treated as an indictable offence, with lesser penalties given if prosecuted as a summary conviction.
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Rod Clark Barrister at Law Criminal Defense
Glossary of Legal Terms
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
