Unlawful Assembly

An unlawful assembly is a gathering of three or more people who come together with the intention of carrying out a common purpose. Under s.63(1) of the Criminal Code, an assembly becomes unlawful when the way it is conducted, or the way those assembled behave, causes people in the neighbourhood to fear on reasonable grounds that those assembled will:

disturb the peace tumultuously; or

needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

The focus is on the manner of the assembly, not on what participants personally believe about how others will react. If the conduct objectively causes that kind of reasonable fear in bystanders, the legal threshold can be met regardless of what was intended.

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.

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.”

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.

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."

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 offenceA more serious type of Canadian criminal offence., 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.

Section 67 sets out the formal proclamation ordering a riotous assembly to disperse. It is a procedure, not an offence — but the most serious penalties in this group (s. 68) apply only after the proclamation has been read.