March 02, 2018
Vézina, Marcotte, Hogue
Appeal from a judgment of the Superior Court allowing in part a challenge to ss. 2.1 and 3.2 of the By-law concerning the prevention of breaches of the peace, public order and safety, and the use of public property (R.B.C.M., c. P-6). Allowed.
The trial judge invalidated s. 3.2 of the by-law. The appeal concerns s. 2.1, which provides that the location and itinerary of an assembly, parade or other gathering must be disclosed to the police department prior to the event.
In this case, the judge added to s. 2.1 by interpreting the provision as applying only to assemblies, parades or gatherings [translation] “hampering the traffic of road vehicles on public roads”. The only element that distinguishes the wording of the two provisions is the reference to public property. The lack of reference to “public property” in s. 2.1 does not in itself give rise to the separate interpretation that was adopted, when the two provisions were added at the same time during a social crisis that was taking place at many locations on public property. The judge could not, on the basis of the summary of a decision, conclude that s. 2.1 should be read as applying only to demonstrations that hamper traffic on the roads, especially since she took pains to state that [translation] “the application of s. 3.2 cannot be limited solely to public roads without doing violence to the language” of the provision.
Even if the wording of s. 2.1 does not reveal an explicit delegation or direct assignment of discretionary power to the police officers responsible for applying the by-law, the broad scope of the terms used confers discretion on the police when determining what constitutes an illegal demonstration within the meaning of s. 2.1. The wording of the provision provides no criteria or indicators making it possible to circumscribe its application. It is vague, and its scope is excessive, unreasonable and arbitrary, which justifies the intervention of the Court of Appeal to invalidate it.
In addition to its invalidity under administrative law, the provision also violates freedom of expression and peaceful assembly in a manner that is not justified as the minimum impairment test is not met.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca
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