Unlawful Assembly and Rioting (Offence)
|Unlawful Assembly and Rioting|
|s. 65, 68, and 69 of the Crim. Code|
|Election / Plea|
|Crown Election||Indictment (65, 68, or 69)/Summary (66)|
summary proceedings must initiate within 12 months of the offence (786(2))
Sup. Court w/ Jury (*)
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)|
|Maximum||2 years incarceration or Life|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Reading Proclamation
- 5 Interpretation of the Offence
- 6 Participation of Third Parties
- 7 Sentencing Principles and Ranges
- 8 Ancillary Sentencing Orders
- 9 Record Suspensions and Pardons
- 10 History
- 11 See Also
Offences relating to unlawful assembly and rioting are found in Part II of the Criminal Code relating to "Offences Against Public Order".
|Crown Election||Defence Election
|s. 65 [rioting],
s. 68 [interference or failure to comply with proclamation]
s. 69 [neglect by peace officer in riot]
|Indictable Offence(s)||N/A||(under 14 years max)|
|s. 66(1) [punishment for unlawful assembly]||Summary Offence(s)||(under 14 years max)|
|s. 66(2) [Concealment of identity during unlawful assembly]||Hybrid Offence(s)||(under 14 years max)|
Offences under s. 65 [rioting], 68 [interference or failure to comply with proclamation], and 69 [neglect by peace officer in riot] are straight indictable. There is a Defence election of Court under s. 536(2).
Offences under s. 66 are straight summary conviction offence. The trial must be held in provincial court.
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
a Judge or Justice
on a Release Order
s. 515 to 519
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
|s. 65 [rioting] and 69 [neglect by peace officer in riot]|
|s. 66(1) [punishment for unlawful assembly] and
s. 66(2) [Concealment of identity during unlawful assembly]
|s. 68 [interference or failure to comply with proclamation]|
When charged under s. 65 [rioting], 66 or 69 [neglect by peace officer in riot] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
When charged under s. 68 [interference or failure to comply with proclamation], the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
- Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
- Offence Designations
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 65 [rioting], 66 , 69 [neglect by peace officer in riot]|
|s. 68 [interference or failure to comply with proclamation]||(varies)|
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|"..., contrary to section XXX of the Criminal Code.|
Proof of the Offence
Proving unlawful assembly and rioting under s. 63 should include:
Proving rioting under s. 65 should include:
Proving offences related to proclamation under s. 68 should include:
Proving neglect by peace officer under s. 69 should include:
The proclamation must be read "in the words referred to in s. 67 or in words which have the same meaning and convey the same message as the words... in s. 67". The judge should not redact reference to the penalty described in the proclamation.
"Justice" and "peace officer" are defined in s. 2 of the Code.
Interpretation of the Offence
- Unlawful assembly
For a conviction under s. 66, the accused must be aware that the assembly was for the purpose of disturbing peace and that their conduct would cause reasonably-grounded neighbourhood to fear that they will be disturbed tumultuously.
Proof of "compliance with s. 67 is an essential ingredient of a s. 68 offence."
- Misc Definitions
"Tumultuously" requires " some elements of violence or force which may be exhibited by menaces of threats".
Section 65 does not violate s. 7 or 11(d) of the Charter.
R v Kirkwood, 2013 BCPC 84 (CanLII), per Bagnall J, at para 22
R v Brien (1993), 86 CCC (3d) 550 (NWTSC), 1993 CanLII 2842 (NWT SC), per de Weedt J
R v Lecompte, 2000 CanLII 8782 (QC CA), per Beauregard JA, at para 14
Thorne v R, 2004 NBCA 102 (CanLII), per Deschênes JA, at para 8
R v Greenhow, 2004 ABCA 22 (CanLII),  AJ No 38, per Wittmann JA, at para 9
R v Lockhart (1976), 15 N.S.R. (2d) 512 (*no CanLII links)
R v Berntt, 1997 CanLII 12528 (BC CA), per Braidwood JA, at para 22
Participation of Third Parties
- Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
- On Finding of Guilt
s. 606(4.1), (4.2)
|Victim Notice |
of Impact Statement
|s. x [x]|
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- Maximum Penalties
Offences under s. 65 [rioting], 68 [interference or failure to comply with proclamation] and 69 [neglect by peace officer in riot] are straight indictable. The maximum penalty is 2 years incarceration under s. 65 and 69 or life incarceration under s. 68.
Offences under s. 66 are straight summary conviction offences. The maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
s. 718.3, 787
|s. 65 [rioting], 66 , or 69 [neglect by peace officer in riot]||N/A|
|s. 68 [interference or failure to comply with proclamation]||any|
For offences under 65 [rioting], 66 , or 69 [neglect by peace officer in riot], all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
Offences under s. 68 [interference or failure to comply with proclamation] are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life. If convicted under this offence a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Ancillary Sentencing Orders
|DNA Orders||s. 65(2), 66(2) or 68 [interference or failure to comply with proclamation]||
- General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
|Victim Fine Surcharge (s. 737)||any||A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).|
- General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.|
Record Suspensions and Pardons
Convictions under s. 65(2), 66(2) or 68 [interference or failure to comply with proclamation] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".
1985 to 2013
- Riot Act (1714) (1 Geo.1 St.2 c.5) - the original British source of this offence