Unlawful Assembly and Rioting (Offence): Difference between revisions

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Revision as of 09:26, 18 January 2019


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))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum None
Maximum 2 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to unlawful assembly and rioting are found in Part II of the Criminal Code relating to "Offences Against Public Order".

Pleadings

Template:PleadingsIndictableList
Offence
Section		 Offence
Type		 Crown Election Defence Election
s. 536(2)
s. 66 [unlawful assembly] Summary Offence(s) N/A No

Offences under s. 65, 68, and 69 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.

Release
Offence(s) Appearance Notice
by Peace Officer
s. 497		 Summons
by Judge or Justice
s. 508(1), 512(1), or 788		 Release by
Peace Officer
on Undertaking
s. 498, 499, and 501		 Release By
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 and 69 Template:ReleaseProfileOICorBail
s. 66 [unlawful assembly] Template:ReleaseProfileNoID
s. 68 Template:ReleaseProfileOnlyBail

Template:ReleaseOICorBail

When charged under s. 66, 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.

Template:ReleaseOnlyBail

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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

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
Offence(s) Wiretap
Eligible
s. 183		 Dangerous Offender
Designated Offence
s. 752		 Serious Personal
Injury Offence
s. 752		 AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 65, 66, 69
s. 68 (varies)

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Unlawful assembly
63. (1) An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they

(a) will disturb the peace tumultuously; or
(b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

Lawful assembly becoming unlawful
(2) Persons who are lawfully assembled may become an unlawful assembly if they conduct themselves with a common purpose in a manner that would have made the assembly unlawful if they had assembled in that manner for that purpose.
Exception
(3) Persons are not unlawfully assembled by reason only that they are assembled to protect the dwelling-house of any one of them against persons who are threatening to break and enter it for the purpose of committing an indictable offence therein.
R.S., c. C-34, s. 64.


– CCC

Riot
64. A riot is an unlawful assembly that has begun to disturb the peace tumultuously.
R.S., c. C-34, s. 65.


– CCC

Punishment of rioter
65 (1) Every one who takes part in a riot is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
Concealment of identity
(2) Every person who commits an offence under subsection (1) while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years.
R.S., 1985, c. C-46, s. 65; 2013, c. 15, s. 2.


– CCC

Punishment for unlawful assembly
66 (1) Every one who is a member of an unlawful assembly is guilty of an offence punishable on summary conviction.
Concealment of identity
(2) Every person who commits an offence under subsection (1) while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 66; 2013, c. 15, s. 3.


– CCC

Offences related to proclamation
68. Every one is guilty of an indictable offence and liable to imprisonment for life who

(a) opposes, hinders or assaults, wilfully and with force, a person who begins to make or is about to begin to make or is making the proclamation referred to in section 67 so that it is not made;
(b) does not peaceably disperse and depart from a place where the proclamation referred to in section 67 is made within thirty minutes after it is made; or
(c) does not depart from a place within thirty minutes when he has reasonable grounds to believe that the proclamation referred to in section 67 would have been made in that place if some person had not opposed, hindered or assaulted, wilfully and with force, a person who would have made it.

R.S., c. C-34, s. 69.


– CCC

Neglect by peace officer
69. A peace officer who receives notice that there is a riot within his jurisdiction and, without reasonable excuse, fails to take all reasonable steps to suppress the riot is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
R.S., c. C-34, s. 70.


– CCC

Proof of the Offence

Proving unlawful assembly and rioting under s. 63 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit was a member of an assembly of three or more persons;
  5. there as a common intent to carry out a "common purpose";
  6. the assembly conducted themselves as to "cause persons in the neighbourhood of the assembly to fear" that they (a) "disturb the peace tumultuously" or (b) "will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously."
  7. the fear was reasonably held; and
  8. the assembly is not "by reason only that they are assembled to protect the dwelling-house of any one of them against persons who are threatening to break and enter it for the purpose of committing an indictable offence therein".

Proving rioting under s. 65 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit was the member of "an unlawful assembly that has begun to disturb the peace tumultuously"
  5. the culprit performed the prohibited act "while wearing a mask or other disguise to conceal their identity" (aggravating factor).

Proving offences related to proclamation under s. 68 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit either:
    1. "opposes, hinders or assaults, wilfully and with force, a person who begins to make or is about to begin to make or is making the proclamation referred to in section 67 so that it is not made;"
    2. "does not peaceably disperse and depart from a place where the proclamation referred to in section 67 is made within thirty minutes after it is made;" or
    3. "does not depart from a place within thirty minutes when he has reasonable grounds to believe that the proclamation referred to in section 67 would have been made in that place if some person had not opposed, hindered or assaulted, wilfully and with force, a person who would have made it."

Proving neglect by peace officer under s. 69 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit is a "peace officer";
  5. the culprit "receives notice that there is a riot within his jurisdiction"
  6. the culprit "fails to take all reasonable steps to suppress the riot"; and
  7. the culprit was "without reasonable excuse".

Reading Proclamation

Reading proclamation
67. A person who is

(a) a justice, mayor or sheriff, or the lawful deputy of a mayor or sheriff,
(b) a warden or deputy warden of a prison, or
(c) the institutional head of a penitentiary, as those expressions are defined in subsection 2(1) of the Corrections and Conditional Release Act, or that person’s deputy,

who receives notice that, at any place within the jurisdiction of the person, twelve or more persons are unlawfully and riotously assembled together shall go to that place and, after approaching as near as is safe, if the person is satisfied that a riot is in progress, shall command silence and thereupon make or cause to be made in a loud voice a proclamation in the following words or to the like effect:

Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business on the pain of being guilty of an offence for which, on conviction, they may be sentenced to imprisonment for life. GOD SAVE THE QUEEN.


R.S., 1985, c. C-46, s. 67; 1994, c. 44, s. 5.


– CCC

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".[1] The judge should not redact reference to the penalty described in the proclamation.[2]

Definitions
"Justice" and "peace officer" are defined in s. 2 of the Code.

  1. ↑ Thorne v R., 2004 NBCA 102 (CanLII), per Deschênes JA, at para 12
  2. ↑ Thorne

Interpretation of the Offence

Rioting

Section 65 is a general intent offence.[1] It is not a strict liability offence.[2]

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.[3]


Proclamation

Proof of "compliance with s. 67 is an essential ingredient of a s. 68 offence."[4]

Misc Definitions
"Tumultuously" requires " some elements of violence or force which may be exhibited by menaces of threats".[5]

Constitutionality

Section 65 does not violate s. 7 or 11(d) of the Charter.[6]

  1. ↑ R v Kirkwood, 2013 BCPC 84 (CanLII), per Bagnall J at para 22
  2. ↑ R v Brien (1993), 86 CCC (3d) 550 (NWTSC), 1993 CanLII 2842 (NWT SC), per de Weedt J
  3. ↑ R v Lecompte, 2000 CanLII 8782 (QC CA), per Beauregard JA, at para 14
  4. ↑ Thorne v R., 2004 NBCA 102 (CanLII), per Deschênes JA, at para 8
    R v Greenhow, 2004 ABCA 22 (CanLII), [2004] AJ No 38, per Wittmann JA, para 9
  5. ↑ 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
  6. ↑ Brien, supra

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

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
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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties
Offences under s. 65, 68 and 69 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

Offence(s) Crown
Election		 Discharge
s. 730		 Suspended
Sentence
s. 731(1)(a)		 Stand-alone
Fine
s. 731(1)(b)		 Custody
s. 718.3, 787		 Custody and
Probation
s. 731(1)(b)		 Custody and
Fine
s. 734		 Conditional
Sentence (CSO)
s. 742.1
s. 65, 66, or 69 N/A
s. 68 any

For offences under 65, 66, or 69, 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 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.

Principles

Ranges

see also: Unlawful Assembly and Rioting (Sentencing Cases)

Ancillary Sentencing Orders

Offences-specific Orders

Order Conviction Description
DNA Orders s. 65(2), 66(2) or 68

General Sentencing Orders

Order Conviction Description
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 Conviction Description
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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

History

1985 to 2013

Punishment of rioter
65. Every one who takes part in a riot is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
R.S., c. C-34, s. 66.
Punishment for unlawful assembly
66. Every one who is a member of an unlawful assembly is guilty of an offence punishable on summary conviction.
R.S., c. C-34, s. 67.


– CCC

See Also

  • Riot Act (1714) (1 Geo.1 St.2 c.5) - the original British source of this offence

References

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