On March 2nd, 2018, the Québec Court of Appeal issued its decision in Villeneuve c. Ville de Montréal, a constitutional and administrative challenge of the City of Montréal’s by-law, le Règlement sur la prévention des troubles de la paix, de la sécurité et de l’ordre publics, et sur l’utilisation du domaine public, passed in 2012. The by-law amended existing regulations regarding public order and, among other things, made it illegal to cover one’s face during a protest, march, or demonstration, and to embark on one of these public events without first sharing its itinerary or route with the city’s police force. The latter provision obliged citizens to share with police the exact location of “every assembly, parade or gathering on public property.” The provision also purported to confer upon police broad discretion to determine what is an illegal demonstration. While the provision regarding masks saw the end of its life in the Superior Court of Québec, the provision regarding itineraries was taken up to the Court of Appeal. Earlier this month it was found by all three justices to be invalid under administrative law as it was arbitrary, excessive, and unreasonable.
This controversial by-law was passed just weeks after student protests, in which masks, covered faces, and violence had increased, were held in response to increases to university tuition fees in the province from $2,168 to $3,793 between 2012 and 2018.
Villeneuve, a college philosophy teacher, filed a legal challenge in the Québec Superior Court against the by-law; in June of 2016 the trial court struck down the ban on masks as excessive, arbitrary, and unreasonable. However, Justice Masse upheld the requirement that demonstrators share their itineraries with police, but added that this could only be a legal requirement when the protest was planned in advance (thus, an unplanned protest whose itinerary had not been shared with police could not be illegal).
The city did not contest the ruling as to the ban on masks, but Villeneuve appealed the decision as to protest itineraries. The Court of Appeal overturned the lower court decision and voided the itinerary provision of the by-law, holding that the trial judge had erred by giving meaning to the provision that the legislator had not intended (that being, the difference between planned and unplanned protests). When this nuance is not included, all three Court of Appeal Justices agreed that the provision is rendered “excessive and unreasonable…from an administrative law point”. Since the provision was held to be invalid under administrative law, the court’s analysis of its constitutional validity is “less pertinent.” The court found that the provision, which limits freedom of expression and peaceful assembly under Canada’s and Québec’s Charters, could not pass the “rational connection” part of the Oakes test, a rarely failed element.
“The decision underlines that one cannot rely on police to apply a law correctly when it is so vague that it could lead to a constitutional violation,” noted Sibel Ataogul, the Montreal lawyer with Melançon Marceau Grenier & Sciortino who successfully pleaded the case for Villeneuve. Referring to how the Superior Court had interpreted the itinerary provision of the by-law, Ataogul described the ruling as “really important” in because “they say you cannot rewrite a provision completely as a constitutional remedy.”
According to Julius Grey, a human rights lawyer in Montréal, this decision is an important administrative law case: “…it narrows the powers of a municipality by saying that there has to be a reasonable amount of precision”.
The city of Montreal’s new Plante administration said it’s pleased with the Court of Appeal ruling and it does not intend to appeal the ruling or continue the legal battle, calling the whole thing a wasteful and useless legal battle. The city said it plans to look at the relevant cases under the by-law that are still active and assess whether or not to withdraw charges.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.