Current legal framework for handling protests in Canada / Quebec / Montreal / Westmount
LEGAL FRAMEWORK & CONSTRAINTS
Any limit on protests must be considered in light of constitutional and statutory protections. Key legal guardrails (right).
-
Canadian Charter of Rights and Freedoms
Section 2(c) protects “freedom of peaceful assembly.” (Ministère de la Justice)
But this right is not absolute; it is subject to section 1 of the Charter, which allows “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” (Centre for Constitutional Studies)
Also, government responses (laws, by-laws, policing) must not be grossly disproportionate, arbitrary, vague, or overbroad (the courts apply the “Oakes test” or similar rationales). (Osgoode Hall Law School Digital Commons)
Criminal / Public Order Statutes
The Criminal Code limits violent acts, threats, property destruction, assault, mischief, etc. Protests that cross into those areas can be curtailed or prosecuted.
A federal statute, Preventing Persons from Concealing Their Identity during Riots and Unlawful Assemblies Act (Bill C-309), criminalizes wearing a mask during a riot or declared unlawful assembly in certain circumstances. (Wikipedia)
In extreme cases, the federal government can invoke the Emergencies Act (but only under very high thresholds) to impose extraordinary restrictions. (Wikipedia)
Thus, the federal layer offers both protection (Charter) and potential levers (criminal law, emergencies) but acts only at the highest level.
-
Legal powers over public order, police, public safety, roads, parks, etc., generally lie in part with provinces (or delegated to municipalities).
In Quebec, a key practical reference is Educ’Alloi: “Protesting in Quebec: What You Need to Know.” This guide states that in Quebec:
“You’re allowed to protest in the street, on the sidewalk or in a park.” (Éducaloi)
“You don’t have to tell the police the place, route or time of an upcoming protest … a Montreal by-law requiring notice was struck down because it violated protected freedoms.” (Éducaloi)
“You’re allowed to wear a mask during a protest. A court struck down a by-law that banned face coverings in protests.” (Éducaloi)Provinces (or Quebec) could legislate more direct controls, but they must respect the Charter (or invoke section 33 “notwithstanding” if they choose).
Moreover, Quebec has in recent news signaled moves to regulate public prayer (particularly in the context of protests) as part of its secularism / “laïcité” agenda. Critics say it could infringe on the freedom of expression, assembly, religion. (The Guardian)
Also, provincial laws like the Highway Safety Code can penalize blocking sidewalks or roadways below certain thresholds (though enforcement in protest contexts is uneven). (The CJN)
So, Quebec has some tools, but must tread carefully around constitutional limits.
-
Municipalities derive their powers from provincial statute (in Quebec, municipal charter regimes) and must act within those delegated powers.
A municipality can pass by-laws concerning traffic, public order, parks, permits, nuisances, noise, obstruction, and certain uses of public land, subject to higher law.
But it cannot enact by-laws that completely or arbitrarily extinguish the right of peaceful assembly (unless they can be shown to be justified under Charter).
Also, municipal by-laws must align with provincial laws and cannot conflict with the Charter’s protections.
In Westmount, relevant By-laws include:
By-law concerning noise (Règlement sur le bruit) — originally June 10, 2010, updated November 15, 2022 (Westmount)
By-law on periodic occupancy of the public domain (Règlement sur l’occupation périodique du domaine public) — effective July 10, 2013, updated July 9, 2020 (Westmount)
By-law concerning “prevention of breaches of the peace, public order, and safety” (Règlement concernant la prévention des bris de la paix, l’ordre public et la sécurité) — effective July 11, 2012 (Westmount)
By-law “maintaining peace and order on public property by prohibiting fights” (Règlement pour la paix et l’ordre sur le domaine public en interdisant les combats) — effective October 11, 2011 (Westmount)
By-law on nuisances and good order (Règlement sur les nuisances et le bon ordre) — effective December 9, 2014, updated November 15, 2022 (Westmount)
By-law 1621: occupancy of the public domain — a relatively new by-law (May 14, 2024) (Westmount)
There is no strong local “anti-protest” bylaw, management is buried in by-laws under traffic, obstruction, public order, or parks.
If Westmount wanted to pass a by-law to limit protests, it might target:
Permits / notifications — requiring organizers to provide notice, route, timing
Time / place / manner restrictions — e.g. limiting demonstrations to certain hours, or keeping distance from sensitive sites (consulates, synagogues, courts)
Obstruction / blocking bylaws — penalize blocking roads, sidewalks, key infrastructure, or disrupting essential services
Noise / amplified sound restrictions
Buffer zones — e.g. no protests within X meters of embassies, consulates, houses of worship, or protected premises
Limitation on size or number of persons in certain areas
Penalties / enforcement powers — fines, removal by police, injunctions
However, each such regulation is vulnerable to challenge if it is too broad, vague, or does not sufficiently account for freedom of peaceful assembly.
Key legal constraints, risks, & judicial interpretations
Because protests touch constitutional rights, here are constraints and risks that any bylaw must navigate (right).
-
A restriction must have a pressing and substantial objective.
It must be rationally connected to that objective.
It must impair the right as little as possible (minimal impairment).
There must be proportionality (benefits must outweigh harm to rights).
If a bylaw fails these standards, courts can strike it down or refuse enforcement.
-
If a bylaw is vague (unclear what is prohibited) or overly broad (sweeps in legitimate protest activity), it will be vulnerable to challenge.
E.g., a bylaw that prohibits “demonstrations that disturb peace” without definition might be struck down.
-
Municipal rules cannot discriminate based on the content or viewpoint of the assembly (unless strict justification). For instance, you can’t allow pro-Israel protests but ban pro-Palestinian ones without strong justification.
-
A bylaw that requires permission or approval before protest (especially without adequate safeguards) can operate as a prior restraint on expression, which courts scrutinize more strictly.
In Quebec, as mentioned, a Montreal bylaw requiring notice (place, time, route) was struck down for violating freedom of assembly. (Éducaloi)
-
Before or during protest, courts may issue injunctions (ex parte or after hearing) to prevent protests at specific places or times if there is a risk of damage, danger, or breach of peace.
-
Police always have some powers to maintain public order, enforce criminal laws, respond to threat of violence or property damage, or to disperse unlawful assemblies.
But police actions (tear gas, arrests, etc.) are constrained by Charter, use-of-force doctrines, and must be proportional, justified, and necessary.
-
In theory, a provincial legislature or Parliament could pass a law that overrides certain Charter rights for a limited period by invoking section 33. This is politically and legally high-risk.
For example, Quebec has used the notwithstanding clause for other laws (e.g. laïcité).
But using it to broadly restrict assembly is likely to provoke constitutional challenge, strong public backlash, and intense scrutiny.
-
Peaceful protest — even when loud or offensive — is protected by the Charter of Rights and Freedoms (s.2(b) and s.2(c)).
But when protest activity crosses into:
Targeted harassment,
Threats or intimidation,
Blocking access to private property,
Hate propaganda or incitement, or
Disruption of lawful enjoyment of property,
it loses constitutional protection and becomes a matter for police enforcement.
Courts have consistently ruled that the Charter does not protect speech or conduct that threatens, harasses, or targets individuals on prohibited grounds (religion, ethnicity, etc.) or that interferes with others’ rights to security, property, or mobility.
CrIMINAL AND QUASI-CRIMINAL LAWS THAT APPLY
The SPVM and prosecutors (Crown) can use multiple provisions of the Criminal Code of Canada in such cases (right). The SPVM is fully empowered to enforce these provisions within Westmount, because policing jurisdiction there belongs to the SPVM’s West Division (not the Westmount public safety officers, who are unarmed municipal security).
-
Making threats to cause bodily harm, death, or damage to property. s.264.1
-
Repeatedly following, watching, or engaging in threatening conduct causing fear for safety. (s.264)
-
Blocking access, threatening, or otherwise intimidating to compel a person to do or not do something. (Often used in protest-related enforcement.) (s.423)
-
Wilfully obstructing, interrupting, or interfering with lawful use or enjoyment of property (can apply if residents are blocked or property is damaged). (s.430)
-
Yelling, swearing, or using insulting language in a public place that disturbs the peace. (This is often used for on-the-spot enforcement when protests get disorderly.) (s.175)
-
Publicly inciting hatred against an identifiable group (e.g. Jews) where such incitement is likely to lead to a breach of the peace. (Serious, requires Attorney General consent for prosecution.) (s.319(2))
-
Extremely serious; promoting or advocating genocide against an identifiable group. (s.318)
-
For those refusing lawful dispersal orders or interfering with police operations. (s.129)
PROVINCIAL AND HUMAN RIGHTS LAWS
Quebec adds its own protections under the Charter of Human Rights and Freedoms (R.S.Q., c. C-12) — separate from the Canadian Charter.
If protesters or individuals harass or intimidate someone based on religion or ethnicity, the victims (or the city) can file a complaint with the Commission des droits de la personne et des droits de la jeunesse (CDPDJ).
Additionally, Quebec’s Code of Penal Procedure allows municipalities to issue fines for behaviour that violates public order, noise, or nuisance bylaws, even if the same conduct also borders on a criminal act.
What Westmount Could Do vs What is Likely (Legally) Feasible
Given the above, here’s what a municipality like Westmount might attempt and where it is likely to succeed or fail:
-
Time/place/manner by-laws that reasonably restrict demonstrations during night hours, or prevent obstruction of traffic, while leaving other times open.
Buffer zones / separation around sensitive sites (consulates, diplomatic buildings, places of worship), so long as the buffer is not so large that it essentially bans all protest in much of the municipality.
Noise rules / amplified sound control (limiting decibels or hours)
Permit or notification regimes that are procedural (not substantive) — e.g. organizers notify police or city ahead, so traffic management etc. can be prepared. This must not graft on discretionary power to reject protests arbitrarily.
Enforcement against unlawful acts: obstruction, mischief, assault, property damage, etc.
These types of regulations, if carefully drafted, may be upheld by courts as “reasonable limits” (if minimal impairment, etc.).
-
Blanket bans on protests in public spaces — that is likely unconstitutional unless extremely justified (e.g. emergency).
Banning protests near the consulate or synagogue entirely — unless narrowly tailored and justified. If the area is small and the buffer zone reasonable, it might be justifiable; if too broad, courts would likely strike it.
Content-based bans (e.g. allow some causes, ban others) — very risky and likely to fail unless extremely justified.
Heavy prior approval regimes with discretion to permit or deny based on subjective criteria — likely vulnerable.
Massive fines or criminal penalties for peaceful protest — courts would examine whether the penalty is disproportionate.
Using extraordinary powers (like “emergencies”) at municipal level — municipalities don’t have that kind of sweeping power; that’s reserved for higher authorities.
What Recourse / Limitations for Citizens / Protesters
-
Individuals or groups can challenge a bylaw in court (via judicial review or constitutional challenge) if they believe it violates their Charter rights.
Courts may issue injunctions, strike down by-laws, or award damages if rights are violated.
During protests, individuals may invoke their rights in confrontation with police (though this is messy in practice).
Civil liberties organizations (e.g. Canadian Civil Liberties Association) often intervene in such cases, offering legal support or raising public awareness. (CCLA)
-
Montreal’s prior by-law requirement struck down — a Montreal by-law requiring protesters to provide detailed notice (time, route, place) was invalidated because it unduly constrained the right to assemble. (Éducaloi)
Mask bans in protests struck down — a by-law banning mask-wearing during protests was struck down because face coverings can protect anonymity especially in repressive contexts. (Éducaloi)
Bill 78 / Loi 12 (2012 Quebec student protests) — the Quebec government passed a restrictive law to curb protests (limiting gathering size, requiring prior notice, etc.). That law was extremely controversial, and many parts were challenged as violating freedoms. (Wikipedia)
-
Westmount can pass by-laws that regulate certain aspects of protests (time, place, manner, buffer zones, obstruction, noise), but it cannot lawfully ban protest entirely or in a way that unduly impairs the constitutional right to peaceful assembly.
Any by-law must be carefully tailored, narrowly applied, and defensible under Charter section 1 as a reasonable limit. The more intrusive the restriction (e.g. banning protests near consulates), the higher the burden on the city to justify it.
Because Westmount is a diplomatically and religiously sensitive locale, buffer zones or specific protections near diplomatic or religious institutions may be more justifiable — if they are narrowly drawn, limited in scope, and allow for alternate protest sites.
Before enacting any by-law with protest-limiting potential, Westmount should conduct legal review (ideally constitutional counsel), engage with stakeholders (civil liberties groups, communities), and ensure clear definitions (to avoid vagueness).
In practice, combining preventive planning (coordination with police, crowd control, traffic rerouting) with targeted by-law enforcement (against obstruction or violence) is safer than sweeping bans.