Equality, expression and assembly: sections 2 and 15

Linh Tran opens the discussion herself. Her older brother, she tells the class, was stopped four times in one summer while driving the family's minivan to his job, and none of the stops led to a ticket. Each officer was polite. Each had a reason. Her family still concluded that the police stop young Asian men for no reason, and nothing about any individual stop would have changed their minds. Desjardins thanks her and says her brother's summer captures the problem this lesson addresses: equality is not only about whether each officer behaves well in each encounter, but about whether the pattern of encounters across a community is fair. The second half of the lesson turns to a different kind of right, the freedoms that let people criticize, record and protest the police themselves.

Equality rights: section 15

Section 15 guarantees that every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination, in particular discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Courts have added analogous grounds, such as sexual orientation and citizenship. Discrimination can be direct, as when an officer stops someone because of their race, or adverse effect discrimination, when a neutral-seeming practice has a disproportionate impact on a protected group. Provincial human rights codes also apply to police services: in Ontario, the Human Rights Code prohibits discrimination in services, and the Ontario Human Rights Commission's 2019 policy on eliminating racial profiling in law enforcement sets out what services are expected to do.

Canadian courts have recognized racial profiling as a reality, not merely an allegation. In R. v. Brown in 2003, the Ontario Court of Appeal accepted that racial profiling by police exists and can be proved by circumstantial evidence, since officers rarely admit it. In Peart v. Peel Regional Police in 2006, the same court described what profiling involves: the use of racial stereotypes, consciously or unconsciously, in selecting people for greater scrutiny. In R. v. Le, the Supreme Court held that the impact of police conduct on racialized communities is part of the detention analysis. And in the Luamba case, the Quebec courts found that random traffic stops lead to racial profiling and violate section 15, an issue before the Supreme Court of Canada at the time this course was written.

The class studied how to measure fairness in stop data in LES-105. Here Desjardins focuses on the constitutional point: an officer cannot defend a pattern by pointing to the reasonableness of each individual stop, and an officer's own good intentions do not answer a claim of adverse effect or a pattern of disparity. Officers protect equality in three practical ways. They base every stop on specific, recorded facts about behaviour, never on appearance. They apply the same thresholds for stops, searches and arrests to everyone. And they support the service's collection and analysis of data, because patterns that individuals cannot see in their own work often become visible in aggregate.

Freedom of expression: section 2(b)

Section 2(b) protects freedom of thought, belief, opinion and expression, including freedom of the press. Expression includes criticizing the police, swearing at an officer, holding a sign and filming. Canadian law does not make it an offence to record police doing their duties in public, and officers have no general power to seize a phone because it contains a recording or to order someone to delete footage. Officers can direct people to keep a safe distance and not to interfere, and a person who physically obstructs an officer can be charged under section 129 of the Criminal Code, but recording from a reasonable distance is not obstruction. Swearing at police is not in itself an offence, although causing a disturbance in a public place under section 175 can be.

Amara Okafor asks what an officer should do when someone is filming from two metres away and shouting insults. Desjardins replays a clip from Port Ardent training: the officer continues the arrest, says once in a calm voice, 'You can record, but I need you to step back to the sidewalk,' and ignores the insults. The person keeps filming and keeps swearing, and nothing else happens. The video later shows a lawful, professional arrest and helps the officer in court. Desjardins tells the class that they should assume they are being recorded at every call and should welcome it, because a recording is often the best evidence that they did their job well.

Peaceful assembly and protest policing

Section 2(c) protects freedom of peaceful assembly, and section 2(d) freedom of association. Protests are protected when they are peaceful; violence and serious threats are not. Police can impose reasonable limits on time, place and manner, and they can act against breaches of the peace, but the power has limits. In Fleming v. Ontario in 2019, the Supreme Court held that police have no common law power to arrest a person who is acting lawfully in order to prevent a breach of the peace by others; officers must deal with the people actually threatening the peace. Two inquiries shape Canadian protest policing. The Ipperwash Inquiry, which reported in 2007, examined the 1995 shooting death of Dudley George during an Indigenous land protest and made recommendations about police independence from political direction and about Indigenous protests. The policing of the G20 summit in Toronto in 2010, where more than 1,100 people were arrested, most released without charges, led to reviews that criticized mass detentions and the practice of boxing in crowds, and to a class action settlement in 2020.

Jesse Morningstar raises Indigenous land and resource protests, which have been central to many confrontations between police and communities. Desjardins agrees that they raise special issues: constitutionally protected Aboriginal and treaty rights under section 35, court injunctions sought by companies, and the risk that police appear to act for one side of a political dispute. The Ipperwash recommendations, and later experience, emphasize communication, de-escalation and respect for police independence from political pressure. Officers on these assignments need a clear legal basis for every action and a commitment to de-escalation.

Measuring a mass arrest

Port Ardent faced its own test two summers ago, when a protest against a pipeline expansion blocked the harbour road for several hours. Police made arrests in two stages: targeted arrests of people who had damaged equipment, and later a mass arrest of everyone on the road after a dispersal announcement. The program compares the outcomes of the two stages.

# Port Ardent road blockade protest: outcomes by arrest stage
stages = {
    "targeted arrests": {"arrested": 9, "charged": 8, "convicted": 6},
    "mass arrest": {"arrested": 112, "charged": 14, "convicted": 3},
}
for name, s in stages.items():
    charged = s["charged"] / s["arrested"]
    convicted = s["convicted"] / s["arrested"]
    print(f"{name:16s} arrested {s['arrested']:3d}  charged {charged:.2f}  convicted {convicted:.2f}")

released = stages["mass arrest"]["arrested"] - stages["mass arrest"]["charged"]
print("people in the mass arrest released without charge:", released)

targeted arrests arrested   9  charged 0.89  convicted 0.67
mass arrest      arrested 112  charged 0.12  convicted 0.03
people in the mass arrest released without charge: 98

Targeted arrests led to charges in nearly every case and convictions in two of three. The mass arrest led to charges for only about one person in eight and convictions for fewer than one in thirty: 98 people were held and released without any charge. A later review found that the dispersal announcement could not be heard at the back of the crowd. Desjardins tells the class that mass arrests of mostly peaceful people rarely produce convictions, often produce lawsuits and complaints, and almost always damage trust. Targeted action against people actually breaking the law is both more lawful and more effective.

Freedom of religion and policing

Section 2(a) protects freedom of conscience and religion, and it touches police work more often than students expect. Officers encounter religious dress, such as head coverings and kirpans, during searches and booking; they police places of worship and religious gatherings; and they respond to hate-motivated incidents. Services generally accommodate religious practices where safety allows, for instance by having officers of the same gender search a person wearing religious head covering, conducting searches of religious items respectfully and in private, and consulting community leaders about events.

Desjardins tells the class about a call where a young officer, searching a man at the station, began to remove his turban in front of other prisoners. A sergeant stopped him, moved the search to a private room and called an officer who knew how to do it respectfully. Nothing was lost in safety, and the man later filed a compliment rather than a complaint. Respect for religious practice, Desjardins says, is not a special favour but part of the same equal treatment the Charter requires.

Hate crimes and protecting expression

Police protect equality and expression in another way: by responding firmly to crimes motivated by hatred. The Criminal Code makes it an aggravating factor at sentencing when an offence is motivated by bias, prejudice or hate based on race, religion, sexual orientation, gender identity and other grounds, and creates offences for advocating genocide and wilfully promoting hatred against an identifiable group, though the latter requires the Attorney General's consent to prosecute. Officers must distinguish between protected expression, however offensive, and conduct that crosses into crime, and they must protect lawful speakers and protesters from violence even when the officers or the public disagree with the message.

Jesse asks how officers decide where that line is in the middle of a heated protest. Desjardins says the test is conduct, not viewpoint: threats, assaults, damage and genuine obstruction are policed the same way no matter which side commits them, and speech is left alone no matter how much anyone dislikes it. Officers who apply that rule consistently can defend every decision they make.

Desjardins ends the section with a point about trust. The communities most likely to see police as unfair are often the ones that most need police protection from crime, including hate crime. Every respectful search, every protest policed by its conduct rather than its message and every stop based on behaviour rather than appearance is a small piece of evidence to those communities that the Charter's promises apply to them. Linh says that if the officers who stopped her brother had explained the reason each time and recorded it, her family might have reached a different conclusion, or at least would have had something to check. Desjardins agrees that explanation and documentation are not only legal duties but the beginning of accountability.