Ontario Criminal

Charter of Rights

Purpose of activity in question was not simply to communicate political idea or voice protest

Accused individuals appealed conviction for attempting to commit mischief. Accused individuals were engaged in series of demonstrations and attempted to block cattle trucks from removing herd of cattle from institution after cancellation of prison farm program. Trial judge found that while demonstration was peaceful and was clearly political, objective was not simply to express displeasure but to stop removal of cattle, which institution was legally entitled to do. Accused individuals argued that trial judge erred in finding that their actions constituted attempted mischief and erred in finding that it was not within “limits of tolerance in democratic society”, such that it did not constitute criminal wrongdoing. Accused individuals argued that they were engaged in peaceful expression of protest and that their conduct was protected pursuant to s. 2(b) of Canadian Charter of Rights and Freedoms. Appeal dismissed. Trial judge’s decision was supported given findings of fact. Accused individuals’ conduct was not Charter-protected. Purpose of activity in question was not simply to communicate political idea or to voice protest, but to halt removal of cattle. Evidence before trial judge was sufficient to allow him to conclude that conduct of accused individuals crossed line and constituted criminal wrongdoing. Trial judge was entitled to conclude that conduct of accused individuals was to block cattle trucks and stop closure of prison farm, as opposed to expressing idea. Trial judge did not directly address s. 2(b) Charter argument largely because accused individuals at trial argued de minimis and necessity. Full reading of trial judge’s decision indicated that he did turn his mind to constitutional right of freedom of expression pursuant to s. 2(b) of Charter, and that he made specific findings of fact sufficient to conclude that actions of accused individuals were not protected by s. 2(b) of Charter. Trial judge’s decision was correct and supported by evidence.

R. v. McCann (May. 13, 2014, Ont. S.C.J., John M. Johnston J., File No. CR-12-15, 12-153, 12-152) 113 W.C.B. (2d) 345.

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