I am a supporter of the right to peacefully protest, particularly in support of important causes like Black Lives Matter.
As a criminal defence lawyer, however, I see a lot of people who set out to peacefully protest end up arrested by police. I wanted to write a short blog post to offer some tips to avoid legal trouble while protesting.
Keep your cool
While you should absolutely get fired up when chanting, singing, and shouting your message, you should expect that there will be people at the protest who are there to try to get you fired up in another kind of way. An unfortunate reality is that counter-protesters are almost inevitable. Some counter-protestors will try to engage you in dialogue with the hopes of inciting violence.
If this occurs, do not give in to the urge to engage. You are better off to keep your cool, walk a few meters away, and protest away from these people. If you engage in violent reactions, particularly if you are a person of colour or Indigenous, you run the risk of being arrested for assault or ticketed for fighting in public, even if you are doing nothing wrong.
Respect the Media
The media are there to cover the protest, and to cover your message. The more respectful you are of members of the media, the more likely you are to get favourable portrayal of your message and your protest on evening news. Assaulting members of the media, or yelling FHRITP while broadcasts are happening will only dilute your message and undermine your cause.
If you see police brutality or violence, a good relationship with media will allow you to alert them to it while you are there. This will allow it to be documented and disseminated widely, quickly.
Wear a Mask
Right now, in British Columbia, public gatherings of more than 50 people are still unlawful. Dr. Bonnie Henry has said that she supports the right of people to express their opinions through protest, but she would prefer if it were done in a way that protects against the spread of COVID-19.
While wearing a mask at other times in a protest might be poor legal advice, wearing a mask will protect you and others from the spread of COVID-19 as you gather in groups. Particularly when it comes to protests involving Indigenous people and Black Lives Matter, as it is a well-documented fact that access to healthcare and healthcare outcomes for people of colour are different and less positive than for white people.
But, wearing a mask also helps you out. Right now is one of the few times that you can publicly wear a mask with full deniability. The mask will help white supremacist and alt-right groups from identifying you. It will also help prevent you from being identified by any legal authorities that are surveilling the protests for intelligence gathering purposes. If you are seen with someone who is at the protest for the wrong reasons, you are less likely to end up on a list of known associates, even though you are doing nothing wrong.
These lists exist, and the need to wear a mask to prevent disease transmission will also prevent you from being incorrectly labelled as a troublemaker.
Turn off Location Services and Password Protect Your Devices
Your cell phone is a means by which government can attempt to track your whereabouts. Turn off the location services on all apps on your phone, and turn the GPS off. If you don’t need to be using text messages or phone capabilities, put your phone in airplane mode. If possible, try to connect to a local wifi connection at a public location nearby. This will allow you to communicate using apps like WhatsApp and iMessage while keeping your phone from pinging off cell phone towers in any particular area.
Police can search your cell phone if they have arrested you lawfully. This is known as a search incident to arrest. However, you are not obligated to provide a password. If your device is password-protected, police will be unable to search it then and there. Choose a secure password.
It is also a good idea to clear your search history, delete your text messages, and change your contacts to nicknames before heading out. This will prevent police from obtaining much information about you if they do gain access to your device. If your device is connected to your email accounts, log out of all email accounts before leaving your house.
Remember Your Rights
If you are not being detained for an offence, you do not have to provide police with your identity information. Vancouver Police Department has a specific carding policy. Read it and familiarize yourself with your legal rights before heading out to protest.
In Vancouver, police must advise you that providing your identification information is voluntary, and that you are free to walk away.
If a police officer stops you and asks for identification, ask whether you are being detained. If you are told you are not being detained, then you are free to go and you do not have to provide any further information. Do not give your identification information to police if you are not being detained.
You are not obligated to consent to any searches or hand over your electronic devices. In order for police to lawfully search you with your consent, they must give you a chance to call a lawyer first. If police request to search you or your belongings, ask to speak to a lawyer. If they refuse, ask if you are being detained or arrested. If the answer is no, then leave and do not provide your belongings or electronics to police.
If you are arrested or detained, the only information you are required to provide to police is identification information. Beyond that, remain silent. Remember this line: Lawyer Told Me Not To Talk To You.
Ask to Call a Lawyer
If it doesn’t feel right, it probably isn’t. Ask to call a lawyer if anything seems wrong. You can save my number (604-685-8889) in your phone before heading out. Change your home screen to a photograph of my phone number, or save it as a shortcut that does not require a password. This will allow you to access the number if police have your phone, without giving them your passcode information.