After longstanding speculation about whether Montreal’s anti-protest by-law P-6 can more effectively be challenged at the ballot box or in the courts, a court decision released on Thursday suggests that the answer is neither: sustained mass action and solidarity in the streets itself may be straining the court system to the point that P-6 will become unenforceable.
On Thursday 23 October 2014, Judge Gilles R. Pelletier of the Municipal Court of the City of Montreal dismissed the cases of twenty-seven self-represented people who had been detained and given P-6 tickets at a demonstration on 21 April 2012. The cases were not dismissed because the judge recognized a violation of the protesters’ rights to assembly, expression, or protest, but because there were simply too many cases for the system to effectively process. Pelletier ended his decision by suggesting that P-6 cases are at risk of bringing the rest of the trials heard by the court to a crawl.
Pelletier noted that the defendants had already had to endure waiting twenty-nine months without their trial being anywhere near over, and that the prosecution was unable to provide any plan to bring the trial to a timely conclusion. In his decision, Judge Pelletier continued:
And if no one has a concrete and realistic plan ... allowing us to process these cases within a reasonable delay, will it take a generous and anonymous benefactor to pay the modest sums at stake in these cases to stem this massive hemorrhaging of resources and funds, both public and private? In doing so, a person might successfully avoid this sabotaging of the sustained, daily efforts of all the players in our court system—judges included—to ensure that trials of defendants who are charged in all other cases, whatever their nature, are held within a reasonable delay. (my translation from French)
The judge lamented what he called a “Gordian Knot” that makes it impractical to prosecute P-6 tickets handed out en masse.
When protesters are prosecuted through a multitude of individual trials, contradictory judgments are sure to result: One protester will be acquitted while another standing right next to her will be found guilty without any basis on which to explain the distinction. For Pelletier, these “contradictory decisions harm public perceptions of justice.” But when protesters are tried together en masse to avoid contradictory verdicts, the trial becomes a “monster”, in Pelletier’s words, too unwieldy to bring to a close in anything resembling a timely manner.
Last week, Anarchopanda and Jaggi Singh announced that the city is spending over $100,000 in legal fees alone to defend against their two constitutional challenges to P-6. Legal fees do not represent the full cost, which in turn is only a fraction of the cost to attempt to prosecute the tickets and the cost that will accrue as the city attempts to defend itself against a number of class action lawsuits against its enforcement of P-6, such as the $21-million class action that was certified in August to proceed to trial.
By-law P-6 traces back to the 1970s, but during the printemps érable it was amended to allow police to issue a fine—which has commonly been in the amount of $637—to any person at a public gathering for which the itinerary has not been provided to police, or to any person wearing a mask at a public gathering.
Before these amendments came into force Montreal police had not required notice or permits for public gatherings, including protest. In the early 1990s, police had agreed to allow protests to take place permit-free after popular mobilization of queer Montrealers in the wake of the police raid of the Sex Garage made it impossible for conditions on protests to be enforced.
It remains to be seen whether a return to a permit- and notice-free policy is on the way, but Judge Pelletier’s decision on Thursday reveals that Montreal’s Municipal Court is feeling the strain of the hundreds upon hundreds of challenges to P-6 tickets.