2014 QCCQ 1514, 2014 QCCQ 1514

Unofficial English Translation R. c. De Bellefeuille 2014 QCCQ 1514 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ARTHABASKA LOCALITY OF VICTORIAVILLE "Criminal and Penal Division" No.: 415-01-023300-120 415-01-023301-128 DATE: February 24, 2014 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE GUYLAINE TREMBLAY, J.C.Q. ______________________________________________________________________ THE QUEEN PROSECUTRIX v.

JULIEN DE BELLEFEUILLE DEFENDANT ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Julien De Bellefeuille faces three charges relating to events that took place in Victoriaville on May 4, 2012. [ 2 ] In court docket 415-01-023301-128, he is charged with taking

part in a riot in violation of

section 65 of the Criminal Code . In court docket 415-01-023300-120, he is charged with being a member of an unlawful assembly in violation of

section 66 of the Criminal Code and of assaulting a peace officer while using a weapon. [ 3 ] At the end of the trial, counsel for the prosecution conceded that he would be unable to discharge his burden on the assault with a weapon charge. There remain the offences under sections 65 and 66 of the Criminal Code . [ 4 ] De Bellefeuille argues that he became involved in a riot that became unlawful even though he did not intend to do so. To convict him would be to punish him for merely being present while a riot unfolded without demonstrating his intention to take

part in an unlawful assembly. THE LAW [ 5 ] The right to publicly protest one's disagreement or point of view on any subject and to assemble to do so is a fundamental and basic right, which no one disputes. In rights-based society, however, the legitimacy of a claim does not include the right to argue it by any means. Sections 63 to 66 of the Criminal Code balance out the right to assemble as long as the peace is not disturbed tumultuously. [ 6 ] Subsection 63(1) of the Criminal Code defines unlawful assembly: 63.

(1) Unlawful assembly – An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they (

a) will disturb the peace tumultuously; or (

b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously. [ 7 ] The concept of riot is intimately related to unlawful assembly. Indeed,

section 64 provides that a riot is an unlawful assembly that has begun to disturb the peace tumultuously. Pursuant to the rule against multiple convictions, a stay of proceedings must be ordered respecting

section 66 if the evidence is conclusive respecting

section 65 . [ 8 ] Both

section 65 and

section 66 include an objective element. Contrary to popular belief, the law does not identify any legal obligation on the part of the police to declare an assembly unlawful for there to in fact be an unlawful assembly. Rather, the test is that of the reasonable person in the same circumstances. [ 9 ] Both of these offences also include a subjective element; neither

section 65 nor

section 66 [ translation ] "convicts a member of an assembly who was not aware of any facts indicating that the peace would be disturbed tumultuously. It has never been the intention of criminal law to punish a person who is unaware of a situation of fact". [1] [ 10 ] Indeed, both are general intent offences. It is therefore necessary to prove beyond any reasonable doubt the accused's intent or

recklessness with respect to his taking

part in an assembly that is objectively unlawful and that, as in this case, turned into a riot. [ 11 ] Regarding the objective element of

section 63 , the following excerpt of the judgment rendered by the Honourable Judge Pierre Pinard properly describes what is meant: [ translation ] [16] When a riot breaks out, it is too late to prevent the violence that is already taking place. Parliament has therefore decided to dissuade citizens from taking part or continuing to take

part in a demonstration where the seeds of violence have clearly been sown. [2] [ 12 ] This objective is legitimate because once a crowd is out of control, there can be disastrous consequences. That is the law; let us now consider the facts. FACTS [ 13 ] On May 4, 2012, De Bellefeuille decided to go to Victoriaville to demonstrate his opposition to increased tuition fees.

During that period of time, he went to several demonstrations held for the same reason in Montreal. [ 14 ] That day, he arrived by bus and joined a large crowd that was ambling down the street toward a hotel where the Liberal Party convention was being held and where most of Quebec's ministers, as well as the Premier, could be found. [ 15 ] In his opinion, the mood was friendly. He followed the crowd, [ translation ] "it was very family-friendly", he said. The march quickly came to a stop because the route was a short one. The accused moved closer to a barrier to try to find the people he knew.

He was aware that some protesters were knocking down barriers near the hotel. He [ translation ] "did not notice any shift in the crowd’s mood" , he said, and did not hear the police officers' instructions. [ 16 ] He then saw fireworks and the riot police appeared. He started to feel the effects of the gas. He panicked because he was unable to breathe and his eyes burned. [ 17 ] The chaos that he described is largely corroborated by most of the testimony heard, including that of Sergeant Mario Ratté, who was supervising the SQ's Anti-riot Squad, chemical irritants section.

He was the one to arrest De Bellefeuille. [ 18 ] Contrary to the accused, Ratté describes a noisy, agitated and violent demonstration: [ translation ] "it was no picnic" , he said. The anti-riot squad was deployed early on and in a rush because the metallic fences protecting the hotel grounds where the ministers' counsel was being held had been knocked down by protesters. [ 19 ] Ratté ordered the crowd to disperse, announcing that the assembly had become unlawful. He announced that tear gas would be used if the crowd did not disperse.

As he tried to push the crowd back, he said [ translation ] " all kinds of things were being thrown at us" . He saw billiard balls, pieces of wood, and chunks of asphalt on the ground. He saw rocks being thrown at a police cruiser, shattering its windows. [ 20 ] Simultaneously, a fair amount of gas was used, but because the wind was blowing in the wrong direction it blew back toward them. The agitation continued and the police officers who were there were overwhelmed. [ translation ] "When we're called in, it's because the other details have their hands full" , he stated.

He saw a lot of people, including the accused, holding a red banner. He ordered a manoeuvre he calls the [ translation ] "5-step charge" . The accused was right next to him. He did not resist arrest. Sergeant Ratté testified that the accused was immobilized on the ground and that his eyes were closed. Sergeant Ratté repeatedly testified that De Bellefeuille had several opportunities to walk away. [ 21 ] De Bellefeuille does not deny the facts.

Initially pushed back by the gas, surrounded by people who were coughing, troubled by what he was feeling, and stating that he feared the crowd, he chose to return to the road and thus towards the hotel and police officers. He thought it would be a good idea to hold a banner to express that he wanted to protest peacefully. He then found himself in the sites of the anti-riot police and was arrested. [ 22 ] Sergeant Ratté handed De Bellefeuille over to Officer Éric Lavoie who officially arrested him and filled out the identification form. Officer Marco Cloutier acted as forensic identity technician.

Among other things, he took the accused's photograph. De Bellefeuille then became Investigator Vachon's responsibility. He was driven to the police station. Once he was informed of his rights, he asked to consult a lawyer, whose name he could not remember but whose telephone number was written in felt-pen on his arm. It was Mtre Villeneuve-Gagné's telephone number. [ 23 ] In the accused's backpack there was a document entitled INFO-MANIF, which read: [ translation ] Hello and welcome to the demonstration "This is not an offer.

It is an INSULT", which brings us to Victoriaville, to the Quebec Liberal Party convention, where we will protest the government's "insult" to the student movement. Here are some important things you should know: • We will leave Victoriaville at 7:00 p.m. • The Sûreté du Québec may have set up some roadblocks prior to our arrival in Victoriaville to search the bus. Consequently, bring only the strict minimum (wallet, telephone...) • We encourage you to stay with the group of protesters from the University of Montreal. This will ensure that you receive all the relevant information during the protest.

• The Sûreté du Québec has a modus operandi that is all its own and will not hesitate to use tear gas or pepper spray. We recommend that you stay far away from the fences and doorways when we get to the convention centre if you wish to avoid being in the centre of a police intervention. • In the event of police intervention, you should move away from the intervention site to limit your chances of being arrested. In need, do not hesitate to call Tiago Silva, student life coordinator for FAÉCUM, at 514-947-8195.

If you find yourself in trouble, Mtre Thomas Villeneuve-Gagné and his expertise will be at your disposal. 514-647-5959. ANALYSIS [ 24 ] The accused had a document in his possession that appeared to hint at the fact that the demonstration to which he was heading could turn into a confrontation with police officers. He had considered the fact that he might run into trouble since he wrote the lawyer's telephone number on his arm.

He knew that the potential for things to get out of hand was already clearly present. [ 25 ] Ignoring the recommendations that he remain far away from the fences and doorways of the convention centre, he approached them instead. He saw the fences in question that had been knocked down and claims that he did not noticed that the mood of the protest had turned. Either he is lying, or he displayed the utmost recklessness. He could not be unaware of the fact that there was a police response. By that point in time, things had gotten out of hand and the test under

section 63 is clearly more than met. [ 26 ] Any reasonable person in the same circumstances would have realized that the situation was souring, that confrontation with the police had become reasonably foreseeable, and that it was time to leave the protest.

The assembly was unlawful because there were reasonable grounds for any person near the gathering to believe or even to be certain that the peace would be disturbed tumultuously. [ 27 ] When De Bellefeuille turned toward the hotel and thus toward the police officers, there was clearly a riot and there was absolutely no longer anything peaceful about the demonstration. His active participation by holding a banner in the chaos amply fulfils the subjective test required to convict the accused. [ 28 ] The accused is found guilty in court docket 415-01-023301-128.

Because of the rule against multiple convictions, a conditional stay of proceedings is ordered on the second count in court docket 415-01-023301-128. With respect to the count of armed assault, count 1 of court docket 415-01-023300-120, the accused is acquitted. __________________________________ Guylaine Tremblay, J.C.Q. Mtre Anthony Cotnoir For the prosecution Mtre Thomas Villeneuve Gagné For the defendant Date of hearing: November 21 and December 5, 2013