Thread by @Conserva_Steve

The seizure of gas and food from #FreedomConvoyCanada2022 is a hot button topic. Let unpack this and figure out what authority they have to seize this property. 🧵

The likely Criminal Code section they are utilizing is S. 430 - Mischief. Specifically subsections (C) and (D)
430(1)(C) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or

430(1)(D) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

As these offences are rarely utilized in criminal investigations, very little case law is available to assist in interpreting the subsections. This means that the general wording and relevance to the offence being investigated are open to all types of interpretation and defence.

Subsection (7) could also be interpreted as defence in this scenario. “No person commits mischief within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.”

Next option is Section 175(1) Causing a Disturbance “Every one who (a) not being in a dwelling-house, causes a disturbance in or near a public place, (i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,
▪(ii) by being drunk, or …”

▪(iii) by impeding or molesting other persons,◦(c) loiters in a public place and in any way obstructs persons who are in that place, or
◦(d) disturbs the peace and quiet of the occupants of a dwelling-house by discharging firearms or by other disorderly conduct in a …

“in a public place or who, not being an occupant of a dwelling-house comprised in a particular building or structure, disturbs the peace and quiet of the occupants of a dwelling-house comprised in the building or structure by discharging firearms or by other disorderly conduct…

“In any part of a building or structure to which, at the time of such conduct, the occupants of two or more dwelling-houses comprised in the building or structure have access as of right or by invitation, express or implied,”

Interpretation would suggest that police could articulate that the elements of the offence of causing a disturbance have been met however the following case law related to this offence must be considered…

R. v. Lohnes has stated that the offence requires the Crown Attorney to prove that the accused’s behaviour caused more than a mere annoyance but actually interfered with the ordinary and customary use of the place where the act occurred.

Given this info, it is reasonable that either of these offences could be articulated by police to have been committed, and reasonable defence of these offences could be argued by the accused. The police must obtain “reasonable and probable grounds” of and offence to arrest.

Ok so what about seizure of items like fuel and food from the protestors? Seizure can be made a few ways all under the definition provided by the charter in sec 8 “Everyone has the right to be secure against unreasonable search and seizure.”

Countless SC decisions related to search and seizure aid is in interpreting “reasonability” publications.gc.ca/Collection-R/L…

Coles notes of what is determined to be a reasonable search and seizure in today’s Canada, based on CCC and Case law… search upon lawful arrest - does not apply. Warrantless search is easily the most debated form of search. Police will have to determine whether there is…

Enough information to justify search and seizure prior to arrest and without judicial authorization (warrant). Generally, public safety and preservation of evidence are the primary contributors to this type of decision by investigators…

Police will weigh these factors against the potential of a charter argument in court where the defence will argue that the warrantless search was unreasonable. If successful, the evidence gathered in the warrantless search will be determined “inadmissible” (useless) and…

The defendant is entitled to restitution to be determined based on the severity of the breach of their charter right to unreasonable search and seizure. More often than not, investigators will avoid this potential legal defence by obtaining a warrant…

So how do you get a warrant? Police must provide evidence to suggest that evidence related to a certain offence will be located during the requested search/seizure. If judge/justice believes the evidence to be found will provide evidence for charges against a person…

And determines the infringement on the persons rights is reasonable given the circumstances, judicial authority is granted. Obtaining a warrant, largely justifies the infringement against a person and makes a charter argument in court virtually moot.

All in all, there is no black and white legal option for the police or the protestors in this situation. Both sides are best to converse and discuss a mutual agreement to the end of the protest. Hopefully, logic and humanity will prevail and all will turn out for the best.

One final option which came to mind is S. 495 About to commit an offence. This section allows for the arrest of any person who is about to commit an indictable offence. This section does not provide authority for search and seizure though.