Are Home Demonstrations Legal in Canada?

431841_2936136461806_1148882773_nPhoto outside of Marineland Animal Defense Home Demonstration

“The earth is not dying — it is being killed. And the people killing it have names and addresses.” – Utah Phillips 

One focus of this blog is explaining back and sharing the knowledge I’ve gained through advocacy and the legal response to that advocacy. The hope being that others will not make the same mistakes and that folks starting from scratch will do so armed with better knowledge than I had.

One tactic that I have used that receives a lot of debate is home demonstrations – demonstrating out front of the home of an opposition target. I wanted to take the time to explain my experience with the tactic, the legal response to it, and how best I think folks can protect themselves while still using it.

The SHAC Campaign 

Popularized during the SHAC campaign, home demonstrations were part of a “diversity of tactics” which saw letter writing, petitions, office disruptions, home demonstrations, mass protests, and property destruction. The campaign encouraged both above and below ground tactics, however, used home demonstrations as a legal and above ground tactic to name and shame individuals commercially tied to the vivisection firm Huntingdon Life Sciences.

Through that campaign many of the criticisms of home demonstrations were brought forward and some of the tactics were refined. In the end however, 6 organizers with the Stop Huntingdon Animal Cruelty campaign in the US would be convicted of domestic terrorism charges for their role in the campaign – with a similar wave of repression facing advocates and organizers in the UK.

The use of home demonstrations, and much of grassroots organizing in North America, would vanish in the wake of those convictions.

Campaigns like Smash HLS would bring back the tactic, however, 9 organizers and advocates with the campaign now face criminal charges as well (at least not specifically for home demonstrations though).

In trying to track home demonstrations and the criminalization of dissent, it is important to know if there are specific things that advocates can do to still use this tactic and protect themselves legally – or if the tactic itself will always invite state or corporate repression.

Although the above examples come from other countries and each legal context will be different, it is clear that home demonstrations as a tactic are something that advocates in Canada have been inspired by and, infrequently, have used themselves.

At the same time that SHAC was using the tactic, advocates with SHAC Canada were using it and facing repression as well. Something which has documented perfectly in the Upping the Anti article “The Green Scare is Everywhere.” 

When I personally began to think about the idea of organizing home demonstrations I did so with the idea that they were legal and also highly effective in delivering a message to your opposition that you would publicly hold them accountable. I knew that most campaigns that had used the tactic ended facing serious repression, but believed that if home demonstrations were done a bit differently, with a focus on community building and away from militant rhetoric, then it could be done without any criminal or civil response.

Marineland Animal Defense 

The first home demonstration I was involved in organizing for was at the home of the park owner of Marineland Canada. Marineland Canada is a captive animal facility in Niagara Falls, On that is private owned and run – with all decisions being cleared by the park owner. The home demonstration itself was a response to escalation, with the City of Niagara Falls and Marineland Canada entering into a lease of public land in order to criminalize our demonstrations. If they were going to buy up the public land we were using to demonstrate on, we needed to show them that we’d escalate in kind and move to demonstrate at the residences of those involved.

The demonstration was met with some vocal opposition from other advocates. The tactic had not been used in recent memory, if ever, in Ontario and many simply could not stomach the idea. For many others, including those who the park owner had evicted from a trailer park some years earlier, the demonstration made perfect sense.

In the end the demonstration went forward in June 2012 with around 60 advocates. We received no cease and desist, no threats of injunctions and aside from warnings from the local Niagara Regional Police to stay on the sidewalk and the grass out front of the house (the public road allowance), there we no issues or threats of issues. Local right wing media were critical of the tactic, however, the local community was largely in support. As a whole, the demonstration was largely uneventful with a vegan bake sale and people chatting and holding signs. There was one confrontation with the park owner, which ended with the park owner leaving his home with an escort from the Niagara Regional Police.

As the campaign against this park continued, the tactic was revisited later in the summer of 2012. This time nearly 100 advocates came out to a home demonstration that again featured a vegan bake sale, soccer balls, frisbees, sidewalk chalk and signs. This time the park owner stayed away for the length of the demonstration – 6 hours – so there were no confrontations. Again, there were no cease and desist letters, no threats of injunctions and nothing beyond warnings from the Niagara Regional Police to stay on public property. (Interesting and absurd – a City Councillor did petition for the City to force us to cover the cost for the City to remove the sidewalk chalk).

It was not until our demonstrations moved to connect the tie between the office of the park veterinarian and the park owner that legal threats came back our way. As we knew it was legal to stand on public property and demonstrate – we carried on with our demonstration, a 9km candle lit vigil from their office to the park owners home. We ended that night with hot apple cider and a vegan bake sale. That was November 2012 and it was the third, and last, time we demonstrated in any way out front of the park owners home.

As the legal threats escalated, lawyers for the park owner claimed that the owner was in poor health. This claim had not been made previously and was not something we were aware of. For that reason, we signed a legal undertaking agreeing to no longer demonstrate at the park owners residence. We’ve followed that by pulling down references to the park owners address.

We shifted our focus back to the park directly and were able to hold a 1,000 person demonstration out front of the park on May 18th to mark the opening of their 2013 season. Incensed, legal threats from the park owner escalated. They would hit a legal roadblock for months, but found a way around that by using an individual activist as a wedge. Nearly a year since the last home demonstration, and months removed from a legal undertaking agreeing to no longer hold home demonstrations, the issue of home demonstrations was brought up by lawyers for Marineland Canada in an injunction attempt against myself and Marineland Animal Defense.

Although the home demonstrations themselves were never specifically brought forward before they happened, or while they were happening, they were useful for Marineland Canada in claiming that our campaign – taken as a whole – showed a particular malice for the park owner. Home demonstrations, alongside humorous “memes” and out of context online posts – allowed for the park to construct an image of the home demonstrations that was much closer to the typical home demonstration than what had occurred (vegan bake sales and sign holding).  Our physical presence on the ground was legal, and the demonstration in isolation was legal, but taken in concert with a context that Marineland’s lawyers were able to create (and that we had limited resources to defend against) – the demonstrations were criminalized. That legal undertaking we’d signed on to, and not broken, was included in the injunctive relief that the Judge granted – meaning that demonstrating out front of the park owner’s home would now find myself and others in contempt of a court order.

The case law specifically used by Marineland’s lawyers referred back heavily to two legal concepts that were combined – “malice” and “watching and besetting.” In the first instance, any public advocacy defence has to hinge on creating or spreading public awareness and educating a message to the public. Although we felt, and still feel, that home demonstrations were a part of this – Marineland and wealthy corporations, have the resources to try and twist such tactics into a picture of malice. For Marineland, because we had posted humorous memes of the park owner, published his home address and demonstrated out front of his home, we were clearly acting with “malice.” To top this off, they could rely on screen shots and posts made by random members of the public that espoused militant rhetoric as a way to hammer this point. Although there has never been any threat to the park owner or his family, the claim of threats were also made and do not necessarily need to be corroborated. It is the perceived threat which is important.

The second concept – “watching and besetting” relates back to case law surrounding unlawful assembly, stalking, picketing and anti-abortion advocacy. Although the public has the legal right to assembly out front of a business, or even home, they again do not have the right to do so without conveying a message to the public. Canadian case law against anti-abortionist is particularly strict and was a large portion of the case law Marineland’s lawyers attempted to use. The demonstration has to serve a purpose beyond just intimidation of the opposition. You have to be effectively communicating to more than just them (this is why we still held signs and leafleted the local community even while the park owner was not present).

Knowing these two concepts and the history of home demonstrations in Canada you can start to chart a better picture of their use. Home demonstrations are legal, however, either through by laws, indirect enforcement, or civil litigation – the opposition will attempt to criminalize them.  With a focus on “malice” and “watching and besetting” – advocates can structure home demonstrations in a way that will offer more protection that typical.

Things to Watch

If you plan on potentially using home demonstrations in a campaign in Canada these are some things to keep in mind.

– Ensure that your home demonstration is structured around conveying a public message  – send press releases and  get public press for the demonstration and focus on the issues and not just the target of the home demonstration. A great local and recent example in Canada would be the Kathleen Wynne home demonstration organized this summer in solidarity with the Grassy Narrows. That demonstration received positive press for the issue and did not publish the address of the house. Another good recent example would be of B.C. activists who staged a fracking site out front of B.C. Premier Christy Clark’s home. This may mean using this tactic less and tying and timing the demonstrations more to public events, but it will offer great protection. Make sure you document your attempts to communicate a message to the public and not just the home owner.

– Make sure that this purpose is served the entire time you are out front of the home. Do not allow for anyone to stand around without this purpose or for others to take this up in your name (or even without as it may be used against your campaign). This will protect you against “watching and besetting.” Also keep a focus and control on any online forum surrounding the event. Tough talk, from random people or even fake accounts with questionable motives, can and will be used against you. Organizers need to be mindful of this and advocates need to check themselves. It’s generally a good assumption that everything you write and post online in regards to advocacy  is seen by police and the opposition. It’s also a good policy to not be “that” person online. If you are weary of “censoring” other advocates – know that those people will not be the targets of repression, you will. Unless those tough talking online are willing to pony up the legal fees – they need to shut up or not participate.

– Have a legal observer present who can give independent testimony, film the demonstration and ensure you have legal representation that will defend against any legal threat (and try to have a $10,000 legal war chest if possible). All of these will help you defend yourself in the event that the opponent merely attempts to spend you out of the tactic. It will also help you counter any narrative they construct to show “malice” or claim you are “watching and besetting.”

– To build on that point, you need to own it. If no one is willing to take responsibility or speak publicly, with their real and full name, to the demonstration then there is no point. The steps taken to protect anonymity will be considered in the courts as evidence of your criminal intent. This can also mean a quick Jane and John Doe injunction application which can criminalize any further activity by anyone, instead of just one individual or group. If no one is willing to own it – then this is most likely not the best tactic to use.

– Stay away from homes with young children. This has been a long debated point, but in terms of keeping this tactic legal there is no question – demonstrating at the home of a small child is inviting a civil suit that you will lose.

In the end all of this looks a lot like compromise for a tactic commonly associated with not compromising. In defence, the tactic is only useful if it is legal. If the tactic is illegal or can easily be criminalized then it needs to be ceded to below ground activity. There is no reason for advocates to put their names and faces to such things when similar actions, like the anonymous sinking of a yacht, can be more effective and potentially carry less of a legal risk. The separation between above and below ground organizing is vital and resources and capacity should be prioritized for below ground charges and not intentionally drained in civil litigation for above ground advocacy (if it can be helped!)

Where the tactic will go depend on those who use it. I still believe that advocates have a responsibility to use a variety of tactics and also to try and normalize tactics like this that are concerned “too radical.” Effective campaigns will meet an opposition that will attempt to criminalize any tactic – but intentionally planning along these lines can help you prolong your campaign and offer some protection to organizers.

So much will also depend on who the opposition is. Many folks have used home demonstrations in smaller campaigns against an opposition that most likely will not have the ability to fund a legal complaint. That may be a better use for this tactic, however, also cedes part of the power of the tactic – which is a community holding a rich and powerful figure to account. Folks may also see this tactic more in line with civil disobedience – something which they walk into knowing that it is either illegal or can become illegal. For those who want to continue to use this tactic in an above ground campaign though, this will be a solid resource from where to start.

Personally, I’d love to see this tactic used more broadly and also used more strategically. More convergence anti-fracking demonstrations and fake frack sites, more marching bands and community building and all with a focus on quality of a demonstration, instead of quantity (small, repetitive demonstrations). I think it’s also time for larger non profits to use this tactic and to shore up the legal risk associated with it.

I’d also love to see more advocates get off the fence or quiet their vocal opposition to this tactic. If a baseline can be met for using this in a positive and legal manner, then those who oppose need to stand in solidarity and not aid the opposition in isolating “radicals.” The focus of our advocacy needs to be on those who “profit from and make the decisions for.” We need to unify around that recognition and ensure ways that our message will not be ignored.

@dylanxpowell / dylanjamespowell@gmail.com

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