In Canada, non-violently obstructing a corporation’s capacity to conduct business on land it “owns” can result in a criminal charge of mischief and a maximum of 10 years incarceration.  Under s. 430(1)(c) of the Criminal Code, it’s a criminal offense to willfully obstruct, interrupt or interfere with the lawful use, enjoyment, or operation of property.

This year, police have made a number of high profile arrests on the grounds of mischief and breach of various court injunctions. 

In January, 13 Unifor members were charged with mischief for forming a picket line blockade in breach of a court injunction in Regina. The employer, the Co-op Refinery Complex, locked out its workers and set up a scab work camp after the union refused to accept cuts to workers’ pension plan. 

In February, 12 protesters were charged with mischief in Toronto after obstructing a railway in solidarity with the Wet’suwet’en blockade.

In September, Karl Dockstader, a journalist from Oneida Nation of the Thames, was charged with mischief for simply remaining at 1492 Land Back Lane, after the Ontario Superior Court issued an injunction evicting Six Nation members occupying the site. Two more land defenders were recently arrested, and charged with mischief. Altogether, at least 33 people have been arrested at 1492 Land Back Lane to date.  

It doesn’t take much for police to justify an arrest for interference with property. The Courts have found that mere participation in the obstruction of property is enough to justify a charge.

As stated by the Ontario Court of Appeal in R v Mammolita: “A person may be guilty as a principal of committing mischief under s. [430](1)(c) if he forms part of a group which constitutes a human barricade or other obstruction. The fact that he stands shoulder to shoulder with other persons even though he neither says nor does anything further may be an act which constitutes an obstruction…” 

The Criminal Code doesn’t draw a distinction between obstruction of property that is acquired by a person’s labour — like a house or a car —  and the obstruction of property used to produce profit from the labour of others — like a railway or an oil refinery. However, it’s interference with the profit producing kind of property that typically leads to arrests in Canada. 

In fact, the most common kind of interference with property is not subject to criminal sanctions at all. If a large corporation unlawfully breaks a contract and drives a local corner store out of business, the corporate board members don’t risk going to jail.

This kind of “interference with property” is dealt with under contract law, not criminal law. The corner store can sue for damages, but it’s very unlikely anyone is getting arrested. 

According to the Supreme Court of Canada in Cloutier v. Langlois, the “primary purpose” of the criminal justice system is “the punishment of conduct that is contrary to the fundamental values of society, as statutorily enshrined in the Criminal Code and similar statutes.”

One way to gauge how “fundamental” a value is to Canadian society is to look at the maximum jail sentence for conduct that is contrary to that value. Generally, the harsher the punishment the more fundamental the value.  

In the case of mischief involving property worth more than $5,000, there’s a maximum jail sentence of 10 years. For comparison, the maximum sentence for assault causing bodily harm under s. 267 of the Criminal Code is also 10 years. 

In Canada, protecting corporate capital is considered just as “fundamental” as protecting people from violence. The maximum jail sentence for punching out the lights of a company excavator parked in 1492 Land Back Lane is equal to the maximum sentence for punching the lights out of the shareholder who owns that excavator.

Why is jail time reserved for striking workers and land defenders that interfere with corporate interests but not board members who break contracts and drive competitors out of business?

The difference is that one kind of interference undermines profit production in the wider economy while the other supports it. Breaking corporate contracts is often just considered good business in a capitalist economy. Legal academics even have a name for it: “efficient breach.”     

However, if enough striking workers and land defenders stand shoulder to shoulder across enough railway-lines, profit production across the entire economy can be brought to a grinding halt. This simply can’t be tolerated.  

The Canadian state, after all, must protect the most fundamental of Canadian values.

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