Counter-protesting is "causing a disturbance"? Good to know...

The guy who wore blackface (apparently sincerely and unaware doing what the Prime Minister did was going to be an offensive gesture) to the Toronto #NiggerLivesMoreImportantThanSocietyMotherFuckers has been now charged with Causing a Disturbance.

Previously he had been charged with "breach of the peace". Those charges were never going to stick and the cops were already risking serious problems: just last October the Supreme Court ruled that there was a wrongful arrest a decade ago (in fact even worse here) by arresting a counter-protester for "Breach of the Peace".

So the charges being dropped weren't surprising: in fact the open question was (is?) whether or not the cops would be disciplined for unlawful arrest.

Yet now the police have charged him with an even stronger offense which is going to cause them even more problems. What does the criminal code say about a Disturbing the Peace charge?

Causing disturbance, indecent exhibition, loitering, etc.

175 (1) 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,

(b) openly exposes or exhibits an indecent exhibition in a public place,

(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 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,

is guilty of an offence punishable on summary conviction.

Marginal note:Evidence of peace officer

(2) In the absence of other evidence, or by way of corroboration of other evidence, a summary conviction court may infer from the evidence of a peace officer relating to the conduct of a person or persons, whether ascertained or not, that a disturbance described in paragraph (1)(a) or (d) or an obstruction described in paragraph (1)(c) was caused or occurred.
The Toronto protester was not involved in a fight. As far as the video has shown he was not shouting or indeed yelling at all. No evidence he was even swearing, let alone singing or using insulting or obscene language. He was not drunk, and he was not "impeding or molesting" other persons. He was not committing indecent exposure (indeed the complaint was he was covering up too much skin). He "loitered in a public place" sure, but so did everybody else the police weren't going after...in fact, the violent blacks were the ones who obstructed him. By the strict letter of the law and the evidence we've seen there's nothing to support this charge.

The Toronto Mischief Lawyer (that's a thing...) goes into details about how in practice this law is applied:
While the Criminal Code (see below) is specific about which acts qualify for the charge (swearing, drunkenness, fighting, etc.), the component of what a disturbance actually means is left up to the courts to decide. The Supreme Court of Canada in the case of 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. The behaviour must go to the point of it being an “overtly manifested disturbance which constitutes an interference with the ordinary and customary use by the public of the place in question.”

While the Supreme Court of Canada clearly sets limitations on lower courts in that convictions must have a substantial and not a mere trifling impact, a lot of discretion is still left to the trial judge (often in the Ontario Court of Justice) to decide whether the facts of a particular case support a conviction. If convicted, an offender faces a maximum punishment of 6 months in jail and a criminal record.
Even reading this in, does a counter-protest "interfere with the ordinary and customary use" of Nathan Philips Square? If the #NiggerLivesMoreImportantThanSocietyMotherFuckers rally had a permit for the space there might be a case but an awfully weak one. But with the Wuhan Flu shutting down legal permits for protests then the "customary use" of the square when there's no events planned is already being broken by the rally. If the cops only singled him out the argument really falls apart there.