Understanding Your Rights On FOCO and HOCO

2 days ago

10 min read

Did you know that you have rights? The Charter says you do, and so do I. As the air gets chillier and the leaves begin to fall, the Queen’s community is stirring with excitement as Homecoming (HOCO) comes around and fake homecoming (FOCO) follows closely. With the celebrations, however, also comes the risk of letting your guard down and facing hefty fines or worse. Avoiding these fines is simple, and comes down to understanding what you’re allowed and not allowed to do, and how to respond if a police officer approaches you. In this article, you’ll be walked through the changes to fines through the UDSI, the Nuisance Party Bylaw, common offences and fines, what you’re allowed to withhold and what you have to disclose to law enforcement, and what to do if you’re charged by law enforcement.

HOCO vs. FOCO

Queen’s Homecoming is a school-sanctioned event that invites alumni back to Queen’s campus for various festivities. In December of 2023, the university announced that homecoming would now occur during the ending weekend of reading week for the next few years in an alleged effort to deter out-of-control street parties and disruptive behaviour. Fake homecoming (or FOCO) gained popularity in an effort to curb this deterrent. Although, this year is the last that homecoming will be held during reading week according to the policy change in 2023.

There are some key similarities between the two gatherings, including the celebration of Queen’s and uniting of the community. However, there are key differences that actually hold legal implications. Firstly, HOCO involves sanctioned street-closures, and alcohol is allowed to be consumed within licensed venues (in which many homecoming activities take place). FOCO’s street closures are reactive and there is no sanctioned programming, so open alcohol is illegal anywhere where it would normally be (i.e. anywhere that’s not on your property or in the bar). It’s important to note that both celebrations fall under what’s called the University District Safety Initiative (UDSI).

The University District Safety Initiative

The UDSI is an initiative that is used during certain times of the year, like St. Patrick’s Day, homecoming, or orientation week. The initiative doesn’t actually create any new laws, but rather changes the punishments for breaking the laws. Essentially, anything that is considered a chargeable offence during FOCO is still chargeable on a random Tuesday in February. This year, the UDSI is in effect from October 15^th to November 1^st, so it covers HOCO, FOCO, and halloween festivities.

Despite having ‘university district’ in its name, the UDSI does not have geographical boundaries in its reach and can be enforced city-wide. For students, when you’re found in violation of the Nuisance Party Bylaw or other applicable bylaws, you can be subject to not only a fine from law enforcement, but also administrative action being taken by Queen’s under the Student Code of Conduct and Administrative Monetary Penalties.

An Administrative Monetary Penalty is a fine the City issues and collects itself, and during the UDSI it can come with a Part I Court Summons as well. That doesn’t mean you get penalized twice for the same thing, because section 8.4 of the bylaw says that if you’re required to pay an Administrative Monetary Penalty for a contravention you can’t also be charged with an offence for that same contravention, so a summons issued alongside a penalty notice would have to be for something separate, like an open liquor charge on top of a nuisance party penalty. A Part I Court Summons means that you’ll have to attend court and decide to either plead guilty and accept the fine, or plead not guilty and attend an ensuing trial. Queen’s University is also involved in the evaluation of the case.

Basically, the law is not harsher this and next weekend, it’s just enforced by a greater officer presence and penalized more severely.

The Nuisance Party Bylaw (Bylaw 2018-53)

A nuisance party is a gathering that consists of any one of the following elements:

Public intoxication
Unlawful sale or distribution of alcohol or controlled substances
Illegal dumping
Property damage
Obstruction of traffic or interference with emergency services
Unusual or excessive sound including shouting
Unauthorized open burning or fireworks
Public fights
Outdoor urination or defecation
Use of a roof not intended for occupancy

Some of these criteria are pretty broad, for example, shouting in the street constitutes a violation of the bylaw. Although it’s unlikely an officer will try to fine you for shouting across the street to your friend, it’s still possible, and is something to be aware of. Also it should be noted that the premises covered under the bylaw includes parks, parking lots, yards, and vacant properties.

Even if you haven’t committed any prior bylaw violations, if you’re at a gathering where an officer has ordered you to vacate, staying on the premises constitutes a violation of the bylaw.

The liability falls three ways; s 4.1 falls on the host of the gathering, s. 4.5 falls on attendees who stay after an order is given, and s. 4.6 covers landlords (owners who fail to take reasonable prevention steps).

Some common offences

Below is a table compiling some common offences alongside their applicable fines and referenced bylaws according to Administrative Monetary Penalties. It should be noted that a Provincial Offences conviction does not add to a criminal record.

Violation	Penalty	Applicable law
Being intoxicated in a place the public is invited to, or any part of a residence that is used in common.	$50, and liable for arrest without a warrant	LLCA s. 31
Having, consuming, attempting to purchase or obtain liquor while being under the age of 19.	$100	Liquor Licence and Control Act (LLCA) s. 34
Having or consuming liquor other than in a residence, licensed premises, a private place or a municipally designated place.	$100	LLCA s. 41
Amplified sound, or yelling during restricted hours.	$200 for amplified sound, $100 for yelling.	Noise Bylaw 2004-52, Schedule B ss. 6 and 15
Failure to leave after an order is issued.	$500	Nuisance Party Bylaw ss 4.2, 4.5
Obstructing an officer.	$500
Entry or refusal to leave after notice (tresspassing).	Up to $10,000	Trespass to Property Act, s. 2
Create, cause, host, sponsor, conduct, continue or permit a nuisance party.	$2,000 under AMP, or $10,000 for first offenses and up to $25,000 for subsequent offenses under POA.	Nuisance Party Bylaw s. 4.1, s. 8.1
Additional liability for first responders on the scene.	$90 per officer, per hour	Nuisance Party Bylaw s. 7.2

What you have to disclose to officers

There is no general law in Ontario requiring you to carry identification or to give an officer your name just because they've asked for it. A duty to identify yourself only exists where a specific statute creates one, and the problem on HOCO and FOCO is that the statutes that create one are almost always in play.

There are three statutes that will likely be relevant these next few weeks:

Under section 62 of the LLCA, if an officer finds you apparently in contravention of the Act and you refuse to give your name and address, or the officer reasonably believes the name you gave is false, they can arrest you without a warrant, meaning that holding an open drink is enough to meet that threshold.
Under section 7.4 of the Nuisance Party Bylaw, an officer with reasonable grounds to believe you've committed a bylaw offence can require your name, address and proof of identity, and section 7.5 treats a failure to provide satisfactory proof as obstruction, which is the $500 penalty listed in the table above.
Under the Trespass to Property Act, section 9 lets an officer arrest you without a warrant while you're still on the property regardless of what you've said, and section 10 lets them arrest you just after you've left if you refuse to identify yourself or give a name they reasonably believe is false.

The point is that refusing to identify yourself doesn't make you immune to ticketing. The officer already has what they need for the offence, and your name only determines how the ticket gets served. What refusing actually does is gives the officer an arrest power, which carries with it the power to search you, which can turn a $100 fine into something worse.

Identifying yourself means giving your name and address, and that is the extent of the duty. You aren't required to say where you've been, how much you've had to drink, whose house it is, or who else was inside, and your right to stay silent on all of that survives the duty to identify yourself.

Getting stopped, detained, or searched

The Charter rights people usually have in mind only switch on once you've actually been detained, so it's useful to know when that has happened. Detention isn't limited to being handcuffed or physically held. In R v Grant, the Supreme Court held that it also covers psychological detention, which arises where a reasonable person in your position would conclude that they weren't free to walk away, and that can happen through nothing more than how an officer positions themselves and what they say.

Once you're detained, section 10(a) of the Charter requires that you be told promptly why, and section 10(b) gives you the right to speak to a lawyer, which applies immediately rather than at some later point in the process. This is why you should ask whether you're being detained, it forces the officer to characterize the interaction, and if the answer is that you aren't being detained, you're free to leave.

Searches work differently from what most people assume, as there’s no general power to search someone who is simply being ticketed for a provincial offence. If you've been stopped on an investigative detention, an officer can pat you down for weapons only if they have reasonable grounds to believe their safety or someone else's is at risk. A full search of your person only becomes available once you've been lawfully arrested, which is another reason the identification point above matters.

The LLCA does give officers some additional powers, including the ability to seize liquor and to search a vehicle without a warrant where they reasonably believe liquor is being unlawfully kept inside. However, there's no equivalent power to search a pedestrian standing on the street. If you think a search is unlawful, say clearly that you don't consent but then comply anyway. Physically resisting adds charges and doesn't help you, and the place to argue that a search was unlawful is in front of a justice of the peace. Write down the time, the location, the officer's badge number and what was said while you still remember it.

When police can come inside

Section 7.3 of the Nuisance Party Bylaw gives officers a right to enter lands and premises to inspect whether the bylaw is being complied with. Although that reads like they can walk into your house, they can't. Someone exercising a municipal power of entry can't enter or remain in a room or place actually being used as a dwelling unless the occupier consents, or they have an order or a warrant. It also requires that you be told the entry can be refused before you're asked, and it specifically says that refusing consent to enter a dwelling isn't hindering or obstruction unless the officer is acting under one of those orders.

Your yard, on the other hand, is a little more ambiguous than your house. The bylaw defines premises to include yards, so your backyard sits inside the inspection scheme. The Charter position is less settled, and the closest case is R v Le, where officers walked into a small fenced backyard where a group of young men were socializing without a warrant, consent, or any lawful authority, and the Supreme Court found that the entry was unlawful and the search that followed was unreasonable. The front yard sits somewhere between the two. Occupants give an implied licence for anyone, including police, to walk up and knock, but that licence only covers communicating with whoever answers. It doesn't authorize an officer to use the walk up as an opportunity to collect evidence, and it doesn't extend past your door.

Additionally, a guest's consent isn't your consent, and under the Residential Tenancies Act, your landlord can only enter your unit with your consent, on 24 hours written notice for a permitted purpose, or in an emergency, so a landlord can't give police access that the law otherwise requires a warrant for.

What to do if you're charged

The first thing to figure out is what you were handed, because there are two possible routes and they have different penalties and processes. Firstly, a penalty notice puts you in the City's AMP system, which is resolved entirely through the City. Secondly, a Part I Summons puts you in Provincial Offences Court in front of a justice of the peace. If it's a penalty notice, the deadline is important, as you have to request a review, or an extension, before 4:30 p.m. on the fifteenth day after you receive the notice. If you miss it, the City's position is that the penalty is affirmed and is not subject to review by any court.

The penalty can only be cancelled on three grounds; when there's reason to doubt you contravened the bylaw, when you took all reasonable steps to prevent it, or when that relief is needed because of excessive financial difficulty. If you want to appeal the screening decision to a hearings officer it costs another $212.20 and has to be started within fifteen days. A few things to be aware of are that not showing up to your own screening review means the penalty is final and you’re subject to additional fees, and paying late adds a fee and can add unpaid amounts to the property tax roll.

If you received a Part I Summons, you’re required to attend, and the option of paying the ticket without attending isn't viable. You can plead guilty and receive a fine or plead not guilty and have a trial scheduled, and if you don't show up the City states that a trial will be scheduled without further notice to you and the court may impose the maximum fine on a finding of guilt. Regardless of your charge, you should reach out to Queen’s Legal Aid, which is a clinic staffed by law students and supervised by lawyers, and assists Queen's students with provincial offence matters.

Closing

In summary, you have rights (and also some obligations). You have to give your name and address when a statute says so, but nothing beyond that. You can ask whether you're being detained and leave if you aren't, you can refuse to let an officer into your house without it being an offence, and you have fifteen days to challenge a penalty notice. Nothing too complicated, but it’s better to be aware of all this before you accidentally or needlessly incriminate yourself.

This article is general information for QCLA members and isn't legal advice. If you're facing a penalty notice or a summons, contact Queen's Legal Aid or a lawyer for advice.