While it now appears that Toronto police had no special powers to interrogate, arrest and detain people within a five-metre perimeter outside the recent G20 summit in the megacity’s downtown core, the very law that featured that temporary regulation is itself unconstitutional, argues constitutional law scholar Errol Mendes.
He explains that in Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, the Supreme Court of Canada (SCC) held that federal regulations and airport officials that prohibited the distribution of political pamphlets at Montreal’s Dorval airport (now known as Montréal-Trudeau) infringed on the freedom of expression of the two respondents (François Lépine and Christiane Deland).
The court was unanimous in its decision that s. 2 (b) of the Charter conferred a right to use public property for purposes of free expression, and the federal government did not possess the absolute power of a private owner to control access to and use of public property — in this case an airport, says Mendes, a professor of law at the University of Ottawa’s common law section and the editor-in-chief of The National Journal of Constitutional Law. A year later, in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156, the court again cited s. 2 (b) in upholding the right the union had to picket at secondary locations, such as retail outlets that carried the appellant’s products.
By extension, the right to picket equally applies to political demonstrations, and therefore Ontario’s Public Works Protection Act (PWPA), which gives guards or police officers the power to ask anyone approaching a public work to identify him or herself, and its controversial Ontario Regulation 233/10, are unconstitutional, says Mendes.
He explains that the regulation’s provision of designating an area “within five metres of a line drawn” in an area surrounding the Toronto G20 summit is particularly troubling, since it has since been revealed that the zone was within the secured site and not, as previously thought, outside of it. “If the police knew that in advance and went ahead and arrested people, they violated a whole bunch of Charter rights.”
In its “A Breach of the Peace” preliminary report following the G20 summit, the Canadian Civil Liberties Association (CCLA), which had five of its 50 monitors arrested and detained during the two-day event, believes that police conduct “was, at times, disproportionate, arbitrary and excessive,” and that policing and security efforts “failed to demonstrate commitment to Canada’s constitutional values.”
Even before the summit, the CCLA warned that cordoning off large areas of downtown Toronto could violate several sections of the Charter: s. 7, which guarantees individual liberty, including freedom of movement; and s. 2 (b), (c) and (d) that guarantee freedoms of expression, peaceful assembly and association.
During the summit, the invocation of the 71-year-old PWPA to give police the power to “search, without warrant, any person entering or attempting to enter” the security perimeter could constitute a breach of the s. 8 search-and-seizure protection in the Charter, according to Nathalie Des Rosiers, general counsel of the CCLA. She says the mass arrest of 1,105 people — the largest in Canadian history, which resulted in 263 charges being laid, many of them involving conspiracy to commit a criminal act — not only displayed the “overreach” of police, but violated s. 9 of the Charter (the right not to be arbitrarily detained or imprisoned).
“We’re worried that the way in which the breach-of-the-peace provisions of the Criminal Code were used by police may be unconstitutional,” says Des Rosiers, who is on leave as a professor in the University of Ottawa’s civil law section. “They’re not supposed to be used by police just to arrest people because they’re fed up with them protesting. Police have a duty to protect the right of peaceful assembly.”
The CCLA has called on federal Justice Minister Rob Nicholson to strike a committee to modernize the “old-fashioned and antiquated” Criminal Code provisions dealing with unlawful assemblies and riots. The association also wants an independent public inquiry into the actions of the police during the G20 summit, and has called on the Ontario government to either amend or repeal the PWPA that gave police broad powers that are “inconsistent with current Charter requirements.”
In force for a week leading up to and including the G20 meeting, Ontario Regulation 233/10 was only printed in The Ontario Gazette after the summit, on July 3, and has been dubbed the “secret” law that was only known to police and government officials.
Dave Vasey, a 31-year-old York University student believed to be the only person charged with breaching the five-metre regulation under the PWPA, showed up at Toronto’s Old City Hall in late July only to discover his name was not on the docket and the court did not have information on his case. Vasey, who says he was just standing with a friend outside the security perimeter two days before the G20 summit, was surrounded at one point by as many as 10 Toronto police officers. When asked for identification, he declined to show any and was promptly arrested and searched.
But the PWPA only allows police to conduct a search if a person is entering or attempting to enter a public work, which didn’t apply to Vasey, says Howard Morton, a Toronto criminal defence lawyer who, as a member of the Law Union of Ontario, agreed to act pro bono on G20-related cases, including Vasey’s.
Morton is part of a chorus, which includes the CCLA, critical of the Ontario government for secretly introducing the PWPA regulation and not widely informing the public about it in advance of the G20 meeting.
“If you want people to obey a law, the first thing you do is tell them it exists and explain to them what they’re required to do or what they’re not allowed to do. Whenever additional powers are conferred on the police, issues involving the Charter of Rights are automatically raised,” says Morton.
Vasey plans to commence civil proceedings against the Ontario government and Toronto police. As well, two class actions have been launched by G20 summit protesters, including a suit against the Toronto Police Services Board and the Attorney General of Canada.
Those cases could benefit from the recent SCC decision in Vancouver (City) v. Ward, [2010] S.C.J. No. 27, according to Mendes. “Until that decision, the lower courts gave the impression that as long as there was no malice on the part of the police when they were performing their duties — even if they ended up potentially violating Charter rights — there was no right to damages. What the Ward decision seems to imply is that even without malice, an individual is entitled to compensation.”
In a unanimous ruling, the SCC upheld a trial decision that awarded Vancouver lawyer Cameron Ward $5,000 for a strip search that violated his s. 8 Charter right to be free from unreasonable search and seizure.
Ward, who had previously represented clients in civil rights cases against Vancouver police, including student complainants following the infamous pepper-spraying incident during the APEC (Asia-Pacific Economic Cooperation) meeting of Asia-Pacific leaders in Vancouver in November 1997, was partially strip searched and spent four-and-a-half hours in “squalid conditions” in a provincial jail on Aug. 1, 2002 after police acted on a tip and mistakenly accused him of planning to throw a pie at an event then-prime minister Jean Chrétien was attending in the city.
When he was finally released after the public ceremony, police refused to apologize and Ward went to B.C.’s Supreme Court to seek compensation from the City of Vancouver, which employs the police, and the province, which operated the jail at the time he was detained.
Now, he has the precedent-setting SCC decision to refer to when representing clients who find themselves wrongly arrested and detained. “For the first time in 28 years since the Charter was enacted, the Supreme Court of Canada was asked whether damages are an appropriate remedy for a violation of a Charter right, and the justices said quite clearly and unequivocally, yes they are,” says Ward, who has appeared before both the Commission for Complaints Against the RCMP and B.C.’s Office of the Police Complaint Commissioner.
“In my view, fundamental civil rights and liberties cannot be suspended simply because some important people are coming to town. It’s very important that the police and other security agents fully respect citizens’ constitutional rights and that there ought to be consequences if they willfully violate those rights.”
With allegations that women detainees during the G20 summit were strip searched and sexually assaulted by male police officers — as outlined in a July 26 letter to federal Public Safety Minister Vic Toews from Claire Tremblay, national coordinator for the Ad Hoc Coalition for Women’s Equality and Human Rights — Mendes would like the SCC to render an opinion not only on the conduct of police during the G20 summit, but on the PWPA they, in hindsight, wrongly relied on to wield their authority.
“Political expression is the core of our democracy, and this was one of the most serious attempts to undermine that most important aspect of freedom of expression,” he explains.
