RSS FeedCivil liberties suspended in Toronto during G20?
The G20 summit in Toronto has come and gone, but not before leaving a trail of destruction in its wake. I’m not just referring to all the shattered glass and burned out husks of police cars; I’m talking about Torontonians’ faith in the rule of law.
Our Ontario police forces, particularly the Toronto Police Service, are some of the finest and most professional in the world. They have worked hard to build community relations and win the respect of the public. Just as we rely on the police to keep us secure, the police rely on public cooperation to effectively do their jobs.
When the public trust in police is diminished, and people begin to see the police as an enemy, it puts our safety in jeopardy. That is precisely what is happening. The police are coming under heavy criticism for the perceived overzealous tactics they used this weekend. I have heard of many strong supporters of the police, some of whom were caught up in the mass detentions, beginning to question whether their support was misplaced.
The front page of the Office of the Independent Police Review Director’s website has been changed to add a special notice about G20-related complaints. I suspect the new bureaucratic agency will have to expand just to handle all of them.
Preliminary reports of apparent civil rights violations are coming in from all over the city. The Canadian Civil Liberties Association says that these were not isolated incidents.
I saw many with my own eyes. I was in downtown Toronto to take photos of this once-in-a-lifetime event. What I saw terrified me and broke my heart.
The disgraceful actions of a relatively small, hardcore group of criminals running amok in the city have been used to justify the biggest suspension of civil liberties in Toronto’s history.
Peaceful protesters and onlookers at the designated “free speech zone” in Queen’s Park were attacked with batons, pepper spray, and rubber bullets with little or no warning (I was there; I heard none). Nine hundred people were rounded up and arrested, including credentialed journalists, pedestrians walking their dogs, and even a TTC worker in full uniform. Ordinary people at Queen and Spadina were surrounded on all sides by riot police. One by one, seemingly for no reason at all, people were snatched from the trap by force and then disappeared behind a wall of riot police. The fear is vividly captured in this video (watch the whole thing or just skip ahead to 7:30).
Those arrested were taken to the Eastern Ave. Detention Centre, a specially constructed temporary facility. What happened inside that facility is not yet fully known. Openly homosexual and transgendered people allege that they were segregated into separate cells by homophobic police. Women have made shocking accusations of being threatened by their jailors with rape. The unconfirmed allegations made by Amy Miller in this video are so terrifying that they defy belief. At the very least, corroborated reports describe the conditions inside as deplorable:
Cramped and filthy cells, mismanagement and disorganized paperwork, lack of food, water and toilet paper, and denial of legal aid and access to lawyers.
Taylor Flook said she spent almost 24 hours in detention before being released without charge and witnessed strip searches of women by male officers, as well as sexist remarks made by several officers.
Hundreds of people have since been released without charge; the vast majority of those arrested weren’t doing anything illegal in the first place!
And then there was the controversial G20 security law. A regulation, quietly passed by the Ontario cabinet under the Public Works Protection Act, empowered police to stop and search anyone attempting to enter the G20 security perimeter. Police Chief Blair now admits that he deliberately misled the media and public as to the scope of the law. He claimed (and the media reported) that it covered a 5-meter area outside of the fence. In fact there were only a few areas outside of the fence which were covered by the regulation. I was misled too (hey, I can admit a mistake).
Trouble is, apparently the Chief failed to tell his own officers about the limited scope of the law. They were enforcing that law all over Toronto, even though it didn’t apply there. When pedestrians far from the security zone were stopped by police, and demanded to know the source of the police authority, they were told: “Public Works Protection Act, you can look it up.” I myself saw people stopped and searched in this manner.
Closer to the security zone, people who were just cycling by, with no intention of trying to enter, were stopped and told they had to surrender their bags for a search or be arrested. Despite the Chief’s claims that “if they refuse and they have the right to refuse, then they leave and they will leave without being arrested,” these people had no option to leave.
Elsewhere, people were stopped on the street and subjected to searches without reasonable suspicion that they were involved in a criminal offence. They were told they were under investigative detention. In the video below, a woman is stopped at King and University (a fair distance from the security zone) and told she must submit to a search of her bags or face arrest. While the officer was polite and respectful, I’ll let you decide whether he violated ss. 8, 9, and 10(b) of the Charter (hint: see R. v. Mann, 2004 SCC 52 and R. v. Suberu, 2009 SCC 33).
After what I saw this weekend, I believe that the government must call a public inquiry into what happened. I fear we will discover that civil liberties throughout Toronto were effectively suspended — the most troubling encroachment on civil rights in Canada since the FLQ crisis. There are lessons to be learned. The police have admitted that mistakes were made. We must have a full accounting of those mistakes to ensure that they are not repeated.
Secret Laws and Extraordinary Police Powers: G20
Normally, Canadians have the right to be left alone by police. Pedestrians generally don’t have to answer police questions and don’t have to identify themselves. They certainly don’t have to submit to searches by police. Not so this weekend in Toronto!
Following up on Pulat’s post regarding the legality of G20 police cordons in Toronto, if you’re going to be down near the G20 security zone in Toronto, you should be on notice. This weekend, police will have extraordinary powers to stop, search, and arrest anyone who comes within 5 meters of the zone.
The source of this power is the Public Works Protection Act, R.S.O. 1990, c. P.55. The Act allows the government to designate areas as “public works.” Once an area has been designated as a public work, police and appointed “guards” have special powers to secure the area. Police and appointed guards can:
- require anyone approaching the zone to identify themselves (s. 3(a));
- search, without a warrant, anyone who is approaching the zone (s. 3(b));
- search, without a warrant, any cars whose driver or passenger attempts (or is suspected of having attempted) to enter the zone (s. 3(b));
- use as much force as is necessary to prevent a person from entering the zone (s. 3(c));
- arrest anyone who refuses to comply with their directions (s. 5(2)).
But failure to comply with directions doesn’t just get you arrested. It is a provincial offence punishable by a maximum $500 fine and/or 2 months in jail (s. 5(1))!
So where does the “Secret Laws” part of my title fit into all this?
Well, as it turns out, the Ontario cabinet quietly designated a 5-meter radius around the G20 security area as a “public work” without really telling anyone.
The regulation authorizing these powers in relation to the G20 zone was filed on June 14, 2010 and went into force a week later. But to my knowledge, the government made no announcement of the regulation. Worse yet, it has not been published in the Ontario Gazette (it will only be published in July, after it is no longer in force). Since the regulation is not yet part of Ontario’s consolidated law, the only way to access the regulation is to look it up in the “source law” section of the e-Laws website here.
For all practical purposes, this is a “secret law,” because of the failure of the government to publicize it.
This law authorizes extraordinary police powers, and it significantly derogates from our ordinary civil rights. There is a real risk of people being arrested and charged when exercising the same rights to refuse to answer questions and submit to searches that apply everywhere else. In my opinion, the government should have been more forthcoming about the law to minimize that risk.
The legality of G20 police cordons in Toronto
Toronto is a changed city this weekend. Various police forces have cordoned off a big part of downtown searching and checking IDs of those wishing to enter. We in Canada are not used to ID checks and car searches on public streets. Canadians are usually free to walk in public areas, and the police cannot stop people and force them to show ID or even answer questions without a good reason to suspect them of a crime. When a big part of a crowded and bustling city becomes off limits, many people will probably wonder if G20 is worth it. Many lawyers will perhaps ask a different question: does the police have the power to cordon off downtown Toronto. The answer is yes.
The simplest and shortest explanation is in s. 10.1(2) of the Foreign Missions and International Organizations Act (FMIOA), which charges the Royal Canadian Mounted Police (RCMP) with the security of “intergovernmental conferences” in Canada. Section 10.1(2) of the act expressly grants the RCMP the power “to take appropriate measures, including controlling, limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstances.” The Integrated Security Unit that includes the RCMP is responsible for securing G8/G20 events. The RCMP’s role is “the Summit site and surrounding areas,” so presumably it is the RCMP that has cordoned off a part of downtown Toronto. It has a statutory power to do so.
An Act of Parliament grants the RCMP this power to cordon off streets. That ends the real-life analysis. But imagine there was no law like that or imagine the Toronto Police tried to cordon off a few blocks in Toronto. Would the police still have the cordon-off power? This is an interesting theoretical question because many police powers do not come from statute, and it’s important to know when the police exceed their authority. The FMIOA doesn’t apply to Toronto police, and Ontario’s Police Services Act and City of Toronto Act don’t grant the cordon-off power to the Toronto Police Service. (The FMIOA presumably allows the federal government to delegate RCMP’s cordon-off power to other police services (s. 10.1(4)), but let’s pretend it’s not the case.)
In Ontario, police powers come not only from statute (express acts of the provincial legislature or the federal parliament) but also from common law (courts’ judgements). Police existed before any act of parliament incorporated it, and during that period courts had the final word on police powers. When legislatures recognized police powers under statute, sometimes they continued police powers that existed at common law. Under s. 42(3) of the Police Services Act, “[a] police officer has the powers and duties ascribed to a constable at common law.” This provision allows the courts to continue to adjudicate police powers not expressly granted by the legislature.
When Canadian courts resolve a dispute in which a complainant questions the existence of a police power, they apply the Waterfield test, named after an English case that explained police powers at common law (also known as the ancillary police powers). A court applying this test would see first if a police action interfered with personal liberty or property without statutory authority. If yes, the court would see if “(a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.” (R. v. Waterfield [1963] 3 All E.R. 659 (C.C.A.) at 661). Basically, at common law the police can do anything necessary to discharge their lawful duties as long as the use of their powers is justified.
Judicial precedents guide us as to what is justified. For example, in Knowlton v. R., a 1975 Supreme Court decision, the court held that cordoning off the sidewalk in front of a hotel hosting a foreign leader is justified. A photographer who tried to break through the cordon was arrested and charged with obstruction of police. Part of the reason for closing the sidewalk was a previous assault on this foreign leader in another Canadian town. This and the fact that everyone knew about the widely publicized assault helped the court conclude that the cordoning off was justified even if the police didn’t explain their legal authority to the photographer. The court held that the photographer should have known the police had a duty to protect the foreign dignitary in these circumstances. The photographer also had a chance to get his pass but missed it.
I haven’t heard of a court case that looked at something on the scale of G20 events in Toronto, but Knowlton gives us some idea what a court would say. It would emphasize the history of violence at such events and the massive publicity reaching probably every resident of Canada. Closing off the downtown core is not the same as blocking a sidewalk but the number of dignitaries is many times higher and it’s common to believe that the world is less secure today than 35 years ago. The courts would likely defer to police judgement on the size of the cordoned area given the courts’ relative ignorance of operational security issues. The reasoning will be similar to the rationale behind s. 10.1(2) of the FMIOA. The police would tell the courts that cordoning off a chunk of downtown Toronto is necessary to protect foreign leaders and keep order and the way they do it is justified. The court would likely accept that.
Presumably, if cordoning off passes the Waterfield test, it will also be justified under s. 1 of the Charter. (I am not going into detail on this, but see R. v. Clayton, 2007 SCC 32 for a related discussion.) Of course, unless a court finds that we have a Charter right to freely go downtown, s. 1 won’t even come up.
I am not happy with the G20 summit’s impact on Toronto. It will hurt downtown businesses (except hotels), cause traffic chaos, and bring clashes between the police and protesters. Having to show ID and submit to searches to move around your own city is a sacrifice of our liberties and it simply looks bad in a democracy. Walls separating city quarters are notorious in history, and we probably don’t want any resemblance here. But the police likely have full legal authority to cordon off streets for the G20 summit, and any challenge to such cordons should be not legal but political.
(Post sponsored by AdviceScene)
Why You Should Never Talk to the Police
Moin A. Yahya, Associate Professor of Law at U. Alberta has posted a couple of interesting videos on why criminal suspects should never talk to the police.
Most experienced defence lawyers will tell you that the first words out of their mouth when they get the 3AM phone call from the jail are: “don’t say anything!”
But for some reason, criminally accused often don’t seem to get it.
The videos feature a professor of law (formerly a defence lawyer) as well as a police officer explaining why suspects would do well to heed the advice and exercise their right to remain silent.
Though the videos are reflective of American law, the principles are largely applicable here in Canada. Though we do not have a 5th Amendment, Canadians have long had a right to silence which is now constitutionally entrenched in s. 7 of the Charter (see R. v. Singh, 2007 SCC 48 for a discussion).
And now, without further ado, here is why you ought not to speak to the police:
If you have limited time, I’d suggest skipping forward to 8:20, where the professor discusses the “top 10 reasons why you should never speak to the police.”
[YouTube clips reposted from U. Alberta's Law Faculty Blog]
