RSS FeedThe 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.
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Police Were Instigators in Montebello – Report Holds
When the North American Summit Leaders’ Summit was held in Montebello, Quebec in August 2007, something came to the attention of Dave Coles, President of the Communications, Energy and Paperworkers Union.
Amidst a seemingly peaceful protest, Coles noticed that three bandana-clad “burly” men were attempting to incite the protestors to become violent toward riot police.
As with many of these situations at the national level, the R.C.M.P. has jurisdiction or control if you will over security, however, then Minister of Public Safety Stockwell Day indicated that security on the front line and directed toward controlling the protesters was the responsibility of Quebec’s provincial police agency, the Sureté du Québec. That in my opinion, is fairly normal.
What Mr. Coles charged is that the three burly men were actually police officers. This seems to go against the rationale to what the police were there to do. To quell violence not insight it. After concluding in quickie internal investigation there was no wrongdoing, the Comité à la déontologie policière said yesterday in a media release there was grounds to believe wrongdoing occurred on the part of the officers, and has now summoned them to a hearing on the matter.
Now the committee, which has the power to issue binding rulings on the Quebec police, will hold public hearings on the issue within the next six months. The three officers – Jean-François Boucher, Joey Laflamme and Patrick Tremblay – are required to appear – The Globe and Mail reports.
Aside from the obvious disciplinary sanctions that these officers now potentially face. Mr. Coles and many like him are asking the tough question of who directed these officers to take such action? Accountability needs to be had in order to restore faith in the public’s perception of how the police handle these situations.
Like one of my other articles, (also found here), I have the fortunate ability to break this down as a former police officer, who was also part of the York Regional Police’s Public Order Unit. Just to qualify my skills, I receive basic Public Order training at Downsview park with the Toronto Police Service’s Public Order Unit, and did requalification training at C.F.B. Meaford with a number of Ontario police agencies. I was also deployed to Caledonia at the height of the tension between the First Nations people and local residents.
In my training we were taught how to deal with such situations and my superiors would have never instructed officers to take up such actions. Just as the protestors arms themselves with video cameras and other “weapons” of technology, so do the police. In such public order situations, there could be plainclothes officers in the crowd monitoring situations, recording for evidentiary purposes, and watching certain groups known to police to cause problems. Nothing wrong with that.
But the thought that the police were the ones instigating the problems is quite saddening. I hope justice is swift, and those responsible, whether it is the Sûreté du Québec, R.C.M.P., or politicians are able to dealt with appropriately, especially after watching the YouTube video:
And hearing all of the evidence the Committee has ruled in the following manner:
ALLOWS the application for review in respect of the three respondent
sergeants on the allegations stated by the Commissioner in his decision:
Was disrespectful or impolite towards any person (section 5 of the Code);
Used obscene, blasphemous or abusive language (section 5 of the Code);
8 Item 4.10 of the Commissioner’s investigation report.Failed to respect the authority of the law by inciting persons to violence (section 7 of the Code);
Refused to produce identification when a person asked him to do so (section 6 of the Code);
Furthermore, now that the Committee has overruled the Commissioner, the door has probably been opened for a criminal investigation in relation to assault charges against one officer, and potentially this:
Unlawful Assembly:
63. (1) An unlawful assembly is an assem- bly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on rea- sonable grounds, that they
(a) will disturb the peace tumultuously; or
(b) will by that assembly needlessly and without reasonable cause provoke other per- sons to disturb the peace tumultuously.
(2) Persons who are lawfully assembled may become an unlawful assembly if they conduct themselves with a common purpose in a man- ner that would have made the assembly unlaw- ful if they had assembled in that manner for that purpose.
Like all interesting developing stories, we shall see where this leads us.
David Chen: Vigilante or Local Hero?
On May 23, when Anthony Bennett was captured on video camera stealing $60 worth of plants from David Chen’s, Mr. Chen’s Lucky Moose Market located in Toronto, it set off a chain of events that may lead to a reform of what is known as “citizen’s arrest” rights here in Canada. Ironically, it was Chen who was also arrested by the Toronto Police Service, and charges are being sought by the Ministry of the Attorney General and the Toronto Crown’s office. However, they are seeking a quick resolution and have offered Chen a guilty plea. Refusing Crown offer of a guilty plea, Chen is hedging his bets on a legal challenge. The Globe & Mailarticle spells out much of the previous facts.
Facts:
Bennett stole the plants from the market then rode off on his bicycle. About an hour later he returned to the market, for whatever reason. Mr. Chen and two employees recognized the culprit and gave chase. After subduing him and effecting a citizen’s arrest (which is lawful under s. 494(1) of the Criminal Code of Canada), they tied him up placing Bennett in a truck to await the arrival of the police.
As a result, Bennett AND Chen were arrested. Bennett for two counts of theft under $5000, and Chen for forcible confinement, weapons offences, and assault. Bennett has subsequently pleaded guilty to the theft charges, and received a sentence of 30 days. When I first read this, it immediately became apparent to me that Bennett either has a long criminal history or there are aggravating circumstances surrounding his sentence. This is an EXTREMELY long sentence for a simple theft under charge. (After doing some digging… turns out he does have a long criminal record) Just to put it in perspective. But I digress…
The Crown seems to be adamant to set an example of Chen for whatever reason, and they have even secured Bennett as a witness against Chen. However, Chen and his lawyer Peter Lindsay are playing hardball, and not going the easy way out by accepting a deal. Good for you!
That offer is “insulting,” Mr. Lindsay said, and he flat-out refused it despite warnings that the Crown will ask for a jail sentence for Mr. Chen if the offer is turned down.
Analysis:
This, for me anyway, is where it becomes interesting. Lindsay has said that they plan on not only fighting the charges, but they are going challenge s. 494 of the Code:
Mr. Lindsay plans to challenge Canada’s citizen’s arrest laws. Right now, a property owner or someone acting on a property owner’s behalf can arrest someone without a warrant if they see that person committing a crime on their property.
That definition is too narrow to allow people to protect their property, Mr. Lindsay says: He argues it should be changed to allow private citizens to arrest people they suspect committed or will commit a crime.
Section 494 of the Criminal Code of Canada reads as this:
494. (1) Any one may arrest without war- rant
(a) a person whom he finds committing an indictable offence; or
(b) a person who, on reasonable grounds, he believes
(i) has committed a criminal offence, and
(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.
(2) Any one who is
(a) the owner or a person in lawful posses- sion of property, or
(b) a person authorized by the owner or by a person in lawful possession of property,
may arrest without warrant a person whom he finds committing a criminal offence on or in re- lation to that property.
(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.
(I added the bold)
Clearly, since he would have witnessed Bennett’s theft of his own property from his store, the arrest is justified under s. 494(1)(b)(i). I think it is here where the debate begins and continues to Chen’s actions after that raise the questions.
What is the legal definition of freshly pursued? It is not listed in s. 2. I did find a number of US definitions, however, they were all related to peace officers and not citizens. I think the bulk of Lindsay’s argument is going to hinge on the lack of definition of “freshly pursued.” Will the courts interpret his actions as freshly pursuing upon seeing somebody whom he believed on reasonable grounds had committed an indictable offence?
Had Bennett not come back to the store, this would all have been avoided, but perhaps Chen gave chase because he thoughts Bennett was about to commit another offence. If it turns out in court that was the case, then the arrest would be deemed illegal because only peace officers have the ability to arrest on reasonable grounds that somebody is about to commit an indictable office:
495. (1) A peace officer may arrest without warrant
(a) a person who has committed an indicta- ble offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
From the interpretation I can gain from the quote in the Globe, it appears that Lindsay may also have issue with 494(3). Now the definition of “forthwith” is not explicitly stated in the Criminal Code, however, in my experiences it means as soon as practicable. The closest thing that I could find in the Code is this example:
254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by de- mand, require the person to comply with para- graph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:
(a) to perform forthwith physical coordina- tion tests prescribed by regulation to enable the peace officer to determine whether a de- mand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and
(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will ena- ble a proper analysis to be made by means of an approved screening device and, if neces- sary, to accompany the peace officer for that purpose.
(Once again I added the bold)
This section is in relation to a testing for the presence of alcohol in a person, more commonly known as taking a suspect in so they can blow into the breathalyzer.
Now the article does not say much about the length of time between Mr. Chen’s arrest of Bennett and his contact of the police and their arrival, i.e. his “forthwith-ness”. The only thing it mentions is that Bennett was bound and placed in the back of a truck. One could only assume that Chen did this to ensure his detention while ensuring his own physical safety, since Bennett had escaped before and is known locally as a thief. Bennett has been known to be violent in the past.
The actions of Chen and his employees immediately after the arrest will undoubtedly be the crux on which this case falls. Should it be argued that “forthwith” has a broad scope and that Chen was justified in his detention of Bennett, he will in all likelihood be found not guilty. However, if the court finds that a more narrow definition of “forthwith” is required, he may be found guilty.
Stay tuned, I know I’ll be following this one as it plays out. Either way, this case has the potential to break some new legal ground here in Canada.
Bon Cop, Bad Cop
Today the dramatic and costly case against the Toronto drug squad officers see-saws yet again when prosecutors try to revive charges thrown out by a judge in 2008. The charges were tossed because the Crown took too long to bring the case to trial.
