RSS FeedThe law of street protest in Canada
The events of the G20 weekend in Toronto raised important legal issues and exposed gaps in our law. Are street protests legal and when can the police break them up? Can the police have special powers when world leaders are in town? How did we go from guaranteed freedoms of expression and peaceful assembly to a third-world style detention centre for protesters and police “kettling” of citizens at Queen and Spadina? What is the law of street protest in Canada?
The starting point for any analysis is the guaranteed freedoms of expression and peaceful assembly in sections 2(b) and (c) of the Canadian Charter of Rights and Freedoms. We start here because these freedoms are secure from any government body, including the federal parliament and provincial legislatures.
There is no absolute freedom of assembly in Canada. First, the Charter itself limits it by guaranteeing only “peaceful” assembly. That’s why the government can restrict certain kinds of assembly that it considers not peaceful. Such restrictions do not infringe on the Charter freedom of assembly unless the courts disagree with the government’s interpretation of what’s “peaceful.”
Second, the Charter freedom of peaceful assembly is guaranteed only “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (s. 1 of the Charter). It means legislative acts or judge-made common law in Canada can limit even peaceful assembly, but they must have very good reasons. Legislative acts include federal and provincial laws and regulations as well as municipal by-laws.
Only law can limit a Charter right. A police officer cannot limit a Charter right on his or her own initiative without any authority in law. When the police break up a street protest, they can do it either because the protest is not peaceful or because law prohibits the protest for a good reason acceptable in a free and democratic society. Police officers may not break up a protest in any other circumstances. If they do, these officers will be breaking the law. But in Canada, it’s hard to tell when officers break the law for the following reason.
Laws regulating protests in Canada give the police a lot of discretion in deciding, first, what assemblies are peaceful, and second, when peaceful protests are not allowed. Police discretion contradicts the values of accessibility and precision that gave rise to the s. 1 requirement that limits on Charter rights be prescribed by law. The idea is that citizens should have a “reasonable opportunity to know what is prohibited” (Peter W. Hogg, Constitutional Law of Canada, Student Ed. 2007 at p. 798)—that’s accessibility of law, and that officials must not engage in discriminatory and arbitrary breaches of rights—that’s precision of law.
But in R. v. Hufsky and R. v. Ladouceur, the Supreme Court held that as long as police discretion comes from law, it meets the s. 1 standard of “prescribed by law,” even if the discretion is unfettered. So completely random stops of cars authorized by an anti-drunk driving law are capable of s. 1 justification, but pulling over a car merely on a hunch as in the recent landmark case of R. v. Harrison cannot be justified by s. 1 because it is not prescribed by law.
There are five types of law that regulate street protests, and all of them give enormous discretion to the police. First, s. 63 of the Criminal Code prohibits “unlawful assembly,” which it defines as “three or more persons” gathered in a way that causes reasonable people in the neighbourhood to be afraid that the assembly will either disturb the peace tumultuously or provoke others to do so. This provision apparently complies with the Charter guarantee of “peaceful assembly” because words “disturbing the peace” and “tumultuous” imply that the assembly is not peaceful.
Second, s. 31 of the Criminal Code gives the police a general power to detain people for “breaching the peace.” The result is that street protests that breach the peace may be dispersed. The breach of peace arrest power seems to restrict the freedom of assembly without infringing on the Charter’s guarantee of peaceful assembly. Again, the police have discretion in deciding what is a breach of the peace.
Third, municipalities can pass by-laws prohibiting street protests that are not peaceful because they interfere with interests merely local in nature. For example, a by-law may prohibit excessively loud protests. It’s unclear if such prohibition fully respects the Charter, where the word “peaceful” may have a more dramatic sense than merely something touching on city noise by-laws.
Fourth, the police can use their ancillary common-law powers to regulate protests (in Ontario, see s. 42(3) of the Police Services Act). At common law, the police have powers that are necessary to discharge their duties. One of the duties of the police is to preserve the peace. If it is necessary to restrict a street protest to preserve the peace, the common law gives this power to the police. Again, apparently such police restriction would not infringe on the freedom of peaceful assembly, and again the police has tremendous discretion.
Finally, municipalities, provincial legislatures, and the federal parliament and respective cabinets can pass laws, regulations, and by-laws restricting the freedom of peaceful assembly, but only for a good reason. For example, it may be reasonable and democratic to prohibit protests in residential areas after 11 pm, in construction zones, on highways, or inside courthouses or secret military installations. If protesters challenge such law, the government will have to justify it under s. 1 of the Charter.
In a 1978 pre-Charter case Dupond v. City of Montreal, the Supreme Court upheld a city ordinance prohibiting street protests. The court cited the following English law dictum: “A claim on the part of persons so minded to assemble in any numbers, and for so long a time as they please to remain assembled, upon a highway, to the detriment of others having equal rights, is in its nature irreconcilable with the right of free passage.” After the Charter, it is not clear if municipalities still have the power to prohibit street protests.
The word “peace” is a common thread in all the laws that regulate street protest. These laws either give the police powers to preserve the “peace” at its discretion or ignore the peaceful nature of the protest for other arguably higher goals.
When the police boxed citizens in at Queen and Spadina for hours, they could invoke any of three sources of authority to break up protests disturbing the peace: s. 63 of the Criminal Code, breach of the peace provisions of the Criminal Code, or common law ancillary powers to preserve the peace. All three would require the police to make a judgement that the protest was not peaceful. Since the statute delegates this judgement to the police or recognizes its common-law authority to make that judgement, the courts would likely defer to the police expertise to decide what is peaceful and what is not.
The police could also rely on a statute that allowed it to disperse even peaceful protests. According to witnesses, some officers cited the Public Works Protection Act (PWPA) when they detained citizens on the street. That law does limit the freedom to peaceful assembly in places designated as public works, and it would probably be justified under s. 1. After all we don’t want protests in a courthouse or maybe within the G20 fence. But justifying the mass detention at Queen and Spadina, which was hundreds of meters from the G20 fence, by the PWPA is futile. And it’s clear the police didn’t need the PWPA authority there as they had plenty of discretion under other laws.
The bottom line is our courts and legislatures have consistently failed to set out rules for police engagement of street protests. The statutes are either drawn in broad terms like “tumultuous” and “peace” or simply avoid regulating protests by deferring to broad police powers at common law. Canada is not a police state—far from it. Our ideal is the rule of law and protection of civil liberties. But just like with ideals, we shouldn’t take our eyes off frightening possibilities. In a police state, armed agents of the state are free to limit freedoms and rights as they please. Their discretion is completely unfettered, almost like the discretion our laws grant to the police in dealing with street protests.
Our police forces are professional, highly trained, and generally honest. But it is not their job to determine the content of the Charter freedom of peaceful assembly. Provincial legislatures and the federal parliament must step in and give clear guidance to the police when they can break up street protests. The police can make mistakes and may have its own institutional interests that are not necessarily the same as the public interest. The people have a right to clear notice of what is lawful, and we all have a fundamental freedom of peaceful assembly. Our legislators must set out with much greater precision what the police powers are in regulating street protests.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
Civil 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.
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)
What can the mayor of Toronto really do?
Toronto will go to the polls to elect its mayor on October 25 this year. There is a lot of media interest in mayoral candidates and scandals surrounding some of them. The incumbent mayor, David Miller, also attracted media attention and intense feelings among both his supporters and detractors. But is the mayor’s job really that important? What actual powers does the mayor of Toronto have? If we look at the law, the answer is rather surprising. Despite all the attention, the mayor of Toronto doesn’t decide much, and the city’s governance is mostly in the hands of the city council and ultimately the provincial legislature.
The word “Toronto” has two meanings: a place and a corporation. The second meaning refers to the organization that governs the city. This organization is a special corporation created by Ontario legislature through the City of Toronto Act. As a creature of statute, the city has only powers granted by the province. The same statute grants powers to the mayor and to the city council and authorizes the city council to delegate its powers to the mayor. That’s why to get a general idea of the mayor’s powers, you need to review both the City of Toronto Act and city council by-laws.
The city, the mayor, and the city council must exercise their powers within the limits set by Ontario legislature. All three owe their existence to provincial statute and can be abolished by provincial statute. The 1997 ruling in East York v. Ontario confirmed that municipalities do not have an “autonomous” constitutional status and are subject to the will of provincial parliaments. In that case, a group of Toronto residents and some of the municipalities making up the Metro Toronto area challenged amalgamation of cities around the old Toronto into the megacity where we live today. Their challenge failed and the appeal was dismissed.
In 1994, the Supreme Court ruled that the city of Vancouver may not boycott Shell for its cooperation with the apartheid South Africa. The Court’s majority decided that such boycott was not for a municipal purpose as set by British Columbia legislation, specifically the Vancouver Charter, which is the equivalent of the City of Toronto Act. These cases show that municipalities and their mayors are subject to provinces’ will and must act within the authority given by provinces.
The word “mayor” appears only five times in the City of Toronto Act. The statute grants the mayor only two roles: the head of the city council and the “chief executive officer of the City.” In the first role, the mayor’s powers are “to preside over meetings of council so that its business can be carried out efficiently and effectively; to provide leadership to council; to represent the City at official functions; to carry out the duties of the head of council;” and to give the council certain information and recommendations. As the city’s CEO, the mayor must “uphold and promote the purposes of the City; promote public involvement in the City’s activities; act as the representative of the City both within and outside the City, and promote the City locally, nationally and internationally; participate in and foster activities that enhance the economic, social and environmental well-being of the City and its residents.”
The powers of the highly-contested mayor’s office appear almost ceremonial. The mayor doesn’t control the police, cannot influence legislation in his jurisdiction as Premiers or the Prime Minister can, and cannot issue executive orders. And the mayor doesn’t run the city’s operations: it’s the city manager’s job.
The mayor does have one truly great power, but only in emergencies. The City of Toronto Act allows the city council to delegate its legislative authority in limited circumstances. Under Chapter 59, Article VI of the Toronto Municipal Code, the mayor takes over the council’s legislative authority in emergencies. That’s what happened in 1999, when then mayor Mel Lastman called in the Canadian Forces after a massive snowfall in Toronto blocked ambulances from reaching patients.
All in all, Ontario legislature leaves it for the city council to govern Toronto. The council is like a corporate board of directors and the city manager’s office is like managers of a corporation. The mayor can’t do much without the council or the city manager. But the nature and the powers of the mayor’s office certainly make for a lot of publicity, which probably explains why there is so much hoopla over Toronto mayor’s elections this fall.
Pulat Yunusov is a Toronto civil litigation lawyer.
(Post sponsored by AdviceScene)
‘Nazi’ listed as an identifiable victim group in Toronto Police’s 2009 hate crime stats report
In the article below Karolyn Coorsh shares some mind-blowing news about the latest act of incompetence by Toronto’s finest. This is yet another bizarre act where Toronto cops are upside down and inside out in their approach to dealing with bias crime in the city. It comes on the heels of an ongoing civil case by a young Jewish lawyer in the city who is suing the Toronto Police Service for defamation after they incorrectly classified him as a nazi when speaking to staff at York University (where he was a student). It is also on top of complaints raised by anti-fascist / anti-racist activists in Toronto between 2004-2006, who reported being harassed by, of all people, members of the hate crimes unit of the Toronto Police Service. Similar complaints were also raised in 2007.
Guns, Gangs and Toronto Community Housing
From my blog, Simon Says. Category: Police and Law News.
From the CBC: Toronto police raids snare 71 gang suspects
Project Corral was a Toronto Police investigation involving a number of other services, which focused on two gangs, the Falstaff Crips and the Five Points Generals, as well as the Shower Posse, a Jamaican organized crime syndicate who was supplying both gangs with guns and drugs.
Chief Blair is very proud of himself for the success of this project, as well he should be considering that, in addition to 71 arrests, police seized 10 firearms, $30,000 in cash, $10,500 in casino cheques, cocaine, crack cocaine, marijuana, hashish oil and vehicles. This is no small feat and no doubt many lives have been saved.
Most of these gang members lived and operated within the communities of Toronto Community Housing and in the aftermath of Project Corral there will either be a deadly resurgence of these gangs, as they try to reestablish themselves in these communities, or there will be a power struggle to fill the void. Either way this is not good for the officers of Toronto Community Housing!
TCH is comprised of some of the worst government subsidized housing projects in Toronto and is patrolled by unarmed special constables, provincial offences officers and parking enforcement officers! These officers operate as first responders in these communities, assisted by Toronto Police when necessary.
The problem is, Toronto Community Housing officers are significantly under equipped to deal with the situations they are put in. They are often first on scene to calls involving guns, gangs, drugs, assaults, domestic violence, suicides, and shootings. They respond to the same calls that Toronto Police officers do, but they don’t carry a firearm? Mr. Blair, give your head a shake and wake up before one of these officers doesn’t get to go home to his wife and children at the end of the day!
My friend who works for TCH once encountered a drug dealer on a call in an apartment complex. The drug dealer sicked his pit bull on the officers and, in order to save his own life, my friend was forced to kill it with baton strikes to the head. But apparently he doesn’t need to be armed.
Another officer I know in TCH responded to a call that was an hour old for suspicious activity in an apartment complex laundry room, where he had little to no radio reception. When he entered the laundry room he observed two males with marijuana and scales in plain view. He moved in to make an arrest and the males fled. He caught one of them and while patting him down he felt the butt of a pistol sticking out of the back of the his waistband. As soon as he touched it the fight for his life was on. He was eventually able to wrestle the gun away from him and call for help but the male escaped. The pistol was a 9mm semi auto with a do-rag wrapped around the ejection port to catch the spent casings. I guess this officer didn’t need to be armed either.
I can pretty much guarantee that every crazy thing you’ve heard about Toronto has been dealt with by a Toronto Community Housing officer at one point or another. They have a very difficult job to do I sincerely hope, for the sake of these officers and their families, that Mr. Blair and the Toronto Police get a reality check soon and arm them!
How to secede from Ontario
So what if Toronto became a province? Why would that be a bad idea? Regardless of the arguments for and against, Toronto can never become a province unless there is a lawful way to that goal, and there are several. In any case, separation will require a referendum in the city. If Toronto wishes to leave, Ontario will have to start good-faith negotiations. And even if the talks break down, there seems to be a constitutional way for Toronto to become a province without Ontario’s consent.
First, any decision to separate will require a referendum in Toronto. Just a vote in the city council will not be enough because the issue is so momentous. We have some legal precedent on this issue because the independence question was raised in referendums several times in Quebec. In the Reference re Secession of Quebec, the Supreme Court said that a successful referendum will give necessary legitimacy to Quebec government’s effort to secede. I don’t see any other way to give legitimacy to the effort of Toronto to form its own province.
Second, if the people of Toronto say yes to becoming a province in a referendum, Ontario will be under an obligation to negotiate with representatives of the city. This also follows from the Reference re Secession of Quebec. The difference, of course, is that Quebec has original sovereignty as a province, and the City of Toronto is legally a creature of an Ontario statute. But in essence, the same principles should apply: if a huge number of people in a large community want something, the government should listen and talk. Besides, Toronto is not just a city: it’s older than both Ontario and Canada. Its population and economic output are bigger than population and GDP of nine Canadian provinces. It’s a critical part of the country, and if it speaks loudly about its own destiny, Ontario has a legal duty to negotiate.
There are at least three possible outcomes of these negotiations:
1. The Legislative Assembly of Ontario passes a law granting unique and broad powers to the City of Toronto. The new authority should approach that of a province. The law should be a super-statute like the Ontario’s Human Rights Code. It should prevail over any other Ontario law. The problem with this solution is that Queen’s Park will keep the power to change or repeal this statute despite its “super” attribute. Unless there is way to bind the Ontario legislature with stringent amendment limitations like those found in the Canadian constitution, the super-statute will last only as long as the political will of the provincial parliament.
2. Ontario adopts a written constitution with amendment restrictions similar to those of the federal constitution. The new powers of the City of Toronto become a part of the Ontario constitution subject to amendment only in rare cases of clear consent of a great majority of Torontonians and Ontarians. I have no idea how to make this work. When Canada needed a constitution binding on its own parliament, it had to ask the UK parliament to pass a special law. It’s unclear how the federal parliament could play the part the UK parliament once played for Canada, because a future Ontario government could challenge that intervention on federalism grounds. How a province can adopt a binding constitution is a great topic for legal scholars, but I don’t see a practical way to do it.
3. Canada amends its own constitution making Toronto a full province. That’s the best way for the city. It will ensure more legitimacy and legal certainty so Toronto can focus on its future instead of endless litigation with Queen’s Park. Sections 42 and 38(1) of The Constitution Act, 1982 set the procedure for forming a new province: consent of the Parliament of Canada and legislatures of at least two thirds of Canadian provinces that together have at least half of Canada’s population. In my reading of the Constitution, Ontario’s consent won’t even be necessary, but if Ontario says no, then Quebec’s and probably BC’s yes will be required. Imagine the headlines: “Quebec helps Toronto secede from Ontario!”
Hopefully, it will not come to this, and the growing crisis in the relations between Toronto and Ontario will be resolved. But if Toronto is determined to get a special status to reflect its role in Ontario and Canada, it certainly has lawful paths to that objective. What’s needed is the political will on both sides.
(Post sponsored by AdviceScene)
Access to justice or abuse of legal aid?
Killer cop seeks funds for appeal
Peter Edwards writes:
A Toronto police officer who ran up a $1.2-million legal aid bill while on trial for his mistress’s murder is now seeking taxpayer funding to appeal his conviction.
Two charges dropped, two to go
Two charges dropped against shopkeeper
Jennifer Yang writes:
Kidnapping and weapons charges were dropped this morning against a shopkeeper who was arrested for detaining a suspected shoplifter.
Unique photos of Omar Khadr may be evidence of his innocence
Omar Khadr Omar Khadr ‘innocent’ in death of U.S. soldier
Michelle Shephard writes for the Toronto Star:
Guantanamo detainee Omar Khadr was buried face down under rubble, blinded by shrapnel and crippled, at the time the Pentagon alleges he threw a grenade that fatally wounded a U.S. soldier, according to classified photographs and defence documents obtained by the Star.
Citizen’s arrest
It’s one of the cases that gets ordinary people all riled up. A chronic criminal, Anthony Bennett, who some say stole from Chinatown stores for years finally got caught. A hard-working store owner, Mr. Chen, aided by two associates, witnessed a theft, confronted the culprit an hour later and then caught him, tied his hands, put him in a truck and called the police. And what do the cops end up doing? They charge Mr. Chen with assault, kidnapping, unlawful confinement, and carrying concealed weapons. The last charge is for having a box cutter.
But the cops had a lawful reason to arrest Mr. Chen. If citizens see crime in progress on their property, they can catch criminals. But Mr. Chen went after Mr. Bennett an hour after the theft. Mr. Chen and his two associates chased Mr. Bennett. It’s not clear where they caught up with him and locked him in a truck, but some running down the street was involved. Some punching is alleged. Apparently, Mr. Chen exceeded his powers of citizen’s arrest. That’s why his lawyer, Peter Lindsay, wants to challenge Canada’s citizen’s arrest laws.
Mr. Lindsay says the law “should be changed to allow private citizens to arrest people they suspect committed or will commit a crime.” So he wants citizens to have the power to arrest not only for crimes they see but also for crimes they suspect happened or even will happen.
Mr. Lindsay’s idea is unbalanced. Private citizens aren’t trained to recognize crimes or criminals. They aren’t trained safe arrest techniques. They don’t have proper custody space. Untrained people can harm someone. We can end up with even more arrests of innocent people than we have now. Kidnappers may have an easier time imitating citizen’s arrests. And the vigilantism that Mr. Lindsay’s idea can unleash is scary. The risks are just too high. And slow police response and endemic theft do not outweigh them.
The existing citizen’s arrest powers are sufficient. The crimes we are talking about are usually minor, and we don’t want ordinary people to arrest serious criminals anyway. Besides, other means exist to deter minor crime. The Chinatown business improvement area may find it less expensive to hire security guards (as it did before) than deal with civil claims by innocent arrest victims. And if the thief is really persistent, why not stake him out and do a proper citizen’s arrest on your property? All the video cameras will help with evidence if the police question the arrest’s legality.
Although Mr. Chen and other store owners in the area deserve our sympathy, Mr. Lindsay’s idea goes too far. The Crown should exercise its discretion and drop the charges against Mr. Chen. He has already paid a price for whatever indiscretion he committed. This should be a lesson for the police, for the business improvement area, and for the social services. But this story should not be a reason to expand citizen’s arrest powers. The benefits will not justify the risks.
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Crown seeks life for man who killed Rengel
He pleaded guilty in April to first-degree murder, saying he killed Rengel on New Year’s Day 2008 to appease his jealous girlfriend.
