Is There a Right to Protest in Ontario?

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Howard Morton: Those in power have learned nothing from the Toronto G-20 events

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay. One year ago this weekend, that was June 25, 26, 27, 2010, at the Toronto G-20, more than 1,000 people were arrested. Only 300-plus were actually charged with anything. The Ontario ombudsman called it the greatest violation of civil rights in the history of Canada. Now joining us to talk about is there in fact a right to protest in Ontario is defense attorney Howard Morton. He joins us from Toronto. And he’s also representing some of the more high-profile cases of people who actually were charged. Thanks for joining us, Howard.

HOWARD MORTON, CIVIL LIBERTIES LAWYER: Thank you. Good day.

JAY: So what happened those three days, essentially, just quickly, for–if there’s people in our audience that don’t know the story, there was a demonstration of about 20,000 people, particularly on the Saturday. A group of maybe 200, 300 people broke off from the demonstration at some point. They used what’s been called a black bloc tactic. They broke some windows on the main street called Yonge Street. They torched a few police cars that some people say seem to have been left there in a strange way for quite a period of time. But more than 700 people who certainly weren’t involved in that, and probably closer to 900 or 1,000 people who were not involved in any of that, what they call direct action or black bloc tactics, were arrested. So, Howard, can all this happen again? Has anything been learnt? Has anything been changed in the legislative framework? Have the police acknowledged anything that would lead you to think it won’t happen again?

MORTON: I don’t think those in power, Paul, have learned anything from this at all. As you’re aware, both the provincial government in Ontario and the federal government in Ottawa have refused to have any sort of comprehensive public inquiry so that we can get to the bottom of how all this happened in the first place. Those who have learned a lot about it, though, are the average Torontonians and I think Canadians who would have never imagined that they could spend a weekend in a banana republic, subject to the kind of police abuse that occurred on that weekend. So the public has learned. I think it’s really going to hurt the public trust and confidence in the police for a long time to come. But in terms of those in power, including Chief Blair, who released his report today, it doesn’t look like they’ve learned a darned thing.

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JAY: So let’s dig into one of the issues that is in that report. Most of the media’s been focusing on the fact that Chief Blair does a kind of mea culpa in the report. He says, we were overwhelmed, we hadn’t prepared well enough. He’s also said that this tactic of kettling, where hundreds of police surrounded hundreds of people, at least on one or more occasions, and just held them there for hours, he said they won’t do that again. But to me there’s something more distressing in this report that’s not being talked about, and that’s the legal framework with which Chief Blair justifies what happens. Now, for people watching this report, we’ve dug into a lot in another interview which is up on our site–and you should go watch it. It’s an interview with the Ontario ombudsman about something called the Public Works Protection Act. But, Howard, I want to ask you about something else, because Chief Blair also says the other legal framework for what happened was what he calls breach of the peace. Some call it breach of the Queen’s peace. So explain what that’s about and what you make of his defense of the use of that.

MORTON: Well, I think he’s quite wrong in terms of the law. It’s true that a police officer who either sees or anticipates on reasonable ground that there will be a breach of the Queen’s peace has the lawful right to intervene and ensure that it stops or doesn’t happen. But what you had during that weekend, Paul, were hundreds, if not thousands of people who were in areas far away from the summit fence, minding their own business, who were approached by police officers. Demands were made of them, their property was searched, their clothing was searched, and they were subject to a great deal of police abuse. There was no breach of anybody’s peace except on the part of the police officers.

JAY: There were numerous instances that we know of that we’ve reported on and much of the media’s reported on of demonstrators or protesters who were literally sitting, sometimes singing “Kumbaya” or with peace signs up, and they’re arrested for breach of the peace or breach of the Queen’s peace. What the heck is a definition of breach of the peace?

MORTON: A breach of the peace is a significant–there has to be a significant risk that persons other than those breaching the peace will be subjected to, let’s say, unlawful assembly or something like that. In other words, if somebody was running down the street screaming and yelling and cursing and swearing at everybody he passed or she passed, that would be a breach of the Queen’s peace. As you know, it’s a very old common law doctrine with respect to the queen’s or the king’s speech, as the case may be. And that’s what it requires.

JAY: Yeah. My understanding, it partly came about that–a way for police, if they came on a pub, and two people are fighting, and they want to kind of bring them in, sober them up, and let them out without having to charge them and go through a whole judicial process–. But isn’t there supposed to be some presumption of there will be violence? You can’t break the peace unless you’re violent, can you?

MORTON: Well, I think you can. Violence clearly would amount to a breach of the Queen’s peace, but there would be other conduct, such as yelling and screaming, cursing at everybody who walks down the street, and that sort of thing. And a police officer would have the right to intervene to ensure that the breach comes to an end. And that may involve talking to the person, but it also may involve arresting the person for breach of the Queen’s peace.

JAY: So what has that got to do with people that are protesting, and the police say, either you leave or you’ll be arrested, and this is what they use to arrest them?

MORTON: Well, it has absolutely nothing to do with it. But, Paul, thousands of people were approached by the police who weren’t even demonstrating at that particular point. They were in public parks miles away from the G-20 fence, and the police went into those parks and approached people and conducted unlawful searches of their property and of their person for no other reason–at least I can’t come up with a reason–where they thought that that might be necessary. There was absolutely no breach of anybody’s peace by those people.

JAY: Now, it’s a very peculiar description of the legislation he gives in his report, he being Chief Blair. I mean, I think it’s correct, but it shows how bizarre this piece of legislation is. He says that under the Criminal Code they have the right to use this act to arrest people, but he says then there’s actually nothing in the criminal code that allows people to be charged with anything. So how can you be arrested for something you can’t be charged with?

MORTON: Well, it’s historical. It’s been around for centuries. And he’s quite right: there’s no offense of having breached the Queen’s peace. It’s sort of a preventative measure that the common law developed to permit police to prevent or stop breaches. It’s sort of like the Riot Act that we have here in Ontario, where the local sheriff can read an act demanding that people do this, that, and the other thing. It’s preventative as opposed to reactive.

JAY: So then the issue remains, then, given that no one reviewing any of this has talked about the use of this legislation, or in fact the use of declaring something an unlawful assembly under a very similar situation. They simply declared it. There’s no proof or evidence that there was anything unlawful going on. And I’m not talking about where people could have been arrested breaking windows, ’cause in fact during the actual window-breaking, not that many people actually were arrested. But if you have a situation where people are being arrested under this situation, how do you have a right to protest in Ontario?

MORTON: Well, as you know, the right to engage in lawful assembly is protected by Section 2 of the Canadian Charter of Rights. And so it’s not simply that we should have a right to assemble and to protest lawfully. That protection is guaranteed by the highest law of the land. And what occurred on the weekend, the G-20 weekend, was that Section 2 of the Charter was trampled on by dozens and dozens of police officers who intervened in situations where there was absolutely no reasonable grounds to do so.

JAY: So what can people do about it? And what good is the Charter if in effect the police can use laws like breach of the peace and violate the Charter? There’s been no repercussion. What accountability is there?

MORTON: Well, we’re still hoping there will be a lot of repercussions. The Real News, as well as a couple of other media outlets, has been hanging on to this, not letting it go, which is really important, that Canadians don’t forget about that weekend. And I think if we keep it up, we can ensure that there is some measure of accountability and hopefully prevent it from ever happening again.

JAY: But doesn’t it come down, in some ways, to the Toronto Police Service Board, the civilian oversight body? This is a matter of policy, whether or not to use breach of the peace to break up demonstrations. So isn’t the onus really on them to tell the police this is not a proper use of policy?

MORTON: It would be. It’s a hybrid. There is an operational aspect to determining what arrests and on what basis you’re going to arrest people. So–but the Police Services Board has just run and hid from this entire weekend. We don’t even know whether they approved Chief Blair going to the provincial cabinet to get the regulation under the Public Works Act broadened. We don’t even know that. So the Police Services Board, regrettably, even though they have an inquiry ongoing with Justice Morden, they’ve just run from the whole thing.

JAY: Well, we interviewed–not on camera, but earlier today we spoke to Alok Mukherjee, who’s the chair of that board. I asked him this question directly, about the use of the peace. He says they did consider it a very serious issue, but they can’t say anything until Judge Morden finishes his review, and that he says this is something he thinks Morden should take up. But, again, who else can tell the police that you actually have to follow the Charter?

MORTON: Well, there’s no one else, except in specific court cases where judges can certainly tell the police. But what effect that has on police forces I have no idea. Usually it doesn’t have much effect at all unless evidence is excluded because of Charter breaches. But the Canadian public has become aware for the first time, and particularly here in Toronto, of what the police are actually capable of. As you know, I was a prosecutor for a lot of years. And when I became a defense counsel, I would talk to my neighbors and say what certain clients had told me–not specifically. And I’m sure my neighbors just thought, oh, ho, well, Howard’s a defense lawyer; let’s humor him. That particular weekend, captured on video and still being examined one year later, I think has taught a lot of Canadians that our democracy is not as safe as we might have thought it was, that anything is capable given a certain set of circumstances in this country.

JAY: Thanks for joining us, Howard.

MORTON: Thank you.

JAY: And thank you for joining us on The Real News Network.

End of Transcript

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