Citizen Action Monitor

Clayton Ruby: “What we’ve seen here is a picture of the police state to come.”

No 48 Posted by fw, August 24, 2010

The following is my transcription of Part 1 of Paul Jay’s video-recorded interview of Clayton Ruby, first broadcast on the Real News, August 21, 2010. Part 2 is accessible here. And my transcription of Part 2 of the interview is Post no 47 on this blog.

Clayton Ruby’s client, Charlie Veitch, arrested twice

PJ — In a recent story on the Real News, we had a story about David Vasey. He was arrested under the Public Works Protection Act at the Toronto G20, and we reported that he was the only person arrested under that act. Well we were wrong. There was another person arrested and his name was Charlie Veitch. And here’s some video of his arrest. (Video shows police questioning Veitch – who is he, telling him he’s not allowed to film and then taking him away for refusing to reveal his identity).

When Charlie Veitch gets to the airport after G20 is over, he’s about to board a plane to go back to his home in England, he’s arrested again. Why this time? Well, a few minutes before the first tape that you saw, he encountered a private security officer and told that officer that he was a member of the British military intelligence, and here’s a little clip from that encounter. (Video shows officer asking Veitch if he has certification for that [megaphone]; Veitch responds that he’s from British military intelligence and that he doesn’t carry ID, explaining “In the spy world we call them ‘ghosts’ and we’re ghosts.”)

So when Charlie gets to the airport he’s arrested for impersonating a police officer, hauled back to jail again, and now he’s facing both charges. And now joining us is his lawyer, Clayton Ruby, who’s a renowned, leading Canadian constitutional lawyer for decades in Canada. Thanks for joining us.

CR – Pleasure.

PJ – And I should add, a member of the Order of Canada. Tell us Charlie’s story. This whole thing sounds completely bizarre and crazy.

Ruby: “Authorities do not have much of a sense of humour”

CR – Well, you got to put it in context. Charlie is a clown. Charlie runs absurdist theatre. His job is to entertain the police while they’re harassing the demonstrators and he does that very well and very cleverly. And it’s all designed to make a political point. He wants to point out the creeping police state that we’re getting in to. He wants to point out the way we worship things in inappropriate ways. And he wants us to start thinking about how this can be done better. And that’s what he’s about. However, it seems the authorities do not have much sense of humour.

First charge against Veitch: Violation of the Public Works Protection Act

PJ – Apparently not. Let’s take the first charge first. The big one I guess is the violation of the Public Works Protection Act (R.S.O. 1990, Chapter P.55) because that’s the precedent-setting thing. Now in Vasey’s case, they go to court, expecting a hearing leading up to a trial for the Public Works Protection Act. When they get there, they can’t even find the charges. It’s all been blown away. And Howard Morton, his lawyer, theorized that they don’t want this tested in court. But it looks like Veitch’s case is going to proceed.

How can citizens be expected to conform to a law amended in secret?

CR – It’s hard to say that. At the moment, it’s set to proceed. But I think you’d have to be a peculiarly dumb civil servant to say, “I want to see a constitutional challenge of this act”, which was amended in secret. And it appears deliberately so. Have the various ministers, the public works and the attorney general subpoenaed to court to explain why was it notice wasn’t given to the public to the regulatory change. So that is a case in a democracy. People can conform their behaviour to obey the law. If that’s impossible, it’s hard to say how that can be constitutional. So I would be very surprised if they want to have that court challenge. But I’d be delighted to bring it. And I think we’d all have a lot of fun with it, including Charlie who’d understand the theatre.

PJ – (Chuckles) He could get his megaphone out.

CR – (Laughing) A running commentary in the hall.

Police Chief Blair asserts the Public Works Protection Act has been tested in court

PJ – Now I had a little go-to with Chief Blair in a press conference (June 16, 2010) during G20 where I asked him about the Public Works Protection Act. And I said: To all intents and purposes this suspends probable cause. Here’s a little bit of his answer to that:

Toronto Chief of Police William Blair

Video clip plays and here’s the exchange between Paul Jay and Chief Blair:

PJ — “The Act allows, essentially, for elimination of probable cause for search and seizure”

Chief Blair: “That’s not correct.”

PJ – “I can read it to you.”

Chief Blair – “Yeah, by all means. I’ve read it at great length. It’s an act that has been in the Province of Ontario since 1939. Its authorities have been tested through the Ontario Court of Appeal and upheld. It’s not an act of which we are not familiar.”

PJ – Has this act been tested in court? Has it been tested during the life of the Charter? And would it stand up to the Charter?

Ruby refutes Chief Blair’s assertion: “I know of no constitutional challenge to that legislation”

CR – I know of no constitutional challenge to that legislation. It might get sustained because its primary purpose is to protect named public works. So let’s assume that it’s valid legislation. In order to commit an offence under the regulatory scheme in the act, you’ve got to be entering or attempting to enter the enclosed area. Simple enough. Charlie is standing outside the five-meter limit. He doesn’t know anything about the five-meter limit any more than anybody else does. It’s all secret. But he’s standing well outside it. The police say to him, “Come over here.” And they put him two meters from the actual fence. Now, they say, you’re within five meters of the fence. And the answer, of course, is but he wasn’t attempting to enter the area. Indeed, there’s no way to enter the area at that point. There’s a ten-foot fence but no gate, no door. You couldn’t enter the area if you tried. So, this prosecution is ill-founded on its facts.

PJ – But if they really tried to fight you in court, then my understanding of the act is that the policeman or the guard can define the boundary any way they please, and not only that, it’s actually irrefutable in court. That whatever the guard or policeman says it is, it is, and you can’t counter it.

CR – It can’t be the case that a guard’s opinion or decision would take precedence over a regulation passed by order in council.

PJ – Maybe in this particular case because they defined it. But the legislation doesn’t – as I understand it correctly – doesn’t require them to define it.

CR – Absolutely. I think that’s true. You can define it in a number of ways and that may be one of them. But in this case you’ve got to define an area by regulation.

PJ – And they suck the guy in to the . . .

Police sucked Charlie into the five-metre area where there’s a perimeter fence but no gate

CR – They suck him into the five [meter area]. But even then they can’t make him enter in to a place where there’s no gate. That’s a little hard.

PJ – Now when I questioned Blair I said one of the issues amongst many with this legislation – and essentially eliminates probable cause for search or seizure – he said “That’s not true.” Does this legislation essentially do that?

The Public Works Protection Act essentially eliminates probable cause

CR – It does. It replaces probable cause – the standard in ordinary criminal law – with the two factors: being within five meters of the restricted area and attempting to enter or entering the restricted area itself – as your purpose. That replacement might be okay if in fact the act was used to protect some small area – a munitions plant, a public work like a nuclear facility. But when you’re taking an entire section of downtown and proclaiming it off-limits, people who want to protest – there are serious doubts that’s constitutional in itself.

PJ – Charlie’s other charge seems ridiculous.

The charge of impersonating a police officer is “ridiculous”

CR – It seems ridiculous and it is ridiculous. There’s Canadian case law from courts that say it is a crime to attempt to impersonate a police officer. You can’t pretend to be a downtown police intelligence officer. No one would believe it anyway. You look intelligent. But you can’t do it, it’s a crime. But the law is you can impersonate all the foreign police officers you want. You can, according to the case law, pretend to be a US marshal from Texas. But you can’t do that by pretending to be a member of military intelligence. That’s not an offence in Canada.

PJ – So they go to the extent of grabbing him at the airport, dragging him back downtown . . . It’s unheard of in terms of any norm of Toronto policing. What is going on here?

“What we’ve seen here is a picture of the police state to come”

CR – Bear in mind that your idea of what is “normal Toronto policing” is not based primarily on any value system the police hold that respects individual rights to protest. They seem to have none. It’s based on limited budgets. And what we’ve seen here is a picture of the police state to come. What happens when you give the police unlimited budgets, all the men they want, all the toys they want, all the machinery they want, and the right to control huge swaths of the city. That’s the police state that’s going to come if we give them the money to do it.

PJ – Which apparently we did.

Canada's CEO -- Chief Enforcement Officer

“Harper” and a coming “police state”

CR – Which we did on this occasion and which Mr Harper wants to spend another eight billion on, on prisons. That’s the other end of this. So, watch out for this police state. It really will come with money. And there’s nothing to stop it because those values of liberty and freedom and democracy are not cherished by the police departments.

Where is our right to protest?

PJ – There’s some other things that happened over the weekend, which again I think are maybe just as disturbing, in some ways even more disturbing than the Public Works Protection Act as they don’t normally drag that thing out anyway – They charged hundreds of people with breach of the Queen’s peace. What is this? And then they would take any number of gatherings and just immediately say this is now an illegal assembly – I don’t know what the basis for it is. Where is there a right to assemble, a right to protest if there’s any number of laws that can simply with the snap of a finger eliminate it?

“Not everything is a potential breach of the peace”

CR – Well, let’s start with breach of the peace. It’s a power which is very ancient. It was designed originally for the British constable to stop by the pub at closing time [and] when he found two guys duking it out in the parking lot, and say, “I’m ordering you to disperse. You’re breaching the peace by this fight.” And they would have to do. And if they didn’t go along nicely and separate he could arrest them and separate them. Simple enough. Perfect sense. Good use of police resources. No charge gets laid. No trial is held. And they go home sheepishly. That has now spread because it hasn’t got any limit — it’s a common law offence – to a somewhat arbitrary universal power in all police officers. Now the case law is not so horrible.  It says: Look, not everything is a potential breach of the peace. And that means you’ve got to have some actual threat of violence before you can do it. So, if a hundred or two hundred people are sitting down quietly making a peace sign there is no violence in the offing.

PJ – Which we know that many of the people that got arrested were doing exactly that.

Absent a threat of violence, police use of breach of the peace is unconstitutional

CR – Yes. That’s a very common scenario. They’re not obeying the police order to move but on the other hand there is no threat or apprehension of violence. So that arguably – and I would take the position – is an unconstitutional use of that power. The police did it effectively. And bear in mind that once they do it, if they don’t lay a charge, your only recourse is to sue. Well how many of us are going to take several thousands of dollars or several days of our time in order to teach the police a lesson? — Which frankly cannot be taught because if you get a judgement for $500 for damages they’re going to pay the money happily. They have unlimited for paying this kind of loss. And they could take a hundred thousand people at $500 each and would not blink.

PJ – Okay. In the next segment of our interview let’s talk about what can we do. Because what we’ve seen right now is to all effective purposes, if they arrest a thousand people or more and then don’t charge them they’ve eliminated the right to protest in free assembly but it’s not ever going to get tested in court because they just drop the charges. You know, they can go fishing and throw the fish back and nothing ever comes of it. So in the next segment, what can people do about all this? Please join us for the next segment of our interview with Clayton Ruby on the Real News network.

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This entry was posted on August 24, 2010 by in legal counterpower and tagged , , , .
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