No 78 Guest post by Helga Wintal with background information by fw, October 19, 2010
To put this post in context, it’s a follow-up to two previous posts: Holding Ontario Liberals to account for the G20 outrage (July 6, 2010), and Desperately seeking Sandra. The “unaccountable” Windsor MPP Pupatello (August 12, 2010). The former is a copy of an email letter that my wife, Helga Wintal, and I sent to the Hon Sandra Pupatello, MPP (Windsor West) to express our alarm over the breach of civil rights of peaceful protesters at the G20 Summit. The latter is a follow-up post expressing our frustration at the failure of our repeated attempts to establish contact with Ms Pupatello’s Windsor constituency office.
We are pleased to report an encouraging development. This morning Helga and I had a very cordial and productive one-hour meeting with Marion Fantetti, Ms Pupatello’s Special Assistant. We were impressed with Ms Fantetti’s effective use of active listening skills and her full and accurate recapitulation of our main points. She promised that she would brief Minister Pupatello, share with her our memo, copied below, and keep us informed of relevant developments.
Here is a copy of Helga’s memo that we presented to Ms Fantetti this morning.
To: Hon Sandra Pupatello, MPP (Windsor West) & Marion Fantetti
From: Helga Wintal and Frank White
Date: October 19, 2010
Re: Issues of concern surrounding the G20 Summit in Toronto
The purpose of this submission is (a) to document our apprehension pertaining to events surrounding the G20 Summit in Toronto, and (b) to invite Ms. Pupatello to respond to the questions we have raised regarding our concerns.
While we recognize that our main concerns are not directly related to Ms. Pupatello’s portfolio, as a member of Cabinet she is in a position to exert influence on her Cabinet colleagues. Moreover, as our MPP, she needs to know that some of her constituents are seriously troubled by what appears to be an erosion of our civil liberties. The G-20 events may no longer be an issue for Cabinet, but for responsibly informed citizens it is important to get government assurances that the mistakes made during the G-20 summit will not be repeated. Here are our concerns —
1. Responding to constituents’ correspondence
We wrote to Ms. Pupatello on July 6, 2010, expressing concern about the use of the Public Works Protection Act during the G-20 summit and about the last-minute passage of Regulation 233/10 to designate a large section of downtown Toronto as a “public work” and to provide broad powers to the police to verify the identity, search and arrest any person who came within five metres of the designated area. We are disappointed that we never received a written or emailed response or even an acknowledgement of our correspondence. We emailed our letter, and subsequently hand-delivered a print copy when the original email went missing. Our letter was clearly neither a form letter nor a petition, and it should have been given the courtesy of a timely response. In effect, it has taken about 14 weeks for Ms Pupatello’s constituency office to finally schedule a meeting (October 19,2010) with Ms Marion Fantetti.
Question 1: What is your policy re: responding to letters and emails from constituents?
2. Communicating important regulatory changes that impact on our rights
Technically, the Ontario government was in conformity with the Legislation Act, 2006 when it made Regulation 233/10 on June 2, 2010, filed it on June 14, 2010, published it on e-Laws on June 16, 2010 and printed it in the Ontario Gazette on July 3, 2010, several days after the regulation was revoked and after the weekend of the G-20. (The Legislation Act, 2006 provides that Regulations are enforceable on the earliest of: actual notice to the person concerned, electronic publication on e-Laws, or publication in the print version of the Ontario Gazette, unless otherwise stipulated.)
However, it is the perceived secrecy surrounding the coming into effect of this Regulation that is disturbing. The Regulation, and its authorizing Act, provided the police with extraordinary powers of search and arrest of any person who came within five metres of a large swath of downtown Toronto. Over 1,000 people were arrested and detained during the G-20 weekend. The legislation clearly impacted the lives of a large number of people who were not even aware of its provisions. Paul Cavalluzzo, a constitutional lawyer, indicated in an interview on July 5, 2010 that his clients — the Civil Liberties Association and the Canadian Labour Congress — had been meeting with the police for two weeks before the G-20 to learn about the kind of powers the police had and at no time did the police mention this Regulation.
Many civil rights lawyers only found out about the Regulation when people were arrested. The Toronto Star reported that even the Mayor of Toronto didn’t know about it in advance. Given the long timeframe that the Government had to plan for the G-20 weekend, the last-minute passage of Regulation 233/10 and the lack of information provided to demonstrators and to the general public seem, in retrospect, to have been a deliberate attempt to stifle criticism and debate and to take away the right to challenge the Regulation before the G-20 summit.
Question 2: a) Does Ms. Pupatello believe that it is fair and just to expect citizens to conform to a law without giving them notice, in advance, of the content of new Regulations which may affect such important rights as freedom of expression and peaceful assembly? b) And will Ms. Pupatello urge her Cabinet colleagues not to enforce significant new Regulations in future without giving adequate notice to citizens who could be directly affected?
3. Using the Public Works Protection Act for an unintended purpose, to constrain public protests
Two constitutional lawyers, Paul Cavalluzzo and Clayton Ruby, advise that the Public Works Protection Act which was passed in 1939 was originally intended to protect courthouses, police stations, and other similar buildings and facilities as well as public officials against attack. As such, it provides fairly draconian powers: it gives the police (and guards appointed under the Act) the authority to require any persons approaching or entering a designated public work to identify themselves and state their purpose; authority to search without warrant any such persons or their vehicle; to refuse permission for entry and to use whatever force is necessary; to arrest without warrant any persons who neglect or refuse to comply with a request or direction of a guard or peace officer or who are found upon, or attempting to enter, a public work without lawful authority. Those who neglect or refuse to comply with the request or direction noted above, or are found upon or are attempting to enter a public work are guilty of an offence and upon conviction, are liable to a fine of $500 or two months in prison.
This Act was not intended to be used against protests, demonstrations and the right of assembly. By using this Act to guard the G-20 participants, the whole right to privacy and the right to probable cause for search and seizure has been eliminated. You just need to be in the area in order to face the possibility of being questioned, searched, clubbed, arrested and detained.
According to Clayton Ruby, it is unlikely that the use made of this Act and Regulation 233/10 in the G-20 context would withstand a Charter challenge. However, it is equally unlikely that the matter will be tested in court. Two demonstrators were charged under the Act. The charges against one were subsequently dropped and charges against the second may yet be dropped to avoid court scrutiny. If a separate Charter challenge is mounted, a court could decide not to deal with it because the Regulation is no longer in effect. This is unfortunate, because the prospect of using this Act in future will have a chilling effect on peaceful protests.
Question 3: a) Does Ms. Pupatello agree that the use of the Public Works Protection Act and its regulation-making authority, in future, should be restricted to the use for which it was originally intended: namely, to thwart hostile attacks on key public buildings and facilities? b) And will she lobby her Cabinet colleagues to that effect?
4. Abuse of the Common Law offence of “Breach of the Queen’s Peace”
The police have the power, if there is an actual threat of violence or apprehension of violence, to order people to disperse and if they don’t, to arrest them and charge them with breach of the Queen’s peace. This power was used extensively during the G-20 summit to arrest hundreds of peaceful demonstrators. Clayton Ruby argues that without a threat of violence, police use of breach of the peace is unconstitutional. Unfortunately, if the police don’t lay a charge, or subsequently drop the charge, the only recourse is to sue, which is beyond the means of most demonstrators. By using this power extensively, police were effectively eliminating the right to protest in free assembly without the risk of having their actions tested in court. The whole focus of the police was on crowd control, instead of protecting citizens’ rights to protest peacefully.
Question 4: Does Ms. Pupatello share our concerns that citizens are effectively denied their Charter right to freedom of assembly when they are arrested for no reason other than for engaging in a peaceful protest?
5. Need for a thorough, independent public inquiry into police action
Numerous complaints emerged from the actions of the police during the G-20 summit, including allegations of police targeting of journalists, police roughness and violence in handling demonstrators, use of horses, batons and rubber bullets, police disruption of medics who were trying to treat demonstrators, the denial of heat, proper clothing, medical care, basic privacy and access to counsel in the makeshift detention centres. There are three separate reviews currently underway into police actions during the G-20. However, none are expected to be sufficiently independent or comprehensive. Details regarding one review are provided below as an example.
Gerry McNeilly, Director, Ontario Office of Independent Police Review, is conducting a systemic review of what occurred during the G-20 situation in Toronto, focusing on patterns of behaviour which were the subject of complaints. He has stated that his terms of reference include looking at the unlawful arrests, the unlawful searches, the detention that took place in the streets and incidents at the detention centre, as well as how the police prepared for the G-20 and what training they got. Included in his review is whether journalists were specifically targeted, as a number of journalists were arrested, ordered to leave the scene or actually physically attacked. He intends to make recommendations so that in future, some of what occurred can be avoided.
McNeilly, himself, identifies three significant limitations with his review:
First, he admits that he is only going to look at unlawful arrests and searches. Using breach of the Queen’s peace is lawful. His review won’t be answering the question whether it was a justifiable use of the power of arrest.
Second, with more than 320 complaints to review, he’s concerned that he won’t be able to complete the review while the issue is current, so that it doesn’t get forgotten.
Third, the role of the RCMP in policing and providing security for the G-20 is outside his mandate and would have to be reviewed by the Canadian Police Commission in Ottawa. (The Integrated Security Unit was in charge of policing, under the direction of Chief Superintendent McNeil of the RCMP).
Question 5: Does Ms. Pupatello agree that a comprehensive, independent public inquiry into the actions of police at the G-20 summit is needed to determine what actions by police infringe citizens’ rights to assemble and to demonstrate peacefully and to avoid future repetition of these actions?
Stay tuned for further reports.