In the bruised and battered aftermath of the G20 Summit, civil liberties advocates, former judges and watchdogs of all stripes dug into what went wrong during that fateful weekend in June 2010.
The dozens of recommendations contained in the pile of reports they produced strove toward a singular goal: to prevent a similar curtailment of civil liberties from ever happening again.
But five years after the largest mass arrests the country has ever seen, an Ontario judge warns that, despite recent changes, when it comes to the laws that guide police conduct, we remain ill-equipped to stave off another G20.
In an essay published in a new book on policing during the summit, Justice James Stribopoulos blames the abuses that took place on an absence of specific legislation to “confine, structure and check police discretion” during large events, which he says is “long overdue.”
“Unfortunately, without that, the legal framework that helped facilitate the civil liberties abuses that marked the G20 Summit in Toronto will persist,” he writes in Putting the State on Trial. “And that, I fear, will make a repeat appearance somewhat inevitable.”
Stribopoulos, who was called to the bench in 2013, wrote the essay before his appointment, when he was the associate dean at Osgoode Hall Law School. He declined an interview request to maintain his impartiality.
Following the G20, much of the hand-wringing focused on the Public Works Protection Act, a piece of Second World War-era legislation the province quietly resurrected to give police broad powers of arrest during the summit.
The province recently replaced the so-called “G20 secret law.” But Stribopoulos says the outdated legislation was part of a much larger problem: the vague nature of the legal framework police rely on during large-scale events.
Often courts rely on what’s known as the common law, which are legal rules established by prior court decisions and govern all areas of Canadian society that are not guided by specific legislation. However, Stribopoulos argues that the common law in this area is so fuzzy that legal experts are divided on issues as basic as whether police have sufficient authority to erect security barriers in public places, as they did during the G20.
Another major source of concern is the breach-of-the-peace arrest power, a provision of the Criminal Code that police used to justify many of the arrests and lengthy detentions during the G20.
The Law Commission of Ontario has recommended abolishing this provision because it is based on an “exceeding vague” standard, and is “rather unclear” about how long an individual can be held after an arrest, as Stribopoulos points out.
“Without clear direction to police as to how long they can hold those arrested . . . the liberty of the individual affected seems to turn on little more than the whim of the police,” he writes. “It is difficult to conceive of a power to detain more arbitrary than that.”
To be sure, the scale of the chaos that erupted during the summit can be attributed, in no small part, to its location — smack in the middle of downtown Toronto — the lack of co-operation between different levels of government, and the fact that police were given only a few months to plan.
However, according to Wesley Pue, a law professor at the University of British Columbia, who has testified at Parliament about the need to create specific legislation to guide police conduct during major events, the legal framework in this area is “incredibly opaque.”
“The police are not given clear lines of authority,” he said. “Everybody would be better off if police were given explicitly in statute the powers they need to manage big events.”
Pue suspects such legislation has not been contemplated in Canada because “either they haven’t recognized the need” or because “they know that if they grasp that nettle . . . they will be called draconian by everybody under the sun.”
“It’s easier to leave it messy and to let the police take the blame when things go wrong at the next event,” he said.
Ontario Ombudsman André Marin, who wrote a scathing report on the G20, focused mainly on the enactment of the secret law, agrees that “government should take responsibility and provide direction to the police.”
However, he says, “When it comes to police powers, the government often feels they’re kind of in a bind. They want to please the police . . . but on the other hand they don’t want to unduly expose citizens.
“Faced with that, the government just doesn’t do anything,” he says.
A spokeswoman for the Ontario Ministry of Community Safety and Correctional Services said the ministry engages regularly with police services boards and chiefs and sees this “as the appropriate forum to . . . ensure that they are aware of their duties.”
“We have full confidence in our police services and their ability to ensure public safety in a way that respects individual civil liberties in both large- and small-scale events,” she said.
The federal public safety minister did not respond to questions about creating new legislation.
Whatever is behind the inaction, says Pue, it’s a missed opportunity, because the process of public debate over such a bill would provide a chance to tackle head-on fundamental concerns, ranging from the protection of private property to charter values.
Yet the G20 has triggered some “important developments in the law,” according to Ian Scott, a Toronto lawyer and former director of the Special Investigations Unit.
For instance, there are now greater controls over the use by police of long-range acoustic devices, sometimes called “sound cannons.” Also, the recent Court of Appeal decision in the case of protester Paul Figueiras, which found that York Region police violated his charter rights when they prevented him from approaching the security fence unless he submitted to a search, set a clear precedent for future events.
“Are these things going to prevent another G20? Probably not,” says Scott. “There are little incremental steps that have taken place. It’s not all-embracing, but that may be the Canadian way. We’re not good at revolutions here. We’re good at baby steps.”
What’s changed since the G20?
Following the G20 Summit in Toronto, there was no shortage of ideas to prevent similar abuses of civil liberties at future events. On the eve of the Pan Am Games, we check in on the status of some of the most high-profile recommendations.
Launch a public inquiry: Despite calls from the Canadian Civil Liberties Association and the House of Commons’ Standing Committee on Public Safety and National Security, no level of government has convened a public inquiry into the G20. Instead, the planning and policy problems that allowed for the mass arrests and other civil liberties abuses were probed in a series of reports — by the ombudsman, the police chief and former judges, among others — an approach that some experts have criticized as piecemeal and too easy to ignore.
Improve civilian oversight of police: Retired Ontario judge John Morden lambasted the Toronto Police Services Board in his G20 report for misunderstanding its mandate, and failing to take a more active role in operational matters. Former board chair Alok Mukherjee said the board is now “very much guided” by Morden’s report, both in day-to-day functions and in planning major events, such as the upcoming Pan Am Games. The board’s recent approval of more progressive rules around the controversial police practice of carding, despite resistance from the chief, is further evidence of its relatively strengthened role.
Repeal the “G20 secret law”: It took nearly five years, but the province has finally replaced the 1939 Public Works Protection Act, following widespread outrage over the virtually secret enactment of the outdated law, which gave police broader powers during the G20. A new bill came into force on June 24, and was based on the recommendations of former chief justice Roy McMurtry and feedback from various stakeholder groups. Community Safety Minister Yasir Naqvi has said the new act “strikes the balance between civil liberties and personal safety and security,” but the NDP voted against it because, according to party leader Andrea Horwath, it doesn’t do enough to protect individual rights.
Improve police training: Former police chief Bill Blair’s assessment of what went wrong during the G20 focused on the need for better training for officers policing large events, which was also noted in the report by the Office of the Independent Police Review Director (OIPRD). Police spokeswoman Meaghan Gray said all of the 10 key recommendations from Blair’s 2011 “After-Action Report” have been implemented, including: the creation of special teams to handle large-scale events; crisis-management training for all command centre personnel and field commanders; and training for all members of the public order unit on new procedures on isolating and extracting individuals in a crowd who are believed to pose a threat.
Communicate better: In its scathing systemic review of the G20, the police watchdog OIPRD pointed to the lack of communication, both among police and between police and the public, as a major downfall. In advance of the Pan Am Games, OIPRD director Gerry McNeilly says he has met with the Integrated Security Unit and representatives from all the different police services involved. “They have all told me that they have looked at all my recommendations again,” McNeilly said. He says that, unlike during the G20, he has assurances that all officers will be wearing their names and badge numbers at all times.
Original Article
Source: thestar.com/
Author: Rachel Mendleson
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