Lawyer Brian Iler's Letter to David Miller on Police Activity during G20

Following the G20 last weekend, Toronto lawyer Brian Iler wrote to David Miller regarding his concerns about police actions. He given me permission to share his letter here:

David, I want to let you know my concerns regarding the police actions last weekend.

While the police have a difficult job to do, there were clearly decisions as to how policing would be handled at the highest level that demand answers: This is not about individual officers’ misdeeds, although there was ample evidence of those.

I heard Chief Blair publicly state that those who were in attendance in the downtown areas on Saturday and Sunday were either naive or curious, and should go home. By implication all others were engaged in criminal activity and at risk of arrest. He wrongly and clearly intentionally - omitted the fourth category of attendees those who were genuinely concerned about the absence of any consideration at the G8 summit of the many issues of real concern - poverty, the environment, social justice, and human rights, and the failure of the police to respect the rights of those who chose to attend to bear witness to those issues.

I attended the march on Saturday. The massive police presence in full riot gear, with tear gas guns at the ready, was intimidating, and clearly intended, in a very peaceful crowd, to dissuade any of us from ever attending a public expression of disgust for our leaders' failures again.

Later, after watching the soccer game, on our way home, at Queen's Park, we watched as the police randomly picked peaceful demonstrators out of the crowd, and then, to our horror, arbitrarily decided to break up the non-violent crowd by forcefully removing everyone in the designated place for free speech.

We now know that most of those arrested were arrested without cause, as they were released after too long in an unacceptable jail environment without charges.

While I was deeply concerned by what I saw, I felt sufficiently intimidated by the arbitrary arrests I saw, and by reports of others, including Steve Paikin's first-hand Twitter account of exceptionally arbitrary and capricious behaviour by the police on The Esplanade Saturday night, that I felt for my security, and did not return on Sunday to express my views. I admire the courage of those, mostly, young people who did attend on Sunday to bear witness to the horrors of Saturday;s police tactics.

I was again disturbed and appalled to watch the unfolding horror of peaceful and lawful demonstrators together with bystanders and people just out walking their dogs, being penned by riot police for hours in intense rain at Queen and Spadina on Sunday night. The courage of CP24 in broadcasting that live was appreciated.

This is not a matter for the police complaints process.

Contrary to Police Services Board rules, many officers that I saw were not wearing their names. Those who chose not to wear their name badges were clearly not wishing to be held responsible for their actions. That’s not the approach to policing that we in Toronto wish to encourage. Lack of identification will be the obvious first line of defence for the police in any complaints filed. Surely supervisors should have been vigilant to ensure that names were worn as required.

The front line officers were for the most part doing what they were told to do, and some were most uncomfortable being placed in that role.

I understand the Toronto Police had command responsibility for forces outside of the security perimeter: Chief Blair therefore bears responsibility for this mess.

In my view, only a public inquiry can ferret out the truth as to how the decisions were made that led to the events of last weekend. That inquiry must include the following:


1. How to ensure that constitutionally guaranteed rights of freedom of expression and assembly are properly respected in difficult circumstances which is, of course, when they matter. The police demonstrated this weekend that they cannot be trusted to make that determination in their view, as so clearly articulated by Chief Blair, chasing after a few hooligans trumps civil liberties every time.



2. How to effectively constrain the abuse of police powers of arrest. The mass arrest of innocent individuals, and their horrendous treatment in custody, suggests that the police intended to impose their own summary punishment on those who dared to publically express their views, as constitutionally guaranteed. Under our law, no one is to be punished until they are found guilty in a court.



3. Consider whether the abuse of powers of arrest for breach of the peace, which was so rampant this weekend, warrants legal constraints on that power whether through amendment to the Criminal Code, or policy imposed by the Police Services Board.

That power is extremely broad, as you will know:

The police have the power to act to prevent a breach of the peace, both while a breach is ongoing and before one has begun. The authority for this power can be found in the Criminal Code and at common law... As the law currently stands, the breach of the peace power allows the police to arrest without warrant at any time as long as they can meet the low standard of showing that there were reasonable grounds to believe that a breach had occurred or that one was imminent. Per Jackie Esmonde “The Policing of Dissent - the Use of the Breach of Police Arrests at Political Demonstrations” in the University of Toronto Journal of Law and Equality [2002] 1 J.L. 246 at para. 70



Since use of that power does not normally result in a charge being laid, as was the case with many of the arrestees, there is little opportunity for the courts to examine the grounds for the initial arrest, leaving the police free to use their powers arbitrarily. Is that power an appropriate power for the police to have in these circumstances?



4. An examination of the tactics adopted by the police here. Particularly the immense show of force, and the use of kettling on peaceful protest, as occurred numerous times, but most disturbingly on Sunday night at Spadina and Queen, when most caught were not even demonstrators, but passers-by. The tactic is controversial: If ever warranted, the police have certainly demonstrated they are incapable of making a decision on its use that is respectful of peaceful demonstrators' rights.



Wikipedia’s article on kettling includes this:



The term "kettle" is a metaphor, likening the containment of violence to the containment of heat and steam within a domestic kettle. It is sometimes described as "corralling," likening the tactic to the enclosure of livestock. Although large groups are difficult to control, this can be done by concentrations of police. The tactic prevents the large group breaking into smaller splinters that have to be individually chased down, thus requiring the policing to break into multiple small battles.[3] Once the kettle has been formed, the cordon is tightened, which may include the use of baton charges to restrict the territory occupied by the protesters. The cordon is then maintained for a number of hours: the ostensible aim is to leave would-be violent pro
testers too tired to do anything but want to go home.[4]



Kettling has been criticized for being an indiscriminate tactic which leads to the detention of law-abiding citizens and innocent bystanders,[5] as well as for denying detainees access to food, water and toilets. In some countries the tactic has led to legal challenges on the grounds of human rights violations.



5. How to constrain the widespread illegal searches of members of the public that were reported last weekend. There were many reports of systematic searches - my own son, who was photographing the events on Sunday, had his backpack searched four separate times by police without lawful justification.

The law is clear - the Ontario Court of Appeal recently wrote, in R. v. A. M., 2006 CanLII 13550, in considering whether the search of a student's backpack in a school was warranted:

[49] The Crown takes the position that A.M.'s expectation of privacy in his backpack was so significantly diminished as to be negligible. With respect, I disagree. I agree with the submission of both counsel for A.M. and the Canadian Civil Liberties Association that a student's backpack should be afforded at least the same degree of respect as an adult’s briefcase.

In R. v. Mohamad, 2004 CanLII 9378 (ON C.A.), (2004) 69 O.R. (3d) 481 at para. 25 this court said:

In the contemporary context, briefcases often house highly confidential personal and business information. They can serve, in a practical sense, as portable offices for their owners? [O]wners of briefcases generally have a reasonable expectation of privacy in the contents of their briefcases.

[50] Counsel for the Canadian Civil Liberties Association made the following submission with respect to a student’s backpack in a school setting such as this:

A student's backpack is in effect a portable bedroom and study rolled into one. It will contain personal items such as journals, photos, letters, personal hygiene items, medication, clothing and school records. Backpacks are often in reality the only way for students to carry and use items that are personal and important to them. These items are shielded from view and access.

There are no contextual factors that diminish students’ legitimate expectation of privacy, dignity, and autonomy in their backpacks. Students' expectation of privacy in their backpacks is objectively reasonable. Backpacks are not searched in the normal course of a school day, nor do students come to school expecting that their backpacks will be searched. The students did not consent to their backpacks being searched on November 7, 2002 and the Principal certainly could not consent on their behalf.

I agree with the above submission as it relates to the circumstances of this case.

[57] To facilitate the search, the entire student population was detained in their classrooms for a period of one and a half to two hours. Although it was the principal who made the announcement to the student body to remain in the classrooms, it is my opinion that a review of the record indicates that he did so to accommodate the police search. There was no credible information to suggest that a search was justified. There were no reasonable grounds to detain the students. As Laskin J.A. said in R. v. Calderon 2004 CanLII 7569 (ON C.A.), (2004), 188 C.C.C. (3d) 481 at para. 69 (Ont. C.A.): "An officer cannot exercise the power to detain on a hunch, even a hunch borne of intuition gained by experience."

[58] The Supreme Court of Canada has held that there must be a clear nexus between the individual to be detained and a recent or on-going criminal offence. This position was articulated by Iacobucci J. for the majority of the court in R. v. Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59 at para. 34:

The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

[59] Quite apart from the detention of the entire student body, of more significance is the unauthorized warrantless random search itself.

[60] In my view, the Crown has failed to rebut the presumption that the search was unreasonable. Even if the presumption of unreasonableness did not apply, it is my opinion that there were no grounds upon which to justify a random search of the kind that was conducted in this case.

6. There are too many unanswered questions on why the "black bloc" vandals who had been vigorously identified and harassed by police in the days prior to last weekend, were allowed to freely do their mischief, with not a police officer in sight or, as was the case with the police cars, while police just stood by, or had abandoned them.

Just what was the police role in that?

Did they consciously decide to allow the vandals free rein? That seems the most plausible explanation. Why was that?

There is a dishonourable history of police agents provocateurs in Canada. Two examples:

At the Security and Prosperity Partnership meeting protests at Montebello Quebec on August 20, 2007, a Quebec union leader caught and outed three masked undercover Quebec Provincial Police operatives dressed as "black bloc" protestors about to start a riot by throwing rocks at the security police. See the following videos documenting this event.http://www.youtube.com/watch?v=St1-WTc1kow; http://www.youtube.com/watch?v=DCRsj06wT64&NR=1; http://www.flickr.com/photos/emiliep/1206638928/

The Quebec Provincial Police later admitted this was in fact the case: see "Quebec police admit they went undercover at Montebello protest" at http://www.cbc.ca/canada/story/2007/08/23/police-montebello.html

The McDonald Royal Commission, established on 6 July 1977, examined a number of allegations made against the RCMP, finding that "The RCMP Security Service embarked on an extensive campaign of intelligence-gathering, infiltration, harassment and disruption in Quebec and throughout Canada. In many circumstances, the Service committed clearly illegal acts. Quite aside from being illegal, these operations showed a lack of discrimination between true threats and legitimate dissent." Excerpted from The Canadian Security Intelligence Service, Research Paper prepared by the Library of Parliament: http://www2.parl.gc.ca/content/lop/researchpublications/8427-e.htm#B.%20Abuses

The curious nature of the police conduct in relation to the vandalism, and that history, suggests an inquiry into whether there was similar misconduct here.

David, you are in a particularly strong position to take leadership on this issue by establishing that independent inquiry. That could be initiated and carried out by the Police Services Board, if a senior level of government will not do so. I urge that you seize the opportunity. Our liberties, always fragile, are at such serious risk if these abuses are not addressed effectively.



Brian Iler
ILER CAMPBELL LLP
BARRISTERS AND SOLICITORS
www.ilercampbell.com