Did Police Break the Law During the G20?
Police officers face a crowd of protesters on Saturday, June 26. Photo by poyanp from the Torontoist Flickr Pool.
On G20 weekend, Toronto found itself in the middle of two opposing forces. Thugs smashed windows and burned police cars, while the police response seems to have alternated, on occasion, between absent and heavy-handed.
It’s relatively easy to figure out the legal implications of thuggery. Possible crimes include unlawful assembly, rioting, disguising oneself to commit a serious offence, mischief, arson, and attempting, counselling, or conspiring to do the above, among other charges that may be filed. Those found guilty should be appropriately punished.
Harder is figuring out the legal implications of the police actions.
Most officers served with dignity and deserve our gratitude, but some reports allege that actions occasionally fell below this standard.
Addressing police actions is perilous, typically because it attracts criticism for being disrespectful to the police. Yet we have precisely the opposite motivation: anyone who respects the central role of the police in the state’s monopoly on the use of force has a duty to ensure that they wield that force appropriately—quis custodiet ipsos custodes and all that.
What follows is intended to be an overview of some of the legal issues (and as such shouldn’t be relied on as legal advice).
1. Failure to stop Saturday’s riot
Under federal law, it’s a crime for police officers to fail to take all reasonable steps to suppress a known riot, unless they have a reasonable excuse. While seemingly anachronistic—especially when read with the instructions for dispersing riots, reminiscent of musket-bearing militia versus pitchfork-wielding rabble—the duty to act was cited in court last month [PDF] to justify equipping the police with sound cannons, and after the Stanley Cup riot in Vancouver.
That said, a charge, let alone a conviction, seems unlikely. Accused officers (likely senior rather than junior: the rank-and-file apparently wanted to jump in but were held back) need only to persuade a single juror that they had a reasonable excuse not to act. Statutory excuses might include a fear that intervening would threaten the safety of bystanders, a belief that the scale of the riot wasn’t severe enough to warrant a takedown by force, or a need not to divert resources from protecting the conference. Another excuse, which may or may not be reasonable in the circumstances, might be miscommunication between front-line officers and those behind the scenes, including at the Integrated Security Unit in Barrie.
With hindsight, it’s tempting to say that none of these excuses are reasonable, and indeed these excuses vanished when it came time to clear Queen and Spadina. But it’s trickier to say what seemed reasonable to the police in the heat of the moment.
A less serious allegation could arise under provincial law. Police officers have a duty to preserve the peace, prevent offences, and help and encourage others to prevent them, and a breach of this duty constitutes misconduct, barring a lawful excuse. This offence may be simpler to prove and the range of excuses may be narrower, although it’s plausible that the police could still cite one of the above excuses to avoid liability.
To argue that the police committed misconduct by not intervening, a person affected by the riot has six months to complain to the Office of the Independent Police Review Director (OIPRD), a new civilian agency that determines whether an investigation is warranted and, if so, who should investigate: OIPRD, the Toronto Police, or another police force.
2. Misleading people about the fence
Provincial law grants special powers to guards of “public works,” defined as provincial or municipal public buildings, pieces of public infrastructure (e.g. railways, canals, highways, bridges, power works, gas works, water works, public utilities), and anywhere else designated by the provincial cabinet. These powers include asking people entering or trying to enter a public work (or any approach to it) to provide their name and address, to identify themselves, and to explain their reason for entry. They also include searching people entering or trying to enter it (though not any approach to it) without a warrant, and blocking people from entering it.
At present, cabinet hasn’t designated any public works. From June 21 to 28, though, it designated the following: (a) all public works, including sidewalks, within the security fence (the black line in our map), as well as some public works outside the fence but within the traffic zone (the blue line) to the south and west of the Rogers Centre; (b) areas outside the fence but inside the zone which roughly correspond to the parking lot to the south, and the piazza to the west, of the Rogers Centre; and (c) the unloved, below-grade lane between Union Station’s TTC and intercity entrances.
Contrary to the message given out, people weren’t prohibited from coming within five metres of the security fence, except in the areas in (b) and (c) above, although if approaching the fence they might have been questioned. The confusion arose because the areas under (b) were legally defined as being within five meters of an imaginary line approximating the outer border of each area. It wasn’t a blanket rule, and it didn’t expand the rights of police officers to search people outside the fence, within five meters or not, except in the areas in (b) and (c) above. But Blair, as he himself acknowledged, was happy for the public to have a false impression about what the law said.
Under provincial law, a police officer commits misconduct if he or she “wilfully or negligently makes a false, misleading or inaccurate statement pertaining to official duties.” If the required facts were established, a finding of misconduct could arise after a complaint to the OIPRD. Any investigation would likely assess whether Blair acted willfully or negligently, his exact role in perpetrating the inaccuracy, whether remarks in a news conference pertain to his official duties, and whether he has any defence available (e.g. “trying to keep the criminals out”).
On top of this, Ontario’s ombudsman André Marin announced today an investigation, by the Special Ombudsman Response Team (SORT), into the origin and subsequent communication of the issue.
3. Actions toward individuals
All government laws and actions—including actions by public officials, such as police officers—must be consistent with the Charter of Rights and Freedoms. Assessing consistency is a two-step process.
First, a person affected by police action needs to show that her or his rights were violated. In the G20 context, these would be primarily legal rights, including:
- To be secure against unreasonable search or seizure, not to be subject to any cruel and unusual treatment or punishment, and generally not to be deprived of liberty or security of the person except in accordance with the principles of fundamental justice;
- If detained or arrested, for this not to be done arbitrarily, to be told promptly of the reason, to have access to a lawyer without delay (and to be informed of this right), and to have a court determine whether the detention is lawful (and to be released if not);
- If charged, to be informed of the charge, to be tried in a reasonable time, and, if reasonable, to be released on bail until the trial.
Second, the police can try to justify a rights violation as being a reasonable limit that is prescribed by law and demonstrably justified in a free and democratic society. Broadly, this means that police actions must derive from a legal authority that is reasonably precise or explicit about what the police can do [PDF], that the police had a “pressing and substantial” objective in acting the way they did, and that their actions were proportional to achieving this objective.
A comprehensive Charter analysis of police actions could proceed only on the basis of the facts of each case. Allegations, so far unproven, include a torn-off artificial limb, a thirty-six-hour detention of a uniformed public servant, and a crackdown on a peaceful rally at Queen’s Park.
Courts and administrative tribunals can be unpredictable when adjudicating Charter rights, and may apply a sliding scale based on the circumstances (e.g. acceptable treatment to someone in an airport security queue might differ from someone walking innocently down the street). It’s possible that they might exhibit significant deference to the police in light of the unique nature of the G20 summit, although one presumes that such deference is not unlimited, particularly for any egregious rights violations that are proven.
The Canadian Civil Liberties Association has promised a lawsuit against the police for alleged rights infringements of the 1,105 people detained during the G20 weekend, about three-quarters of whom have had all charges dropped against them or were never charged in the first place. It’ll be interesting to see what facts they gather and what analysis they can put together, and equally interesting to see how the police respond.
Robin Rix is a lawyer and former Torontoist staff member.