Taking liberties in so-called civil Canada

Robert Diab and W. Wesley Pue argue that the violence at the recent G20 meetings in Toronto highlight the inadequacy of public-order policy by the Mounties

July 5, 2010

Mass arrests totalling about a thousand people, a police raid on the University of Toronto’s graduate student union (with about 70 arrested) and forcible detention of journalists (including a stringer for a major British daily) cast Canada in an unusual light during the G20 meetings that have just ended in Toronto. Notoriously, a riot squad charged a small group sitting peacefully, with backs to the police, and singing the national anthem, O Canada.

Toronto (“the good” in local parlance) was traumatised. It joins a list of other Canadian cities similarly violated during intergovernmental meetings. Ottawa, Kananaskis, Calgary, Quebec City and Vancouver have all been rocked by a toxic mix of crime, protest and police. Canada’s national police – “the Mounties” – are famous for their British military-style red tunics, and their Royal Irish Constabulary-style organisation. As befits their gendarmerie origins, they are notoriously poor public-order police.

Like its Liberal predecessors, the Canadian government of Conservative Prime Minister Stephen Harper is culpable for neglecting to establish an acceptable legal code governing the choreography of major public-order events. Sadly, the mayhem witnessed in Toronto is likely to recur at future international meetings.

Surprisingly, no statute defines the duty of police confronting significant public-order events or directing them how to do it. Canada lags behind Britain in both police law and police culture.

In Canada’s broken parliamentary system our leaders are fearful of the controversy that leadership invokes. Best to ignore the messy, complex entanglement of civil rights, constitutional values and police, no matter how damaging the inertia. But citizens and cops alike should expect better of their government, otherwise police excess becomes as predictable as vandalism.

The earlier 2001 Summit of the Americas meeting in Quebec City was a public-order debacle. Security arrangements squeaked past judicial challenge by a first-instance court sitting hours before the event was held. Mayhem descended. A Privy Councillor and his wife were tear-gassed; an MP was shot with a rubber bullet; citizens were arrested and assaulted in large numbers. As in Toronto, blatantly criminal behaviour was left unchallenged.

Another legal review, in other circumstances, might have fatally undermined police authority. Ignoring calls for a more a comprehensive statutory code, the Liberal government of the day snuck a bare-bones police empowerment clause into the Foreign Missions and International Organisations Act. Now when an international conference occurs, the Mounties “may take appropriate measures, including controlling, limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstances”. In short, “do what you want”.

But rule-by-official-discretion is anathema to the rule of law. Characteristic of nasty states or of places where civil order has utterly broken down (war-zones, police states or declared states of emergency), it does not cut the mustard in a mature constitutional democracy such as Canada. And free citizens dislike it when they see it – as many ordinary people in Toronto have made clear.

Crucially, too, police are left under-equipped and unable to approach their tasks in a sensible and balanced way. Insecure in the scope of their authority, they fail to communicate their intent to the public, and end up crossing the boundary of lawful police authority. The vague, over-broad, federal statute clearly did not confer the powers policing officials felt they needed at Toronto’s G20. Another law, passed in secret under the cloak of Public Works Protection legislation no less, massively expanded police powers of search and arrest. But it was communicated to none but the police themselves.

Who decides how big a security zone should be? How long should it last? When should the public be notified about upcoming intrusions on their lives? Where is it appropriate to search members of the public without cause? Who gets a security pass? Who should compensate injured parties for lost business or wages, or inhibited use of property? What recourse do persons unfairly injured by police action have? How are police to provide security at large public events that do not involve intergovernmental conferences (such as an Olympics or a sports championship)?

Constituted under the 1867 British North America Act as a Dominion committed to “peace, order, and good government”, Canada fails on all counts. Our image as the civil North Americans is diminished in no small part because of the failure of responsible governments to set out public-order policing codes that would protect state interests, property, citizens and police alike.

Protesters and quieter folk alike deserve a clearer sense of the reasonable limits of police intrusion on their liberties so that they can plan accordingly.

Most importantly, the right balance between security and liberty would be dealt with in a sensible, democratic fashion – by duly elected representatives, acting in our best interests and not in the secret backrooms of Cabinet or the police.

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