In a hearing that shed harsh light on the police chain of command during the chaotic G20 summit three years ago, three Divisional Court judges have been asked to order that a Toronto man's complaint of police heavy-handedness be thoroughly re-examined.
But re-examined by whom? The question hung over the proceedings at Osgoode Hall Tuesday, and it was clear the judges had no ready answer.
Justice Anne Molloy said she spent much of the weekend wading through paperwork pertaining to graphics designer Jason Wall – arrested, jailed and freed without charge after more than a day in a crude makeshift jail – and at the end, she still didn't know who issued the orders that put him there.
Roughly 20,000 officers from a multitude of police forces were on the streets that turbulent weekend – almost four times the uniformed strength of the Toronto Police Service – and there were two command centres: one in Toronto, and one in Barrie where the RCMP had a separate headquarters.
From almost the outset, police operations were dogged by complaints of jurisdictional squabbling and a string of conflicting orders and counter orders.
This case hinges on the Office of the Independent Police Review Director, the provincial agency that probed Mr. Wall's subsequent complaint, and the actions of its director Gerry McNeilly.
Mr. Wall, now 26, was walking home on Sunday, June 27, one day after the downtown was rocked by a wave of vandalism that left behind more than $2-million damage in burned police cars, smashed glass and other wreckage. Much of the mayhem had been unleashed by anti-summit protesters wearing masks.
And according to a factum filed by his lawyers, Mr. Wall was arrested solely because he was sporting a bandana and Toronto police had been instructed to arrest anyone they spotted wearing one, even though Mr. Wall's bandana was around his neck rather than concealing his face.
The OIPRD subsequently agreed that Mr. Wall should not have been arrested.
But Mr. Wall and his legal team allege the OIPRD dropped the ball badly by failing to scrutinize how and why he was picked up, and they want a judicial review of the whole case by an outsider. And because the two arresting constables were merely following orders – conceivably from Police Chief Bill Blair, but more likely from someone else in the upper command of the police ranks – lawyers Clay Ruby and Nader Hasan told the court the best choice for a second set of eyes might be the Toronto Police Services Board, which oversees the TPS.
Other options would be Chief Blair himself, another police leader, or a fresh examination by the OIPRD. The latter would be a poor choice, Mr. Hasan said, because he had already had two chances to get to the bottom of events and had failed to do so.
In particular the Wall camp is unhappy about the OIPRD's decision to reject his efforts to pursue the case, after getting no answers the first time round, on grounds that too much time had elapsed.
Acting for the Ministry of the Attorney General, lawyer Heather MacKay responded that a review of Mr. Wall's circumstances would have no "practical value," and that the buck should stop with the two arresting officers, who, she concurred, should never have detained Mr. Wall.
There is no legal basis for a referral to the Police Services Board , she suggested, contending that the real target of Mr. Wall's application is Chief Blair.
Mr. Wall later denied this, after listening attentively to the complex, day-long proceedings. His sole aim, he said is to draw attention to "the criminalization of dissent."
Justices Molloy, David Aston and Alison Harvison Young asked numerous questions of the two sides but gave no indication of when they will render a decision.
Chief Blair, however, is unlikely to be faulted for what happened.
"There is no evidence that Chief Blair gave the orders," Judge Molloy said. "It was someone else in command."