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Police 'didn't have to be so restrictive'

Toronto lawyer Peter Rosenthal is himself a veteran of many demonstrations. He has acted on behalf of activists arrested during previous unruly protests, including the Ontario Coalition Against Poverty's John Clarke, and also served as counsel for the family of Dudley George during the Ipperwash inquiry into his death in 1995. As the Canadian Civil Liberties Association announced that lawsuits will likely be launched over the treatment and detention of G20 protesters last weekend, Mr. Rosenthal spoke with The Globe and Mail about the legal and Charter issues involved.

What can we learn from previous clashes between protesters and police, for example during anti-poverty demonstrations in 2000 at Queen's Park, or the 1995 attack by the Ontario Provincial Police on native demonstrators at Ipperwash Provincial Park?

The results of the Ipperwash inquiry emphasized the notion of police restraint as opposed to attacking protesters very late at night for no obvious reason and killing a man in the process. In the G20 case, there was a protest that obviously had to be policed. They had to exercise some restraining function on the crowd and protect the fence. On the other hand, they didn't have to be so restrictive of freedom of expression….Those lessons [from Ipperwash]don't seem to have entirely been learned if we look at the events of the past few days.

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For example?

The right to protest is an issue in all three of these events. One thing I've found remarkable about the G20 is the limitation of the area. There was a lot of talk about whether people were being kept five metres from the fence, but in the demonstration on Saturday, people were kept 300 metres away. That was part of the frustration. People want to demonstrate against what they're demonstrating against. At Queen's Park in 2000, people got right up to where they wanted to demonstrate. [The police]allowed more freedom that time than they did this time.

What happened at Queen's Park and what arose legally in terms of police action?

On June 15, 2000, there was a demonstration organized by OCAP, protesting various measures the Harris government had taken that they regarded as attacks on poor people. John Clarke, one of the leaders of OCAP, gave a speech, which the police characterized as inciting a riot. After his speech, people did move towards the police lines and there was a rather raucous demonstration. Some people felt the police overreacted, some people felt the demonstrators were too powerful. Ultimately, the jury trial of John Clarke did not find there was a riot.

As a matter of law, is there a definition of a riot?

Being a participant in an unlawful assembly is a Criminal Code offence. An unlawful assembly is defined to be a group of three or more people that assembles for a common purpose and then has the danger of disturbing the peace tumultuously. An assembly that has begun to disturb the peace tumultuously is by definition a riot. The courts haven't been good at defining it more precisely. So it's pretty arbitrary as to how far the police should allow dissent and where they draw these lines. In my view, in the G20 situation, they drew [the line]way further back than ever before.

How would you compare the police response in 2000 at Queen's Park to the security measures taken during the G20?

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In the OCAP demonstration, the police didn't do anything until the demonstrators were really militantly shouting. In the G20 situation, they boxed people in [at Queen and Spadina]for reasons that didn't seem to have anything to do with public safety.

Was there a case for tougher police action on the Sunday of G20 in light of what happened Saturday?

There isn't any case for that. There was some vandalism on Saturday, and the police didn't act against [it]either by arresting vandals or putting out the fires. On Sunday, there was no vandalism, no very militant crowd. And the police were very repressive in their tactics. The more aggressive tactics might have been justified Saturday if they were trying to stop someone from breaking windows.

How do you see the legal story playing out?

There certainly will be legal challenges. Those who will be charged criminally will be facing criminal charges. I would anticipate many of the people who were arbitrarily and unlawfully detained will be suing the police. There's a possibility of a class action on behalf of people in a similar situation, for example at Queen and Spadina.

Will these cases test the definition of freedom of assembly under the Charter?

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In the criminal charges, there may be Charter defences. In the civil context, I would imagine people will be suing not only for false imprisonment but also for breach of their rights. There haven't been many cases where there have been damages for breach of Charter rights. Some of these cases might end up setting some precedents.

Are there judicial decisions about where one can express one's political views relative to the location of an event?

There's an old Supreme Court of Canada case from 1991 called Committee for the Commonwealth of Canada vs. Canada, where people were leafleting at an airport and there were airport regulations that forbade that. [The court]said people can express themselves in places as long as it doesn't interfere with the function of that place. I would think the idea of a designated protest zone ... might well be found to infringe freedom of expression.

Some people say the police were damned-if-they-did and damned if they didn't.

I don't think that's fair. The police should be damned if they did wrong things, and damned if they don't do their duty. People ask, why didn't they put out those fires? Did they want them there for the cameras? Was there a danger of those cars exploding? They didn't deal with that. On the other hand, they came down very hard on peaceful protesters and bystanders.

What does this do to the relationship between Toronto police and the residents of the city?

They were very worried about their image and it was perhaps inappropriate. I think they went too far on Sunday, and they're going to pay the price [in terms of]public image. People will be a lot more wary of the police, and I hope it will result in greater freedom for protesters in the future.

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