A senior police officer who ordered the arrests of hundreds of people during Toronto's G20 summit four years ago had no regard for their conduct or intentions, a prosecution lawyer told the officer's disciplinary hearing on Wednesday.
Superintendent Dave (Mark) Fenton has pleaded not guilty to a total of five charges of unlawful arrest and discreditable conduct stemming from two "kettling" incidents that occurred over the summit weekend.
The first took place on Saturday, June 26, 2010, hours after a small group of vandals smashed windows and set police cruisers alight.
Fenton ordered officers to box in protesters in front of a downtown hotel. More than 260 people were arrested and taken to a makeshift prisoner processing centre, which came under severe criticism for its deplorable conditions.
The second incident occurred the next day when, six minutes after coming on shift, Fenton ordered police to keep scores of people standing for hours at a downtown intersection despite a severe thunderstorm that left them drenched.
"The order made in each case was, the evidence will show, indiscriminate," prosecution lawyer Brendan van Niejenhuis told the hearing taking place at Toronto Police headquarters.
"The composition of the crowd was mixed … some were passersby, others were curious onlookers who stopped to see what was going on and some undoubtedly were protesters."
At the heart of the hearing, Van Niejenhuis argued, is one "ultimate question" that must be addressed by retired Ontario Superior Court justice Peter Grossi, who is presiding over the proceedings.
"Were the arrests lawful and necessary, and did they constitute conduct that would lower the esteem of the Toronto Police Service in the eyes of the public," he said.
Lawyers for some complainants – who were caught up in the mass detentions — also addressed the hearing, arguing that Fenton's actions were overly broad and led to the violation of people's civil rights.
"Normal bystanding citizens were kettled and detained without any plausible reason for doing so," said Adrienne Lei, counsel for three complainants.
"Our position is that it was an egregious abuse of power under the guise of public order policing. It was excessive, without any lawful authority and did not consider what actual circumstances on the ground called for."
Fenton also repeatedly referred to the protesters as "terrorists" over the summit weekend, Lei added.
"The policing model ordered by Fenton was designed, structured and implemented to violate the rights of citizens," Lei argued. "These are the hallmarks of a fascist totalitarian regime. This is not Toronto."
Fenton's defence lawyer, however, noted that it was important to remember the scope of the disciplinary hearing.
"This is not a public inquiry," Peter Brauti said emphatically. "I have great concern that this hearing has the potential to go completely off the rails."
The hearing is only dealing with the two issues, Brauti said – whether Fenton had grounds to issue the arrest orders, and whether he failed to monitor the processing and detention of those who had been arrested.
Brauti also noted that it was also important to remember that Fenton was only working with the information he had.
"Accurate, inaccurate, what was the information that he had, what was his decision based on?" he asked. "That goes to the core of this case."
In a statement to civilian oversight investigators, Fenton has said he had no option to the mass arrests to make the city safe.
The officer, dressed in his uniform, sat beside his lawyers as his hearing got underway, addressing the room only to plead not guilty to the charges he faces.
More than 1,000 people were detained over the summit weekend in what is considered the largest mass arrest in Canada's peacetime history. Most were released without charge.
To date, only two constables of 32 officers charged have been found guilty of discreditable conduct arising out of the G20. Another 14 cases were dismissed, withdrawn or stayed. The rest are ongoing.
Inspector Gary Meissner, the only other senior officer to be charged, retired before a hearing could take place.
One officer was criminally convicted of assault. His disciplinary case is on hold pending an appeal.