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  June 28, 2010

No right to freedom of assembly says 900+ arrests


Howard Morton: There is evidence the police infiltrated "Black Bloc" and should have known their plans
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biography

Howard Morton is a criminal lawyer and a member of the Law Union of Ontario


transcript

PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I'm Paul Jay, reporting from the G-20 in Toronto. Now joining us to discuss over 500 arrests of protesters is Howard Morton. He's a criminal lawyer in Toronto and a member of the Law Union of Ontario. Thanks for joining us.

HOWARD MORTON, DEFENSE ATTORNEY: Thank you.

JAY: So give us a picture, first of all, about what's been happening, how many people arrested. What are some of the circumstances?

MORTON: I understand as of today there have been over 500 arrests. There were just another 70 people arrested for unlawful assembly. And the range of charges goes all the way from mischief, which is damage to property, to a very serious charge of conspiracy to commit a number of indictable offenses.

JAY: What's the circumstances of unlawful—what was unlawful about the assembly?

MORTON: That they were told to disband and they did not.

JAY: So where is there a right to free assembly, if as soon as a police officer tells you, you can't assemble, it's now unlawful assembly?

MORTON: Well, you're absolutely right. As you know, section 2 of the Charter of Rights specifically grants all of us the right to assemble. And it's always been viewed as a hallmark of democracy. The difficulty arises when you have something such as this G-20 circus and the police really don't want a general assembly of any sort. They seem to think they have the right to simply break it up.

JAY: Where were the people that were in charge that you're speaking of?

MORTON: The ones this morning, as I understand, were near the Queen's Park area, and there were 70 of them.

JAY: Which was supposed to be an area people were allowed [inaudible]

MORTON: Supposed to be.

JAY: It was actually the designated assembly area.

MORTON: But as you know, last night a lot of the violence that erupted was actually right at Queen's Park, and that's where those people who were demonstrating very peacefully, as I understand from the media reports, were subjected to all sorts of violence on the part of the police.

JAY: Now, what started all the real violent activity—although there had been some the day before and two days before—but the big violent activity was inaugurated by the black bloc tactic. Apparently, according to the police chief, there was a march going on the fence, and then they turned from the fence. These people calling themselves the black bloc run up Yonge Street, break some windows. There's no police in sight. Is there evidence that the police had infiltrated the black bloc and then perhaps should have known what going to happen?

MORTON: My understanding is that they've clearly infiltrated it, going back as far as perhaps April 2009. And given the number of arrests yesterday morning, just before any of these incidents took place, they obviously knew who was allegedly involved in planning these things, and they've charged them all with conspiracy to commit a whole number of indictable offenses. And the ones that are in custody will probably remain there for at least the immediate future.

JAY: And in fact the chief, in a press conference I attended where I asked him a few questions, he actually talks about how we know who the leaders are, we know who the people are. I mean, it suggests, if you know all of that, why didn't you know they were planning to turn and run up Yonge Street?

MORTON: Paul, I think they know more than just who these people are. I think they had information, either from an informant or from undercover officers who were present, perhaps at gatherings of people, and actually knew precisely what was being planned, because that's what they've alleged in this conspiracy charge.

JAY: So if they know, then what does one think? Why would they have gone, apparently, 10 or 15 minutes or longer on Yonge Street? And we have footage of what was happening, and there is no police officer in sight.

MORTON: Well, I guess there's only two explanations. One would be that they simply screwed it up, and the other would be that perhaps some of what happened yesterday justifies the $1 billion spent on security and will turn some people, unfortunately, against protests of any kind.

JAY: So once the windows get broken, then more or less all hell breaks loose. That's when the mass arrests start. So what happens in the next few, 10 to 12 hours?

MORTON: The ones that have been arrested are still in custody. They're being held on Eastern Avenue. A number of them have been charged with mischief in terms of damaging property or otherwise, some with unlawful assembly. To my knowledge there have been no new arrests following the conspiracy charge.

JAY: Now, your case, the person you're representing was the first person charged under something called the Public Works Protection Act.

MORTON: Mr. [Dave] Vasey.

JAY: Which nobody really knew existed—certainly most Ontarians didn't, and apparently a lot of lawyers didn't. So tell us what happened and what you found out.

MORTON: I don't think there were any lawyers, except those working for the Cabinet office, that knew about this. As you know, the act, the regulation was proclaimed, if you like, in terms of creating it on June 2. It was filed on June 18. Nothing was said to anybody, despite all of the publicity that was run by the police and other agencies in terms of what was going to happen when the G-20 was here, and there wasn't a whisper about this new regulation which granted the police extraordinary powers.

JAY: For example?

MORTON: Of demanding identification and your address, the right to search and seize you without any other cause, simply because you happen to be—without warrant, simply because you happen to be in that area.

JAY: So [inaudible] the probable cause. They have to think you're—have committed a crime. But with this act, just being there, essentially, is probable cause.

MORTON: That's right. If the officer sees you there, then they have probable cause under the regulation to demand your identification, demand your address, and to search and seize and charge you with an offense that carries a two-month imprisonment maximum.

JAY: And they can define the area. Apparently, anyone called a "guard" or a police officer can simply define the area. And their word is it. That's the end of it. They define it; it is what it is.

MORTON: That's right. And one of the other concerns, though, has to be the information that's taken down, for example, that who you are and where you live and why you were there and the dates and so on that you were there. Hopefully, the police are going to destroy that information, but in the past the police have retained that sort of information in files for decades.

JAY: So how did we find out the act was even in place?

MORTON: We found out the regulation was in place because Mr. Vasey was arrested and called me, and I said, "What? What regulation? What are you talking about?" And then, well, of course, we went on the Internet, and you could find it. This is the government's justification, that it was on a thing called elaw. And I think if you asked all your neighbors, friends, and so on if they watch elaw on a regular basis—lawyers don't even watch that. I've never watched it in my life. But that's going to be their justification: well, of course, we put on elaw. The interesting thing is that whenever you pass a law or a regulation, it has to be gazetted. That's just a legal formality. And they decided not to gazette this until July 3, which is some six days after the regulation expires.

JAY: Now, you have been and some of the other lawyers involved in some of the recent cases were also involved beforehand in negotiations about an injunction to stop the use of a sound device that could be used like a weapon. There were sort of rules of the game were being discussed. This apparently was never talked about.

MORTON: All the rules of the game, we thought, were discussed and publicized. I can remember a full-page ad in all of the dailies in Toronto showing the zones, the various zones that you had to stay out of, and describing what your rights were, and so on, and there wasn't a single whisper about this regulation which conferred these extraordinary police powers.

JAY: Now, they had to have known how controversial this would be. I mean, how do you explain the secrecy?

MORTON: My hope is it's gross negligence on the part of Cabinet members and their staff. Paul, if this was kept secret intentionally, then our democracy is in much more serious trouble than you and I can imagine.

JAY: And I don't think most people understand how easily it is to have a framework that starts to approach martial law. If you go through what's possible under that legislation—I'm not saying it was used this weekend to its full extent, but with that legislation any property can become a public work, any amount of space around that piece of public work can be included in the space. They could declare the entire city of Toronto.

MORTON: That's right.

JAY: And every official, practically, to—anything to do with government can all of a sudden become—what do they call it?—"guard", who has the right even to arrest you. I mean, essentially you could have, without any debate in the Parliament, essentially martial law.

MORTON: It could amount to what is essentially martial law, particularly when there's no debate about it beforehand, the way normal legislation is debated, and secondly, more importantly, the fact that it's kept secret. I mean, you don't keep something secret that you're proud of. You only thing—keep things secret that you're somewhat ashamed of or afraid that the public might know about and somebody might say, well, wait a minute, what are you doing here conferring all these powers? That's the only reasons you would intentionally keep something like this secret. And as I say, if that's why it was kept secret, boy oh boy, we're in a lot of trouble.

JAY: Now, the case that you're representing, obviously, you're going to challenge the piece of legislation [inaudible] Charter.

MORTON: Absolutely. Absolutely.

JAY: Some lawyers are suggesting that what's most likely to happen is they're just going to drop the charge so you don't get to test it, and legislation's still there to use again. Do you think [inaudible]

MORTON: That's what has happened on several occasions in the past, that—there's a saying: you don't want bad facts, because bad facts make bad law. And if the crowns were concerned that they would be highly criticized for trying to prosecute somebody under this regulation, then they may well decide not to proceed with the charges. Now, for my clients, I mean, that's what we hope happens, because then they're out of it and they don't have all the anxiety about facing this two months in jail.

JAY: Now, most of the arrests of the 500 were not under this act.

MORTON: That's right.

JAY: They were under existing law. They're simply saying, if you don't do what we tell you, you have just created an illegal assembly. So how do you challenge that? I mean, how do you have a right of free assembly if they can simply arrest you by telling you to [inaudible]

MORTON: You charge it on the—at trial you would charge it on the basis that the conduct of the police, and the charge itself, contravenes section 2 of the Charter, which is freedom of lawful assembly.

JAY: And we have precedent for this in Canada, for these type of arrests? And what is the precedent in the courts? How do they deal with the challenge on this?

MORTON: There's been no precedent, certainly, in the time that I've been practicing law. The War Measures Act, as you know, created police powers that went far beyond what this regulation does. For example, it gave away with habeas corpus. But you'll recall the hubbub that was created over the War Measures Act—and, I hope, in much more serious circumstances than simply a G-20 meeting in downtown Toronto. And I hope there's a hubbub created by members of the public over what happened with this regulation.

JAY: And what about just the issue of right of assembly, Queen's Park, Allan Gardens, just simply saying, if you don't get out of here when we tell you to, you are ipso facto an illegal assembly, when there's supposed to be a right of assembly? What's the precedents on that?

MORTON: To my knowledge, there is none. And not only did it happen that way; they were told that's where you can have some lawful demonstrations, right, because they were hoping to keep the protesters and the demonstrations out of the core where the G-20 is.

JAY: And just for people who don't know the city, these parks we're talking about are blocks and blocks, maybe about 10, 15 blocks—

MORTON: Oh, easily, yeah.

JAY: —away from where the actual events and where the leaders were. In fact, many of these arrests took place before these leaders had even hit town. They were up at Muskoka [inaudible]

MORTON: Well, and some of the arrests, according to the media today, were at Spadina and Bloor. So if that is the case, then you're almost getting into the suburbs, I guess.

JAY: Now, one of the instances we have on tape, a man is trying to go to Queen's Park to join the march, and they asked to search his bag in Queen's Park, which is not under the jurisdiction of this Public Works Protection Act, and the police refused to let him enter the park without checking his bag. Is there any legal basis for them to do that?

MORTON: Absolutely none, unless they had an honest belief on reasonable grounds that there was something in that bag that was evidence of this person committing an offense. Clearly that's not the case.

JAY: Is there a basis or need for a public inquiry into all of this?

MORTON: I think so. I think there are a number of issues that have arisen here that there should be a public inquiry, particularly about this regulation and the way it was handled.

JAY: Thanks very much for joining us.

MORTON: Thank you very much.

JAY: Thank you for joining us on The Real News Network.

End of Transcript

DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.



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