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Paul Jay asks Ombudsman Andre Marin who is responsible and who has been held accountable for “the most massive compromise of civil liberties in Canadian history”

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay in Toronto. One year ago to this week, more than 1,000 people in Toronto were arrested during the G-20. This led to a report by the Ontario Ombudsman, because many of those arrests were alleged to be dubious legality. There was, many people said, systemic violence used by the police. And the whole issue of whether those arrests were necessary as a result of certain number of people that were involved in a certain amount of violence–breaking windows on Yonge Street and the burning of police cars. This all led to a report by the Ontario Ombudsman, and the report was titled Caught in the Act. And now joining us to talk about his report and his new annual report, one year later, is Andre Marin. Andre worked as director of Ontario’s Special Investigations Unit from 1996 to 1998. And he was Canada’s first ombudsman for the Department of National Defence and Canadian Forces. And he has now been reappointed as the ombudsman for Ontario. Thanks for joining us.


JAY: We’re going to play a little clip from a news conference that you gave just after releasing your report Caught in the Act. And here’s the clip.


MARIN: And for the citizens of Toronto, the days up to and including the weekend of the G-20 will live in infamy as a time period where martial law set in the city of Toronto, leading to the most massive compromise of civil liberties in Canadian history. And we can never let that happen again.


JAY: So what did your investigation find that led you to make such a statement?

MARIN: Well, essentially, the Toronto Police Services had requested of the Ministry of the Attorney General the passage of a regulation which had the effect of reviving a 1939 piece of legislation that allowed police or gave the police extravagant new powers of arrest and detention, powers which, in my opinion, were likely illegal and unconstitutional. And so all the detentions that took place and the arrests that took place that day were an abuse of power. And the problem was that this regulation which was adopted of dubious legality was adopted secretly. It was never advertised. It wasn’t promulgated publicly. The city of Toronto went to a great deal of effort to advertise the street closures and that kind of thing, but they never talked about the new regulation. The provincial government did talk [sic] about this new regulation. And so citizens groups, who were lawful protesters, demonstrators that weekend, were unable to abide by the law because it was secret. And that is, again, wrong as well.

JAY: The Public Works Protection Act, allows, if you’re protecting a public building, for anyone approaching that building to be asked for identification, to be searched. And as you point out in your report, they can’t simply just say, oh, I don’t want to go there and walk away. You have to comply, which is a violation of any normal Charter rights, ’cause you don’t have to normally provide identification in Canada unless there’s probable cause. So how did this extend so far past the building, when supposedly this is supposed to be around this narrow perimeter?

MARIN: The problem is, when you keep a regulation secret, you don’t educate people. That also includes authorities. And that’s why the chief of Toronto Police, for example, is talking about a five meter rule. The five meter rule didn’t exist. There was no such thing as a five meter rule. So this actual regulation which was kept secret was misunderstood by authorities, as well as protesters and members of the public. And that was part of the problem. Now, in Canadian law, the Charter of Rights and Freedoms protects against arbitrary arrests and detentions. And when you’re stopped by two or three, four police officers, you’re required to produce identification under legislation. That is a detention. And so some people will say, well, there’s only a handful that were actually arrested under this regulation. And first I’ll remind your viewers that the Toronto Police had said no one had been arrested. Then it became, well, maybe a few.

JAY: And then it became two. And then one, it turned out they lost the paperwork.

MARIN: That’s correct. And now–but–however, hundreds, if not thousands, were illegally detained. You have a right to walk through a public area in Canada without being required to stop and produce identification.

JAY: And once you’re forced to produce ID, it’s a detention.

MARIN: It’s a detention, and our constitution provides us protection against that. And that, of course, is why the regulation, in my view, wasn’t published.

JAY: And one of the more bizarre pieces of this legislation is that it’s up to an officer of the peace or anyone appointed as an officer of the peace under this legislation to define the space around the public building. I mean, they could define the whole country if they wanted to. And I know it even says that if it goes to court, the assertion by the peace officer of what he defined as the public space can’t even be contested in court. It’s a bizarre piece of legislation.

MARIN: The legislation itself has a very wide definition for public works. It’s any–it would include highways and courthouses, any public buildings. And what happened during the G-20 is, because the regulation extended the perimeter of what was considered a public works, because in 1939, the way the city of Toronto was designed is very different from 2010, and so this regulation had to provide for the extension of public works to cover areas that were not covered in 1939. So they gave it even more breadth than before. And so that’s why we recommended that the government do away with this piece of legislation. And if ever they do change the rules of the game, they advertise what they’ve changed. You know, there’s no doubt in my mind that one of the reasons why this regulation was kept secret is because of the fear of authorities that civil liberties organizations and others would challenge it in court.

JAY: Prior to the event.

MARIN: That’s right. And that’s not a good reason to not publicize new laws. Civil Liberties Association, for example, it challenged the Toronto Police use of sound cannon and it obtained court orders limiting their use.

JAY: Just days before the G-20.

MARIN: That’s correct. So there’s no doubt in my mind that this regulation was kept under the radar to prevent people from challenging its legality.

JAY: In the quote that we played, the clip from you from the news conference, it ends by you saying: and we can never let this happen again. Can’t this still happen again? What has changed? One would think for it not to happen again, there needs to be some culpability. Someone has to be accountable.

MARIN: Well, it’s one of those things that’s very sad, because you can’t unring a bell. Once you’ve been detained and released, you’ve spent your time in a jail, you haven’t been charged, and you’re set free, or you’ve been charged and the charges were dropped because there’s no evidence. So the damage is done. There are a variety of different investigations underway, inquiries by different official bodies. There are lawsuits that are out there. My function as ombudsman is to look at the actions of the provincial government and decide whether they were reasonable, unreasonable, or contrary to law, and I’ve concluded they were unreasonable and contrary to law. I’ve made recommendations that the government scrap the act, which they’ve agreed to do. And I’ve told them that if you want to change the rules of the game again, you have to publicize the rules so that citizens know what they have to deal with. And they’ve agreed to do that.

JAY: This is, I would say, a critique I have of your follow-up report: it gives the feeling like it’s now kind of solved, because they’re going to either scrap this act or they’re going to kind of revive this act. And even though, as you pointed out, so many of the illegal detentions asking for identification were kind of done under the rubric, the atmosphere of this act, if you will, most of the arrests took place under something called breach of the Queen’s peace, which is another bizarre peace of legislation, which seems to allow police just to arrest people when they think they’re doing something they don’t like, and then let them go later if they want to. But all winds up the same thing: you don’t have a right to protest anymore. So even if you completely got rid of the Public Works Protection Act, they can do it all over again using breach of the Queen’s peace and unlawful assembly.

MARIN: Well, you have to remember, my function is a very narrow one, some cases, unfortunately. I only look at the actions of the provincial government. And so it’s not for me to pass judgment on things that are beyond that. Now, you know, it raises questions which I obviously can’t answer as to whether there’s sufficient police accountability in Ontario, whether there is sufficient police oversight in Ontario. And I let you and your viewers pass judgment on that.

JAY: Okay. Well, I’ll give you another question you probably can’t comment on, but I have to ask it.

MARIN: Sure.

JAY: Does it concern you that Chief Blair, who has been engineered, in my opinion, to wear this whole thing–and I’m not so sure it really is all Chief Blair, but Blair has agreed to be the frontman for the Public Works Protection Act and everything else that happened over those days–gets reappointed as chief of the police?

MARIN: Well, it’s very disappointing, from my perspective, that the chief of police did not cooperate with our investigation. He had an opportunity to come to the table and explain what he meant by the five meter rule when he told the media that that was the new rule that existed. We know for a fact that the regulation was signed off by the Ontario cabinet as a result of a request by him. We know that conclusively. And we wanted to hear his side of the story, but he didn’t provide it. Now, whether he’s reappointed or not is for the Police Services Board to account for.

JAY: One of the things you looked into–and a lot of our viewers have been asking us to ask you about this–is what actually happened on Saturday when the black bloc, as they are called, or black bloc tactic people that ran up and down Yonge Street at some point and broke windows, and I believe some of them at least were involved in torching police cars, there’s a certain evidence that The Toronto Sun has reported individual policemen said to The Toronto Sun, we were told to stand down while this was all happening. There’s evidence the police cars were just sitting out there for hours without being protected or moved. We now know that the police had infiltrated the groups that were involved in this. Apparently, the infiltration may go back as far as a year. So the question [that] keeps getting asked is, I mean, did they allow this to happen to become a justification, this being breaking windows, and especially images of burning police cars, to become a rationale for arresting 1,000 people, most of whom had nothing to do with any of that?

MARIN: I have no basis to believe in any of those conspiracy theories. From my investigation I can only conclude that the Toronto Police had a bit of an obsession with protecting that fence, and that’s why they requested the regulation, so they could identify people near the fence. And the government was too fast to agree to that regulation, and they didn’t publish it, leading to the massive arrests and detentions that we saw took place.

JAY: In your report, there’s a section which deals with Saturday afternoon, and it talks about communication between the headquarters in Barrie and the headquarters in Toronto. It seems completely bizarre. Let me read a section from the report. The former RCMP official who was in charge of ISU security at the time advised us that by June 24, which is, what, two days before, the Toronto Police Services representative on the ISU steering committee had left the ISU building, and that by noon on Saturday, June 26, when all hell’s breaking loose, communications between the ISU and the Toronto Police had broken down. By 4 p.m., the Toronto Police Services had completely gone off the ISU radar. The ISU placed multiple calls to its Toronto Police contact, but it took 45 minutes of trying before they connected. These guys had months to prepare, like, an unlimited budget, like, a billion dollar budget, and it seems like what they told you is that the communication had broken so down that the RCMP had no control over the events that were going on in Toronto. I guess what I’m getting at with this is, one, it sounds like Keystone Kops. And I know you can’t comment on that, so I won’t ask you to. But, two, has the RCMP created kind of a rationale here that none of this really was their responsibility, this was all Blair in Toronto?

MARIN: There was quite a bit of problems, communications problems that particular day, over that weekend. That’s been acknowledged. And we saw the communications that took place in the breakdown. There was no doubt there was a massive breakdown in communication. But–what was the second part of your question?

JAY: Well, my question is is that two things that emerge from your report–. One is the RCMP have told you–and this is–I’m going to ask you this again, but I assume the RCMP told you they didn’t know anything about the Public Works Protection Act. And now we have Saturday afternoon, when the crap hits the fan, oh, we didn’t know about it, ’cause communications had broken down.

MARIN: Well, from what we gathered, the RCMP was responsible for security within the fence; the Toronto Police was responsible for the security outside the fence. The RCMP, as far as we could determine, did not request any additional powers from the provincial government in order to maintain security inside the fence. That request came from the Toronto Police. And the Toronto Police chief was on television being interviewed on a television show one day, and he talked about how it was a joint request from all the different police agencies. An RCMP official called the show to specifically say, it did not come from us, and that was once the report had issued. So all the evidence that we’ve seen points to the Toronto Police requesting these additional powers, not the RCMP, and the RCMP was not involved at all in the Public Works Protection Act.

JAY: But the Integrated Security Unit, which was commanded by the RCMP, they were the operational command for the day.


JAY: And my understanding is that they were operational command while Toronto police were on the ground outside the perimeter outside the Convention Center. The still operational command resided with ISU, meaning RCMP. So up until your report, where they say communication had broken down, one would assume the orders are coming from operational command in Barry, meaning RCMP.

MARIN: Well, my hope would be that–it’s been a year now since the incident, and my hope would be that the police, the Toronto Police and the ISU, would have, if they haven’t done it yet, met and determined what went wrong to prevent this from happening again. I know today, for example, the Toronto Police finally said, a year after the kettling, we won’t do it again.

JAY: Now, for people that haven’t followed this, kettling was–well, maybe you can describe it, what happened on Queen Street.

MARIN: Yeah. Well, this is when the police decided to simply use a procedure called kettling, where they basically move in on a crowd, slowly, methodically, and once the crowd has been circled or cordoned off, they then move and conduct arrests, and arrest massively everyone inside the cordon. And that proved to be ineffective at the 2009 G-20 in the United Kingdom. And the High Court of the United Kingdom found the actual kettling itself was illegal. And what we see a year later in Toronto is it’s adopted by the Toronto Police Service. And today, a year later, there’s a statement that they will never use it again. So it was very troublesome. And hopefully they can use lessons learned, as well, from the communications standpoint, to prevent this kind of breakdown in the future.

JAY: I want to go back to who knew about the Public Works Protection Act. In your report, you state that the RCMP wasn’t informed. You’re saying that because that’s what they told you. Do you have any other verification? Like, and when Blair says it’s on behalf of all the police agencies, that seems at odds with what the RCMP’s saying.

MARIN: Well, we followed the paper trail that came from the Toronto Police to the Ministry of the Attorney General requesting the new regulation, number one. Number two, the RCMP told us they had nothing to do with it. All the evidence we have points to the RCMP not being part of the process.

JAY: Now, we obtained documents from the Kitchener-Waterloo police, regional police, and it was a training manual for their participation in G-20. I don’t have the exact date of the manual, but clearly it came out well before the eve of the event, which is when it went public. And in your report, you say that’s when the RCMP and other police forces learnt of it. But–and I showed you just before the interview–the PowerPoint presentation, which is for the training, clearly refers to the Public Works Protection Act. It tells officers what their powers will be. It tells them you can ask for identification, which you called an illegal detention. I mean, how is it possible that Kitchener-Waterloo police have a whole manual, and the RCMP, which is running the Integrated Security Unit, coordinating all these activities, doesn’t know about it? I mean, how can Kitchener know and RCMP doesn’t know?

MARIN: I don’t know the answer to your question, but it’s not inconceivable that other police services would have obtained copies of the manual over the regulation of the Act, because they were all present in force and to augment the Toronto Police Service outside the fence. So people who were being detained and asked to produce identification could have been detained by other police agencies. In fact, we’ve seen YouTube videos of York police officers–.

JAY: But this is before the event. They’re already referring to something that your report says was secret up till the eve of the event. So how would they know if nobody else–if the RCMP didn’t know, how does Kitchener-Waterloo know?

MARIN: No, but it was kept secret from the public. But certainly we’ve seen police officers, we saw clips all over the Internet, police officers during the event that were–

JAY: Talking about it.

MARIN: -yes, referring to it as the basis for arrest or detention.

JAY: But that’s my point: then how could the RCMP not have known?

MARIN: Yeah. Well, you know, who knows? Who knows? The RCMP’s focus was the inside of the fence. Now, our focus of our investigation wasn’t to investigate the RCMP.

JAY: Okay, I hear you can’t answer ’cause your investigations didn’t go there. But ours are going to, because if this issue of asking for the Public Works Protection Act goes up the food chain, then it’s not just the RCMP, ’cause the RCMP answers to the Privy Council, and Elcock from the Privy Council was the guy running the entire operation, and the Privy Council reports to the prime minister.

MARIN: Again, I investigated two things: the legality of the legal measure, and how it was communicated to the public. Issues beyond that are really outside my realm.

JAY: Does your office need subpoena power?

MARIN: We have them.

JAY: Did you subpoena Blair?


JAY: Why?

MARIN: Well, we didn’t subpoena because we didn’t, at the end of the day, really need him. We had enough evidence to go on. Basically, when we invited him to provide his side of the story, it was an act of courtesy. It wasn’t a necessity for us to get to the bottom of the investigation.

JAY: But it might have helped uncover the chain of events leading to the request for the Public Works Protection Act, ’cause there is a contradictory story where Blair says it’s on behalf of all police agencies, then you have one of those police agencies not on our behalf.

MARIN: Well, we heard the RCMP contradicting publicly Chief Blair on that issue. I’m fairly confident in our conclusion that it was a request by the Toronto Police Service.

JAY: We know formally it was, but we don’t know what takes place in the meetings of the Integrated Security Unit.

MARIN: Well, the chief of police had an opportunity to come in here, provide his side of the story. For whatever reasons, strategic, based on advice he received, whatever it is, he decided not to avail himself of that opportunity, and he has to live with those findings. If he wanted to present us his side of the story, he had an opportunity. I didn’t require–it’s not absolutely essential for me to know 100 percent that it’s just the Toronto Police, because I’m not investigating the Toronto Police; I’m investigating the legality of the measures taken and how it was communicated.

JAY: So it can happen again.

MARIN: Well, you know, the odd thing as well is that although there has been a pledge by the government, which I accept, to revoke the Public Works Protection Act, it’s still in effect. So, I mean, that is still out there. So it needs to–when the legislative assembly comes back, this is outstanding work which needs to be done is to repeal that act and to replace it if necessary.

JAY: Your language calling this the most serious violation of civil rights in Canadian history, that goes beyond just the Act, didn’t it?

MARIN: You saw massive, massive detentions contrary to the Charter, massive, hundreds, possibly thousands. You know, it is a breach of a chartered right that happened in one shot. And so I can’t think of any other episode that’s left a mark like this on citizens. And many citizens don’t realize that they have a right not to be forced to identify themselves. They’re not driving a motor vehicle. They’re not exercising a privilege. They’re walking down a downtown street. And, you know, the police have been very quick, originally saying that no one was arrested under the Act. But then, as YouTube videos of people getting detained and arrested under the Act started coming out, then they had to admit that, yes, it did happen, but it was in very small numbers–granted, small numbers arrested; however, many, many were detained. And it’s important to draw that distinction.

JAY: The violence, I thought, was extraordinary, violence on behalf of the police against the protesters. The breaking of windows, the burning of police cars, it’s more than we normally see at a Canadian protest, but it wasn’t violence on persons. The violence on persons was initiated by the police.

MARIN: I can’t comment on that. But what I can tell you, though, is that one of the risks the government runs when it does pass a secret regulation is that your powers are misapprehended. And they’re not only misapprehended by citizens; they’re misapprehended by authorities, which led to the chief of police of Toronto himself referring to the rule as the five meter rule. So what’s the lesson learned here, from my perspective, based on my mandate, is that you must publicize. And it’s all about open government, getting the message out there, to make sure citizens can abide by the rights, and to make sure the authorities know what their duties are.

JAY: They were prepared for mass arrests. They created the detention center that more or less could hold 1,000 people. They had obviously trained police to be expecting mass arrests. They even did things that one would only think you see in movies or in some crime thriller taking place in Latin America, which is snatch-and-grabs, where they would drive a van up next–where protesters were, three policemen jump out of the van, grab this young woman, throw her in the van, and drive off in the van, and then later let her go. And I don’t know that–we’ve yet to be able to find out why they picked her, other than she had orange hair, and if someone’s looking on a camera, you could say, oh, go get the one with the orange hair. It makes you wonder that maybe they did achieve what they wanted. Were they trying to somehow give police some training and experience at how you deal with these kinds of situations?

MARIN: You know, I hold a glimmer of hope that with the passage of time, that the police will recognize that they could have done things better. And I was encouraged here to hear this morning that they’ve decided not to engage in the practice of kettling again. That’s a positive development. There [is] also the Toronto Police Service Board inquiry that’s now taking place by a retired Court of Appeal judge, Justice Morden. I’m hopeful that something comes out of that. So I’d like to be a little more positive about the future. You’ll have to come back and ask me when all these other inquiries wrap up.

JAY: Thanks very much for your time.

MARIN: My pleasure.

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

End of Transcript

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From 1996 to 1998 Andre Marin worked as the Director of Ontario's Special Investigations Unit and then served as Canada's first Ombudsman for the Department of National Defence and the Canadian Forces. Andre is now a second term Ombudsman who has been in the post since 2005 and was reappointed on June 1, 2010. One of his recent high profile reports, "Caught in the Act", was about the violence surrounding the G-20 in Toronto and was released on December 7, 2010. The most recent report to come out of his office is the 2010/ 2011 Annual report which was released on June 21, 2011 and provides recommendations for government agencies such as Hydro One and the Family Responsibility Office as well as reiterating previous reports such as "Caught in the Act".