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Gerry McNeilly: Will conduct a systemic review of police actions during G20 after complaints from citizens indicate a ‘pattern of behavior concerns’.

Oct. 5 TRNN – A review by the Office of the Independent Police Review Director (OIPRD) will delve into the method behind the madness of Toronto’s G20 policing fiasco. 

In an interview with The Real News, Senior Editor Paul Jay asked director of the IOPRD, Gerry McNeilly about whether his review would address specific incidents, such as the kettling of peaceful protesters on Queen Street, the intolerance of self-identified journalists, to the extent of arresting or being violent towards journalists, and the absence of police during the notorious police car burnings being a strategic move to validate other police hostility. McNeilly, said the review will be systemic, and will address all incidents mentioned in complaints received by his office, including unlawful arrests, detainment, treatment of journalists, and the training and culture that police were exposed to in preparation of the summit. 

In an interview with The Real News, McNeilly said both the nature and volume of complaints received by his office compelled him to conduct the review. He said the complaints pointed to a pattern of police behavior that warranted investigation. 

“And that led me to look at the authorities that I have under the legislation, and the authorities indicated that I have the ability to conduct a review of a systemic nature when a pattern of behavior concerns developed. And this was that situation,” he said.

The IOPRD has the legal authority, under the Public Inquiries Act, to issue subpoenas and conduct searches if evidence or testimony is not forthcoming.

“I have the power, and if I have to use the power, I will,” he said.

Investigating the Integrated Security Unit, the policing body responsible for security during the G20, is tricky as it consisted of Toronto police but was headed up by RCMP chief superintendent Alfonse McNeil. McNeilly said his jurisdiction doesn’t extend to the RCMP.

“I cannot review the RCMP and its role. I will talk to the RCMP to find out about its role and what part that they played in policing and providing security for the G-20, but I don’t have the authority. That’s the Canadian Police Commission’s role,” he said.

He said he doesn’t know of any review being conducted of the RCMP’s role in the G20, but said he would be talking to chief superintendent Alfonse McNeil. 

“And, as I said, to date I have not had any indication that they are not prepared to cooperate with me,” he said. 

The Real News has raised concerns over the Public Works Protection Act, and the Breech of the Queen’s Peace legislation, that were cited in most of the arrests during the summit, as they appear to negate the constitutional right to free assembly. McNeilly said his office will be investigating unlawful arrests, including ‘the tools that were used’, but said his authority doesn’t permit him to review the constitutional legitimacy of legislation.

“I am not specifically going to be reviewing any piece of legislation as to the appropriateness of that legislation, you are correct. That’s for the courts to do.”

He said his review will be transparent, but will not include public hearings in order to expediate the process. He said his biggest challenge is addressing the volume of complaints quickly enough that the findings remain current and meaningful to the public.

Story Transcript

PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay in Toronto. And it was only a few months ago in Toronto more than 1,000 people were arrested protesting at the G-20. Many people allege violations of the Canadian Charter of Rights, abuse by police. Some people suggested an overuse of force. Of course the police said, we saw police car burnings, we saw windows breaking. They say the force was justified and so were the arrests. So out of all this there’s been a call for a public inquiry. Well, there’s a few inquiries or reviews going on�not a full-scale public inquiry as some people suggest it should be. But one of the reviews that’s taking place is being led by Gerry McNeilly. Gerry McNeilly was former head of Legal Aid Manitoba. He has a long record as a human rights lawyer and a deputy judge in Ontario. Gerry McNeilly is now the director of the Office of Independent Police Review. He’s an independent body. It’s responsible for investigating complaints against police within Ontario. He answers to the attorney general, but he acts at arm’s length in terms of the process. And Mr. McNeilly now joins us. Thank you.


JAY: You came to a conclusion that there was a need for systemic review, not just a review of individual cases, as your office might normally look at. A lot of the police leadership involved weren’t all that happy that you’ve come to a conclusion that it should be systemic. What led you to a conclusion that there was a need for such a thing?

MCNEILLY: Well, very simply, firstly, the legislation provides and gives them the authority to look at a review from a systemic perspective. And a review from a systemic perspective means that [inaudible] pattern that has developed, a pattern of behavior or practice that has developed. And surely from the numerous complaints we have received, by the time I made my decision, and from what I saw on TV, read in the newspapers, that led me�primarily the complaints that we received led me to the position that a review of a systemic nature was necessary.

JAY: What kind of questions were opened for you?

MCNEILLY: Well, what kind of questions was: was there a pattern? You know, the complaints came in, and they did identify a pattern, they did identify a pattern in certain areas.

JAY: For example?

MCNEILLY: Queen and Spadina, it identified a pattern of behavior, and numerous complaints came out of the Queen and Spadina situation.

JAY: We’re talking Sunday afternoon?

MCNEILLY: Sunday afternoon.

JAY: There was something called kettling, I guess, where several hundred people, many of whom were just people walking to work or happened to be on the streets, some had been involved in the protest, were surrounded by police. So why did that raise questions for you?

MCNEILLY: Well, it raised questions because the actions taken were the appropriate actions. Complaints came out of that situation indicating that people felt they weren’t treated properly. They felt that the conduct of the police was an issue, was a concern to them. They felt that they had a right to peaceful protest. So they also felt that they could not understand why they were, quote-unquote, “kettled” or why they were contained. And those things, when I read those complaints, when I looked at it and like a citizen I saw on the TV what was going on on Sunday, it led me to some concerns. And that led me to look at the authorities that I have under the legislation, and the authorities indicated that I have the ability to conduct a review of a systemic nature when a pattern of behavior concerns developed. And this was that situation.

JAY: Now, The Toronto Star had an editorial just a few weeks ago saying none of the reviews had enough power, but there needed to be a full-scale public inquiry with subpoena powers. But what do you lack? If I understand it correctly, you do have subpoena powers, and you even have search and seizure powers.

MCNEILLY: That’s right. So I don’t think the article necessarily mentioned the Office of the Independent Police Review Director, but [inaudible]

JAY: I think they talked all the various inquiries didn’t seem to have enough�.

MCNEILLY: Had they said that, they would have known that I do have powers under the Public Inquiries Act, and those powers provide me with the ability to issue subpoenas, summonses, and to have people attend before me or have documents brought before me. The legislation also provides me with the ability to do searches if necessary, and not just on police. It could be searches on others, on other areas. For example, a ma and pa video store, if we had a complaint and we needed to get information pertaining to that complaint and it was resident there, we have the ability to get it if it’s not given to us voluntarily.

JAY: Now, there are some critical decisions that get made by someone�or someones�in the police department over the course of the weekend. One of the first decisions that seems to be critical is outside the Winners store on College Street. This is on Friday, late afternoon. The police have alleged that there were bottles and things thrown at them which caused them to start arresting. They arrested this one guy in particular who was deaf and didn’t hear them say, clear the space. He was drawn into the Winners sports store. There was a confrontation. So if you take something like that, are you going to break this down into sort of big episodes and then inquire into, okay, what happened in that episode?

MCNEILLY: Well, I can tell you, as I’ve indicated in the press release�and we are in fact going to be looking at some particular areas. We’re going to be looking at the detention center. We’ll be looking at the area you’ve just described. We’ll be looking at Queen’s Park. We’ll be looking at Queen and Spadina. And we’ll be looking at, generally, the arrests that were made throughout the city.

JAY: One of the issues that came out on Friday, the reason I’m raising it, particularly as our journalist, Jesse Freeston, was punched several times in the face, but over the course of the weekend, there were various incidents alleged that police�. After journalists identified themselves as journalists, were still either arrested, ordered to leave the scene, and in Jesse’s case actually physically attacked, are you going to look into the whole question of journalists and what their rights are and whether there was some kind of systemic decision in an approach to how to deal with journalists over the weekend?

MCNEILLY: My systemic review’s going to look at what occurred during the G-20 situation in Toronto. And so I do have complaints from journalists, yes. And so I will actually be looking at those complaints on an individual basis. They’ll also form part of my systemic review. So I’ll be looking at those questions you have raised in regards to identification.

JAY: How deep do you dig? For example, these may be individual incidents, but if�there may be a pattern where someone at a senior level of the police departments decided it’s okay to do such and such to journalists, do you dig in to who makes such decisions and if there was, like, a systemic approach taken by the police towards journalists?

MCNEILLY: Every investigation that my office carries out and every investigation that the police carries out under my direction, because I’ve managed a complaints system, I make sure and ensure that investigations are full and thorough.

JAY: I’m not expecting to be answered yet, I know you’ve just begun the investigation, but I’m going to go through some of the questions people have on their mind. The next big one, I think, probably takes place later on Saturday. The main march goes down Spadina. At some point a group of people, 100 and some odd people, now dressed in black, they call, you know, the black bloc tactic, some people call it the black bloc, the black bloc is on Queen Street. There’s police at one end. There’s police on the other end. They’re actually trapped, if you will. And then at one point the police simply leave, go down Portland. And there’s reports from Pulse 24, one of the news channels here, you can actually hear the announcer saying, where are the police? Where are the police?


REPORTER, CABLEPULSE 24: There’s no police officers here.


JAY: And what happens is a couple of police cars get trashed. They move down. They start burning other police cars. Everyone’s asking in the city, is there an actual deliberate decision made here to let this take place? Where the heck did the police go? Now, I’m not asking you to answer the question. Are you going to try to answer that question?

MCNEILLY: Well, as I indicated, we’re going to be asking a lot of questions to do a full and thorough review and a full and thorough investigation to each and every complaint. So, again, complaints emanated out of that, and we’ll be asking the questions to know what occurred, what happened.

JAY: How high up the police food chain are you willing to go?

MCNEILLY: I will be speaking to all those people who are willing to speak with me, and who by legislation I can compel to speak with me if they’re not willing to speak with me. I will be trying to speak with them on a voluntary basis to get all the information I think necessary to conduct my review.

JAY: But if you need it for the review (and it would seem to me the people in charge are needed), if they don’t cooperate, you have the power and you’re willing to use the power of subpoena?

MCNEILLY: I have the power, and if I have to use the power I will.

JAY: We know there were two police headquarters, one in Toronto and one in Barrie, and we know there’s commands taking place. The main command center seemed to be in Barrie�the kettling decision, the decision about the black bloc. And then another very, very critical decision, and maybe in some ways the most critical: after this sort of black bloc what people have called rampage, a big decision takes place, which is start arresting hundreds of people who clearly are not involved in breaking windows or burning police cars. At most this black bloc tactic maybe involved 100, 150 people. Over 1,000 people get arrested. The arrests outside Novo [Novotel] Hotel and other places, there is no trashing of even property taking place. Is this part of where you’re going?

MCNEILLY: When I release my terms of reference, it would be more specific. I’m still working on that. But we’ll be looking at the unlawful arrests, we’ll be looking at the unlawful searches, we’ll be looking at the detention that took place in the streets, and we’ll be looking at incidents at the detention center. Those are all part of my review. Those are all part of complaints that have been filed.

JAY: If I understand it correctly, there were only two people actually arrested under the Ontario Public Works Protection Act. The vast majority of people were arrested under a couple of other pieces of legislation, one of them called breach of the Queen’s peace, and also unlawful assembly. Now, there’s�hundreds of people are arrested under this thing. It was all�police could just come and say, you’re all under arrest because you’ve breached the Queen’s peace. They can haul you back to a detention center, hold you for hours, and then throw you back like you went fishing and you threw the fish back in. Except they’ve done something very critical in that they’ve taken away the right to protest. Even if they don’t charge you, even if you never go to jail, other than being held at a detention center, some for hours, are you going to look into the whole issue of the use of breach of the Queen’s peace as a piece of legislation that effectively takes away the right to protest?

MCNEILLY: I’m going to look into the unlawful arrests, the unlawful searches. And if people have filed complaints specific to those matters, we’ll surely look at those, yes.

JAY: See, the problem is they’re lawful. I mean, as I understand it, breach of the Queen’s peace is such a broad piece of legislation that I guess in theory it’s lawful. The only way it’s not lawful is if someone can take a case and say it’s a violation of the Canadian Charter of Rights, except nobody has the money right now to launch any kind of class action suit. And if you never get charged, it never gets tested in court. So you wind up with a piece of legislation that effectively removes the right to protest, but you can’t challenge it in any way. Is there any way for you to look into whether that’s a legitimate use of the legislation as a systemic issue?

MCNEILLY: My authority doesn’t extend to reviewing legislation that the police operate under or the police employ to do their jobs. My jurisdiction involves, specifically with regards to my systemic review, as to a pattern of behavior, what happened, what tools were used to cause that behavior to may have occurred. And so we will be looking at it. I am not specifically going to be reviewing any piece of legislation as to the appropriateness of that legislation, you are correct. That’s for the courts to do.

JAY: Well, not so much whether the legislation’s appropriate but whether the police should use it in these kinds of circumstances.

MCNEILLY: I have to say not specifically the way you’re putting it. I’m going to look at unlawful arrests, unlawful searches, and see what tools were used, what authorities we used to invoke�to make those arrests or to make the searches.

JAY: There’s a question of accountability here. If in fact there was a violation of people’s rights, who made that decision? Will you move up to the role of the federal government, particularly the RCMP, in this whole process? I know you’re an Ontario review, but it happened in Ontario.

MCNEILLY: I cannot review the RCMP and its role. I will talk to the RCMP to find out about its role and what part that they played in policing and providing security for the G-20, but I don’t have the authority. That’s the Canadian Police Commission’s role. And they exist, they’re resident in Ottawa.

JAY: Are they doing anything on this?

MCNEILLY: My understanding is they are looking. They also have complaints, so they are looking into them. If they’re going to do a specific review as to the role of the RCMP, I’m not aware of that just yet.

JAY: The Integrated Security Unit was in charge of policing, and the Toronto Police were part of the Integrated Security Unit, and chief superintendent Alfonse McNeil of the RCMP was in charge of the Integrated Security Unit. So if you’re going to get up to command and who’s responsible, you get to him. So how do you do a full review if you can’t review Alfonse McNeil’s role and the RCMP?

MCNEILLY: I think I can tell you that my intent is to�surely the Integrated Security Unit plays a part in the security for the G-20, so I need to get some information about that. I’m going to try to get that from the Toronto Police, who was very involved with the Integrated Security Unit. I’ll also try to get that from the RCMP and Superintendent McNeil. And, as I said, to date I have not had any indication that they are not prepared to cooperate with me.

JAY: No, I guess you can’t yet divulge any conversations, but people are talking to you at all the levels [inaudible]

MCNEILLY: People are talking to me, yes. I think I can say people are talking to me, Paul, primarily because people want to get to the bottom of this matter, and they think�my sense is that I have the ability, through my review of a systemic nature, to have some answers and to have some explanations for what happened, and to make some recommendations so that in the future some of what occurred may be avoided.

JAY: We’ve interviewed some human rights lawyers here who have told us that you can’t actually use the Charter in any effective way, because there’s just no way for people to have the resources to launch an action that would test the Charter. So if you don’t have the money to do it, you wind up not having any Charter rights. So a lot of onus on what you’re going to be doing here, ’cause people are going to look to see, is there a democratic right to protest or not in Ontario?

MCNEILLY: For me, is there a democratic right? Yes. I’m a lawyer, so I will tell you I believe we all have rights and we all have democratic rights. We have a Charter of Rights and Freedoms, right, in this country. So it’s democratic right, I believe, yes, personally. In this situation I’m not necessarily going to look at that, because you’re right, that’s a Charter challenge and it has to go to the courts, and the courts have a special role. And I understand your comments about funding, but there are organizations that do take Charter challenges.

JAY: Well, apparently not for this one. The problem is is that too many of these charges get dropped. You could test it in a specific case if it actually got to court, but what the police are doing, except in a few cases which have to do with direct property damage, they’re just dropping the charges. So there’s no normal way to test the validity of the arrest in the law. So then you have to go find the resources to launch a Charter challenge. And the truth is, most of the lawyers don’t want to do it. They say it’s too expensive.

MCNEILLY: Yeah, and my review’s not going to do it either.

JAY: Well, can you not answer the question whether it was justifiable use of the power of arrest? For example, if you find there’s a pattern of arresting peaceful protesters under the breach of the Queen’s peace and that was a systemic problem and that someone reached that decision for some reason, you can come to these kinds of conclusions.

MCNEILLY: I don’t want to preempt my report and its findings, because I don’t want anyone to say I have some preconceived outcomes. I don’t. So my answer to that is I can’t answer it.

JAY: But it’s within your scope?

MCNEILLY: I’ll be looking at the whole issue and the allegations of unlawful arrest, allegations of unlawful searches, allegations of unlawful detention. I’m hoping that through my review we’ll be able to get some answers and get some understanding of why those things are alleged to have occurred.

JAY: So what’s your biggest challenge here, then?

MCNEILLY: My biggest challenge is the volume, and my biggest challenge is to try to get this done within a reasonable time so that it becomes�so it doesn’t get forgotten, but mostly so it remains current.

JAY: How many are before you now?

MCNEILLY: We’ve had over 320 complaints, and so there’s a huge volume to deal with. And carrying out a review of this nature, which is the first one, it’s big. And I’m trying to ensure�and I can’t give you a timeline, but I want to keep it current so that it’s meaningful, so that the outcome, the recommendations coming out of it will be meaningful to members of the public, it’ll be meaningful to members of the media, to the members of the police services, it will be meaningful to government.

JAY: How transparent will all this be? If people want to come and talk to you, if they want to say, you know, witnesses or people who want to give testimonies or people who want to intervene in terms of their views on what happened, how do they interact with you?

MCNEILLY: Paul, I’m carrying out a systemic review, so I’m not going to hold public hearings, because then it will take years, and I want to be current, and my authority doesn’t go that far. If someone wants to write me with and send in to us some comments, some views, some expressions of their position or concerns or views in regards to G-20 and policing issues, I’m happy to receive those.

JAY: One of the things that struck me over the weekend was the level of violence�baton-hitting; and even one scene where the horses, you know, march right over this guy on the sidewalk; and kids sitting on the street, on Queen Street, with V-signs up, and the police simply rush over them. I mean, there’s many, many examples of it. All the police knew all of this was on camera. There was�there were�what was it?�more than 170 cameras. Every single thing that went on was taped, which means they knew that all this hitting with batons and the level of force that was used was all being taped, yet they do it with a kind of sense of impunity. I guess it boils down to, where is the training for this? I know there’s�stuff happens on the streets of Toronto all the time, but not like this. And so are you going to look into how do the police get trained, who created the culture for this weekend, and was that inappropriate?

MCNEILLY: Well, I can tell you that I’m going to be looking at how the police generally prepared themselves for policing the G-20 in Toronto during that period, and part of that will be looking at what training was provided to officers on the ground, what training was provided to officers for the detention center. So, yes, I’ll be looking at preparedness, how they prepared themselves, and how officers were trained.

JAY: And who did the training.

MCNEILLY: And who did the training.

JAY: Thanks very much for joining us.

MCNEILLY: Thank you.

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

End of Transcript

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Gerry McNeilly has spent the past nine years as Executive Director of Legal Aid Manitoba, a quasi-independent body reporting to the provincial Department of Justice. He oversaw a $22 million budget and supervised a staff of 170, including lawyers.

Prior to that, he served for four years as the Chair of the Board of Inquiry for the Human Rights Tribunal - now the Human Rights Tribunal of Ontario. McNeilly helped transform the Human Rights Tribunal from an ad hoc organization to a standing tribunal, which involved developing rules, procedures, and processes as well as hiring and training adjudicators and mediators.

McNeilly has also served as a justice of the peace and deputy judge. He has extensive experience in change management and was involved in the establishment of the Unified Family Court System in Ontario.

He obtained his Bachelor of Arts from York University and his LLB from Queen’s University Law School.