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Howard Morton: It appears government doesn’t want to test Public Works Protection Act in court

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to the The Real News Network. I’m Paul Jay. A few weeks ago, during the G-20 in Toronto, one of the most controversial elements of the weekend was the imposition of a piece of legislation by the Ontario government called the Public Works Protection Act. I had a little go-to with our chief of police in Toronto, Bill Blair, about this at a press conference. Here’s a little clip of that exchange.


JAY: The act allows, essentially, for elimination of probable cause for search and seizure.


JAY: I can read it to you.

BLAIR: Yeah, by all means. I’ve actually read it at great length. It’s an act that in fact has been in the province of Ontario since 1939. Its authorities have been tested through the Ontario Court of Appeal and upheld. It’s not an act of which we are not familiar. It is an act, by the way, that we use to secure our courts in Ontario. I’m responsible for court security in Toronto, and also for our police facilities, our railways stations, Union Station. So we are quite familiar. The authorities in that act are limited, as all authorities in provincial and federal statute, by the Charter of Rights and Freedoms.

JAY: Do you consider it a standing act, or something that has to be applied in a specific case with a named building?

BLAIR: It’s a standing act. But if you read it carefully—and I hope you have the opportunity to do so—you will notice that the province of Ontario has the ability to designate a place by regulation where the act may apply, to designate a specific place and for a specific time. That was done in this case.


JAY: So Chief Blair suggested I read the legislation. Well, of course, I had before I confronted him. But here’s a little piece of the legislation for those of you who have not read it. Section 3(a): “A guard or peace officer … may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and address, to identify himself or herself and to state the purpose for which he or she desires to enter the public work, in writing or otherwise”. Excerpt of the next section goes, the guard or peace officer “may search, without warrant, any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person”. And a little further down, just to seal the deal, Section 5(1): “Every person who neglects or refuses to comply with a request or direction made under this Act by a guard or peace officer, and every person found upon a public work or any approach thereto without lawful authority, the proof whereof lies on him or her, is guilty of an offence and on conviction is liable to a fine of … $500” or two months in prison. Another section says: “A guard or peace officer may arrest, without warrant, any person who neglects or refuses to comply with a request or direction of a guard or peace officer, or who is found upon or attempting to enter a public work without lawful authority.” And you’ll find in another section who gets to define what is an “approach”, what’s the boundaries of this public work. And, by the way, that public work can be any building; it doesn’t actually have to be a public building. The Ontario cabinet can more or less decide any building is a public work under this piece of legislation. But any guard or police officer under the act can define the boundaries of the public work, and if they define it so, it cannot be refuted in court, says the legislation. Many people have called this legislation something akin to martial law. Certainly, it has many of the elements of that. Only one person was actually charged under this act during the weekend. His name was Dave Vasey. Thirty-one years old, he was exploring the perimeter of the G-20 site at the [Metro] Toronto Convention Centre, outside the fence, where he was arrested, charged under the Public Works Protection Act, given a summons, told to appear in court. And I have to say, I interviewed earlier his lawyer, Howard Morton, and we had discussed at the time that what would likely happen when he got to court is the charges would be dropped, because in all likelihood the Ontario government and police probably didn’t want this Public Works Protection Act really tested. But when Mr. Vasey got to court, lo and behold, it’s not that the charges were dropped: they seem to have been lost completely. Now joining us to explain all of this to us is his lawyer, Howard Morton, who’s a well-known civil liberties lawyer in Toronto. Thanks for joining us, Howard.


JAY: So what happened? You got to court expecting something, and what did you find?

MORTON: Absolutely nothing. There was no information—which is a charge sheet, the actual piece of paper that represents the charge—there was no information before the court. Nor was Mr. Vasey’s name even on the docket, which is the list of all cases coming before the court on that day.

JAY: So what did they say? How did they explain this? Supposedly—I mean, he was arrested. You’re not allowed to arrest someone and take them off the street and not do anything about it.

MORTON: Well, that’s what they’ve done here. I mean, there’s only two possibilities, Paul. Either there never was a charge, or there was a charge and the government decided to bury it to avoid any further embarrassment over the sort of totalitarian nature of this particular act. If there never was a charge—I’m not sure which is more serious. But if there was never a charge—as you know, he was stopped under that section, he was arrested under that section, he was detained under that section, he was searched in public view under that section, and then he was taken to the detention center, where he was for about eight hours under that section. And then he signed what is called a promise to appear. It’s a type of bail which required him to be in a specific court on a specific day. And if he hadn’t have shown up in that court on that day, a bench warrant for his arrest could have issued, and he could have been charged with a criminal offense of failing to abide by the conditions set out in his promise to appear. So all of those things were done, presumably, because he was charged under the act. I’m coming to the conclusion that there never was a charge.

JAY: The attorney general’s office apparently sent an email to the newspaper The Toronto Star, and in the email they say no charge appears to ever have been filed with the courts, and they say, direct further questions to the police. And then you go to the police, and the police say, well, it must be some administrative error. This whole thing is turning into a bit of a circus.

MORTON: Well, look, do you think with a charge in the statute that had this much publicity and this much controversy, that they would allow some administrative error to take place? That’s utter nonsense. My view is there never was a charge. The entire dealing with Mr. Vasey was a ruse by the police. He was unlawfully detained, unlawfully arrested, unlawfully searched, right on the street. And for that reason, no charge was ever laid after that.

JAY: So as you said. But it’s hard to know which is more serious, the Public Works Protection Act, which is obviously a pretty draconian piece of legislation, or whipping someone off the street with no charge whatsoever. What is your client’s next step?

MORTON: Well, the only step he has now, because we can’t test the legislation in the course of defending him on the charge, so his only step now is to bring a law suit against the government of Ontario, the Toronto police, and the Police Services Board with respect to his unlawful detention and search and so on.

JAY: And is that—he is going to launch such a suit?


JAY: So let’s talk about, then, the status of the piece of legislation. Part of that confrontation I had with Chief Blair is he said that this piece of legislation had been tested in the courts and it had been found valid. I mean, is that true? Has this thing actually ever really been used?

MORTON: It may well have been tested prior to the Charter of Rights, but this particular statute and the way it’s been applied (by way of regulation) certainly contravenes the Charter of Rights, and there’s no case, to my knowledge, that says that it’s Charter-proof.

JAY: For American viewers, let me just explain. Canada did not have a kind of constitution with individual rights the way the American Constitution did. We had a Charter of Rights that was established in 1982, which took rights out of more or less common law and codified them in a charter. And so what we’re saying here is this Public Works Protection Act, which was originally passed in 1939 more or less to stop German agents from invading Canadian buildings and maybe assassinating Canadian officials, this legislation’s never been tested under this new Charter of Rights and Freedoms. And I guess what you’re saying, Howard, is if it was tested, it’s not likely much of it would stand up.

MORTON: That’s certainly my view, particularly when you can create an offense under the act simply by having few cabinet ministers meet in secret, at night, probably, behind closed doors, and pass a regulation defining what they say is now a public work and comes under the purview of the public works act.

JAY: So what’s happened over this G-20 weekend raises a very serious question, which is there’s various legislation that was used—the Public Works Protection Act for only one person, but in a more serious way, something called “breach of the Queen’s piece”, which seems almost as obscure as the Public Works Protection Act, also just declaring various times during the G-20 certain assemblies of protesters as simply being illegally assemblies, just declaring it so. What it amounts to is that the right of free assembly gets eliminated under this process, which you can arrest people, but as long as you let them out within a day or two and then drop all the charges, no harm, no foul, apparently, except the harm is they actually lost the right to protest, and many of them spent at least a night in jail, and some of them more. So what can people do about this? How are people going to actually assert that there is a right to assembly and protest?

MORTON: There are a number of reviews that are being undertaken. The ombudsman of Ontario, for example, is looking at the public works act and the regulation and the manner in which it was passed. The Police Services Board has also announced that they’re going to hold some sort of independent review. But up to this point, they say they’re not going to look at what actually happened on the street. And, now, how you can come to any conclusions about the G-20 weekend without watching hours and hours of video of the police abuse and loss of civil and human rights by individuals, many of whom were not protesting or there for a protest, they were simply going to lunch, going to work, or otherwise? I mean, these people were all detained, prohibited from going the way they were going, and many of them were arrested and taken to the detention center.

JAY: And is there any discussion about repealing the Public Works Protection Act? Did any of the parties at the Ontario capital, Queen’s Park, actually talked about trying to repeal this piece of legislation?

MORTON: Oh, absolutely not. In fact, the attorney general hasn’t uttered a peep about the legislation or the regulation or the increase in police powers under the regulation. And as you know, Paul, as the chief law officer of the Crown, the attorney general is ultimately the one who is responsible for enhancing or increasing police powers.

JAY: And, of course, there’s still the unanswered question, who asked Chief Blair to ask the Ontario government for that legislation, ’cause as we know, the Integrated Security Unit, which ran the policing operations and was run by the RCMP, which answers to the solicitor general, who answers to the prime minister, that whole chain is yet to be revealed. Who was it that really wanted this Public Works Protection Act? And why the heck would they want it, anyway? And perhaps some people have speculated it’s more about getting this stuff out there and sort of get the public used to this kind of legislation.

MORTON: Well, as you know, throughout history that has happened. Whenever there is a perceived need for greater security, then there is a loss of civil liberties. And they count on the public, in the interest of being secure, [to] prepare to give up a number of their civil and human rights.

JAY: Thanks very much for joining us, Howard.

MORTON: Thank you, Paul.

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

End of Transcript

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