Lawyers Paul Copeland and Howard Morton discuss the major review of police actions during the
Toronto G-20 and if there has been accountability
PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay.
Well, the last of the three big investigations into the actions of the Toronto Police at the G-20 in 2010 is now in. The review, independent review commissioned by the Civilian Oversight Board of the Toronto Police was issued on Friday morning. A few months ago, we had the report from the Ontario Independent Police Review director, which is Ontario-wide. About a year before that, we had the ombudsman’s report. And so now, apparently, this has been thoroughly investigated. Recommendations have been made. But the question is, for me, can this all happen again? That is, could we have more mass arrests, more violence, more excessive use of force by police against peaceful protesters in Toronto?
Now joining us to discuss these reports and help answer this question are, first of all, Howard Morton, sitting on your right, if you’re watching here. Howard is a criminal lawyer. He’s a member of the Law Union of Ontario. He’s been a prosecutor for the province of Ontario previously, for 17 years. He also ran the Ontario Special Investigations Unit, which investigates wrongdoing by police throughout Ontario. Thanks for joining us, Howard.
HOWARD MORTON, CRIMINAL LAWYER: Thank you, Paul.
JAY: And on your left is Paul Copeland. Paul is a lawyer. He’s been a director of the Law Society of Upper Canada since 1990. He’s a member of the Order of Canada. And he’sâ€”has a long list of other credentials, whichâ€”I don’t have all of it in front of me. But, Paul and Howard, you’re both renowned. Thanks for joining us.
PAUL COPELAND, DIRECTOR, LAW SOCIETY OF UPPER CANADA: Pleasure.
JAY: So, Paul, why don’t you kick things off? So the basic question is: has there been real accountability now? And could this all happen again?
COPELAND: I think there has not been real accountability. What you’ve had is snapshots of different pieces of the action. But there’s been nothing whatsoever to look at what the federal government did and how they caused all of this, so that there has been no responsibility there. And I think it could happen again. There are some recommendations that Mr. Morton made which may help in relation to some aspects of it, but without an overall viewing of it, I think we’re likely to see something similar, assuming that they’re stupid enough to have another G-20 meeting in downtown Toronto.
JAY: Or something of the sort. There could be mass protests over any sorts of things. It doesn’t have to be G-20. But I guess that wouldn’t necessarily then involve the federal government. Howard, what’s your basic take?
MORTON: I agree with Paul. There has been no accountability in the sense of actually doing something about the police conduct that weekend. And it goes far beyond the G-20. I can tell you in a very mini version. Much of the police conduct that you saw during the G-20 weekend happens on a weekly basis in certain neighborhoods in this city. And what the reports failed to do, in my view, is to get at the real root of the problem.
The real question, Paul, is this: what is it that leads trained, experienced police officers to act in a way that contravenes several provisions of the Charter of Rights, engaging in what I view as being criminal activity, taking your badgeâ€”their badges off so they can’t be identified? What is it that causes officers to do that? And although the Morden report recommends more training, more interaction with the board, it suggests that the lack of lead time had a lot to do with this. But I say that none of those things go to the heart of the issue: where is the accountability of individual police officers to obey the law?
JAY: And, Paul, the issue of criminality, if you look at the independent review which was done for the civilian oversight board, the one that that was released on Friday, he mentions in the bigger portion of the report, when he’s going over the training materials, that it actually saysâ€”there’s a sentence there where he says that police officers were told if they use excessive force, they could face criminal charges. Now, the ombudsman said excessive force was used, including, he said, to remind everyone, it was the gravest violation of civil rights in the history of Canada. The Ontario police review director, Gerry McNeilly, he said there were many, many instances of excessive use of force. So where’s the criminal charges? And I guess my question to you, although it’s a bit of a softball, ’cause I guess I know how you might answer, but can there be real accountability without criminal charges, at least if we’re talking accountability at the level of the police and those who gave them direct orders? And, of course, we’ll talk about, soon, another issue of accountability when we talk about the political masters here.
COPELAND: Well, the criminal charges, the only way criminal charges get laid against police officers other than a private citizen going to see a justice of the peace is through the Special Investigations Unit, and there’s been nothing come out of them. I’m sorry. I’m getting a signal.
MORTON: It’s one charge.
COPELAND: One charge that’s come out of that.
JAY: Yeah. There was one thing, I think, with theâ€”I think it’s theâ€”his last name is Nobody. There was one guy who was beaten up when he was arrested. And is that, Howard, where there was some charges laid?
MORTON: It is. And you’ll recall, Paul, that initially it was investigated by the SIU, and they concluded that because they couldn’t identify anybody, despite the fact that there was videotape, that there would be no charges. It was only when an independent lawyer, a counsel here in Toronto, located a person who had taken some of the videotape and submitted an affidavit to the SIU that that one charge was laid. And apart from that, there have been no other charges whatsoever.
JAY: And just for people who haven’t followed this story, both the ombudsman and the Ontario review stated that there were many, manyâ€”I think the ombudsman put the number in the hundreds, but certainly there were hundreds of instances of, quote-unquote, excessive use of force and no criminal charges other than this one instance we talked about. So my question is: how do you have accountability if there’s no use of the Criminal Code in these situations?
COPELAND: Well, you don’t. I don’t think there is accountability for what the police did. And even getting into the issue of removing the nametags, they were docked one day’s pay, which isn’t, in my view, much of an accountability. It’s a very serious matter, in my view. You go out to a demonstration as a police officer, you’re obliged to be wearing your identification, at least on the Toronto force. And to take it off just means you have a license to do whatever you want to do, with less possibility of being identified.
JAY: Nowâ€”and part of this is the culture or the training of the day. In today’s report, there’s a little reference to how the video and pictures that were given to the police as part of their trainingâ€”all protesters were depicted as anarchists there, everybody’s wearing black, everybody’s potentially violent, and so on. Soâ€”but that still didn’t answer this question, which I’ve been asking throughout all of the reports we’ve been doing. Everything’s on videotape. All the police know it. Everybody in the city knew that everything was on videotape. So when you take off your badge and you start smacking people and riding your horses over them and such, you know somebody back in command center in Toronto and command center in Barrie is seeing all of this, and you don’t seem to care. So there’s something in the way the whole culture was created. What do we know about that, Howard?
MORTON: Well, you’re quite right, and Paul’s quite right, for example, to use the example of taking your badges off. You only do that if you’re going to do something that’s either criminal, unlawful, or illegal. And those officers did that. And I would have thought that at a minimum they would have faced very serious suspensions.
The problem with criminal charges, Paul, is they can only be laid where there’s an honest belief that a crime, an actual criminal offense has been committed. And my view is that there were a number of criminal offenses committed that weekend. But there’s a whole other rash of conduct that fell just below criminality, and absolutely nothingâ€”to date, anywayâ€”has been done about those, except it appears that Chief Blair is proceeding with some of the charges recommended by the McNeilly report.
JAY: Paul, theâ€”. Yeah, go ahead, Paul.
COPELAND: Well, the only thing I was going to say is that in York Region they didn’t proceed with them, because the board wouldn’t allow the charge to proceed after six months, or the discipline matter to proceed after six months. So the cop from York region is not suffering anything as a result of his conduct.
JAY: Yeah, go ahead, Howard.
MORTON: No, I agree. I have nothing to add to Paul’s comment.
JAY: Yeah. Well, so, I mean, if the underlying issue here is, one, police can commit crimes with impunity on videotape and suffer no consequences, none of the reports that I’veâ€”I mean, I’ve been through most of the reportsâ€”all of them. None of them call for criminal charges against any of these players, even though clearly it is a violation of law for excessive use of force. And the report today is all about how the civilian review board should be more effective. And I guess there are some useful suggestions in that. I mean, if you just take that part for now, what do you make of that, that the justice said that the civilian oversight board was essentially ineffective and a sideline observer of what was happening?
MORTON: Well, they were asleep. I mean, they haven’t been doing their job for a number of years. The reason for that, and without getting into too much detail, I hope, is that there has always been in common law a principle that the political masters of the police will not engage in operational decisions made by the police, the day-to-day policing and investigating of crimes. The reason for that principle came up in a number of cases in England, for example, where the police commissioner was told that the police should not be investigating bawdy houses or gaming houses. So I understand the historical principle.
But it seems to me that if you’re going to have accountability, the Police Services Board should be able to direct, in a broad sense, operational matters. And the difficulty I have with the Morden report is that he’ll only go this far. His report says that the chief and the Police Services Board should have a free flow of information and the board should be able to make recommendations about operational matters. But then Justice Morden states that it’s up to the chiefâ€”he has the final authority as to whether or not he accepts those recommendations. Now, you may well say, well, what chief of police would be crazy enough not to accept a recommendation? And, quite frankly, I don’t think our particular chief that I have a lot of respect for would fail to comply with a recommendation. But what is there to say in the future that some chief will just go off on a frolic of his or her own and do as they please, and without any concern with what their political masters say?
JAY: Paul, what did you make of that part of the report?
COPELAND: Well, that part of the report is amazing to me in how critical it was of the functioning of both the Toronto Police Services Board and, presumably, every other police services board in the province. It says they didn’t understand what they were supposed to be doing and they have to do a much better job, they have to be much more informed about what’s going on. And that goes way beyond just the issues of a mass demonstration in Toronto. One of the things that comes to mind when I was reading this was the general strip search statistics in Toronto, which are very high, and the board has done very little in the way of curbing any of that, even though there’s a decision from the Supreme Court of Canada in the Golden case saying it shouldn’t be a routine matter. So the board has not carried out its function, and he’s pointed it out very clearly in this report that they’re not carrying out their oversight function.
JAY: Now, the other issue is the issue of the federal government and the role of the RCMP. This report on Friday at least suggests (and it’s kind of odd that all they can do is suggest) that it was really the RCMP that was the leader of all this. But we had another report, a fourth report just, I guess, a couple of months ago, which is the RCMP civilian oversight report, which completely exonerated the RCMP of any wrongdoing. So they had nothing to do with any of the violations of civil rights, and it’s all the fault of the Toronto police and the OPP. But I actually don’t understand that, because the RCMP was the operational head of what they call the Integrated Security Unit, and in this report today, he says that the Toronto Police had to subordinate themselves to the leadership of the RCMP. And we know Chief Blair actually went on a CBC Radio show saying it was all a federal show. But nobody’s putting any real scrutiny on the role of the RCMP and, then, the political masters, who oneâ€”it’s hard to believe they would have stayed out of all this. Paul, what do you think of that?
COPELAND: Well, again, the whole question of the functioning of the RCMP and the people who’ve been the head of the RCMP over the last number of years, it just has not been adequate control of that organization, and nobody’s done anything about the behavior. I mean, one of the things Mr. Morden talks about in here is that when the Toronto Police wanted to get off theâ€”I can’t even remember the term, but the line, the fenced area, it took 12 hours for the Mounties to come in and replace them while all of the vandalism was going on in downtown Toronto.
JAY: Well, Howard, what do you make of that rationale? I mean, I don’t know. I find this so dubious. I mean, everybody’s been asking the question: why did the police hang back while all the police cars get burnt and windows get trashed? And you had reports of police at the time, ordinary policemen saying they were told they couldn’t intervene. Now we’re being told the reason that is is they had to stay in that area as part of their assignment of how to protect the leaders. I mean, I don’t get this. The routeâ€”they had infiltrated some of the people involved in black bloc tactics. They had actually had, in the back of one of the police cars, the website of one of theâ€”I think it was the Southern Ontario anarchist association or something like that, where they even said what they were going to do. They were going to go on, they were going to break off the route, go down Queen Street. I mean, all of this was knowable, or most of it. How can they not know they’re going to have to move up into this area? Instead, they have to stay there and wait for 12 hours for the RCMP. What do you make of this?
MORTON: Paul, they knew exactly what was going to happen. And one of the criminal charges that I defended was a conspiracy charge laid against 19 individuals. Two undercover police officers were a member of that group right up till aboutâ€”one of them was discovered about a month before G-20; the other one was never discovered until after the arrests. So they clearly knew what was going to happen.
And to go back to Paul’s original point, much of this will remain a mystery, and we will never know. And the reason for that is the snapshot reviews that Paul referred to are only looking at certain segments. I know that the New Democratic Party in this province put forward a bill to have a royal commission that could have looked at all aspects of the G-20 weekend, including the role of the RCMP and the federal government, and that bill was defeated by the government, and was also voted against by the leader of the opposition, the Conservative Party. Similarly, the federal government has completely avoided anything that would suggest that they should give an account of their role in this. So, much of this remains a mystery.
And I think that goes to one of your original questions: could it ever happen again? Well, if we don’t understand fully how it happened this time, then I’m very concerned that something similarâ€”presumably not a G-20 or something like that, but that something similar will happen again. And as I say, in various neighborhoods in this city, misconduct on the part of the police occurs on a weekly basis, and nobody’s getting at that. And until you get at that problem, there’s a real danger that this will happen again.
JAY: Right. Paul, one of the things that I’ve been saying that I think is one of the most dangerous things was what happened to journalists during the G-20. Journalists who were wearing credentials, both press credentials in general and specific credentials for the G-20â€”our journalist is one. Another is Steve Paikin, I thought, was particularly egregious. This is outside the Nova Hotel [Novotel], when there were several hundred people sitting peacefully and ordered to leave after they start beating several people, including a journalist, and they order the people to disperse with no exit to disperse to, which has been criticized in some of the reports. Steve Paikin’s standing completely off to the side. Now, for those who don’t know, Steve Paikin is a very well known television host in the public broadcaster in Ontario, hosts a daily news show, and we’ll putâ€”down below this video you’ll see an interview I did with Paikin after this. Steve Paikin’s told by the police, either you leave or you’re going to be arrested along with everyone else. And in fact they did arrest most of the people sitting there, and Paikin did leave to avoid arrest. But what does this mean? If a journalist cannot stay on the scene, out of the way, which Paikin was, but on the scene and report on what police are doing, then how is there any public oversight of police actions? It boggles my mind. And it also boggles my mind that most of the journalists haven’t said a word since G-20 about all of this.
COPELAND: Well, it boggles my mind as well. Obviously, the police, in wanting to get journalists out of there, is thatâ€”nobody there recording what’s going on. And that’s not appropriate in a free and democratic society.
JAY: But is there any legal right of a journalist to stay on the site? I mean, do the police have the right to order a journalist out of there, even though they’re not in the way of what the police are doing?
MORTON: The only thing they could use, Paul, to do that would be this preventative breach of the peace power that they believe they have. If they thought the presence of a journalist or any other person was contributing to the likelihood of a breach, then presumably they would try and use that power to do it. But with respect to journalists, as you know, our Charter of Rights (which is similar to the American Bill of Rights) in Section 2 guarantees freedom of speech, including freedom of the media. And several cases have said in the clearest of terms that of all of the provisions in the Charter, the one you have to worry about the most of losing is Section 2, freedom of the press in this case, because if you lose Section 2, it will surely follow that you will lose every other right covered in the Charter of Rights. And what the police did that weekend was they kidnapped our Charter of Rights, which is the supreme law of this country.
JAY: The issue of journalists and staying on the scene and such, when I’ve asked some of the gentleman who wrote these reports and reviews, everyone says, well, it’s outside my mandate. None of the reports refer to it except, as I said, one, Gerry McNeilly’s, which kind of mentions that there was confusion over credentials, which really hasâ€”I can’t see has anything to do with it. But the use of the breach of the Queen’s peace, which I think was what those people at Nova Hotel were arrested and most of the thousand were arrested, and it was what was threatenedâ€”Steve Paikin and other journalists were threatened with. But my understanding: a breach of the Queen’s peace isâ€”first of all, it cameâ€”legislation that came out of something that gave police a way to stop bar fights, so they could take two people that were about to fight outside a bar and let them sober up and let them out again, ’cause my understanding is you can’t even really pursue the charge of breach of the Queen’s peace. You can arrest somebody, but you have to let them go, ’cause there’s nothing you can do with that charge afterwards. It’s a common law charge, if I have it right. And the other part of it is, in the independent review committee’s report, he says there has to be expectation of violenceâ€”not just a crime, but violence. And people sitting quietly outside Nova Hotel, most of those arrests are not expectation of violence, so it’s such a misuse of that act. But what do we do about it? And there’s been almost no talk about it.
COPELAND: One of the ways that may come out of it is through some of the class actions that were commenced. It’s thought, and probably more so in the United States than Canada, that sometimes civil litigation is a way of changing police behavior. Now, I don’t know what the status of any of those class actions are. I don’t know whether they’ve been certified or where they are at the present moment.
JAY: Okay. Well, Paul, start with you, and then Howard. Just to sum things up, what should be done now to actually give real accountability and take some steps so this doesn’t all happen again? I mean, what would you like to see?
COPELAND: I would like to see a public inquiry that actually looked at the whole picture and looked at the role of all of the players in it, looked at the role of the federal government, looked at what they caused to happen, look at the role more closely, the role of the RCMP. I think that’s essential. And I don’t think we’ll see it. I don’t see any political party that’sâ€”other than the NDP, but a political party that’s in power that’s interested in doing that. I don’t think Dalton McGuinty’s interested in looking at what they did, and I’m sure that Mr. Harper’s not interested in looking at what he caused.
JAY: And I have to say, just before I ask you, Howard, the federal parliamentary hearings, the questioning from the NDP wasn’t much better than the questioning from the other parties. All they focused on was how much money was spent, and they did very little questioning in terms of the issue of civil rights. But, Howard, let me ask you the same question. How do weâ€”what do we need now?
MORTON: I too would like a public inquiry where the commissioner would have full powers of subpoena, both of persons and documents, etc. But I think in addition to that my concern is all of these recommendationsâ€”and most of them are very goodâ€”do not go to the heart of the problem, which is: in any situation, G-20 or otherwise, how do we ensure that the police abide by the Canadian Charter of Rights and Freedoms and not engage in conduct which is completely abusive and illegal, and in some cases criminal on their part? That’s the root of the problem.
JAY: So what’s the answer to that question?
MORTON: I don’t know. I honestly don’t know. It could be in better recruitment policies. It certainly could be in greater training. One of the ways you could enforce it, for example, was the officers who removed their badgesâ€”and they would only do that if they were going to do something they didn’t want to be caught atâ€”those officers at a minimum should have been suspended for six or 12 months, at a bare minimum, in orderâ€”that’s the only way you will teach the police, in my view, that they’re not to engage in certain conduct. A day’s pay with their salaries, which are veryâ€”well, they’re not extravagant, but they’re reasonable, that’s not even a kiss for the conduct that they engaged in.
JAY: Well, when it comes down to G-20, I think there’s clear evidence that the culture of excessive use of force and mass arrestsâ€”and the ombudsman, I thought, made a very important point was this idea that you could search and seize people all over downtown Toronto, supposedly, using the Public Works Protection Act was illegal, it was a violation of everybody’s rights, which means illegal detention of all theâ€”most of these people that were searched, seized, and then arrested, detained. Paul, in terms of the more general question Howard’s raising, how do you deal with this? I mean, does it have something to do with a more effective civilian oversight board?
COPELAND: Well, that’s part of it. I mean, presumably the Police Services Board, if they were doing their job, might be able to recommend certain types of penalties in discipline matters, police discipline matters. As Howard said, the one day’s pay was not enough of a deterrent to affect the behavior, and I would think if there’s another demonstration in Toronto, you’ll see a whole bunch of officers removing their badges again. But if the board put out policies that made it clear that there were going to be serious consequences for that, it may change the behavior.
JAY: But, anyway, the problem, I think, is so much more at the officer level, at the command level, and then the political level, because, you know, in theory, everyone being on videotape should have been enough intimidation to police, badge number or not, and that didn’t slow them down a bit. So they had to know that they weren’t going to suffer repercussions. Anyway, final word, Howard.
MORTON: Well, I don’t know what I can add, Paul. I think we have to have a much broader look at the whole G-20 weekend for the purpose of ensuring that police misconduct, whether on this scale or not, does not occur again.
JAY: Right. Okay. So, final verdict on these reports. Some contributions and some specifics. I particularly thought the Ontario ombudsman report was at least powerful in describing how serious the problem was. But in the final analysis, I think we’re all agreeing here: no real accountability, and, yeah, it can happen again. Anyway, thanks very much for joining us, gentlemen.
MORTON: Thank you, Paul.
COPELAND: A pleasure.
JAY: And thank you for joining us on The Real News Network.
And don’t forget we’re in the final hours of our spring/summer fundraising campaign. So if you click “Donate” over here, you’ll trigger a matching grant and you’ll be able to see more of The Real News Network. Thanks for joining us. And we will be doing more on the G-20. The reviews may be done, but we’re not. Good night.