The tornado of injustices of late has wrought a clash of rights proving that truth is stranger, more tragic, more horrible even, than fiction. A pandemic causing mass public anxiety and restrictions on crowd congregations, plus physical distancing rules, plus George Floyd anti-racism protests in the U.S. and Canada, plus U.S. mass arrests of protesters and global news coverage with headlines about racism, police brutality, rioting and looting and some arrests of protesters in Montreal. All of this involving issues of liberty, due process, discrimination, equality, freedom of assembly, freedom of speech and the limits of protest. A lot of people in a lot of pain with no justice in sight.
The COVID-19 pandemic rendered a global over-policing pandemic, without justification. In Canada, thousands of COVID-19-related tickets handed out, people carded or otherwise ticketed or detained for no good reason. The Canadian Association of Chiefs of Police urged discretion but they were ignored by too many mayors, police chiefs and bylaw officers. Then came the protests over the far deadlier virus of racism.
Over the past decade, the watchword for better policing became de-escalation — an elegant way of communicating through military jargon that police should stop making everything worse. But then when the U.S. needed it most, they got the opposite — escalation. The response to protests against police brutality was more police brutality, said the American Civil Liberties Union (ACLU). The American protests triggered by the horrifying video of Floyd’s asphyxiation by Minneapolis police have, according to one count, resulted in more than 10,000 arrests. And counting.
Canada has not seen mass arrests in response to its own anti-racism protests, to date. Finally, the shooting of black Canadians was getting the attention it deserved, but thus far, the protests have been policed differently in Canada, although that may be a matter of perspective, or at least from where you get your news.
All this is taking place amid the ongoing public health emergency orders that severely restrict large gatherings. By and large, these protests have been peaceful events expressing solidarity with Americans and drawing attention to Canada’s own police brutality, racism and discrimination. Even in Montreal, where police and protesters have had significant clashes in the past, the police tweeted their support for protesters and condemned the actions of the officers involved in Floyd’s death.
That said, Montreal police used pepper spray and tear gas after they say projectiles were being thrown at officers and arrested about a dozen people involved in looting and vandalism. This was preceded by a three-hour-long peaceful march through the city. We think that a dozen arrested are probably a dozen too many, but it’s obviously not the American experience of over 10,000 arrests.
Nor is it the ugly experience we had in Canada almost 10 years ago, when thousands of people took to the streets of Toronto to protest on issues that G20 leaders were meeting to discuss: the environment and the global economy. But once the police started to unreasonably restrict these protests — and started arresting people en masse — the protests become almost exclusively about abuse of police power. The result was that Canada saw the largest mass arrests in Canadian history. We are still learning the lessons from the various reports and reviews that sprung up post-G20, one of which we authored upon the conclusion of the G20 summit.
The freedom to express yourself, to assemble peacefully, to associate with others, are all fundamental and protected by the Charter, and police have a duty to facilitate the exercise of these rights. Powers of arrest and detention must only be exercised against individuals where there are reasonable and probable grounds, not based on mere suspicion and notions of guilt by association. Great latitude is needed to permit people the freedom to express their profound pain over profound injustices.
Further, following the fatal shooting of Sammy Yatim by a Toronto Police Service officer, de-escalation quickly was seen to be a better way to police, as demonstrated by the commendable non-violent arrest by Toronto Const. Ken Lam of the van driver charged with 10 counts of murder in 2018.
On the other hand, there is the common refrain, sounding sensible but willfully blind, that police are expected to protect everyone, and all their property. At times, police duties can appear to be irreconcilable, though it is never the civil liberties of a majority that are bludgeoned during a protest.
It was just a few months ago that many Canadians were expressing their frustration that police were not over-policing Indigenous protests that were blockading Canada’s railway lines. The argument was that if protesters are breaking the law, they should be arrested and held accountable. But officers must be able to use their discretion. Sometimes this will mean taking no action — even in the face of illegal acts. Officers must be able to assess the situation on the ground and determine when escalation will result in more harm than good. In some communities, police and groups that engage in protests have good and long-standing relationships — they work co-operatively to ensure that the right to protest is facilitated and public order is maintained. But the conditions that allow for this kind of co-operation are rare.
Lastly, there are obvious ways in which police may antagonize protesters. The increasing and ongoing militarization of police forces in the U.S. means that police gear and weapons are more likely to cause a visceral reaction in protesters, setting up a dynamic where police and protesters are bound to clash.
In Canada, some police services have learned some lessons from G20 mass detentions, and tragedies like Oka and Ipperwash. But first a lot of innocent people were kettled (confining protesters in a small area) in Toronto, Ronald (Lasagna) Cross was brutally beaten by the Sûreté du Québec, and Dudley George had to die, shot dead by an OPP officer. The great tragedies of protest in Canada are always perpetrated against the disenfranchised, at the hands of police, with complaints about public anarchy and police indifference being more politically than factually driven.
Michael Bryant is the executive director and general counsel of the Canadian Civil Liberties Association. He was the 35th attorney general of Ontario. Cara Faith Zwibel is director, Fundamental Freedoms Program, at the Canadian Civil Liberties Association.
This article was originally published by Law360™ Canada – providing Canadian legal news, analysis and current awareness for lawyers and legal professionals who need a real-time view on the shifting legal landscape.