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June 2, 2012 - No. 22 Discussion on Quebec's Special Law and Related Issues What Lies Behind Charest Government's
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When trying to understand
the logic behind the Charest
government's suspension of civil liberties it is also instructive to
look at the
orientation received by the police forces in Ontario at the time of the
G8/G20
protests in Toronto in June 2010, which this issue of 
 "[Jean Charest:] Enemy of the earth, the north, the youth, the people." |
The Special Law attacks the right of association, the right to peacefully demonstrate and the right to conscience and freedom of expression. As such, it is tantamount to a war measure. As well, the Special Law states that it "contains further provisions to maintain peace, order and public security as well as various administrative, civil and penal measures to ensure enforcement of the law."
To justify the introduction and adoption of the Special Law in the Quebec National Assembly, the Charest government systematically created a crisis situation in the education sector. It waited for 13 weeks, while student strikes against the tuition fee continued across Quebec and were renewed week after week in general assemblies, and tensions increased. Then the Charest government declared that social peace, public safety and social order were threatened by the students' struggle and made their fight a law and order issue.
Before passing Bill 78, the Quebec government and the Ministry of Education, Recreation and Sports had at their disposal the political, legal and regulatory tools to address the demands of the students. They lacked only the political will to act. There was no need for the Special Law, unless their intentions are to crush all resistance to the Charest government's anti-social policies, as the onerous penalties under the law are designed to do.
The Special Law allows the Minister of Education, Recreation and Sports to cut student organizations' funding and to impose fines of $25,000 to $125,000 on them for disobeying the law. For an individual, the fines range from $1,000 to $5,000 for each day, and for a leader, employee, representative or spokesperson of an association or federation, from $7,000 to $35,000. Even leaders and representatives of institutions that violate the law are subject to these fines.
Article 9 of the Special Law shows the Charest government's hand, setting out the far reaching powers of the Education Minister. It states:
"The Government, on the recommendation of the Minister of Education, Recreation and Sports, may take all necessary measures to carry out sections 2 and 4 to 8, including specifying certain legislative and regulatory provisions as not applicable and prescribing any other necessary modification to this Act and to any other Act and its regulatory instruments.
"The Minister may, for those purposes, issue directives to institutions, which directives the institutions must comply with. Furthermore, any agreement entered into by institutions and associations of employees to comply with such directives must be approved by the Minister.
"Divisions III and IV of the Regulations Act (R.S.Q., chapter R-18.1), except its sections 15 and 20, do not apply to any measure taken by the Government under this section."
With this, the Charest government has given the Minister of Education, Recreation and Sports unlimited powers to ensure the implementation of and compliance with the Special Law, bypassing the bodies, committees and procedures that govern the study, revision, and adoption of laws in Quebec.
The Scope of the Special Law
The Special Law reaches beyond the student conflict. It is worth noting that the Charest government has launched its Northern Plan, with great fanfare, along with revisions to many laws (e.g., health, mining, agriculture, oil and gas, forestry, fisheries and environment). It is implementing radical changes to the post-secondary education system by applying the concept of "user pay," which is at odds with the Quebec-based social consensus to move towards free education at all levels. On his many trips abroad, Charest has sold the natural and human resources of Quebec, both literally and figuratively. He presents Quebec as a paradise for investors -- a place to safely put their investments, which the Quebec government is prepared to take all necessary measures to guarantee and protect. Production will not be disrupted by strikes and a highly skilled and educated workforce will be at their disposal.
The Special Law is similar to the Minister of Labour's attacks on construction workers and their unions through Bill 33. Under a false pretext of violence and corruption among the construction unions, the Charest government wants to circumvent and destroy the collective agreements that establish and regulate working conditions both current and future at Northern Plan worksites, preventing construction workers from demonstrating or assisting striking workers.
 "This is more than a student crisis, it's a social crisis. Education is a legitimate right -- protect it!" |
As well, the Special Law gives police unlimited and arbitrary powers to decide the character of an event (legal or illegal), its route, the threat to social peace, and the threat to order and public safety that it may represent. This law transfers the responsibility of the government and part of its power to police. Recent events in Montreal, Quebec City, Sherbrooke and several other cities in Quebec, have demonstrated the arbitrary nature of the application of the Special Law. The same events, however, have shown the difficulty for the government and police forces to enforce the law.
Montreal Business Community and Government Worried
On May 23, La Presse noted that 2,000 articles and reports have been published or broadcast in some 50 countries since the beginning of the student strike. On the weekend of May 18 to 21 alone, over 500 articles or television reports by foreign media were produced on the student protests. The student crisis is of particular interest to U.S. media, La Presse writes, "Montreal's image has taken a hit with all these negative stories. For three months now, what Montreal has shown to the rest of the world is a disappointing spectacle..."
Many festivals are held in Montreal, Quebec City and throughout the province during the summer. The organizers of all these economic activities are very concerned for their success. The Mayor of Montreal responded under pressure from merchants and the Montreal Chamber of Commerce and Industry in print and electronic media.
According to the business community, "Montreal has always had an image of being a quiet town where life is good. But now we see quite the opposite on the news every day. In business, everything is about perception and the perception is negative. A major asset that is being sold to investors is that Montreal is a university town that houses four campuses; it is the guarantee of a quality, unmatched workforce. Now, they look like revolutionaries. It must stop..."
The President of Montreal International, an agency that does economic promotion for the greater Montreal area, addressing the negative image being projected by Montreal, tried to temper it. "Investors understand that this is an economic crisis and it does not reflect the true social climate that usually reigns in Montreal," he said.
In its May 23 edition, the newspaper Le Soleil ran the headline, "Student Conflict: Disarray in the Government." The story read: "The members of the Jean Charest government are tired, confused, overwhelmed. They find, as all Quebeckers, that the last few days have shown that Bill 78 has resolved nothing.
"'People don't want to go backwards. But, at the same time, they're asking us to find a solution.' Now the 'only way to find [a solution]' said Mr. Gignac, 'is to backtrack on tuition fees. It's not obvious...'"
The Charest government
maintains and pursues its cynical and
contemptuous attitude towards students. But it can't conceal the
anxiety that
exists in its ranks, its fear of the spread of the social movement it
has created. "Charest has created a monster," writes La Presse.
Jean-Marc Fournier, Minister of Justice, stated, "Normally in a democratic society, we would accept that the law be applied and respected." To attract attention, he resorts to inflammatory statements such as "civil disobedience is a nice term for vandalism."
For his part, Minister of Public Security, Robert Dutil summoned the media to argue that the law doesn't "block demonstrations" but puts them in a "framework," and "The law respects the Charter of Rights and Freedoms."
Immediately following the adoption of the Special Law, Premier Charest and the Minister of Education, Recreation and Sports claimed that they remained "willing to meet," "to resume negotiations" and "to discuss with the student associations." Premier Charest even said, "Our door will always remain open" and "the government has extended its hand." It quickly became clear that the government is not interested in negotiating and the talks which started May 28 were ended May 31, with the Education Minister's declaration that, "It is clear we are at an impasse," even as the student associations' representatives were meeting to submit a new offer that respects the demand to fund universities without resorting to tuition increases.
In the event that an election is called, the Special Law limits for all practical purposes the legal activity of student associations, "employee associations" and social groups who would oppose the Liberal Party, its candidates and their anti-social policies. Meanwhile major events like those taking place day and night for the past 40 days continue in the streets of Montreal.
The Way Out of the Conflict
The resolution of this conflict requires the withdrawal of Bill 78. It requires that all charges and proceedings against protesters arrested since the beginning of the student struggle be dropped and withdrawn. It requires the Charest government retreat on increasing tuition. There must be a non-partisan political negotiation. It must also include the indictment of members of police forces that have engaged in attacks on protesters.
(Translated from original French by TML)
Special Law, "Henry VIII Clause" and the Role of Elected Officials -- A Disturbing Odor
"May 18, 2012: I promulgate a police state, John J. Charest, Emperor of Quebec."
"Bill 78 [passed by the] Liberal Party of Quebec and Coalition Avenir Québec [= fascism]"
In the media, commentators refer to the rule of law and the separation of powers, as what preserves our society. According to this theory, the legislature, which passes laws (the Quebec National Assembly), the executive, which executes the laws (the Council of Ministers, called "the Government") and the judiciary, which interprets and applies the law, evolve in parallel universes. This lack of intersection is often presented as absolute.
Yet, in our system, the separation of powers is imperfect. This imperfection results fundamentally from our parliamentary system, a British tradition, that the government is formed from among those elected who have "the confidence of the House," thus representing the majority. Beyond the anecdotal but nevertheless disturbing practices of the Premier's Office [...] the structural nature of the confusion among the powers under the current majority government led by Mr. Charest is clear. The increasingly rigid and constantly imposed "party line" also gravely emphasizes the phenomenon.
The Special Law [...] contains provisions (in particular Article 9) that give the Minister, and therefore the executive, the power to change the content and application of laws passed by the National Assembly. This kind of measure, by which Parliament authorizes the usurpation of its role, is called the "Henry VIII Clause," named after the famous king who ruled England from 1509 to 1547. Not known for his restraint and moderation, he introduced this instrument in 1531 to increase government power in a statute that delegated to an officer of the king, instead of Parliament, the power to enact taxes and to impose penalties with the same authority as if such taxes and penalties were fixed by Parliament.
A Parliament that passes a bill containing a Henry VIII Clause as extensive as that contained in the current bill shamefully abdicates its legislative power. In this context, unanimity seems to prevail among the troubled elected Liberals. Members who vote for this bill must be aware to what they have lent their support. The "party line" cannot authorize any abuse.
Elected officials, before being members of a political party and a caucus, are primarily those to whom their constituents have entrusted legislative power and a mandate to work to preserve its integrity. The National Assembly's website gives the leading role of the legislature first rank among the functions of members: the member's primary activity is to study, analyze and vote on bills. This is what each of them has sworn to do, honestly and fairly, taking the oath of loyalty. But Liberal members are preparing, in addition to attacking fundamental rights with an extraordinary lack of restraint, to surrender the National Assembly's power to legislate in favour of the Premier's office! The gravity of this undermining of our state contains unprecedented risks. To do so in the name of "the rule of law" ... is perhaps the ultimate irony.
Given the disturbing odour that emanates from the bill currently before the National Assembly and the remarkable unanimity among Liberal members about it, it is worth remembering that the first Henry VIII Clause was used in a law on ... sewers!
(This article was originally published in La Presse, May 18, 2012, the day Bill 78 was passed by the National Assembly. Translated from original French by TML.)
The Jurists' Argument
"The Special Law" for Dummies
After having let the conflict over tuition fee increases degenerate into a virtual social crisis, the Charest government adopted [on May 18] the most authoritarian legislation in modern Quebec history. The Act to enable students to receive instruction from the post-secondary institutions they attend (the "Special Law") was the legislative response to a political problem that has been going on for the last three months. Drawn up in haste, under a fairly naive premise, there is a good chance that several aspects of this repressive law will be struck down by the Courts that are to rule on its constitutionality.
Annihilation of Students' Right to Strike
For a government that spent the last three months negating the existence and the very concept of a "student strike," it is pretty surprising to see that it used the parliamentary weapon to annihilate so-called acts of "individual boycott."
Before the criminalization of the conflict by the multitude of preliminary injunctions that have been issued (unless I am mistaken no judgment on principle or even final judgment has been made to date), the Quebec Court was completely silent on the issue of the legality of student strikes.
Nothing prohibited student strikes. On the contrary, Quebec's modern history has been littered with student strikes. Accredited under the Act respecting the accreditation and financing of students' associations ("Act 32"), the student associations benefited somewhat from the Rand formula (all students must be members and pay dues, under Article 26 of that Act) and the monopoly representation of students (Article 28 of the Act, which states: "An educational institution shall recognize an accredited student's association or students' association alliance as the representative, as the case may be, of all the students or students' associations [...]"). It is on this basis that several post-secondary institutions signed strike protocols with student associations, once the latter had adopted strike mandates at democratic assemblies. It should be mentioned that some institutions require votes by secret ballot before recognizing the strike vote.
This is the custom that has prevailed in Quebec for decades.
The Special Law has annihilated the right to a student strike, without even a 24-hour study and a debate in the House. In effect, Articles 10 and 11 of the Special Law oblige the employees of an institution to "perform all duties attached to their respective functions, according to the applicable conditions of employment, without any stoppage, slowdown, reduction or degradation of their normal activities." In addition, Articles 13 and 14 of the Law prohibit any form of picketing with these words:
"13. No one may, by an act or omission, deny students their right to receive instruction from the institution they attend or prevent or impede the resumption or maintenance of an institution's instructional services or the performance by employees of work related to such services, or directly or indirectly contribute to slowing down, degrading or delaying the resumption or maintenance of such services or the performance of such work.
"14. No one may, by an act or omission, deny a person access to a place if the person has the right or duty to be there in order to obtain services from or perform functions for an institution.
"Without restricting the generality of the first paragraph, any form of gathering that could result in denying such access is prohibited inside any building where instructional services are delivered by an institution, on the grounds of such a building or within 50 metres from the outer limits of such grounds."
Labour unions and student associations are now responsible to "employ appropriate means to induce its members [...] not to contravene sections 13 and 14."
It is now common knowledge that the fines for violating these sections will be bitter, from $1,000 to $5,000 for an individual, $7,000 to $35,000 for "leaders" of student organizations and $25,000 to $125,000 for student organizations. In the case of subsequent offences, the amounts will be doubled (Article 26).
That's not all. Article 22 of the Special Law provides that a union or student association will also be liable for any damage caused by the strike action under Articles 13, 14 and 15, the damage being defined in Article 24 as "any additional cost assumed or loss of earnings or revenue incurred by anyone, including a student, an institution or the State." In summation, the state is making the students carry the financial burden of the student strike. I'd be interested to see how the courts will reconcile these items with the centuries-old rules of civil liability. Imagine for one second if a government were to adopt such a measure in the case of a strike or lockout in the workplace! Unthinkable.
Eradication of Dissident Student Associations
I referred to Act 32 in the paragraphs above. This law also requires schools to provide a space and furniture to a student association and to collect student dues on behalf of the association.
However -- and this is one of the most troubling aspects of the Special Law which is nonetheless ignored by most commentators -- Articles 18 to 21 allow the Minister of Education to order an institution to stop collecting student dues and supplying the association's space and furniture, for a full semester for each day of class disruption.
These provisions are a virtual atomic bomb launched against student associations who wish to continue their strike despite the Special Law. The government has just made sure that funding to associations that disobey it will be cut. It has ordered their death sentence. This is an incredibly violent attack against the right of association protected by our Charter.
One must remember that student unions do not just participate in political activism. They offer job-placement services, they subsidize and organize many social and cultural activities, provide educational support and a process for complaints and grievances, etc. Now only obedient student associations will be tolerated.
Criminalization of Spontaneous Demonstrations
The most publicized aspect of the Special Law was certainly the severe restriction of the right to protest, because it applies equally to all citizens of Quebec. Under this law, any spontaneous demonstration of more than 50 people is now banned in Quebec (Articles 16 and 17).
This means that the famous daily nocturnal demonstrations starting from Place Émilie-Gamelin are now illegal. But all spontaneous demonstrations taking place throughout the province could be subject to this prohibition. For example, demonstrations of Electrolux or Aveos workers, spontaneous demonstrations in the Portuguese, Italian and Greek neighbourhoods after the victories of their national teams at the World Cup or the Euro Cup are made illegal, as are gatherings after a victory of the Montreal Canadians hockey team. Even more absurd, guided tours for tourists and street performers in Old Montreal, the tam tams [drumming] on Mont-Royal and all other "spontaneous demonstrations" are also illegal. It is no longer just students' demonstrations that are illegal, or even the right to protest or freedom of expression, but rather the spontaneity and the festive nature of political, cultural and artistic demonstrations, for which our city is known.
Boomerang Effect
From the text of the Special Law and from the circumstances surrounding its adoption at full steam emerges a sad impression of improvisation. After helping to radicalize a student movement already on edge through its denial and contempt [for its demands], the Charest government thought to calm the situation with a repressive law. This reveals great naivete. The solution of this conflict is political, not legislative. If all problems could be solved by adopting a sloppy law at high speed, we would have long ago passed a law against stupidity!
With the Special Law, Charest sought to pose as the defender of law and order, launching a bombshell against the students, their associations and unions who supported them. But now it appears that the gunpowder intended for the students has flown back in his face, like the poor Dollard-des-Ormeaux used against the Iroquois, several years ago on approximately the same date.
Rather than stopping the protests, Charest is now suffering the boomerang effect of his own law, as a quarter of a million people demonstrated against the Special Law in the streets of Montreal on May 22. A quarter of a million! Students, but also workers, entrepreneurs, retirees, etc. By moving the debate away from the question of tuition fees to the fundamental rights of association and demonstration, Charest has broadened the scope of his opposition.
Charest wanted to play sorcerer and conjure up a law to get himself out of a scrape. He did so in contempt of and in the face of an entire generation. Despite numerous calls for dialogue, including that of the president of the Quebec Bar. Having contributed more than any other to cynicism about politicians, Charest has also managed the feat of creating cynicism about the law and the rule of law, by adopting this gag law.
From my desk on the 22nd floor in downtown Montreal, I heard the echo today of a quarter-million citizens who chanted: "The Special Law -- We Don't Give a Damn!" The fears expressed by our barrister are beginning to be realized: the rule of law is greatly undermined following the adoption of this Special Law. After the creation of the site www.arrêtezmoiquelquun.com by CLASSE, thousands of citizens have already published their names and pictures indicating they do not intend to comply with the law.
The dismay expressed by these citizens is as predictable as it is dangerous for the maintenance of our institutions. It is up to us as lawyers to restore people's confidence by attempting to overturn in court the provisions of this law which violate the fundamental rights of association, expression and peaceful protest, protected by our Constitution!
(Translated from original French by TML.)
Motions Challenging Special Law in
Quebec Superior Court
On May 25, student associations, union centrals and community groups filed two actions with the Quebec Superior Court to annul the Special Law. Those involved in the action include the Quebec Federation of College Students (FECQ), the Quebec Federation of University Students (FEUQ), the Broad Coalition of Student Union Solidarity (CLASSE) and the Quebec Student Roundtable (TaCEQ), as well as the Quebec Federation of Labour (FTQ), the Confederation of National Trade Unions (CSN), Quebec House of Labour (CSQ) and the Congress of Democratic Trade Unions (CSD). In total, there are some 140 claimants from 70 organizations who are part of the two legal actions.
The applications for a stay of certain provisions of
the Special Law and
declaratory judgment to nullify the law in its entirety expose the
extent of the
government's attacks against human rights and civil liberties, against
all the
people of Quebec and the irreversible consequences of the Special Law.
On June 4, the Quebec Superior Court will hear the application to have
parts of Bill 78 declared unconstitutional.
Motion for a Stay
According to a representative of Juripop, the legal-aid clinic that worked on preparing the two motions, "The motion for a stay is an emergency motion which seeks to suspend the application of certain articles until such time that the application to nullify can be heard. [...] This is sort of the equivalent of a preliminary injunction, but made when you attack the constitutionality of a law. "
The motion for a stay requests to "suspend the application of Articles 16, 17, 18, 19, 20 and 21 of the Special Law until the final decision on the motion to institute proceedings" in light "of the violation [of] rights, guaranteed freedom of expression, freedom of association and dignity." Sections 16 and 17 are those relating to the banning of demonstrations of more than 50 people in the law under the title: "Provisions to preserve the peace, order and public safety." Sections 18 to 21 of the law allow the destruction of student associations by order of the Minister of Education by suppressing their local contributions, under the title: "Administrative and civil action."
The urgency of the stay is explained as quoted by retired Superior Court of Quebec Judge, John Gomery, who pointed out on May 19, 2012 that, "The new law does put a limitation on free expression. The law is designed to be in effect for one year only, and then expire. In the meantime, I presume the police will use this legislation to crack down" and the president of the Quebec Bar Association who wrote on May 18, "Extending these limitations to fundamental freedoms is not justified to achieve the government's objectives. [...] Moreover, we criticize the criminalization of the debate and the recourse to the criminal courts provided for in the bill. "
For a stay motion to be heard, it must be shown that the expressed concerns constitute a "serious issue" versus a "frivolous and vexatious claim." To show the seriousness of the application and that the Special Law is invalid, sections 16 and 17 are examined in the first court action. The concerns stated in the court action include the following numbered paragraphs:
(17) With regards to holding an event [involving 50 people or more], we do not see how one can predict that there will be less than 50 people. [...] The figure of 50 is arbitrary.
(18) [...] Must the forecast be made for the start of the event, the event's unfolding or the end of the event? It is not known;
(19) Any spontaneous demonstration is prohibited. Section 16 considerably restricts the right to demonstrate, with an assortment of constraints that are unnecessary, severe, uncustomary and ambiguous, and that are difficult to respect in practice;
(20) Article 16 gives the police the discretion to demand the organizers change the venue [...]
(21) [the imposed and unjustified constraints] do not only apply to a protest on a public street, but any place open to the public. This includes a field, a park and even a parking lot in a shopping centre;
With regard to Article 17 which requires organizers of a demonstration, student associations or federations of students who participate to take "appropriate measures" to comply with section 16:
(22) What is meant by "appropriate measures"? This is very vague and ambiguous.
It is emphasized that for student organizations:
(25) The only real way to communicate their demands and solicit support is through demonstration. One must therefore identify the student demonstration as an action with the same characteristics as an information picket, an activity expressing the demands of the student associations;
And in conclusion:
(27) The Special Law -- the nullification of which is sought -- in particular Articles 16 and 17 attempt to discourage anyone from demonstrating;
The severity and violence of sections 18 to 21 of the Special Law by which the attack on the very existence of student organizations and the right of association are explained:
(29) Essentially, administratively, the Minister of Education may order an institution to stop collecting dues set by a student association, thus endangering the survival of the latter;
(30) The Special Law also allows, administratively, the Education Minister to order an institution to cease providing furniture, bulletin boards and displays to the student association for free.
These measures also extend to student organizations that are newly certified so that "such an association could never see the light of day or would not have a long life."
And finally:
(40) [...] the Special Law violates freedom of expression, the right to peaceful assembly and the integrity of this right for all.
Irreparable Harm Caused by the Special Law
In a motion to stay a law, irreparable harm from its effects must be demonstrated. The court action examines and explains why this is so, in that major damage is caused by the violation of rights because:
(43) Freedom of expression, the right to peaceful assembly and freedom of association are clearly rendered void [...]
Moreover, even if the Special Law is rejected and declared unconstitutional by a court in the future, it has been in effect since May 18, with full police repression, increased attacks against students and the people which are of direct consequence. What has been will remain prohibited. "We cannot go back," the application stresses.
Specifically:
(44 a) The restrictions contained in Article 16 of the Special Law apply to any special event, whether or not it has less than fifty (50) demonstrators. (...). Such an unauthorized demonstration cannot be redone or compensated if the Special Law and/or Article 16 are considered unconstitutional;
(44 d) The repair of injury to such person, organization, group organizer, is impossible, let alone the damage to a student association or federation of associations participating in a demonstration only;
(44 e) The penalties that may be imposed for violation of Articles 16 and 17 are heavy and cannot be compensated. Nor can imprisonment that could be ordered for non-payment of a fine imposed after a criminal complaint;
(53) A student association, a federation of student associations, or their successors, once paralyzed as they can be by the application of those provisions, will not be able to repair what has been damaged.
Balance of Convenience and Public Interest
In a "motion to stay" one must also establish the "balance of convenience." The "public interest" is supposed to be represented by the Quebec government and the Special Law is supposed to protect it.
It is demonstrated that the Special Law has an aim other than its stated purpose because:
(50) Existing laws, especially articles 63 and the application of the Criminal Code regarding "unlawful assemblies and riots" already give authorities an effective means to maintain peace, order and public safety; and, among other things, that:
(55) A suspension of the application of Articles 16 and 17 on the one hand and/or suspension of the application of Articles 18 to 21 of the Special Law does not cause inconvenience to the respondents (the Quebec government, the Minister of Education and the Minister of Public Safety) or at the very least, cause less inconvenience to the respondents as applicants and the general population.
(Translation of court actions from original French by TML.)
Approaching the Second Anniversary of the 2010 G8/G20 Summits
Investigating Criminalization of the Right to
Resist and Organize -- What
the Reports on
Police Conduct Fail to Mention
Almost two years after Canadians witnessed massive police force deployed against June 2010 G20 Summit protesters in Toronto, two reports have been released in the name of investigating police actions during the Summits, responding to public complaints about violations of civil rights, including arbitrary arrests, police violence, and tactics such as kettling protesters and bystanders. It is important to review the significance of the events at the G20 in and of themselves and especially because the mass arrests and violations of rights that took place in Toronto are part of a broader agenda of the state to hone its capabilities to criminalize dissent and violate civil rights on a mass basis that can be seen unfolding at this moment in Quebec with the Charest government's Special Law.
As TML pointed out at the time of the G20, the events in Toronto were not an aberration but part of a developing pattern of state activity meant to block the people and workers from having their say in the society -- whether it be on the right to health care, education and other social programs, opposition to war or a direction for society that serves a pro-social aim -- and turning the situation around in their favour.
On May 14 the Commission for Public Complaints Against the Royal Canadian Mounted Police (the Commission), chaired by Ian McPhail, released a report entitled Public Interest Investigation into RCMP Member Conduct Related to the 2010 G8 and G20 Summits (RCMP Report). On May 16 Gerry McNeilly, head of the Office of the Independent Police Review Director (OIPRD), issued a report entitled Policing the Right to Protest -- G20 Systemic Review Report.
The RCMP Report absolves the RCMP of any responsibility, let alone any wrong-doing. Even though the RCMP were in charge of the overall guidance of the Integrated Security Unit comprised of the RCMP, the Ontario Provincial Police (OPP), the Canadian military, the Canadian Security Intelligence Service (CSIS), and many municipal police forces, the RCMP Report states, "The RCMP's role in the security of the G8 and G20 Summits was largely limited to activities within the sphere of planning and protection of summit participants, as opposed to front-line policing and interactions with members of the public." It alleges that "While the RCMP, generally speaking, has legislated authority over and responsibility for the protection of international events and their attendees, the police force of jurisdiction, namely the Toronto Police Force in the case of the G20 Summit, retains its primary responsibility and authority for policing the City of Toronto."
It concludes, "In summary the RCMP's security planning process for the Summits was robust and thorough and that appropriate policies and procedures were in place [...] no RCMP members used unreasonable force, and that the RCMP's involvement in the kettling incident was reasonable in the circumstances and the RCMP had no involvement in respect of the Eastern Avenue Detention centre [and] with arrests carried out at Queen's Park, the University of Toronto or The Esplanade."[1]
The Report of the Office of the Independent Police Review Director focuses specifically on the activities of the Toronto Police. Its general thrust is that as a whole, the police were properly deployed, but there were some police officers, including senior commanders, who used excessive force and should be brought to justice. For example, it states, "During the G20 weekend and especially at Queen's Park, a large number of police officers removed their name badges. For the Toronto Police Service (TPS), this action was against its rules. TPS identified approximately 90 officers who were not wearing their name badges and docked them a day's pay. However, the fact that officers had taken off or covered over their name badges could not have gone unnoticed by senior officers on the ground. This means that senior officers chose to ignore this violation of the rules or tacitly approved of the behaviour.
"Without question, the attitude of senior officers toward protesters and toward the rules of their own services influences the behaviour of police on the ground and sets the tone for the police response. This attitude de facto gave individual officers approval to use excessive force with impunity. At Queen's Park, police were seen to be treating anyone who they deemed a demonstrator as threats to public safety. For the most part, this perception of police activity was accurate. In a statement to the OIPRD, Incident Commander Superintendent Fenton continually referred to crowds as 'protesters/terrorists.'"[2]
The release of these reports comes as Canadians are witnessing and condemning the similar use of force against the students of Quebec. It has become the new normal that wherever people protest in defence of their rights, they are tarnished as "criminal elements" and are confronted with the full force of "the law." The ignoble title of "the largest mass arrests in Canadian history" previously brandished by the G8-G20 2010 Summit (1,105 arrests) has now been passed on to the Charest government's onslaught against the students of Quebec who are doing nothing more than pressing for their right to education.
What the Reports Fail to Mention
Starting at least in July 2009, the Canadian state launched its G8/G20 surveillance activities. It went into this police operation with clearly articulated official guidelines to target and criminalize all those who held ideo-political positions against the G8/G20 with which the government disagrees.
A report of the 2010 G8 Summit -- Integrated Security Joint Intelligence Group (JIG) entitled "An Investigative Baseline for the Primary Intelligence Investigative Team," points out that the aim of the surveillance was to counter "criminal extremism," which it says "incorporates entities that exercise or encourage violence in an attempt to engender social and political change."
Claiming that the G8/G20 would be subject to "criminal extremists motivated by a variety of radical ideologies," enumerating them as including "variants of anarchism, anarcho-syndicalism, nihilism, socialism, and/or communism," the police set out as one of their tasks of the surveillance to provide lists of "suspects," "persons of interest" and "associates."
The report on who is targeted continued: "These ideologies may also include notions of racial supremacy and white power and engage in public incitement of hatred, the report said. The important commonality is that these ideologies ... place these individuals and/or organizations at odds with the status quo and the current distribution of power in society: This may include a theoretical and practical opposition to authority ..., the capitalist or mixed market economy, multiculturalism, notions of free trade, and/or the current political systems embodied in most of the participating countries."
It goes on to state that aside from the inherent criminality in the ideologies cited above, there are also "a variety of grievances based on notions/expectations regarding the environment, animal rights, First Nations' resource-based grievances, gender/racial equality and the distribution of wealth, etc. Most importantly, the ideologies or motivations that propel these individuals/organizations incorporate an acceptance of criminal activity and violence to achieve their various goals. Often this acceptance of criminal activity as a means is overtly stated, while at times it is known only internally."
To divert from this broad criminalization of political opinion, the report states that the holding of such opinions is "not in itself problematic." Without any facts to verify its defamation, the report states categorically, "In fact public dissent based upon differences of opinion is intrinsic to any democratic system. The core of the problem, however, is the evolution of these philosophical differences into the advocating of criminal activity and the creation of significant public security threats."
It particularly cites anarchism: "Given the high profile of the political philosophy of anarchy within this milieu, it is instructive to note that anarchists pursue a destruction of law, order and government as a precursor to the imposition of anarchy."
It concludes by saying that the "threat posed by what will be termed criminal extremists is a significant threat." It refers to previous international summits, claiming that they have posed "significant challenges" resulting in "death, significant injury, massive property damage and tremendous public expenditure," particularly citing the 2009 G-20 Summit in London.
The report cites unidentified "criminal extremist acts" that have created "significant public security concerns" in both Canada and some European countries, dating back to the 1970s. The fact that in the 1970s, it was well documented that terrorist activities blamed on left-wing groups were carried out by the CIA, Mossad and other intelligence agencies of the U.S. and its allies, including the RCMP in Canada, is totally ignored.
The "orientation" concludes by saying that the security team has already engaged in "a significant amount of data-mining, crime analysis and intelligence analysis of the activities of individuals/organizations that publicly or covertly incorporate criminal activity and/or violence within their modus operandi." The report declares that "The conclusions thus far illustrate a dramatic escalation in criminal activity ostensibly motivated by a politico-ideological stance." It also cites the Vancouver Winter Olympics as a possible target for "covert organizations to engage in criminal conspiracies."
Notwithstanding their claim that there is a "dramatic escalation in criminal activity," the Report goes on to say, "criminal extremists, terrorists, organized criminals, cyber hackers or other individuals that intend to perpetrate criminal activity against the 2010 G-8 will not in all likelihood engage in discussions that relate to the 2010 G-8 specifically." It calls for a "pro-active approach" which would involve "the ability to first identify threats and the perpetrators of those threats and secondly to acquire insights via some investigative technique into the nature of the threat...." It calls for "investigative action based on reasonable grounds." Nothing is said to clarify what those "reasonable grounds" might be but given the orientation which targets people with an ideological framework opposing the G8 and G20, it is not hard to guess what those are.
It concludes that "in order to be intelligence-led, the [security organization] must acquire all available intelligence related to known or anticipated threats. This information is to be acquired by a wide variety of investigative techniques including open-source information analysis, a review of police occurrence reports and more covert techniques such as the recruitment of confidential informants and undercover operations."
This report reveals that this policy was used practice for the 2007 Montebello North American Leaders Summit, and in 1997 at the APEC Conference.
As in the past, there is a significant amount of information floating on the web that indicates that the police acted as agents provocateurs in the 2010 G8/G20, along with the broad arrests of more than 1,100 people and the virtually complete absence of any evidence-based charges of criminal activity. Many arrests were conducted under "breach of the peace powers" that allow police to hold individuals without laying charges. The criminal charges of "conspiracy to commit," "conspiracy to incite," etc. without any details in the charges were also broadly used as a clear method of political harassment and intimidation. Most charges were dropped and those which were not were based on defamation and the orientation provided in this report. The entire thing serves as an exercise in how to conduct persecution based on the malicious depiction of political activists as criminals and hooligans.
Police Surveillance Operations Under Scrutiny
Police misconduct at the G20, Toronto, June 2010.
The revelations about the G8/G20 undercover political activities have come under scrutiny, particularly as the main case of "conspiracy" against the remaining 17 activists has concluded. With six individuals having been charged on relatively minor charges, there have been comments, for example, to the effect that the charges have cost $100 million each. In this regard, a November 25 article entitled, "Debate erupts over resource-intensive G-20 undercover operations," points out that the activity deployed techniques "used to bust biker gangs and terrorist networks." It states: "Lawyers and criminologists say the case should be subject to civilian oversight to ensure the money spent on it -- hundreds of hours of officers' time courting activists, buying them beer and ferrying them to meetings -- was warranted and determine if similar investigations should be approved." The Canadian Civil Liberties Association (CCLA) is calling for a public inquiry into the undercover activities particularly regarding allegations that "police helped anarchists plan protests." It quotes CCLA General Counsel Nathalie DesRosiers as saying: "We understand that it's important for infiltrators to blend in, and if they are part of a gang of Hells Angels, they may need to break the law to actually do their work. In this context, where is the line and who has approved the tactics being employed?"
The debate thus far neglects to examine the significance of declaring civil organizations criminal gangs which are subject to anti-racketeering laws. It does however explore the extent of what police are legally entitled to do in their surveillance operations. For example, Edward Sapiano, a Toronto criminal defence lawyer, is paraphrased as saying that police "can provide suspects the opportunity to commit crimes if the crimes are ones that would have been committed otherwise. They are also permitted to break the law, but the offences must be less severe than the ones under investigation."
Lawyer Peter Rosenthal is also quoted in the article on the undercover operation: "You think of all the expense and effort that went into this, and what they found is what? These people talking about smashing windows and de-arrests? So did thousands of other people. What happened at the G20 wouldn't have changed without this investigation."
University of Ottawa criminologist Michael Kempa said there was more at stake than vandalism. He says that the value of the undercover operation cannot be restricted to the number of resulting arrests, ""[Police are] making sure there's no ties to deeper, darker networks of serious terrorist players. Because how else do you investigate these things?" Chris Mathers, a former undercover RCMP investigator, said such techniques are useful in gathering information that is harder to obtain by other means, such as a wiretap. Police must balance the need to bolster the credibility of their fake persona with the requirement they not do anything that could harm the court case, he said.
Notably, Mathers dismissed any suggestion people are targeted for ideological reasons."The police don't consider this a political investigation --- they're investigating criminal activity," he said. "They're catching guys who are breaking the law. Period."
Leading up to the second anniversary of the June 2010 G8-G20 Summit, it is important to examine the attempts to criminalize dissent and the violations of civil rights of organizations which resist and organize in defence of rights, so as to convert student, labour, environmental and other organizations into alleged criminal gangs by making them subject to anti-racketeering laws and practices.
Notes
1. The 104-page report,
entitled "Public Interest Investigation into RCMP
Member Conduct Related to the 2010 G8 and G20 Summits," can be read
here: http://www.cpc-cpp.gc.ca/prr/rep/rev/2012/g8g20/g8g20Rep-eng.aspx
2. The OIPRD's 284-page "G20 Systemic
Review Report" can be read
here:
https://www.oiprd.on.ca/CMS/getattachment/Publications/Reports/G20_Report_Eng.pdf.aspx
Montreal Conference, June 11-14
International Economic Forum of the Americas
The Charest government is sponsoring "The Montreal
Conference of the
International Economic Forum of the Americas" under the theme "A Global
Economy in Transition: New Strategies, New Partnerships." It will be
held
at the
Hilton Bonaventure in downtown Montreal from June 11 to 14. More than
150
speakers of "international stature" and some 3,000 participants are
expected to
participate in the four-day conference held to coincide with the
Formula One
Grand Prix.
The Conference is promoted as "an exceptional
opportunity for discussions
promoting a better understanding of perspectives surrounding this new
world
economic map." The shamelessness of Conference promoters is such that
their
material says, "Exchanges will allow participants to have access to
inside
information to develop winning strategies in this difficult economic
environment." In past years, Montrealers have protested the meeting
because of how it promotes monopoly right at the expense of people's
dignity and lives, such as the killings of trade unionists and others
by paramilitary forces in Colombia because of their opposition to
monopoly impunity to destroy the social and natural environments.
 Montreal, June 10, 2009: "Canada: complicit in a regime of terror in Colombia in the name of the economy?" |
As part of the conference, speakers will address among other topics, the following:
- What are the risks to the global economy?
- Is the Euro really safe?
- Have the dangers of a new recession in the U.S. been definitively avoided?
- Can Asia, particularly China, continue its phenomenal growth while avoiding "bubbles" and inflation?
- What are our choices to ensure that all parts of the world have access to an adequate energy supply?
- An economy in transition -- to what?
The Board of Governors of the Montreal Conference is chaired by Paul Desmarais Jr. (Chairman of Power Corporation) and includes Guy Breton, Rector of the University of Montreal; Jacynthe Côté, CEO of Rio Tinto Alcan; Pierre Duhaime, President and CEO of SNC-Lavalin; John Manley, President and CEO of the Canadian Council of Chief Executives (CCCE); Michael Sabia, President and CEO of the Caisse de depot et placement du Quebec; as well as Gil Remillard, founding president of the Montreal Conference, Professor at the National School of Public Administration (ENAP) and counsel at the law firm Fraser Milner Casgrain GP R.L.
The main partner is Power Corporation. The principle sponsors are Autorité des marchés financiers (AMF -- the body mandated by the government of Québec to regulate the province's financial markets), RBC Bank, Rio Tinto Alcan, telecom monopoly Cisco, pharmaceutical monopoly Sanofi and private bank Forbes & Manhattan. Other sponsors include French electrical monopoly GDF Suez, French oil monopoly Total, SNC Lavalin, Quebec's Caisse de depot et placement, Hydro-Quebec, French bank BNP Paribas, construction monopoly AECON, the Global Center for Development & Democracy, International Development Bank and UNESCO.
Alan Greenspan, former chairman of the U.S. Federal Reserve, and Central Bank Governors of Portugal, Spain, France, Brazil, Mexico and Canada are among the 150 speakers "of international stature."
In addition to these speakers, delegations from 24 countries are expected: Afghanistan, Germany, England, Argentina, Belgium, Brazil, Chile, China, Colombia, the European Commission, South Korea, the Ivory Coast, Spain, the United States, France, Guinea, India, Japan, Mexico, Pakistan, Panama, Peru, Portugal and Singapore.
The regular fee for four days is $1,391.61 ($1,600 with taxes). For the Executive Club Members, the rate for four days is $2,478.80 ($2,850 with taxes).
Participants are invited to spend the weekend in Montreal and to attend the Formula 1 Grand Prix to be held in the afternoon on Sunday, June 10.
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