Police wrong to detain anti-racism protesters
The arrest and detention of three anti-racism protestors for splashing pink paint on statues of Egerton Ryerson and John A. Macdonald proves that the police still don’t get it.
The whole unseemly incident, from arrest to prolonged detention to police misinformation, is indicative of a broken system of law enforcement that is screaming to be defunded and reformed.
Context is important.
Egerton Ryerson and John A. Macdonald are historical Canadian figures tainted by racism. That is why the activists engaged in their civil disobedience.
Ryerson was an influential force in the creation of the residential school system and bears responsibility for the devastating and lasting impacts of that racist, colonial and genocidal institution. John A. Macdonald, Canada’s first Prime Minister, is guilty of cruelty and racism. His words, spoken in the House of Commons in 1882, tell all that needs to be told, “I have reason to believe that the agents as a whole … are doing all they can, by refusing food until the Indians are on the verge of starvation, to reduce the expense.”
There is no equivalence between the actions of these fossilized racists and the small act of throwing paint on statutes celebrating them. But yes, throwing paint on statues is a crime.
That, however, does not mean the police should have proceeded with criminal charges. Police enjoy a broad discretion not to lay criminal charges.
How police use their discretion should raise some alarm bells.
In this case, they chose to criminally charge, handcuff, detain, deny access to counsel, and mislead the public.
Last month, Ottawa police declined to lay charges against a bylaw officer who tripped and punched a Black man whom they believed was violating a COVID-19 bylaw prohibiting loitering in public parks.
Despite the fact that the assault was witnessed by two police officers and the bylaw officer confessed to his actions, the bylaw officer was offered pre-charge diversion. Ottawa police policy states that any candidate to be considered for pre-charge diversion must be “a first-time non-violent offender.”
Why is a violent law enforcement officer cut a break after a violent assault but non-violent protesters who threw paint at statues of racists are not?
After the police arrested the Toronto protestors they were not immediately released with a promise to appear in court. Instead, handcuffed, they were marched to the bowels of the police station.
Later that same day, hours after the arrest, the Toronto police put out a press release saying that all three protestors were provided access to counsel and that two of the protestors had been released on a promise to appear. The third, police said, was being held overnight to be taken to the court for a bail hearing.
Then there was an uproar. The lawyer for one of the accused tried to see her client at the police station. The police refused to facilitate contact.
And it turned out that two of the protestors has not actually been released.
As the detention continued, a crowd gathered outside the police station.
The police later claimed, in another press release, that “each individual and each spoke with Counsel between 3:30 and 3:59 pm on Saturday afternoon” and that “all three refused the release conditions.”
The Toronto police say that the “arrests were made in accordance with the law and all rights were respected.”
Spoiler alert: they weren’t.
The Toronto Police Operations account tweeted an announcement of the arrest at 10:56 a.m. and the police’s own press release indicates that the protestors spoke with their lawyers at 3:30 p.m.
Section 10(b) of the Charter guarantees to anyone arrested or detained the right “to retain and instruct counsel without delay.” The police must immediately provide the detainee with a reasonable opportunity to speak to counsel and to be informed of that right.
You don’t need to be a legal scholar to divine that four and a half hours is not “without delay.”
The Ontario Court of Appeal characterized the right to counsel as a “lifeline for detained persons.” It is only through that lifeline that those who are entirely at the mercy of the police can know their legal rights and see that police abuse can be documented and stopped.
And the protestors should never have been detained at a police station in the first place.
Section 489 of the Criminal Code lays out a number of options for releasing an accused after arrest. They can be summoned to court, released on a promise to appear in court, or on an undertaking with conditions.
The Supreme Court of Canada has made it clear that even in serious cases where the police don’t release an accused and produce them in court, “the accused be released on his giving an undertaking without conditions” unless the prosecutor can show why conditions are necessary.
The Toronto police did not release the protestors at the scene. They did not summon them to court. They held them until they agreed to release conditions that were in all likelihood unnecessary.
There are no consequences for police who are not reasonable and restrained in deciding how to release an accused. This police protection is built into section 489 of the Criminal Code, under which a police officer who does not release a person from custody as soon as practicable “shall be deemed to be acting lawfully.”
Freedom is a fundamental right. It is not to be taken away except in strict accordance with the law. And while the Toronto protestors technically committed a non-violent criminal offence, they did so because for generations the voices of racialized and Indigenous people have been silenced and starved.
The heavy-handed actions of the Toronto police are a continuation of that abuse. In choosing to protect racist artifacts and inflicting unnecessary punishment over a bit of paint, it is clear whose side the police are really on.
This opinion first appeared in Canadian Lawyer