By Paul Jay
YOUR RIGHTS CAN DISAPPEAR IN A SNAP – The Ontario Cabinet imposes something close to martial law without you even knowing
Everybody in Ontario should understand the Public Works Protection Act. It sounds like some obscure piece of legislation that couldn’t matter very much to most people. But look again. With a snap of the Ontario Cabinet’s fingers, they can essentially eliminate your right to assemble and eliminate probable cause before your person or your car could be searched.
The piece of legislation that was used to guard the G-20 is something that many civil rights lawyers just found out about and certainly the public found out about for the first time. Some people are calling it a form of martial law. The following is my interview with lawyer Paul Cavalluzzo a constitutional lawyer, who takes us through the Act. Pay attention, it could be your or your childrens rights that are at stake.
JAY: You got involved in the case because you were involved with some lawyers who got an injunction on using a piece of sound equipment that was going to be used like a weapon.
JAY: Give us a quick update on that, and then we’ll talk about the legislation.
CAVALLUZZO: Well, what happened a couple of weeks ago, the Canadian Civil Liberties Association, the Canadian Labour Congress contacted me and asked me if I could try to get an injunction in relation to certain things. And we focused on what’s called a “sonic cannon”, and we went to court trying to restrain the use of the sonic cannon in particular ways which may injure the hearing of protesters. And we were successful getting it last Friday.
JAY: Now, how did we find out about this Public Works Protection Act?
CAVALLUZZO: Well, if you can believe it, we argued the case last Wednesday, and then Thursday night the Civil Liberties Association phoned me and said, I just became aware of this piece of regulation; this person has been arrested down by the fence, and he’s been charged under this piece of legislation; we’ve just discovered it. And that’s how I became aware of it.
JAY: So this piece of legislation has extraordinary powers, which we’ll get into in a minute. There was no public announcement. Apparently it was just put up on some website.
CAVALLUZZO: That’s correct.
JAY: You’re in court with the prosecutors and the police every day, and nobody says a word to you about this.
CAVALLUZZO: That’s very troubling to me. And my clients, the Civil Liberties Association and the [Canadian Labour] Congress, had been meeting with the police for two weeks prior to the court application about their protests and what kind of powers the police had and so on, and at no time did the police mention this regulation they passed under the legislation, which is somewhat troubling when parties are trying to be cooperative with the police and then the police act in this nontransparent way.
JAY: And we’re told in <i>The Toronto Star</i> that even the mayor didn’t know about it. He found out about it by reading the newspaper.
CAVALLUZZO: Yeah, that’s right.
JAY: Okay. Let’s go through the act. And tell me why it disturbed you. It’s called the Public Works Protection Act. If I understand it correctly, it was originally passed in 1939, and there was some revision in 1990.
CAVALLUZZO: Right. And it was originally intended to protect courthouses, police stations, and things like that. That’s what it’s been applied to in the past.
JAY: And it’s usually-really, its origin was about attacks. It was like a terrorist attack on a building.
CAVALLUZZO: That’s correct.
JAY: And it doesn’t seem like the original intent was against protests and demonstration and the right of assembly.
CAVALLUZZO: That’s right. It was to protect public officials against attack, not to enact legislation which would hamper peaceful protesters in trying to get their message across.
JAY: Now, I questioned Chief [Bill] Blair about this at a press conference yesterday. He says this act has been tested in court over the last few years and found valid and within the Charter. Is that true?
CAVALLUZZO: Well, it has been found valid in respect of courthouses, so that each particular context has to be reviewed by a court. What happens under this legislation is that the government will decide to designate something a public work. And as a result of that, if it’s designated, then all of the [inaudible] and prohibitions that you’re going to refer to apply to that particular area, so that in the context of a courthouse, the court of appeal found that it was constitutional.
JAY: But it’s never been tested, in terms of protest and demonstrations, to restrict the right of free assembly.
CAVALLUZZO: Absolutely not. Absolutely not.
JAY: So it’s not quite right, what the chief tells us there. Okay, let’s go through the act. It’s called the Public Works Protection Act. And one of the provisions in it, early on, it says not just railways, canals, highways, bridges, power works, etc.; it says, “any other building, place or work designated a public work by the Lieutenant Governor in Council,” which more or less means that the Ontario cabinet decides, and they go to the lieutenant governor and he signs off on it.
CAVALLUZZO: That’s right.
JAY: They can pick any building they want.
CAVALLUZZO: Absolutely. Absolutely. And that’s the problem with it-well, it’s one of the problems with it, because obviously the act was enacted with a particular purpose in mind. And to give that kind of unlimited authority to the cabinet to designate certain areas of-they could designate, for example, the whole of downtown Toronto as a public work, and then public protests would be prohibited. And that’s one of the problems we see with that legislation.
JAY: I think it’s extraordinary. It’s not just police officers who can enforce this act; it’s something they’re calling “guards”.
CAVALLUZZO: That’s correct.
JAY: And the list of people who can appoint guards is, like, just about anybody in an official position in the government. And let me read you the list, that “the head or deputy head of the municipal council, the chief of police of the municipality in which the public work is located,”-and we know that can be just about anything-“or the person acting in the place or stead of the head or deputy head;”-which means anybody they appoint-“the chair or other person … of a board, commission or other body”. It goes on and on, the list of people. But the most important thing that that then leads to is every person who gets appointed this way has the powers of a peace officer. You could turn almost anybody they want into a policeman.
CAVALLUZZO: That’s right. That’s right. And, of course, we saw earlier this week or the previous week where there were a number of private security people that were going to come to Toronto to deal with the G-20, and they weren’t even licensed in Ontario, so that we’ve got people here that could be not licensed (or they’re quickly licensed without any kind of review) have the kind of powers that you’re citing in that legislation.
JAY: So you could have a situation where a kind of a Blackwater type organization could all become policemen overnight, with any of these officials the right to make themselves.
CAVALLUZZO: That’s right, or a rent-a-cop that is working at a shopping center. And that’s the kind of powers that these people will have.
JAY: And does that mean that he would immediately then have the right to bear arms if they hadn’t previously been [inaudible]
CAVALLUZZO: Not necessarily. But the only specific powers they would have would be under that legislation to arrest and so on.
JAY: ‘Cause it says they become a peace officer.
CAVALLUZZO: Right, right. But as a peace officer, then, there are certain entitlements. One is, obviously, to bear arms.
JAY: So it might be read that way.
CAVALLUZZO: That’s right.
JAY: But after being called a “guard”, you might then have a right to a gun.
CAVALLUZZO: That’s correct, and to use whatever force is reasonable in the circumstances.
JAY: Next, powers of a guard or a peace officer. 3(a) “A guard or peace officer, (a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and address, to identify himself or herself and to state the purpose for which he or she desires to enter the public work, in writing or otherwise”. And the next one, I suppose, is the big one: “may search, without warrant, any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person. . . .” I mean, this essentially-does this essentially eliminate probable cause?
CAVALLUZZO: It seems to. Seems to. I’m sure if it went to court there’d be a different kind of answer. But what this legislation does on its face is that it gives the police the authority to ask a citizen to identify themselves who happen to be in downtown Toronto, and they’ve designated a whole area of downtown Toronto. And to have a police with the authority to force you to identify yourself without any cause whatever is frightening. And then it goes on to give them authority to search the person without any cause. And, of course, what that original intention with the legislation was is if you’re going into a courthouse or a police station, there may be reasons to have people searched. But in downtown Toronto it’s somewhat, I think, unreasonable to request that.
JAY: See you could just be driving along and you can be searched, which means the whole right to privacy and right to probable cause is gone on the search. You’d just have to be within an area.
CAVALLUZZO: Within that approach, as with probable cause.
JAY: And as we learn later, that’s a pretty flexible thing, just what is that area.
CAVALLUZZO: That’s right.
JAY: Okay. The final piece of that, to “refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering”. So if they decide that you’re approaching this area (as we’ll learn soon, that area may not be so definable), they can use any force necessary to make you follow their direction.
CAVALLUZZO: That’s correct. That’s correct. If they don’t like the jacket you’re wearing, they don’t like the sunglasses you’re wearing, they can just say you’re not getting in. And then, if you, you know, attempt to assert your rights, they can use whatever force is necessary to restrain you from not doing what they want you to do. So it’s pretty unlimited powers.
JAY: Now, the next piece, I think, is one of the more amazing pieces in the legislation.
JAY: This is “statement under oath to be conclusive evidence”. “For the purposes of this Act, the statement under oath of an officer or employee of the government, board, commission, municipal or other corporation or other person owning, operating or having control of a public work,”-and here it is-“as to the boundaries of the public work is conclusive evidence thereof.” What is the significance of that?
CAVALLUZZO: Well, the significance of it is just that: it’s conclusive proof. In other words, if you went to court and wanted to cross-examine this particular individual who has defined the boundary for you, apparently this affidavit or statutory declaration would be a conclusive proof. The most important basic right we have in a common law system and under our Charter of Rights when you are charged with something is to cross-examine the person who alleges you have committed an offense. And this seems to suggest that you don’t even have that basic and fundamental right, which is crazy.
JAY: Which also means any guard or officer, it sounds like, could actually redefine what the space is,-
CAVALLUZZO: That’s right.
JAY: -even as they did over the weekend-created a boundary around the Toronto Convention Center. Under the act, it sounds like if you were one of these guards, you could just redefine it to go two blocks up, ten blocks up. I mean, who knows? And you couldn’t contest it.
CAVALLUZZO: That’s what that appears to say. Now, if that ever went to court, there is no judge in this country that would uphold the constitutionality of that profession.
JAY: I asked Chief Blair about that. He said this piece of legislation just codifies the powers the police already have.
CAVALLUZZO: We don’t live in a police state. He’s wrong, ’cause of course we have the Charter of Rights.
JAY: But with this piece of legislation, it seems how quickly one could be living in a police state.
CAVALLUZZO: That’s right. And it’s very-you know, it’s a concern in the sense that it basically attempts to suspend your liberties for a period of time at a particular place. And the Charter of Rights never intended, never intended that our government would be in a position where they could make such definitions and limit such rights.
JAY: “Refusal to obey a guard”, 5.(1): “Every person who neglects or refuses to comply with a request or direction made under this Act by a guard or peace officer, and every person found upon a public work or any approach thereto without lawful authority,”-and what I want to ask you about is this next few words-“the proof whereof lies on him or her, is guilty of an offence and on conviction is liable to a fine of … $500” or two months in prison. I mean, aren’t they eliminating the whole idea of presumption of innocence?
CAVALLUZZO: Absolutely. And they’re basically throwing the burden to the accused in terms of proving that they’re innocent. And, of course, our system is based on just the opposite; that is, you’re presumed innocent until you’re proven guilty. And this legislation flies in the face of that as well.
JAY: And finally, 2: “A guard or peace officer may arrest, without warrant, any person who”-and this is the word I want to ask you about-“<i>neglects</i> or refuses to comply with a request or direction of a guard or peace officer, or who is found upon or attempting to enter a public work without lawful authority. [emphasis Paul Jay’s]” So if you put all this together, the officer, the guard, can define the territory based on just his word. You can be there and, quote-unquote, “neglect”, never mind refuse, and you could be arrested. You could be wandering into this area, which could be any space, and they could decide they could have yelled at you, “Move,” and you didn’t move-you’re arrestable.
CAVALLUZZO: You could be a deaf person. You could be a person-.
JAY: That actually happened. We had a deaf person arrested yesterday. Not under the act, but a deaf person was arrested yesterday.
CAVALLUZZO: Right. Or you could be walking by, not hearing what the guard is saying, and he could be of the view or she could be of the view that you’re neglecting. Even though you haven’t refused, because you haven’t heard the instruction, you are neglecting, in his eyes, and he can arrest you.
JAY: So just to remind us again, so the history of this is the chief of police of Toronto apparently asked for this act. Now we’re hearing from a source inside the police departments that actually Chief Blair didn’t want to ask for this act. We heard-and whether it’s correct or not, but from a senior source we heard that in fact this came from the coordinating committee run by the feds, essentially by the PMO, actually asked the police department to ask for this, although Blair’s wearing it because he’s defending it. The Ontario cabinet, without-and this is the big question-without any legislature passing anything, simply the Cabinet on its own, decides it gets the lieutenant governor to sign off [inaudible] So compare that to the War Measures Act at the federal level, which, if I understand it correctly, does have to be enacted by an act of Parliament. Is that not true?
CAVALLUZZO: That’s right. That’s right. And so long as the federal government declares an emergency, then it could be passed. (And in effect at that time there is no Charter of Rights, but it could suspend the Canadian Bill of Rights, which was in effect at the time.) But what is troubling here, there are two things that I think are crucial. One is that this is for the politicians. It’s for-the politicians should be held accountable, because I saw Chief Blair trying to defend all the powers that were given to him, and it’s not for the police, it’s not for the police to defend the powers that are given to them; it’s for the police to carry out those powers. It is for the politicians who have given those powers to defend themselves and to explain why this is the kind of situation where arbitrary and draconian powers are given to them. The second thing that is very troubling here is that it was passed, regardless of what some people are saying now, in a nontransparent way. We’re in the context of litigation where we could have raised this. This would have been added on to our application for an injunction so a court could have assessed the constitutionality of that. And because of the way they have done it, they basically took away our right to challenge that legislation before the G-20 summit this weekend, and that’s troubling as well.
JAY: So right now we know of one person who’s been charged under this act. It was used to move people, club people. How, in terms of-I’m sorry. If in fact so much of this act is likely not to pass the Charter of Rights, two things happened. Can the act be struck down? And the other thing I’ve heard from some of the civil rights lawyers, what they’re concerned about, is when it comes time to go to court, they’re probably just going to drop the charges, so no one actually gets to test it.
CAVALLUZZO: That’s what I think is going to happen in respect of any of the charges: they’ll probably drop them so that the regulation can’t be tested. As far as a challenge on its face, it could be argued that it’s an academic or moot question. A court could decide that they’ve got limited resources and they’re not going to answer academic questions, because, of course, at the time you get to court, the regulation will no longer be in effect. It’s only a temporary law, and it will be exhausted by the time you got to court, so that they could foreclose challenging it that way. And then, when it comes to these prosecutions, my own view is that very likely the prosecution will drop the charge, and that’ll be the end of the assessment of its legality.
JAY: Until they use it again.
CAVALLUZZO: Until they [inaudible]
JAY: So what can people do? If they don’t like the idea that there’s a martial law sitting on the books that could be exercised quietly anytime, what can people do about it?
CAVALLUZZO: I think Ontarians have to press the provincial government to come to account, to debate this issue and ask why this particular piece of legislation not only was passed the way it was-in a nontransparent way-but in terms of its application to a situation that I don’t think the original legislation ever intended. And they were talking about real public works-courthouses, police stations, and so on-not part of the city where people want to peacefully protest. The other aspect that I think is important is the chilling effect this has. In other words, if people read that if they went downtown to protest, that some rent-a-cop guard could arrest them for whatever-you know, neglecting to follow their instructions-then people may say, you know what, I don’t need that; I think I’ll stay home; and so on. So the chilling effect is also crucial.
JAY: So the right of free assembly can be gone in a snap of the cabinet’s fingers.
CAVALLUZZO: In effect-a snap of cabinet’s fingers behind closed doors.