05.25.2012 12:26 PM

Kettling kwestion

It’s a hot topic. At the G20 in Toronto, and now with the ongoing demos in Montreal.

My question: it’s clearly detention, as defined by the SCC. So why don’t the kettled demand immediate access to legal counsel?

If they don’t get it, bring the mother of all class actions.

Am I missing something?

27 Comments

  1. kenn2 says:

    CBC Radio 1 just ran a short programme today (1-2 PM EDT) on the G20 kettling event that included a 1st person reports of a couple of people among the approx. 1100 who were ‘kettled’ and picked up.

    According to the account, throughout the incident, from arrest to and including confinement, there were repeated requests for counsel, for legal aid, for explanation. I won’t bore you with the often-repeated details of arrest process, transport, makeshift detention centres and deplorable conditions

    You’re the lawyer… given the above, and the reported ordeals, do they have a theoretical case? Do they have winnable one in reality?

    This ‘kettling’ process, and the concept of arresting peaceful demonstrators and even found-ins like local restaurant staff trying to get home… a kinder gentler intimidation? practice for when protests really get going?

  2. Np says:

    What if they actually provided them for you?
    “Great! I’m wet, and I’m cold, AND NOW I’m surrounded by lawyers. Good Grief!”

    Seriously though, it’s a good point. Does anyone know if any kettled protesters actually asked for counsel?

  3. fred says:

    Torontodefenselawyers.com

    “The police may ask for your name, identification and reason why you are present at the scene. The police may only search you in this situation if the officer has reason to believe his safety is at risk. They may not search for evidence or drugs, they may only search for weapons or anything that may jeopardize their safety. The Supreme Court of Canada has directed that one can only be detained for investigative purposes in circumstances wherein the police have a reasonable suspicion that the person is involved in specific criminal activity. A suspicion or hunch is not enough.”

    So you are walking to the store and suddenly a wall of people pushes towards you and is surrounded by police. What evidence do the police have that you are
    engaged in specific criminal behaviour?

  4. Mark McLaughlin says:

    I’m no lawyer, but isn’t there a short period of time where police can detain you without representation? Is it a set time frame or subject to some squishy “reasonable-ness” test?

    If they are kettled for only an hour or two without counsel is that within a reasonable timeframe?

    Something tells me that using a kettling strategy in the middle of a riot is probably going to be viewed by the SCC as an acceptable infringement on civil liberties when there is damage to public and private property and a major risk to safety.

    The question then is; how dangerous and how much property has to be damaged before the infringement becomes acceptable. Not an easy answer.

    How about we say the first step in resolving this situation is that thugs in Montreal stop throwing cobblestone at cops? Then we can talk about the legitimacy of erecting fences around them.

  5. Thor says:

    All reminiscent of the APEC affair in ’97, methinks….so many interesting political threads in that one.

    Needless to say, what our RCMP got up to in Vancouver so long ago seems to have been really the process of writing the textbook on subsequent police actions…past is prologue and all that.

    http://www.youtube.com/watch?v=5CWNKp0Uyyw

  6. Tiger says:

    They’re young, and haven’t happened to think of it yet.

    My first guess is that the courts may re-define “detention” if confronted with this argument.

    Or they might go along with it.

    Worth a shot for the protesters, no doubt.

  7. matt says:

    I think I see your point, but I’ll just think it through. The obvious obstacles I see are section 1 and de minimis responses. Assuming the reason for kettling was reasonable and it was not carried out for an unnecessarily long time (both of which appear not to have been the case at the G20), section 1 might well save the practice. Assuming the circumstances don’t permit section 1 to justify a particular detention and a remedy for the Charter violation is in order, a couple hours of inconvenience (assuming no charges or separately actionaly physical/mental harm result) is unlikely to result in compensation – it’s de minimis. Which I assume is why you bring up class actions. I don’t know enough about certification hurdles to know whether the court would accept that or not. I’m just speculating, but a court might well say that a more appropriate remedy than a 500 x $50 cost award is a judicial declaration. If available, however, it would be a first: an aspect of the Charter only available via class action relief.

    • Tim Sullivan says:

      It is potentially false arrest, maybe false imprisonment. It could also be assault. None of these require damages.

  8. matt says:

    er, “separately actionable”

  9. GFMD says:

    What’s the civil remedy for being denied right to counsel? Usually when it comes up somebody is trying to get evidence tossed.

  10. HowardK says:

    Montreal and Toronto need water cannon trucks to disperse unruly demonstrators. Sockittoem!!!

  11. HonestB says:

    Discussed this very topic in my charter class lass semester. The problem is what’s the remedy? The best you’re likely to get is “declaratory relief,” where the court affirms that yes, your rights were violated.

  12. Nasty Bob says:

    Potential plaintiffs would have one of two avenues to seek a remedy for a breach of s. 10 rights; tort or s. 24 of the Charter.

    No cause of action under tort exists unless a plaintiff has suffered some damages. I think It would be extremely difficult to establish any loss of income, pain and suffering, etc. merely from not being afforded the right to counsel.

    The SCC recently held that an individual may bring an action under s. 24 for a breach of Charter rights to compensate for loss, vindicate the right or deter future violations. However, even if the claimant establishes – (a) a breach and (b) damages are “functionally justifies” ( i.e. they compensate, vindicate or deter) the state has an opportunity to ” negate that the award is appropriate and just” on a number of grounds ( e.g. alternative remedies or, ironically, good governance/ public policy).

    If the state fails to negate then damages for compensation are determined using tort principles ( i.e restore the claimant to the position they would have been in had the breach not happened) Damages to address vindication and deterrence are to made in proportion to the breach. It may be a monetary award or simply a declaration that the state was being very naughty.

    In the SCC case the claimant sought an award for breach of s. 8 (search and seizure). He was awarded 5000 for a strip search ( because they are inherently humiliating and degrading ) but only a declaration that his rights were breached for a seizure of his car because “while the seizure was wrong it was not of a serous nature” ( the car was released shortly after arrest and he did not suffer any real loss )

    I suspect that if the award was 5000 for a strip search it would be considerably less for a s. 10 breach – where no real damage was suffered – and more likely something along the lines of a declaration – if that ( remember the state has a chance to negate) While a declaration may be desirable would it be worth the cost and effort? A better approach might be to commence an action for unlawful detention but that’s a whole different “kettle” of fish with problems of it’s own.

    ( here’s the SCC case : http://www.canlii.org/eliisa/highlight.do?text=r+v.+ward&language=en&searchTitle=Canada+%28Federal%29+-+Supreme+Court+of+Canada&path=/en/ca/scc/doc/2010/2010scc27/2010scc27.html

  13. Michael Behiels says:

    There should be a class action suit on the issue of Kettling by the Toronto and Montreal Police Forces.
    Perhaps the Canadian Civil Liberty Association, along with the provincial civil liberty associations, should take on this issue.

  14. david says:

    Until the enablers of power have their faces ripped off nothing will change. Why protest marches anyway. They don’t work. We were mugged by Harper in Toronto and took it unlike Quebecers (God bless em) It’s a new world. It’s time to make it so painful for those who do the dirty work they’ll think twice. I say hack everyone of them randomly. Destroy their credit. Hack their banks. Wreck their reputations. From officer Bubbles to that bat shit crazy undercover lady cop swinging her baton at all and sundry at the G20. It’s not like we don’t know who they are. They’re all there on youtube or does the thought of not getting ego satisfaction from doing things anonymously stop people. Just a thought and please note. I’m a senior who was completely radicalized by the G20 in my home town. If I had computer skills it’s what I would do. Make em pay.

    From a song I”m writing re Harper

    They want bars on our windows/locks on our doors
    our government is watching us/they want us paranoid

    cameras on the corner/eyes in the sky
    now they want to pass a law and watch us all online

    you got something to say, say it
    if you’re too damn afraid/ start praying

    cause ain’t no-one gonna do it for you
    so speak… or hold your peach

    david

    • david says:

      I meant
      speak… or hold your piece :-))

      • Jon Adams says:

        I’m going to say “hold your peach” is actually the more interesting lyric.

      • que sera sera says:

        @ David:

        Absolutely love your song!!! But now I have this line stuck in my head: “Speak now or forever hold your peach!!” LOL!!

        Harper is going to be electorally flattened by radicalized seniors who cut their baby teeth rebooting North America in the sixties. And that was without the internet & social media.

  15. Iris Mclean says:

    Since closely following the Ipperwash killing and the subsequent trial and inquiry, I am convinced that the police in Ontario can and will get away with anything.

  16. Derek says:

    well the latest relevant ruling on the issue would be the European Court of Human Rights which found that: “”the least intrusive and most effective means to protect the public from violence”.

    It seems the issue of kettling should be fleshed out to include a formal intake-out processing mechanism to manage those who get caught up in these drag net exercises.

    I am personally hardly ‘en accord’ with the idea that being falsely imprisoned for any length of time while not demonstrating any criminal behaviour whatsoever is any way the least intrusive. The police have to exercise in a lawful manner, regardless of the implied caution that people not participating in demonstrations should exhibit.

  17. Jan Sam says:

    I also need a lawyer that understands profiling in the Canadian system for the children of immigrants. I have suffered assault and torture that can be attributed to police or frenz or those temporarily acting on
    their behalf eg. a british eugenics society member with nothing to do or a cia fren visiting on other business in Canada or the usual drinking buddies….

    In North Van, and vicinity i was abused viciously and interrogated. why i would be interrogated would be to create bait for others on the socialist side as i was raised poor …well this is what many would like to believe that my parents took a vow of poverty and sickness….and round and round we go.

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