APEC – Commission Interim Report
9.1. Protests Expected
President Suharto's leadership of Indonesia was of a brand that could be expected to invite vigorous protest on a Canadian university campus. Complaints' counsel described President Suharto's regime as one marked by corruption, abduction, torture, slaughter and the suppression of human rights.
It was well known that the APEC conference would draw significant demonstrations at UBC, largely sparked by the anticipated presence of President Suharto. The UBC administration supported students' involvement in peaceful protests and demonstrations. President Piper said it was important for UBC to allow dissenting opinions to be openly expressed and to ensure that protesters would have the opportunity to see and be seen by the visiting leaders and to express their views anywhere outside of the secure zone. To that end, Prof. Pavlich insisted on including a provision in the Licence Agreement – section 6.3 – by which the parties agreed not to impede lawful protest outside the designated secure areas. In contrast to UBC's insistence on openness, the Indonesian government was so concerned about potential protests that it threatened to boycott the APEC conference. This the Canadian government wanted badly to avoid.
I agree with the following assessment of the situation made by Complainants' counsel in closing written submissions:
When word of the likelihood of demonstrations in Vancouver reached Suharto's advisors in Jakarta, they reacted with extreme dismay and became preoccupied with the issue in the months leading up to APEC. They threatened to boycott the APEC conference if demonstrators would be permitted to embarrass their president, a move which from the Canadian government's perspective could undermine the credibility of the conference and damage the bilateral relations between the two countries.
There was lengthy discussion at the hearing about what the Indonesian officials meant by the need to avoid "embarrassment" to their President.
- On one hand, Complainants' counsel were firmly of the view that, because of a desire to appease the Indonesians and ensure President Suharto's attendance at the APEC conference, the Canadian government made a commitment that no signs of protest would occur in his presence. Complainants' counsel submitted that the documentary evidence discussed below goes a considerable distance toward establishing the accuracy of this interpretation of the Indonesian position, and that Canada made such a commitment. In furtherance of that commitment, counsel alleges that the federal government gave politically motivated orders to the RCMP to "crack down" on the protesters.
- On the other hand, senior Canadian government officials who were responsible for securing President Suharto's attendance testified that when the Indonesians spoke of avoiding the "embarrassment" or "humiliation" of their President, and the need to protect his "dignity", they simply meant that no demonstrations should be permitted in close proximity to him, so as to avoid a possible physical assault.
What the Indonesians may have wanted is not in issue here. What is in issue is whether there was, in fact, a "crackdown" involving inappropriate RCMP conduct and, if so, whether that conduct was attributable to directions given by the federal government in order to meet what were seen as Indonesian concerns.
9.2. Canada Acts to Ensure President Suharto's Attendance
Canada, as host country, unquestionably wanted to have all 18 APEC economies represented by their leaders at the APEC conference. Over the months leading up to the APEC conference, Canada paid significant attention to Indonesia's threatened boycott and made substantial efforts to ensure President Suharto's attendance. Ambassador Smith explained that since 1993 the leaders of all member economies had attended these conferences. President Suharto's participation was particularly significant, he said, because he was the senior member of the Association of Southeast Asian Nations. President Suharto was host of the 1994 meeting when the goals for APEC were laid out, and he was one of the few members from a developing country who was strongly in favour of trade liberalization. "He was seen as somebody that would play an important role," Ambassador Smith told the hearing.
The efforts of the Canadian government to ensure President Suharto's attendance included the following:
- In July 1997, Foreign Affairs Minister Lloyd Axworthy went to Jakarta and met separately with President Suharto, with Indonesia's Foreign Minister Alatas, and with the Human Rights Commission. Ambassador Smith was present at each meeting. He testified that Mr. Axworthy told President Suharto his security would be assured at the APEC conference and that Mr. Axworthy conveyed the same message to the Indonesian Foreign Minister.
- On September 3, 1997, Mr. Axworthy wrote a letter to Foreign Minister Alatas which contained the following passage:
With respect to security arrangements for the APEC Economic Leaders Meeting (AELM) in Vancouver in November, I would like to extend to you my assurance that the security concerns of the Indonesian government will be given the utmost consideration. In addition, as promised during our discussions in Jakarta, I have conveyed the security concerns of President Suharto to Prime Minister Chrétien.
A senior Royal Canadian Mounted Police officer will be assigned as personal security officer to your President and, together with dedicated body guards, will accompany the President during the entire time he is in Vancouver . . . . will also be at his disposal. With a police escort that will be provided throughout and additional route security measures, I am confident that we will provide for free and unobstructed movement of the President.
- On September 12, 1997, Ambassador Smith personally delivered the letter to senior officials in the Indonesian Foreign Ministry and orally assured them that President Suharto's safety would not be compromised.
- In September 1997, Mr. Bartleman had become concerned about President Suharto's possible boycott of the APEC conference. He recommended a meeting between Prime Minister Chrétien and the Indonesian Ambassador to Canada, Mr. Parwoto. The meeting took place on September 22, 1997 at the Prime Minister's offices. Mr. Bartleman testified that the Prime Minister went right to the point, concentrating on security issues, and that the Prime Minister told Mr. Parwoto that the safety and dignity of all leaders attending the APEC conference, including President Suharto, would be assured during their visit to Vancouver.
- On October 3, 1997, Prime Minister Chrétien wrote to the heads of the APEC economies, formally inviting them to the November 1997 meetings. On the advice of his officials, and because of the continuing uncertainty regarding President Suharto's attendance, the following paragraph was inserted into President Suharto's invitation alone:
I understand you have had discussions with my Minister of Foreign Affairs on the arrangements for the Vancouver meetings. I have directed my officials to spare no effort to ensure that appropriate security and other arrangements are made for your stay in Canada as our guest. I recall warmly my participation in the 1994 meeting you hosted and the leadership you provided in developing the Bogor Declaration, which has been so crucial in advancing APEC's agenda. I hope that I may count on your support, advice and encouragement to ensure that the Vancouver meeting is also a success.
- On October 7, 1997, Ambassador Edwards personally delivered Prime Minister Chrétien's letter to President Suharto in Jakarta. Ambassador Smith was also present. (Although they discussed the APEC conference, President Suharto did not raise the security issue on this occasion. As the ambassadors were leaving, a senior Indonesian government minister indicated to Ambassador Edwards that he would see him in Vancouver. The Canadians took this as a sign that the Indonesian delegation would attend the APEC conference as of course, they did.)
- Later the same day, Ambassadors Edwards and Smith attended on Foreign Minister Alatas and others. The Indonesians indicated their continuing concerns about what might occur in Vancouver. As recorded in a report on the meeting prepared and approved by Ambassador Smith: (Mr. Edwards) noted that the Canadian host would take all the precautions necessary to protect the dignity of its guests. Canadian law does not permit however the banning of peaceful demonstration or expression of views.
9.3. Propriety of Canada's Efforts
I have two comments to make on the sequence of events I have just described. Firstly, the efforts by Prime Minister Chrétien, Mr. Axworthy, Mr. Bartleman and the two ambassadors to allay President Suharto's security concerns were proper, acceptable and to be expected of the host of a significant international event such as the APEC conference. As explained by Ambassador Edwards, it was particularly important to Canada that President Suharto attend the APEC conference. It is unrealistic to expect that, as host of the APEC conference, the Prime Minister's Office would take no interest whatsoever in the security concerns of a foreign leader, particularly where failing to provide appropriate assurances might result in a boycott, to the detriment of the conference in general and Canada's economic aspirations in particular.
At four previous international summits hosted by Canada, Ambassador Edwards had carried the responsibilities assumed by Ambassador Vanderloo in respect of the APEC conference. I accept the following answer he gave to a question about the involvement of the Prime Minister's Office in respect of security concerns at those previous international meetings:
Well, there's always an interest taken by the Prime Minister's Office in security issues. These are the leaders of important countries to Canada. The Prime Minister is the host. He takes an interest in the security arrangements put in place for them. And even though the RCMP is responsible, in the last analysis, for security decisions, the Prime Minister's Office takes an interest in what those decisions are, obviously. But more importantly, there is also this element of what I would call the dignity of the leaders being observed, the dignity of the event itself, important international meetings, especially conferences. And perhaps the most sensitive issue of all, and the one we're dealing with here, in fact, is the interface between the rights of individuals to express their views, to assemble freely, and to demonstrate, and so forth; with the need for protecting leaders, or ensuring that the sites where meetings take place and where business is done, that those sites are preserved, the dignity of that site is preserved, and the work is done. We want to make sure that the facilities themselves and the arrangements put in place are the best possible for getting the result that the meeting is intended to have.
Secondly, the message communicated by Ambassador Edwards to Foreign Minister Alatas at the October 7, 1997 meeting is consistent with the message that I accept was conveyed consistently by Canadian officials to Indonesian officials over the months leading up to the APEC conference: although President Suharto's security and dignity would be protected, there was no guarantee that he would not encounter peaceful protests advancing political views inconsistent with his own. I agree with the following two paragraphs of the written submission of counsel for the Attorney General of Canada, the first of which is based on the evidence of Ambassador Edwards and Mr. Bartleman and the second on that of Ambassador Vanderloo:
Indonesian officials were given no assurances beyond the protection of Suharto's security and dignity. Indonesian officials were informed that the Canadian Government could not guarantee that they would not see demonstrators, although protesters would not be permitted in close proximity.
ACCO officials attempted to convince the Indonesians only that security arrangements for the APEC conference met international standards. Canada could not guarantee an absence of demonstrators outside the secure zone.
Even if the Indonesians wished to avoid the possibility that President Suharto might be "embarrassed" by the mere presence of peaceful protesters, the Canadian government did not guarantee that this type of "embarrassment" would not occur. To the contrary, the Indonesians were specifically told that under Canadian law peaceful protests could not be prohibited.
9.4. Protecting Visiting Heads of State
Although the Canadian government did not guarantee that President Suharto would not be embarrassed, it is my view that in appropriate circumstances the federal government and the RCMP may be justified in taking limited steps to ensure that visiting heads of state are not subject to certain types of embarrassment or affronts to their dignity. For example, there is no doubt that they may, and indeed must, take steps to ensure that a visiting leader is not subject to a violent physical assault or a more symbolic act, such as a flying pie. This flows directly from the obligation to ensure the security of the visiting leader's person. I also believe that if the government, as the elected representative of the people, determines that the success of an event is in Canada's best interests, it may take steps to prevent visiting leaders from being grossly humiliated by, for example, illegal acts, in order to ensure that the event is successful and no damage is done to international relations. In this rather narrow sense, the federal government and the RCMP may act to protect the visiting leader's dignity. Generally, however, neither the federal government nor the RCMP may curtail political criticism by protesters. The right to express political views lies at the very core of the freedom of expression provided for in the Charter. The fact that a visiting leader may be merely upset or angered by the expression of contrary political views and criticism by Canadians does not justify the suppression of such expression. I note that, in its report regarding President Jiang Zemin's visit to New Zealand in 1999, the New Zealand Justice and Electoral Select
Committee reached a similar conclusion.
9.5. Allegations of Government Interference
Complainants' counsel identified what they describe as "the four most obvious instances" of inappropriate and direct government interference with the RCMP. One of the four, the "early takeover of the Museum of Anthropology," occurred three days prior to President Suharto's arrival on campus and is discussed in Chapter 11 of this report. The remaining three instances relate directly to the events of November 25 and I will discuss them here under headings that I believe describe them acceptably: the "security or event perimeter," the "demonstration area" and the "noise free zone."
The government representative who participated in each of these matters was Jean Carle, then Director of Operations in the Prime Minister's Office. Mr. Carle acted as liaison between the Prime Minister's Office, ACCO, the Department of Foreign Affairs, the RCMP and foreign bodies. Mr. Carle reported to Jean Pelletier, Chief of Staff in the Prime Minister's Office who, in turn, reported to the Prime Minister. Mr. Carle had access to the Prime Minister to discuss APEC matters as the need arose.
Mr. Carle visited the UBC campus on August 27, 1997, and again on November 13. During both visits there were discussions about the security or event perimeter, the demonstration area and the noise free zone.
9.5.1. Security Perimeter or Event Perimeter
As part of the planning for the APEC leaders' meeting, the RCMP was required to establish a security perimeter at UBC, behind which the Internationally Protected Persons would be protected. This would be a secure zone to which the public would have no access. There is no dispute that this responsibility was the RCMP's alone. However, the Licence Agreement with UBC did provide that the RCMP would consult with UBC on this matter, it being UBC's understanding that the secure zone would only be as large as necessary to address security concerns, and that students would be permitted to demonstrate anywhere outside the secure zone.
Complainants' counsel assert that, to accommodate what they say was the federal government's desire to shield President Suharto from the sights and sounds of protest, the RCMP enlarged the perimeter for reasons unrelated to security. The "enlarged" perimeter was described during the hearing as the "event perimeter." In his testimony, A/Comm. Wawryk defined an "event perimeter" as the product of all the deliberations of the federal host in declaring the perimeter around a given site and a "security perimeter" as the product of police thinking about what they need to secure the Internationally Protected Persons.
9.5.1.1. August visit to UBC
During his August 27 visit, Mr. Carle was accompanied by Peter Donolo, also from the Prime Minister's Office. The two men toured all of the sites where APEC events were to occur, and were accompanied for the UBC portion of the tour by Mr. Vanderloo, Supt. May and Insp. Dingwall.
According to Mr. Vanderloo, a UBC representative would also have been along on the tour. Given the evidence of all of the witnesses from UBC, Mr. Brown is the only UBC representative who could have been present but he had no recollection of being there. Mr. Brown played an active role during Mr. Carle's November 13 site visit but he did not recall meeting Mr. Carle at any time whatsoever prior to that date. I am satisfied that no UBC representative was present at the August 27 visit, at which time Mr. Carle communicated information that UBC would have regarded as significant, had a university representative been present to hear it.
The five men stood on the south side of the Chan Centre near the Rose Garden, across Northwest Marine Drive from the Museum of Anthropology. They had a preliminary map that indicated the location of the proposed security perimeter. The perimeter had not yet been finalized but was almost identical to the perimeter which appeared on the first of several maps prepared by Sgt. Koleyak in October or November, 1996.
Mr. Carle was vocal and firm that what was to occur on campus on November 25 was a "retreat" that would require a calm environment, conducive to work being done by the world leaders in attendance. Supt. May and Insp. Dingwall testified that Mr. Carle said this event was to be a private retreat and there was to be no undue noise or disturbances by demonstrations.
Insp. Dingwall said that Mr. Carle's concern was that the noise made by protestors would carry and that the use of loud hailers would disrupt the meeting at the museum. Insp. Dingwall agreed that Mr. Carle's concern about potential noise was not a security issue.
After the site tour, Insp. Dingwall prepared what he described as a "general note to file" about the day's activities, which had consumed five or six hours. With reference to the discussion near the Chan Centre he recorded:
Jean Carle does not want the demonstrators close at all, which will mean moving back our perimeter.
Insp. Dingwall acknowledged that his reference to the "perimeter" was to the "security perimeter." He sent the note by e-mail to the five members of the core APEC Planning Committee, which included Officers Koleyak and Merkel, and copied it to Supt. Thompsett. Mr. Vanderloo agreed that Insp. Dingwall's note was accurate on the noise issue and confirmed that Mr. Carle's desire to push back the security perimeter was intended to create a "retreat" atmosphere, and had nothing to do with security.
According to Mr. Vanderloo, ACCO's contractual obligation to UBC was twofold:
- Beyond the security perimeter, there would be no problems about access; and
- UBC students were to be provided with a demonstration area with a line of sight to the leaders.
9.5.1.2. A "retreat-like" setting
In the context of the annual meetings of APEC leaders, the retreat portion of the conference had a special place. It had become a tradition to hold this event in an isolated location and it was a tradition that APEC conference planners wished to continue.
Previous APEC leaders' retreats had been held in the U.S. on an island near Seattle; in Indonesia at a site 40 kilometres outside of Jakarta; at an abandoned U.S. naval base in the Philippines that was inaccessible to the public; and in Japan on castle grounds that were sealed off to create what Ambassador Edwards called "a very private setting." He acknowledged that one thing those previous locations had in common was the degree to which they could be insulated from the general public: he described the desired location as "a very informal setting removed from the real world as it were."
Mr. Pelletier explained that there were always two sites used for APEC conferences, and in this case "the retreat site was the university grounds in Vancouver and in our view, had to be treated as a retreat site."
However, those who thought that a "retreat-like" setting removed from the real world could be achieved for such a meeting on a Canadian university campus, were seriously mistaken.
I am satisfied that when it agreed to host the November 25 meeting on campus, UBC was not informed of government plans for a "retreat-like" event. The concept never emerged in the negotiations that led to the selection of Vancouver as host city and Counsel for the Attorney General of Canada acknowledged that the Licence Agreement did not mention it. UBC was under the impression that the secure zone would be no larger than necessary to meet security concerns and that opportunity would be provided for meaningful protest. Clearly, the parties to the Licence Agreement had different intentions.
I am also satisfied that, had UBC been advised from the outset that the government's objective was to create a "retreat-like" atmosphere, UBC would never have contracted as it did. Prof. Pavlich sincerely believed that the insertion of section 6.3 into the Licence Agreement would ensure a meaningful opportunity for lawful protest and the exercise of free speech by allowing protesters to see and be seen by the APEC leaders as they passed by in their motorcades. I am satisfied that, as late as October 10, President Piper felt that such a line of sight would be made available. On that date, she wrote the Prime Minister a letter that opens in the following way:
Following our brief discussions on Thursday, October 2 in conjunction with the launch of the APEC conference Season, I am writing to let you know about UBC's extensive interests in the APEC process. These interests extend beyond provision of the venue for the APEC Economic Leaders Meeting to involvement with the substantive issues of the meeting itself. First, let me express how honoured we are to have this event at the Museum of Anthropology and Norman Mackenzie House, and how highly we value the international recognition the University will receive as a result. Building on this, UBC is engaged in a wide-ranging program of academic, teaching and research initiatives related to the APEC agenda. These initiatives illustrate UBC's commitment to long-term involvement in the Asia Pacific region and further strengthen the University's position as the leading institution in Asia Pacific affairs in Canada.
After listening to President Piper on the witness stand, I am satisfied that she was unaware that the meeting referred to in her letter was to be held in a setting "removed from the real world."
In responding to submissions by counsel for the Attorney General of Canada, counsel for the B.C. Civil Liberties Association stated:
...the Attorney General points out that "Other host countries chose retreat sites in remote areas where public access was completely denied." We agree that if the goal of conference organizers is to achieve a peaceful, retreat-like setting, it is logical to choose a retreat site in a remote area. The attempt to impose a similar level of tranquillity on a crowded, urban, University campus as had previously been achieved on a remote island, the grounds of a castle, and an abandoned naval base was obviously one of the factors that contributed to the unlawful violations of protesters' rights that occurred at UBC.
I am in general agreement with that submission and would add that the attempt to hold a "retreat" at the UBC campus may well have contributed significantly to the events of November 25, 1997.
The description of the leaders' meeting as a "retreat" did become part of the terminology used to describe it: it was used by the Deputy Director of ACCO at a public information meeting on October 7, and it was in prominent use at a November 13 tour on campus that I will review in my discussion of the "demonstration area."
9.5.1.3. Accommodating non-security concerns
There is conflicting evidence as to whether the "security perimeter" was enlarged for reasons unrelated to security, such as a desire to prevent noise from disrupting the leaders' meeting, or to prevent the APEC leaders from seeing protesters.
There is little doubt that the federal government believed that it was entitled to set the "event perimeter" with reference to considerations other than security. Mr. Carle said that, at the August 27 meeting, he suggested that the "retreat" should not be disturbed by
"signs or protestors in the near vicinity of the working area." Mr. Vanderloo testified that ACCO's first priority was to create the proper ambience for the leaders' meeting and that they had authority to determine the location of the "event perimeter" and to enlarge it beyond what was strictly necessary from a security perspective. He confirmed that, at the August 27 meeting, Mr. Carle asked the RCMP to go back to the drawing board and move the perimeter to accommodate the desire by the Prime Minister's Office for a quieter, retreat-like setting, as well as a media centre.
The RCMP also appeared to be under the impression that the federal government, as host of the event and licensee pursuant to the Licence Agreement, could place the perimeter wherever it wished, provided that the RCMP's security requirements were met. Supt. May testified that, although the RCMP was the ultimate arbiter of what areas had to be secured to meet security concerns, ACCO and UBC had the authority to establish a larger perimeter if they wished. Insp. Dingwall's testimony was consistent with that of Supt. May. Two expert witnesses suggested that there is nothing improper about a police force factoring non-security concerns into the establishment of a perimeter. Chief Supt. Stephen French, head of the Public Order Branch of the Metropolitan Police in London, England, was asked how a host's intention of having a tranquil, "retreat-like" setting would factor into the security requirements for a security perimeter. He replied:
Well, I think there's a — in a very practical sort of way, if — if the venue is to be made suitable for the purpose, i.e., suitable for discussions, talks, whatever the purpose might be of, then quite clearly the environment has got to be such that it can enable that to happen. They — that may not necessarily have a security implication to it, but I dare say that there again is a compromise between the needs of security and the needs of the participants in the event.
But obviously from a Police perspective, we're concerned about the security side rather than the tranquillity of the event. But I can understand obviously, that there needs to be – if – if you can't actually maintain the dignity of the event and enable it to happen, then there's probably no point in having it at that particular location.
Chief Supt. Robert Milton, Security Commander for the Special Branch of the Metropolitan Police, holds responsibility for the personal protection of VIPs and Internationally Protected Persons visiting the United Kingdom. He testified that, if a host wished to enlarge the security perimeter to achieve a retreat-like setting, his only question would be: "does that affect security?" If so, his security concerns would have to be met. If it did not affect security, his response would be: "fine... that's your decision." This is the same approach taken by Supt. May and Insp. Dingwall.
There is no doubt that the RCMP was responsible for establishing the security perimeter. The primary issue for my consideration is whether, in establishing the perimeter where they did, the RCMP acted inappropriately or in a manner inconsistent with the Charter rights of protesters. If they did, a further issue is whether they did so at the direction of the federal government, to accommodate governmental concerns unrelated to security. I will return to this matter in Chapter 13.
9.5.2. Demonstration Area
Throughout the planning for the leaders' meeting, one of UBC's primary goals was to ensure that students would have an area where they could see and be seen by the visiting leaders. This area was described by UBC personnel as a "line of sight" gathering place.
On October 17, Ms. Courtney of UBC faxed a letter to Supt. Thompsett in Chilliwack describing an October 14 meeting between UBC and the RCMP. The letter closed with the following expression of concern:
As I did at the meeting, I would like to register serious concern on behalf of the University that there is no designated area for protestors to gather. In all our negotiations, this has been an issue and is a major concern to our President and to our Board of Governors. In our agreement with the Federal Government, Section 6.3 states "The parties undertake not to impede any lawful protest and the exercise of free speech outside the Properties and other designated areas, as determined by the RCMP in conjunction with UBC." UBC has worked very closely with the RCMP in attempting to find an agreeable boundary for the secure zone. We have looked at various areas for protestors but none have reached consensus between both UBC and RCMP. Chris Brown and I met with Associate Vice-President Dennis Pavlich today to discuss this concern and he has asked us to convey to the RCMP that it is unacceptable to the university to have no area of protest within sight of the leaders. Accordingly, we would ask that you reconsider the actual placement of the security fencing adjacent to the Faculty of Law building to allow a place for protestors at that location.
The result of Ms. Courtney's letter was a meeting on November 3 attended by police representatives, Mr. Vanderloo and Ms. Courtney. At the meeting they agreed that the area in front of the law school suggested by Ms. Courtney should be the location for the protesters to gather. UBC was hesitant to describe the area as the "demonstration area" because of their entirely accurate view that demonstrations could take place anywhere outside the secure zone. Nevertheless, for anyone not living at the Green College residences, this was really the only area where protesters had a chance to see and be seen by the APEC leaders and I therefore refer to the area as the "demonstration area." It was suggested that the security fence be placed 20 feet out from the law school building and run the 100 foot length of the building. Supt. Thompsett agreed with this. UBC was satisfied with the location but not with the 20 foot distance between the fence and the building. UBC's view was that this would not give protesters enough room to gather. The proposed fence location was also a considerable distance from the junction of Northwest Marine Drive and Chancellor Boulevard at Gate 3, where the leaders' motorcades were expected to enter and exit the campus.
9.5.2.1. The Thompsett/Pavlich line
A meeting was convened in President Piper's office on November 10. Insp. Dingwall attended with Supt. Thompsett. Present with President Piper were Prof. Pavlich and Ms. Courtney. As a result of UBC's dissatisfaction with the size of the demonstration area, Prof. Pavlich, Ms. Courtney, Supt. Thompsett and Insp. Dingwall walked to the law school site. They agreed to move the line out a further 64 feet to a location 84 feet from the law school building. This became known as the "Thompsett/Pavlich" line.
There was a firm agreement between the RCMP and UBC on the location of that line. Supt. Thompsett thought the agreement was finalized on the spot but I believe the correct sequence was that he left to discuss the matter with other senior police officials and then telephoned Ms. Courtney either later that day or the next day to advise that the Thompsett/Pavlich line was acceptable to the RCMP. Ms. Courtney immediately sent an e-mail to Mr. Brown advising him of the agreement that had been reached.
9.5.2.2. Mr. Carle's view
Mr. Carle toured the UBC site again on November 13, accompanied by Mr. Brown, Ms. Courtney, Mr. Vanderloo, Supt. Thompsett, Supt. May and Insp. Dingwall.
At the law school, Mr. Carle was shown the location of the Thompsett/Pavlich line and was made aware of the agreement between the RCMP and UBC. He objected vigorously. He said his concern was for public safety. He described the location of the line as being on a hill and he was concerned that, if a large number of people were to gather there, the fence might roll over and an accident could result. When questioned about the terrain in front of the law school, Mr. Carle said that it was steeper towards the street. He was completely wrong. The slope levels off towards the street and rises towards the law school building. In any event, he wanted the line moved. None of the others present shared Mr. Carle's concern. They were all comfortable with the Thompsett/Pavlich line. Mr. Carle proposed instead a line 41 feet from the law school building.
There were no security reasons for moving the line to Mr. Carle's proposed location. The three police officers agreed on that point. Supt. May was asked directly for his view:
Q: What Mr. Carle was doing was unilaterally moving the line closer to the law school, right?
A: Yes, sir.
Q: And from your point of view, that had nothing to do with security concerns?
A: No, sir.
Q: You're agreeing with me?
A: I'm agreeing that my line in the sand was in the vicinity of Line 2 to 6.
Line 2 was the Thompsett/Pavlich line, 84 feet from the building; line 6 was 75 feet from the building and the location where the fence was actually located on November 25.
Mr. Carle was definite that he did no more than express his concern and opinion and that he was not directing the police, which he acknowledged he had no authority to do. Mr. Vanderloo said that Mr. Carle wanted the line moved back and that he was quite emphatic in expressing himself. Mr. Vanderloo saw Mr. Carle as making a strong recommendation that the line be moved. He said he left the site with the impression that the line would be moved to where Mr. Carle wanted it to be. Mr. Vanderloo was asked if he accepted that Mr. Carle's concern was for the well-being of the students who would be standing on a slope. He answered:
You have to understand the circumstances, too. We were in the midst of a meeting. I wasn't prepared to argue at that particular stage. There were – let's just go ahead with it. Whether that's the right or wrong decision, I accepted it; and if I have to take the blame for that.
It was Mr. Brown who went toe to toe with Mr. Carle on the issue. Mr. Vanderloo said that Mr. Carle was yelling at Mr. Brown. Mr. Brown agreed that "authoritarian" was an accurate description of Mr. Carle's demeanour as he tried to reason with him. On three occasions, Mr. Vanderloo referred to Mr. Brown's efforts as trying to convince Mr. Carle to "reverse his decision."
Mr. Pelletier testified as to his briefing by Mr. Carle about the site visit:
He told me that he had taken a decision and that was not the decision that was agreeable to the University.
Asked to describe the scene, Supt. Thompsett said that when Mr. Carle's attention was drawn to the Thompsett/Pavlich line:
...He looked at the--he looked out at the line, he looked back a bit to his left, he looked back out at the line again, he looked back to his left and extended his hand and said here, here. In other words, I took it, that he was indicating he wanted the line where his hand was pointing. With that, Mr. Brown stepped forward, Chris Brown stepped forward and said to him that--tried to explain to him that the University had this interest in commitment to provide a protest area. Mr. Carle said, here, right here. That was the end of the discussion.
Supt. Thompsett, who was to be in command on campus on November 25 and had been a party to the accord with UBC on the location of the fence, was asked why he had not spoken up:
Well I've learned over the years that when you have to deal with someone where there's a controversy, its important that you pick your time and your place, and my assessment of Mr. Carle, I had never met him before, but the way he responded to Mr. Brown, that was not the time to get into a discussion with Mr. Carle about something that he may have a different opinion on.
When he was asked about his understanding, at the conclusion of the site tour, as to where the line would be drawn, Supt. Thompsett said:
A: Well, I knew of the agreement that I had with Prof. Pavlich, and it was my intention to honour that agreement. I now I had a little bit of a problem, because the PMO's office had a position namely Mr. Carle, and the University and I agreed with the University position. So I at that particular moment, I wasn't quite certain how I was going to resolve this, at that particular time.
Q: Did you attend a meeting with President Piper and Mr. Carle and others on the 22nd of November?
A: Yes.
Q: Was that the next thing that happened?
A: Well, no. As I was contemplating my strategy and how I was going to deal with this, I had heard from either Wayne May or Bill Dingwall that Mr. Brown had reported back to President Piper of the meeting on the lawn, and then I had heard that President Piper was going to express her displeasure to the Prime Minister.
I accept that as an honest and reasonable answer. I believe that Supt. Thompsett did intend, in his own way and in his own time, to address the situation. Given the environment he was in at the time, his decision was very likely a wise one. Mr. Carle had, in my judgment, inexcusably thrown his weight around on this occasion. His expression of concern for public safety was a spurious one that I reject.
9.5.2.3. UBC's reaction
Mr. Brown reported Mr. Carle's intervention to Prof. Pavlich. Prof. Pavlich testified as to his reaction:
So I said to him, I said, I think we should indicate that this was a breach of an agreement. I thought it was a breach of two agreements. An agreement that we have reached with the--with the RCMP, and I said, in my view, it was also an agreement--a breach of the agreement with the Federal Government. Because the only conclusion--the only inference I could draw from all of this, given the conversation I had had with Thompsett, who, after all, is the security person, right, he's the RCMP, and given the fact that he was happy with the way the line had been drawn--and I assumed he was acting pretty conservatively, I got to tell you, I could only assume from all of this that the whole question of allowing people to protest peacefully was an issue. I said, it's hard for me to--to conclude anything else, because what you're telling me is that this is, you know, a function of the Prime Minister's Office, what the hell does he know about security? He sure as hell doesn't know any more than I do. And the expert is--who is the RCMP has settled it in a certain spot. So I was really quite angry, I'll tell you. And I said, we had to take this to the president.
President Piper shared Prof. Pavlich's concern and dissatisfaction. President Piper, Prof. Pavlich, and Mr. Brown drafted a letter dated November 19, 1997 to Prime Minister Chrétien and dispatched it by fax. The letter reads:
Dear Prime Minister:
I am writing to you to express our concern about a proposal to seriously limit the opportunity for members of the University community, particularly students, to have a sense of involvement in the upcoming APEC Economic Leaders' Meeting on the campus of The University of British Columbia. In planning the leaders' meeting, we had reached an agreement with the RCMP on a "line of sight" gathering place where interested students, including some who are opposed to APEC, could see and be seen, however briefly, by the APEC leaders.
Now, regrettably, as we enter the final planning stages for the leaders' meeting, officials from your office have decided to reduce significantly the area available for line of sight access to the APEC leaders. This contravenes the University's commitment to its community, violates a prior agreement, and increases the risk of a serious incident arising out of over-crowding and frustration in a very confined space.
A return to the boundaries previously agreed upon by the University and the RCMP would in no way endanger the safety of the APEC leaders, and would enable the University to meet its minimum obligations with respect to providing access and freedom of speech.
Over the past months we have been very active in supporting your farsighted decision to host the APEC Economic Leaders' Meeting on the campus of this University. We share your view that it is essential to demonstrate to the APEC leaders themselves and the international community the importance of youth and education in the Asia Pacific region. To be consistent with this approach, it is vitally important that together we actively encourage the free expression of opinion by members of the University.
It is in this spirit, therefore, that I write now to ask that your staff review their decision to further restrict the area available to students who wish to engage with the leaders' meeting. I hope that it will be possible to return to the boundaries already approved by the RCMP and preserve the agreement that regulates our respective interests in this matter.
Yours sincerely,
"Martha Piper"
9.5.2.4. Mr. Carle's response to UBC
Without bringing President Piper's letter to the Prime Minister's attention, Mr. Carle replied to it in his own name. He said that replying to the letter fell within his decision making responsibilities.
Mr. Carle said that Mr. Vanderloo had delivered President Piper's letter to him and that Mr. Vanderloo "took it upon himself to go and draft a response letter" that Mr. Carle would sign on Prime Minister's Office letterhead. Mr. Vanderloo did not recall giving the letter to Mr. Carle. Rather, he assumed that it had gone directly to the Prime Minister's Office. He was definite that Mr. Carle had asked him to draft a response. I am satisfied that Mr. Carle initiated Mr. Vanderloo's involvement and that Mr. Vanderloo did not "take it upon himself" to draft the letter.
Mr. Carle said that he spoke to Supt. May on the phone, telling him that he would be "talked to" by Mr. Vanderloo. Supt. May acknowledged that he was given an opportunity to provide input into the draft reply. Initially he testified that he made no comments to Mr. Vanderloo on the substance of the reply and did not recall providing any special input but later he said he may have made some comments on Mr. Vanderloo's draft.
I am satisfied that Supt. May did contribute to the content of the letter. I accept Mr. Vanderloo's evidence that he and Supt. May sat down in the ACCO office to draft the response. Mr. Vanderloo said that the letter signed and sent by Mr. Carle accorded with the draft he prepared and delivered to Mr. Carle for transcription onto Prime Minister's Office letterhead.
The letter is dated November 20 and reads:
Dear Dr. Piper,
Thank you for your letter of November 19 addressed to the Right Honourable Jean Chrétien, Prime Minister of Canada. In our prior discussions with the University of British Columbia, various options were reviewed with University officials on the issue of "line of sight" gathering places for students. As you will appreciate, security considerations are of paramount concern and restrict the availability of suitable sites. The selection of the preferred site and its desired size were discussed with your representatives, however no agreement was reached as this would eventually be subject to a final threat assessment and analysis. The final decision on the part of the APEC organizers led to the endorsement of the present site by my office. In addition, the decision was also taken to provide liberal access to the Canadian and international media to the proposed anti-APEC tent city which is located in close proximity to the Media Holding Centre at the University of British Columbia.
Yours sincerely,
The Director of Operations,
"Jean Carle"
Mr. Vanderloo, Supt. May and Mr. Carle were all questioned about the reference to "security considerations" being of "paramount concern." Mr. Vanderloo acknowledged that the letter did not refer to Mr. Carle's alleged "safety" concerns about the slope of the terrain because he did not consider Mr. Carle's concern to be particularly valid. When asked why he had referred in the letter to security considerations being of paramount concern, Mr. Vanderloo replied:
A: My recollection of the drafting of this response relates to, I think, Dr. Piper's statement that we were violating the agreement.
Q: Right. And--and--and the agreement was that you could only interfere with student's rights to lawful protest if there were security considerations; right? That's what--that's what President Piper was communicating to you.
A: Hmm hmm.
Q: —and that's what you were responding to; right?
A: Yes.
Q: And so you were coming back to her and suggesting that the reason why, me--Mr. Carle, have put the line where I want to put the line is because of security concerns —
A: Hmm hmm.
Q: — that was the purpose of the letter; right?
A: Yes.
Q: And that was misleading; right?
A: I admit that, yes.
Mr. Carle acknowledged that the statement in the letter that "security considerations are of paramount concern and restrict the availability of suitable sites" had absolutely nothing to do with the slope of the terrain in front of the law school. As I have recorded earlier, Supt. May acknowledged that Mr. Carle's designation of the 41-foot mark had nothing to do with security concerns insofar as the RCMP was concerned.
Supt. May, Mr. Vanderloo and Mr. Carle were also questioned about the assertion in the letter that "no agreement was reached" on suitable protest areas. An agreement had in fact been reached between Supt. Thompsett and Prof. Pavlich on November 10-11, as contemplated by the Licence Agreement. The suggestion that no agreement was reached because changes might be brought about by a "final threat assessment and analysis" was, to put it mildly, disingenuous, particularly on the part of Supt. May who, along with Mr. Vanderloo and Mr. Carle, was well aware of the agreed upon Thompsett/Pavlich line. Everyone involved knew that commitments such as fence location would be subject to adjustment, should an emergency present itself. Supt. May acknowledged that the reference in the letter to the "final threat assessment and analysis" would have come from him.
Mr. Vanderloo was asked what he understood the phrase "no agreement was reached" to mean:
I think what you have to look at in this letter is that we were searching for--we had to do a response. We were searching for diplomatic language to—to get a response. I think in retrospect, the letter could have been better worded, and we should have been more open in terms of Jean Carle's own concerns and had--have reflected that in the letter--the letter, as it was prepared. And I agree with Wayne's statement that, in terms of any decision on any side will be in the end dictated by the final threat assessment. All of the lines could have been moved hundreds of metres had there been any change in the threat assessment. In re-reading this letter, I think it's—it could have been better worded and we should have been more explicit in reflecting Jean Carle's views.
In my view, the reference to security concerns and the suggestion that no agreement had been reached were dishonest. Mr. Vanderloo, a very decent man with a distinguished background of government service, was singled out to perform Mr. Carle's unpleasant work for him and obviously succumbed to the power wielded by Mr. Carle.
I also believe that Supt. May should have declined to become involved in the drafting of the letter when his participation was requested. Police had no responsibility for helping Mr. Carle prepare his response to President Piper.
Lastly, Mr. Carle's placement of his signature on the letter was unworthy of him and surely was a betrayal of the confidence placed in him when he was entrusted with a level of authority that allowed him to respond, without consultation, to President Piper's letter addressed to Prime Minister Chrétien.
9.5.2.5. A compromise
Soon after she received Mr. Carle's letter, President Piper met with her senior staff and decided to make a further attempt to contact the Prime Minister's Office directly. She telephoned Eddie Goldenberg, whom she knew to be a senior advisor to the Prime Minister, and who had arrived in Vancouver with the Prime Minister for the APEC conference. President Piper expressed her concerns about Mr. Carle's unsatisfactory response to her letter of November 19. Mr. Goldenberg subsequently arranged for Mr. Pelletier, Chief of Staff in the Prime Minister's Office, to meet with President Piper at her home on campus the following morning, November 22.
Mr. Pelletier arrived on campus with Mr. Carle, Supt. May and Supt. Thompsett. Before going to the President's home, they went to the law school site. Mr. Carle explained to Mr. Pelletier his "safety" concerns and pointed out the location where he had decided the fence should be located. Supt. Thompsett pointed out the location of the Thompsett/Pavlich line. Mr. Pelletier said he was not as worried as Mr. Carle about possible injuries because he did not think that the hill was that big. Mr. Pelletier proposed a compromise location, close to the mid-point between the Thompsett/Pavlich line and that selected by Mr. Carle. All present said they could accept that location. When measured later, Mr. Pelletier's compromise line turned out to be 59 feet from the law school building.
From there, the group went to the President's home, where Mr. Brown was also present. Although the Pelletier compromise was discussed and accepted, neither Mr. Brown nor Supt. Thompsett were overjoyed by the relocation of the previously agreed upon Thompsett/Pavlich line. Each man, independently of the other, went out to where the contractor was erecting the fence at the law school site on Saturday afternoon. Supt. Thompsett drove a stake into the ground at a location closer to the road and said to the contractor "the fence goes right here where the stake is." Mr. Brown, separately, also instructed the contractor to move the fence closer to the road, as he felt that the agreement of the morning was not being honoured. Ultimately, the final line was located 75 feet from the law school building and nine feet back from the Thompsett/Pavlich line. Cross braces were then erected from the fence and at right angles to it for a distance of 10 feet towards the road and then a second row of fencing was erected parallel to the first row. The demonstrators were to be located behind the inner fence. Therefore, in order to see the motorcade route, they had to look through two fences placed 10 feet apart.
There is no doubt that the area set aside for the leaders' meeting on November 25 ended up looking much like a fortress. In reality, there was no real opportunity for the protesters to engage in meaningful protest at the Law School site. Prof. Pavlich obviously had high hopes that the law school area would provide that opportunity but I believe he was quite correct in his assessment, after the fact, when he said:
There were some people protesting, but I sure as hell don't think anybody on that cavalcade would have been able to see it.
Complainant and witness Donald M. Bain, who was at the law school location for part of the morning of November 25, was asked whether signs in the area in front of the law school would have been visible to the passing motorcades:
A: I doubt that they would have been able to see it at all. I mean the thing to note about the angle there is, I mean, you basically have to crane your neck to the left and look behind you, if—
Q: If you're travelling—
A: I mean if you were trying to look where the protestors were, you'd have to look to your side and slightly back.
Mr. Commissioner: If you came from where?
The Witness: If you came where they came from, which was up Marine Drive, basically came around the corner there. And the angle is such—I mean, there's the slight slope of the hill and the Law School is at the top. And you'd have to--kind of, look up and back.
The witness was quite correct. Motor vehicle passengers, particularly in the back seat, would have had to "crane" their necks sharply in order to see anything at the law school location.
The double fence also contributed substantially to rendering the space in front of the law school ineffective as an area for meaningful protest. Believing, as I do, that Mr. Carle's performance at the site on November 13 was nothing but a ruse, as Supt. Thompsett and Mr. Brown must also have thought, I commend them for their actions regarding the placement of the fence. Those actions were certainly in accord with and motivated, I believe, by UBC's commitment to allow the protesters an area where they could see and be seen by the passing motorcades. They were also in accord with the Licence Agreement, which provided that the security perimeter was to be the product of consultation between UBC and the RCMP.
The issue for my consideration is whether, in establishing the "demonstration area" where they did, the RCMP's actions were inappropriate or inconsistent with respect for the Charter rights of protesters and, if so, whether their actions were at the direction of the federal government, to accommodate governmental concerns unrelated to security. I will record my conclusions in respect of this issue in Chapter 13.
9.5.3. Noise Free Zone
On his November 13 campus visit Mr. Carle expressed concerns that noise from protesters could distract or disturb the leaders and disrupt their meeting. Mr. Carle said he was concerned that protesters would be using bullhorns and the noise might penetrate the museum walls. Supt. Thompsett said he understood Mr. Carle to be concerned that noise would be heard outside the museum as the leaders were arriving and being greeted outdoors by Prime Minister Chrétien. Mr. Brown said that noise was not a security issue and was not a concern to UBC. Insp. Dingwall said that noise was not a security issue for the RCMP and that if it was an issue, it would be ACCO's issue.
Insp. Dingwall said that Mr. Carle proposed to the November 13 site tour group that the security fence be moved back on West Mall one block to the far end of the roadway at the south end of the C.K. Choi Building. Insp. Dingwall said he told the group that the fence line would not be moved. Instead, he proposed establishing a "noise-free zone" by putting up smaller barricades on West Mall, one block from the intersection with Crescent Road. Officers would be stationed there to watch for amplifying devices such as megaphones and to allow those carrying such things to pass through only if they left their devices at the barricade location.
By accepting Insp. Dingwall's solution, UBC clearly acquiesced in the creation of a "noise free zone" on UBC property. Mr. Brown testified that ". . . we basically came to agreement on an area where observers would be allowed but that megaphones would be restricted." In an e-mail to Dr. Piper, Mr. Brown said:
The other change the PMO insisted on was a quiet area on West Mall between the C. K. Choi Building and the new School of Journalism. Here they want to create an enclosed area where they will allow students but restrict access to anyone with an electric "Bull Horn" who could cause enough noise to disrupt the leaders' meeting in the MOA... We all agreed that we could live with the restricted noise zone outside the Choi Building.
Supt. Thompsett said he believed the zone was put in place but he could not be certain because he was not at that location during the critical time on November 25. Mr. Brown said that the agreement was implemented. However, given the way that the events of the day unfolded, I am not surprised that there was no evidence of any amplifying devices actually being surrendered at that location. The issue for my consideration is whether, in establishing the "noise free zone", the RCMP acted inappropriately or in a manner inconsistent with respect for the Charter rights of protesters, and if so, whether they did so at the direction of the federal government, to accommodate governmental concerns unrelated to security. I will return to this matter in Chapter 13.
9.5.4. Mr. Carle's Motivation
I do not believe that Mr. Carle's purpose in acting as he did in respect of the security perimeter or event perimeter, the demonstration area and the noise-free zone was to shield President Suharto from the sights and sounds of peaceful protest in order to live up to assurances allegedly given by the Canadian government to ensure his presence at the APEC conference.
I reject the suggestion that the government improperly interfered with the RCMP by directing, ordering, influencing or pressuring the RCMP for that purpose.
I do believe, however, that Mr. Carle's actions were motivated by a drive to shield the 18 leaders from the sights and sounds of peaceful protest so that Canada could produce the "retreat-like" atmosphere for the leaders' meeting which had become traditional for the last day of the annual APEC conference. The evidence I have reviewed supports that view and leads, in my opinion, to no other rational conclusion.
9.6. Documents Relied on by the Complainants
Complainants' counsel submitted that documentary evidence supports three propositions:
- that Canada took the need to avoid "embarrassment" to the Indonesians to mean that there should be no "signs of protest" in President Suharto's presence;
- that Canada therefore made a commitment to receive and keep President Suharto in a protest-free environment; and
- that the RCMP conduct on campus on November 25 was attributable to the government's efforts to honour that commitment.
I do not agree. Neither the documentary nor oral evidence supports those propositions.
Complainants' counsel suggested that documentary evidence reveals that "Canadian officials lavished the Indonesian dictator with attention and went to extraordinary lengths to assuage his and his officials' concerns about the possibility of him being embarrassed by seeing demonstrators." Again, I do not accept that suggestion.
I referred earlier to some of these documents in my discussion of the Canadian government's efforts to encourage President Suharto's attendance. A few of the other documents warrant consideration here. Chief among them are:
- an e-mail sent the first week of September by Cpl. Merkel to Supt. May and Insp. Dingwall; and
- minutes of a September 17 Security Steering Committee meeting attended by Supt. May, Insp. Dingwall, Cpl. Koleyak and others.
In his e-mail, Cpl. Merkel said that the Prime Minister's Office had "made it clear to ACCO to do anything to ensure the President of Indonesia attends APEC."
Cpl. Merkel had no recollection of the source of this information: he had no direct contact at any time with anyone from the Prime Minister's Office, but he had received
Insp. Dingwall's August 27 e-mail, which stated that "Jean Carle does not want the demonstrators close at all."
In the Security Steering Committee minutes of September 17 under the heading "Indonesia," the following appears:
There has been considerable pressure by the Indonesian government to withdraw from the Conference because of security concerns. The ambassador and a delegation from Washington have been briefed on several occasions regarding security and demonstration issues and each time they appear satisfied with arrangements that have been made. The PMO office has asked that everything that can be done, be done to satisfy the Indonesian concerns.
This too was not long after Mr. Carle's August 27 visit and Mr. Vanderloo said he was pretty sure there must have been a discussion about President Suharto during that visit, at which Insp. Dingwall and Supt. May were also present. Other than Mr. Carle's participation in that August 27 visit, there is no evidence of any other involvement in APEC security planning by the Prime Minister's Office before the September 17 Security Steering Committee meeting.
Complainants' counsel understandably relied heavily on these two documents to support their allegation that the government's desire to ensure President Suharto's attendance motivated the RCMP conduct in issue. I have no doubt that the Prime Minister's Office wished to observe tradition and create a "retreat-like" setting. However, I cannot conclude that these and other documents prove that the Prime Minister's Office went to extraordinary lengths to assuage Indonesian concerns that President Suharto be shielded from all signs of protest at the APEC conference.
I have studied many other documents that counsel rely on to build their case. Several of these documents do refer to concerns about possible embarrassment of President Suharto and the need to protect his dignity or comfort. For example:
- A September 12 e-mail from Mr. Vanderloo to Ms. McNeil and others:
PMO had expressed concerns about the security perimeter at UBC, not so much from a security point of view but to avoid embarrassments to APEC Leaders. ACCO and the RCMP are looking at that issue. The response (as suggested in fact by Donolo) is that we have to find a balance that meets both concerns (we do not wish student demonstrations and efforts by the govt to suppress the freedom of expression to become a major media story).
- Advice from Supt. May to the RCMP's Director of Protective Operations and Assistant Commissioner during September or October:
Over the past month, a tremendous amount of time and energy has been spent by ACCO and ourselves in dealing with the Indonesian concerns over demonstrators and the possibility that their leader could be subjected to an embarrassing situation.
- A September 16 memorandum from Mr. Bartleman to Mr. Carle, headed "Suharto's possible non-attendance."
...the Indonesians are not bluffing in asserting that Suharto will refuse to go to Vancouver if his dignity is likely to be offended by events taking place on the street.
- "Talking points" prepared on September 19 by Mr. Bartleman for the Prime Minister in preparation for his September 22 meeting with Ambassador Parwoto:
Canada will be taking particular care to ensure the President's stay is a pleasant and rewarding one. His personal security is assured, and steps will be taken to preserve his comfort.
- A September 19 memorandum co-authored by Ambassador Edwards to Foreign Affairs Minister Axworthy and others, identifying the issue being addressed as:
To agree to a strategic approach to engage Indonesian Ministers and President Suharto in responding to concerns about potential embarrassment to their Leader at the time of the Vancouver APEC Economic Leaders' Meeting.
- A document accompanying Ambassador Edwards' September 19 memorandum:
There are two aspects to Indonesian concerns: the physical security of the President (the Indonesians made clear that they wished to avoid a repetition of threatening demonstrations that came physically close to the President when he visited Dresden in 1995); and embarrassment to the President. Indonesia has suggested that the occurrence of either a security problem or embarrassment of the President would damage bilateral relations.
That last-mentioned document also set out a 10-point plan for proposed contact with Indonesia. Of that plan, Complainants' counsel submitted:
A ten point action plan was adopted by Minister Axworthy to deal with the Indonesian concerns, which included reassuring letters, calls and visits at very senior diplomatic levels, including direct contact between Prime Minister Chrétien and Suharto. The Government of Canada had thus formalized a concrete plan to assuage the Indonesian concerns about embarrassing demonstrations.
These references to the need to avoid embarrassments and to preserve President Suharto's dignity and comfort all accord with what I previously described as the consistent message delivered by Canadian officials to Indonesian officials over the months leading up to the APEC conference: that is, that although the government was willing to make every effort to address Indonesian concerns, Canadian law would always be respected. That law does not permit the banning of peaceful demonstrations and expressions of opinion without proper justification.
Many of the documents referred to by Complainants' counsel do substantiate their submission that the Indonesians were continually insisting that President Suharto should not personally see any demonstrations "for that would be an affront to his dignity, a source of embarrassment."
I reject, however, as unsubstantiated by the evidence, the further submission that:
The Canadian government reacted to ensure Suharto's attendance and left the RCMP planners with no doubt as to the PMO's wishes. The RCMP planners, May and Dingwall in particular, were thus mired in political issues surrounding Indonesia's attendance and these set the stage for what transpired on November 25th.
One further document requires mention. It is the record of Mr.Vanderloo's phone call to Ms. McNeil, reporting to her on the August 27 tour of the conference sites with Mr. Carle. Ms. McNeil recorded 19 handwritten points on six pages of her notebook. The notes were made either during the telephone call or immediately afterwards. Point 13 reads:
Suharto – PM does not want him to be embarrassed – impt! – push crowds back further – more $ for security – Donolo be careful students not stifled for one leader – big story.
Ms. McNeil's memory of what she was told by Mr. Vanderloo was unclear. She had difficulty explaining what she had recorded. Mr. Vanderloo acknowledged speaking to her about the site tour but his evidence did not support the explanation advanced by Complainants' counsel. Ms. McNeil tried to explain the meaning of her note by referring to Mr. Vanderloo's September 12 e-mail to her, quoted above. That is not an unreasonable explanation given that the September 12 note does refer to "embarrassments" and particularly to Mr. Donolo's participation on the issue of student demonstrations and a media story.
Complainants' counsel suggests that Ms. McNeil's reference to "PM" was a reference to Prime Minister Chrétien and that the note demonstrates that the Prime Minister himself made efforts to protect President Suharto by stamping out protest. I disagree. Given Mr. Vanderloo's reference to the "PMO" in his September 12 e-mail, and the fact that Ms. McNeil's notes were based on a subsequent telephone call from Mr. Vanderloo, the most reasonable conclusion is that it was the Prime Minister's Office (PMO) that had expressed concern about potential "embarrassment." Ms. McNeil's notes also suggest that the Prime Minister's Office wished to ensure that the students were not "stifled for one leader." As noted by Mr. Vanderloo, the goal was to achieve a "balance that meets both concerns."
Finally, it must be borne in mind that Ms. McNeil's notes were entered as an exhibit at the hearing not as proof of the truth of their contents but of the fact that they were made.
I have expressed my conclusions about what occurred during Mr. Carle's August 27 visit and Ms. McNeil's notes do not alter that conclusion. I appreciate the reason for the great emphasis placed on these notes by Complainants' counsel but they do not cause me to reach any different conclusion on the Indonesian matter than that which I record below.
9.7. Conclusion
As I have noted, Complainants' counsel put forward two possible explanations for the events that gave rise to the multitude of complaints that were the subject of the hearing:
Did these events occur because Canada's revered national police force was ill-prepared, poorly trained, unfamiliar with Canadian law and overzealous?
Or is the explanation more disturbing – that the Canadian government, anxious to make a good impression on at least one dictator who made it clear that his visit and future bilateral relations depended on the suppression of demonstrations, created a climate in which visible displays of dissent would not be tolerated?
Counsel's position is that the occurrences of November 25 and the immediately preceding days are accounted for by the second explanation. Having reviewed in this chapter the evidence that Complainants' counsel says supports that explanation, I do not agree.
Without question, the Canadian government was eager to have leaders of all 18 APEC economies, including President Suharto, attend the APEC conference. To that end, far more time and effort went into encouraging the attendance of President Suharto than was directed to any other leader. That is not objectionable. In my view, the federal government acted appropriately in all of its contacts and approaches to the many Indonesian officials with whom they dealt on this issue. The Canadian government did not signal to the RCMP, either overtly or subtly, that they ought to perform as they did in order to curtail demonstrations and stamp out visible dissent.