APEC – Commission Interim Report
11.1. Tents at the Museum
During the week leading up to the APEC leaders' meeting, a tent city had been set up on campus as a central gathering place for those associated with APEC Alert and others planning to participate in the protest on Tuesday, November 25.
On Wednesday, November 19, a small group of protesters left the main tent city and pitched their tents on a small hill behind the Museum of Anthropology. There were two or three tents and eight or 10 occupants. Early in their stay, the protesters had written on the back windows of the museum with washable paint and had rearranged some of the stone work on the ground. UBC, the property owner, did not choose to evict the protesters.
On November 20, Mr. Carle telephoned Mr. Vanderloo and asked what ACCO was going to do about the situation. Mr. Vanderloo agreed that something should be done. He said that he had made inquiries in Ottawa and had been told that the RCMP had no legal right to take over the property at that time. He also had inquired as to whether the provincial government might help with obtaining early possession of the property, but had been unsuccessful. Mr. Carle was emphatic that the protesters had to be moved from the museum site earlier than had been planned. In his evidence he gave these reasons:
Our main concern over the tent city at the museum was that we were very close from the retreat time, and we wanted to avoid any kind of vandalism or incident that could take place and disturb the planned schedule of events.
On or before the morning of November 21, Mr. Vanderloo spoke with Supt. May and asked if there was anything that could be done to remove the protesters. Supt. May said that the RCMP would "monitor" the situation but had no legal authority to remove anybody from the museum at that time. Supt. May did make a commitment to Mr. Vanderloo that if UBC, as property owner, asked the RCMP to remove the tenters, the RCMP would honour that request and "move in and remove the protestors under trespass regulations."
The morning of November 21, Mr. Vanderloo decided to approach Mr. Brown. Mr. Vanderloo acknowledged he was emphatic in his presentation to Mr. Brown and that he put on quite a bit of pressure. Mr. Brown said that Mr. Vanderloo made it clear that the federal government was anxious to secure the museum because it was the primary venue for the leaders' meeting and that the government was conscious of the fact that it was an important site to UBC because it housed a valuable collection of artifacts.
When Mr. Brown did not agree to his request, Mr. Vanderloo telephoned President Piper and asked that the government be permitted to take possession of the museum site later that day or early the next morning, Saturday, November 22. President Piper agreed to consider the request. Mr. Vanderloo testified that he was motivated to make the request by two factors: the impact the situation could have on the leaders' meeting scheduled for the following Tuesday; and the implications that might flow from any further damage at the site.
Throughout this period, Mr. Vanderloo kept in touch with Mr. Carle and advised him of his progress.
11.2. A Legal Opinion
Supts. May and Thompsett were aware of the requests by ACCO and Mr. Carle and each of them consulted about what could be done. Both knew that they could not remove the tenters without legal authority. Supt. May determined that the RCMP should obtain a legal opinion. He explained:
Well, our strategy was, you know, we weren't going to do anything we didn't have the legal authority to do. That's why I was after that legal opinion to see what strategies and options we could develop.
On the evening of November 20 the RCMP sought a legal opinion from a federal Department of Justice lawyer who was not a witness at the hearing.
At 9:38 a.m. on November 21, the lawyer telephoned Supt. Green with his comments on the Licence Agreement and to discuss the RCMP's legal authority to comply with the requests by ACCO and Mr. Carle to clear the tenters from the museum grounds. Saying that he had discussed the matter with his Department of Justice colleagues and a "senior litigator from Vancouver," the lawyer suggested several amendments to the Licence Agreement. His suggestions included the insertion of an earlier takeover date and certain revisions to the schedules to clarify the secure area covered by the licence. During the conversation, he told Supt. Green and VPD Deputy Chief McGuinness, who had joined the conversation, that once the licence agreement became effective, the RCMP would be authorized to remove the tenters by virtue of their powers under the Criminal Code to remove trespassers. He told the officers:
And, number three, you have your powers under the Criminal Code once you tell the people to leave, because the minister has been licenced this whole area, and the RCMP and Vancouver Police and everybody else who is involved in this are responsible for the security, therefore, if they won't leave, you have powers under the Criminal Code to move them. Because they're, they're trespassers.
The relevant sections of the Criminal Code are:
41(1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.
42(1) Every one is justified in peaceably entering a dwelling-house or real property by day to take possession of it if he, or a person under whose authority he acts, is lawfully entitled to possession of it.
430(1) Every one commits mischief who wilfully
- destroy or damages property;
- renders property dangerous, useless, inoperative or ineffective;
- obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
- obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
At 10:17 a.m. on November 21, Supt. May telephoned Supt. Green, who told him of the lawyer's advice.
11.3. The Agreement to Move the Tenters
Supt. May testified that there were no security reasons for the early takeover on either November 21 or 22. He did agree, however, that once the federal government gained control of the site, the RCMP, at the government's request, would remove, and would be entitled to remove, the protesters.
On a number of occasions Supt. May said the RCMP had made an implicit "commitment" to the federal government that they would remove the protesters upon request. He said that, as the RCMP liaison with ACCO, he had delivered that message to ACCO.
Supt. May acknowledged that he was not in a command position at the time and that it was Supt. Thompsett who held that responsibility. He also acknowledged that he and Supt. Thompsett had very different views as to whether the students should be removed if an early takeover was negotiated with UBC. When Command Centre telephoned Supt. Thompsett on November 21 to tell him that the protesters were to be out by 2:00 p.m. that day, Supt. Thompsett responded that there was no authority to move them out. Supt. Thompsett did not have a concern from a security perspective about the tenters remaining.
By late afternoon, ACCO and UBC agreed that the museum would be turned over to the federal government at 6:00 p.m. on November 22 but if, in the meantime, there was a marked increase in student activities behind the museum, UBC would take the initiative of calling in the RCMP. A formal amendment to the Licence Agreement was to be prepared.
Mr. Vanderloo was asked about his understanding of Mr. Carle's involvement in the arrangement:
A: We had to go back to Jean Carle with the solution, and I met with him and--and he agreed to it, which I think is also reflected in this document, later on.
Q: Well if he hadn't agreed to it, what would you have done?
A: I don't know.
Q: I realize that's speculation, but—
A: That's speculation, yeah—
–– ––but––but I want––I guess what I'm trying to get at is–– is did you have to have Jean Carle's approval?
A: Since the request initially came from him, I had to––to––to close that particular loop. I would have continued the pressure on my own, because of the damage that was being done, or the potential damage to the property.
At about 9:30 p.m. on November 21, the RCMP learned that the protesters had started a camp fire. The fire department was called to put the fire out and Supt. Thompsett alerted Prof. Pavlich. Prof. Pavlich said that if even one more protester were to show up at the site he would come down to the museum personally, direct the protesters off the property and, if necessary, authorize the RCMP to move them off. That never happened.
Word was sent the next day to Supt. Thompsett that the eviction was to occur soon after the agreed hour of 6:00 p.m., it being anticipated that the amendment to the Licence Agreement would have been prepared and signed by then. Supt. Thompsett felt, quite correctly I believe, that his input should have been sought before the decision was made. He said:
And when they called and said--when Superintendent Casey called and said that we've made the decision that they're going to be moved tonight, that didn't strike me in the right manner at the moment. That--I felt that perhaps they could have given us a call and we could have discussed it and had some consultations and as much as Alpha Command was the ultimate authority, I still felt that our input should have been sought before this decision was made.
In his evidence, Supt. Thompsett explained his position about the presence of the tenters at the museum site and clearly this is what he would have told Command Centre had his opinion been sought:
Q: As of this time, at--at 15:00 hours or so on the 22nd, what was your view as to whether or not the tenters needed to be moved that day?
A: I –– I didn't feel that it was necessary to move them. And my––my main reason of course, again I-I want to stress that that doesn't mean that there was not always a concern from a security perspective. In terms, that if they were to––to do something, or suddenly do something, or if they were to be joined by others, we were very mindful of that. So that was always in my mind, but I was concerned about moving them, excuse me, at that time, from the perspective that we pretty well have a rapport with them, in the terms that there's kind of an understanding that they behave themselves, and for lack of a better expression, we'll--we'll respect that. From a Site Commander perspective, I didn't want to get them annoyed, perhaps for analogy, but I didn't want to poke a sleeping bear. In other words, things are fine now, we get them agitated and get them upset, we're going to end up with a whole tent city down here and we're going to have to deal with them. Right now, we're just having to deal with 10 or 15 people and things are fairly passive and not a big concern to us.
He explained that the security fence was to remain open at certain places until the night of November 24, so that if the protesters were provoked and decided to bring "all of tent city" to the museum grounds, it would be difficult for police to keep them out. It was Insp. Dingwall who had told Supt. Thompsett of the 6:00 p.m. removal hour and Supt. Thompsett was asked what reason Insp. Dingwall had given for wanting the tenters removed at 6:00 p.m.:
Well, what they were telling me, in accordance with what's reported in the transcript, is that apparently they had given an undertaking to the Prime Minister's Office that they would be removed and, therefore, they wanted to go good on that undertaking to the Prime Minister's Office.
Supt. Thompsett's view was that although the tenters at the museum might constitute a security risk, trying to move them might cause a worse problem. He said:
... if we got these people angry and they decided to resist us and get upset and bring all of tent city down, now we've got a bigger problem on our hands to keep these people out.
And further on in his testimony:
A: I want to emphasize again, that I'm saying that being very mindful that in the back ––
Q: Yes.
A: –– of my mind, we could end up with a security problem here. But I could have a worse problem, in other words, I have to weigh the options as to what I got now as to what I might have.
Q: Right. So you were watching the situation ––
A: Hmm hmm.
Q: –– and at some point, you were going to have to remove them if they didn't go voluntarily, but you didn't think that was necessarily the time that you had to remove them?
A: Well, I didn't want to remove them, at this time. There were, as I say, the potential security concerns, but I could have a bigger ––
Q: Right.
A: –– security concern if I didn't play this the right way.
And, later in his testimony:
... I was concerned that we don't want to get these people angry. Because right now, it would be more difficult for us to control people if we got them angry, the demonstrators, considering the numbers that were back at the tent city and the fact that we did not have our secure fencing up at that point in time.
Supt. Thompsett, who was in command of the site, was clear on three points:
- that on November 21 he had no legal authority to remove the tenters;
- that provoking the protesters might bring greater numbers to the site, increasing security challenges; and
- at a later time, when the security fence was closed off completely and more police resources became available, police would be in a better position to remove the tenters and prevent the entry of others into the area.
Right up to the time that the tenters were removed, Supt. Thompsett continued to be of the view, as was Supt. May, that there were no security reasons requiring their removal. Supt. Thompsett's testimony makes it clear that removing the tenters posed a greater security risk than allowing them to remain. But in spite of that view, Supt. May was the RCMP's principal participant in the formulation of what he described as an implicit commitment to remove the protesters once the government had control of the site. In my view, the evidence indicates that the commitment must have been explicitly agreed to by Supt. May.
At the same time, there is little doubt that the RCMP's position, based on the legal opinion they had received, was that they would be legally entitled to remove the tenters once the government assumed control over the museum pursuant to the Licence Agreement. This was illustrated by a telephone conversation at 4:23 p.m. on November 22 between Supt. Thompsett (TT) and Insp. Dingwall (BD):
BD: And – Wayne – is the same feeling as me and that is that - we gave the commitment. Once that contract's signed and then ACCO asks us that now that they're the property owners so to speak, once they don't –, ask us to, to remove those people because - they don't want them there. Then we'll go in, and and take them out. But it can be done really - you know passively. In fact they may even get up and go themselves once they know that, you know, we're –
TT: – yeah but –, but uh keep in mind that –, you know I mean we can do it, but I mean like why?
BD: 'cause that's the commitment that was given to the Prime Minister's Office.
... TT: Okay I'm I'm talking on my cell here but –, what is the –, authority.
BD: Well the authority is, it's just like you as a homeowner –, if somebody squats on your property.
TT: –– oh I see, oh I see what you mean.
In his testimony, Supt. Thompsett was asked whether, given this conversation with Insp. Dingwall, he had any concerns about the RCMP's ability to remove the tenters on November 22:
... I had no difficulty if the property turned over to the Federal Government, and the Federal Government said there's people on our property and we want them removed, there's no doubt in my mind of the provisions that it –– in my opinion, that mischief provisions of the Criminal Code would apply.
I was trying to discourage Dingwall from taking action. But there was no doubt in my mind that of what -- when the legal authority would click in.
While Supt. Thompsett was quite correct that Command Centre or "Alpha Command," as he called it, was the ultimate authority over him as Site Commander, I am satisfied that what occurred in the course of the decision to remove the tenters was correctly described by Supt. May:
A: ... implicit in--in the moving the date of the possession of the Museum of Anthropology up to 18:00 hours on the 22nd, was that requests would be made to us to remove the trespassers. And that's the facts of the case, is once that agreement was amended and the Federal Government were the tenants of that property, they made the request to me to have them removed and I passed it onto the Command Centre. The logistics of--of implementing how they were going to be removed, was left with the Command Centre.
Q: Well, let's – let me – let me, end with this, sir. Perhaps the logistic – how it was to be removed i – is left with the Command Centre, but it was your decision, your order to –
A: That was the agreement that was reached, yes, through my liaison with ACCO.
Q: And you gave that order, right?
A: I'm not sure it was a – an order. I didn't say I order you to do this. I said this is implicit in this whole deal, and that's how it's going to be resolved.
Q: You said, do it, fair enough?
A: It was done.
A letter agreement amending the Licence Agreement was signed at about 7:00 p.m. on November 22, extending the "secure zone" to include the "Museum of Anthropology and grounds". The letter agreement also gave the Minister "full control" of the museum and grounds beginning at 6:00 p.m. on November 22, as opposed to 12:00 p.m. on November 24.
Once the letter agreement was signed, ACCO immediately asked Supt. May to have the RCMP remove the tenters from the museum grounds. Supt. May passed this request on to Supt. Casey at Command Centre who directed or authorized Supt. May to comply with the request and remove the tenters. Quick Response Team members and the RCMP Prison Handling Unit arrived at about 8:30 p.m. and asked the tenters to leave the site, despite Supt. Thompsett's continuing belief that their presence did not pose a security risk and that their removal might actually increase security concerns. Of the approximately 15 persons present, all but four left voluntarily. Those four were then arrested.
Mr. Carle, in his testimony, agreed that he understood that as a consequence of moving ahead the government's takeover of the museum grounds, students who were peacefully protesting had to cease that protest and some of them were arrested. He also understood that UBC did not willingly agree to amend the agreement and further, that there was no security reason to move the start date up. He was asked:
Q: And so, isn't this a pretty clear example, if you'll be fair to me, of the--of the Prime Minister's Office taking steps which were not security related, which had a direct impact on the students--the exercise of students of their right to protest and express themselves?
A: Sir, we were in charge of organizing a retreat for foreign leaders, and I mentioned that yesterday. We expressed our views, serious concern, about having vandalism done to the territory where the retreat would take place, and we, via Robert Vanderloo at ACCO, communicated that to the--to the RCMP, and from there they made the decision, sir, to remove the protestors.
11.4. Is the Museum Takeover the Subject of a Complaint?
Counsel for 44 RCMP officers submitted that the early takeover of the museum was not the subject of a specific complaint and, therefore, is beyond the scope of my jurisdiction. In contrast, Commission Counsel took the following position:
We submit that this incident is relevant to the issue of the relationship between the RCMP and government in respect of their duties to safeguard government property and their overall duties in doing so for the ultimate protection of IPPs. We further submit that it is open for the Commission to make findings about Mr. Carle's actions, and whether he was exerting his influence on the RCMP. These findings, however, should only be made in connection with findings as to the responses by the RCMP to Mr. Carle's actions. While this issue is not the subject of a specific complaint, the Commission may consider this evidence in assessing whether the RCMP demonstrated appropriate independence of decisions made and actions taken at UBC that may have affected the right to free expression.
Although they did conclude that I could properly consider this evidence, Commission Counsel took the view that the early takeover of the museum was not the subject matter of a complaint.
I agree, however, with counsel for the B.C. Civil Liberties Association that the event falls within the ambit of the Association's complaint. That complaint asks this Commission to inquire into RCMP actions which "prevented students and others on the UBC campus from carrying out peaceful protests, where the individuals were not inside, or threatening the integrity of, security fences around official APEC sites and motorcade routes on the campus."
My view is that the acceleration of the takeover of the museum property in itself is not the subject of any complaint before me. If the effective date of the Licence Agreement had been changed but the tenters allowed to remain, there would be no issue. It is the actions that followed, as a result of the early takeover of the museum, that are in question.
I agree with the Association's submission that, although the tenters were technically inside the secure zone as a result of the amendment to the Licence Agreement, the sole purpose of that amendment was to enable the RCMP to remove people who were otherwise engaged in a lawful protest. That being so, my view is that I am entitled to determine whether the removal and arrest of the tenters was inconsistent with section 2(b) of the Charter and whether it was appropriate to the circumstances.
11.5. Unjustifiable Infringement of Charter Rights
I have concluded that the removal of the protesters was an unjustifiable infringement of their rights under section 2(b) of the Charter.
Firstly, there is no doubt in my mind that the federal government cannot rely on its Licence Agreement with UBC to escape its constitutional obligations. Therefore, neither the federal government nor the RCMP were entitled to simply rely upon the Licence Agreement and remove the tenters, without regard for their Charter rights.
Next, I am satisfied that, as a result of the Licence Agreement, and as conceded by counsel for the Attorney General for Canada, the museum grounds constituted "government property." Although the Licence Agreement did not grant the Minister an interest in real property, the Minister did obtain full control over the property, and had the contractual power to treat the property as his own. Therefore, I must engage in the type of analysis set out in Commonwealth, Weisfeld and Behrens, as discussed in Chapter 7.
11.5.1. Constitutionally Protected Expression
On any of the tests applied in Commonwealth, the erection of the tents constituted constitutionally protected expression:
- Following the approach of L'Heureux-Dubé J., the removal of the tenters from "government property" infringed the protesters' section 2(b) rights.
- Following Lamer C.J.C.'s approach, the presence of the tenters between November 22 and 24 would not have been incompatible with the museum's function as there was no event occurring at the museum during that period.
- Following McLachlin J.'s approach, I am satisfied that the government's purpose in arranging for the removal of the tenters was to restrict the "physical consequences," not the
"content," of their expression. Further, there is no doubt in my mind that there is a link between the principle of participation in social and political decision-making in the community, and the tenters' use of the museum grounds.
As a result, I am satisfied that the RCMP, acting on the directions of the federal government through Mr. Vanderloo and Mr. Carle, conducted themselves in a manner inconsistent with respect for the tenters' rights under section 2(b) of the Charter.
11.5.2. Unjustifiable Infringement
The next issue is whether the actions of the RCMP are justifiable under section 1 of the Charter. In my view, the RCMP's actions were not justifiable under the Charter because they were not aimed at achieving any "pressing and substantial" objective. Although Mr. Carle raised some concerns about potential vandalism, Supt. Thompsett, the senior officer responsible for site security, did not believe that the continued presence of protesters presented an imminent security risk. Rather, he believed that removing the tenters posed a greater security risk. Although the RCMP would have been entitled to remove the protesters if they had engaged in further acts of vandalism, there was simply no "pressing and substantial" reason, whether related to dignity, decorum, aesthetics, symbolism or otherwise, why the tenters should have been removed three days prior to the leaders' meeting.
Furthermore, I believe that, given the decision in Behrens (see Chapter 7), the RCMP authority to remove and arrest the tenters pursuant to sections 41, 42 or 431(a) of the Criminal Code must, in the circumstances, yield to the Charter rights of the tenters who were peaceably protesting on government property in a manner consistent with the ordinary use of that property.
Therefore, the RCMP conduct was neither consistent with respect for section 2(b) of the Charter nor justifiable under section 1 of the Charter.
11.6. Appropriate in the Circumstances
It does not automatically follow, however, that the RCMP conduct was inappropriate to the circumstances.
11.6.1. Failure To Assert Independence
The RCMP was solely responsible for security. Supt. Thompsett believed that removing the protesters might increase the security risk. The RCMP must not abandon its independence and accede to a federal government request that could jeopardize security operations as it did here, except in extraordinary circumstances. There were no such circumstances here.
11.6.2. An Honest Mistake
It is true that the RCMP must not accede to federal government requests that are unjustifiably inconsistent with the Charter rights of citizens. However, in this case, the RCMP resisted the federal government's request until they had sought and obtained a legal opinion assuring them that they had the legal authority to remove the tenters. Command Centre was advised that once the Licence Agreement was amended the federal government would be legally entitled to request the removal of the protesters and the RCMP would be legally entitled to comply. Command Centre then authorized the eviction, which was promptly carried out.
Although it is my view that, in spite of the Licence Agreement and the trespass and mischief provisions of the Criminal Code, the RCMP were not entitled to remove the protesters, they should be commended for seeking legal advice before acting. Given the advice they received and their knowledge that the federal government had assumed control of the property pursuant to the Licence Agreement, I am satisfied that the RCMP honestly believed that the federal government had the authority to direct them to remove the protesters and that the RCMP had the legal authority to act on those directions.
In Campbell (see Chapter 10), the Supreme Court of Canada considered the effect of RCMP reliance on legal advice where certain RCMP conduct had led to an abuse of process claim. The court said that "a police force that chooses to operate outside the law is not the same thing as a police force that made an honest mistake on the basis of erroneous advice." This principle is equally applicable here. In my view, the RCMP made an honest mistake on the basis of erroneous advice. Therefore, I find that, although the RCMP's conduct was inconsistent with the rights of the tenters, it was nevertheless appropriate to the circumstances.
11.7. Government Interference
Having said that, I am also of the view that the RCMP's conduct in removing the tenters was directly attributable to the actions of the federal government. It was Mr. Carle of the Prime Minister's Office who, through Mr. Vanderloo of ACCO, directed the RCMP to remove the protesters, apparently out of a concern about potential vandalism. However, Supt. Thompsett, the man in charge of security, was less concerned about potential vandalism than that removing the protesters might lead to more serious security problems.
The federal government had no authority to make decisions which may have compromised an RCMP security operation, particularly given that such decisions, although consistent with the Licence Agreement and the Criminal Code, were unjustifiably inconsistent with the Charter. I am satisfied that, in this instance, the federal government, acting through the Prime Minister's Office, improperly interfered in an RCMP security operation.