APEC – Commission Interim Report
These complaints allege that the RCMP provided demonstration sites too small for the number of protesters and created security zones that were larger than necessary for security purposes so that APEC delegates would be shielded from the sights and sounds of protest.
13.1. Issues
The central issues arising out of these complaints are:
- Whether, in order to accommodate government concerns unrelated to security, the RCMP did any of the following:
- enlarged the security/event perimeter;
- decreased the size of the demonstration area; or
- created the noise free zone; and
- If so, whether doing so was inappropriate in the circumstances or inconsistent with the Charter.
13.2. Security/Event Perimeter
There is no doubt that the RCMP was solely responsible for establishing the security perimeter. There is conflicting evidence, however, as to whether that perimeter was determined by reference, at least in part, to non-security concerns.
13.2.1. An Accommodation may be Needed
Chief Supt. French testified to the effect that, although the police will generally be concerned only with the security of an event, and not its "tranquillity," there may have to be an accommodation between security concerns and the concerns of the event participants. His evidence supports the proposition that the police may enlarge a security perimeter for non-security reasons to the extent necessary to ensure that the venue remains suitable for the purpose of the event. This is a sound approach. In hosting an event such as the APEC leaders' meeting, the federal government may, depending on the circumstances, ask that the security perimeter be enlarged for non-security reasons to the extent necessary to ensure that the participants are able to conduct their business effectively, provided the request will have no negative impact on the RCMP's security operation. This is consistent with the decision in Campbell (discussed in Chapter 10).
Supt. May and Insp. Dingwall made it clear that they would have been willing to enlarge the perimeter if the federal government so required. Mr. Vanderloo believed that ACCO did have the authority to so require and suggested that the perimeter was in fact extended beyond what the RCMP required for security purposes, to meet the desire by ACCO and the Prime Minister's Office for a "retreat-like" setting.
In contrast, Supt. May testified that, although the boundaries may have been based upon both security and non-security factors, the "security perimeter" and "event perimeter" ultimately coincided. In other words, what was necessary from a security perspective was sufficient to satisfy the desire of the Prime Minister's Office for a "retreat."
13.2.2. Perimeter was No Larger than Necessary
In my view, there is no compelling evidence that the security perimeter, as shown on revised Schedule A to the Licence Agreement, was larger than necessary for security purposes. Indeed, Complainants' counsel conceded that the extent of the enlargement that they allege occurred is "impossible to state with precision."
I have decided that it is not possible, on the evidence before me, to conclude that the perimeter was enlarged for non-security reasons. On this issue, I accept Supt. May's evidence. Supt. May was an RCMP member responsible for, and at the centre of, the making of security decisions. He was better positioned than Mr. Vanderloo to know the RCMP rationale for establishing the security/event perimeter. I accept that, although non-security factors may well have been raised with the RCMP by the federal government, the security/event perimeter was no larger than the RCMP deemed necessary to satisfy security concerns.
As I am not satisfied that the security/event perimeter was enlarged for non-security reasons, I can only conclude that the RCMP conduct in establishing the perimeter was neither inappropriate nor inconsistent with the Charter.
13.3. Demonstration Area
13.3.1. Mr. Carle's Demands
Mr. Carle wished to create a "retreat-like" atmosphere for the leaders' meeting. He vehemently opposed the location of the Thompsett/Pavlich line which, in accordance with the Licence Agreement, was established by UBC and the RCMP to meet both the RCMP's security concerns and UBC's concern that the protesters be able to see, and be seen by, the APEC leaders. I am satisfied that Mr. Carle demanded that the size of the "demonstration area" be reduced in order to accomplish his own agenda and I reject his explanation that the reduction was necessary to ensure the safety of the protesters.
13.3.2. Change to the Fence Line
After UBC expressed its disapproval of Mr. Carle's demands, President Piper and Mr. Pelletier ultimately reached a compromise. Nevertheless, Supt. Thompsett and Mr. Brown each took it upon himself to move the location of the fence closer to the Thompsett/Pavlich line. In the result, despite Mr. Carle's efforts, the law school fence ended up just nine feet closer to the building than the Thompsett/Pavlich line, and not at the 41-foot mark that Mr. Carle had tried to achieve. The nine foot adjustment was a minimal change indeed given the already considerable distance between the demonstration area and the road where the motorcades were to pass.
Although he was put in a difficult position by Mr. Carle's authoritarian approach to the issue, and although UBC did agree to reduce the size of the protest area, Supt. Thompsett sought to honour the prior agreement with UBC and, in so doing, he acted to the benefit of protesters. At the end of the day of course, Mr. Carle did not get his way.
13.3.3. Negligible Impact on Protesters' Rights
The movement of the fence from the Thompsett/Pavlich line was inconsistent with respect for the Charter because it limited the protesters' rights for reasons unrelated to security or to the need to allow for the successful conduct of the meeting and may have increased the security risk. Having said that, it is also clear that despite Mr. Carle's wishes, and despite the compromise between the federal government and UBC, Supt. Thompsett took steps to minimize the effect of the fence relocation. In the circumstances, the interference with the protesters' rights was negligible and the maxim de minimis non curat lex applies – the law does not concern itself with trivial matters. RCMP conduct in respect of the demonstration area was neither inappropriate nor inconsistent with respect for the Charter.
13.3.4. Government Interference
Had UBC and the RCMP passively accepted Mr. Carle's proposed fence location, that fence would have been located 43 feet closer to the law school building than was necessary to meet security concerns.
Mr. Carle's proposed fence location may well have been inconsistent with the Charter. The presence of protesters at the Thompsett/Pavlich line clearly would not have prevented the APEC leaders from successfully conducting their meeting, nor would it have been a security risk. In fact, by frustrating the protesters further, an unworkably small demonstration area might have increased the security challenges the RCMP had to meet that day. What Supt. Thompsett understood and Mr. Carle did not, was that giving protesters the maximum possible opportunity to protest safely would minimize the risk of an adverse reaction from them. In this case, had President Piper not written to the Prime Minister, and had Supt. Thompsett and Mr. Brown not separately intervened to close the gap between the fence line they judged to be acceptable and the one chosen by Mr. Carle, the protesters would have been confined to a very small area indeed as a result of federal government interference, through the Prime Minister's Office, in an RCMP security operation.
But for others coming to the rescue, Mr. Carle's actions would have had the same level of success, to the detriment of the protesters, that resulted from the improper interference in RCMP security operations at the Museum of Anthropology in the days leading up to the leaders' meeting.
13.4. Noise Free Zone
13.4.1. Protest Rights on Private Property
This issue may be dealt with relatively easily, as the "noise free zone" was located on private property and the owner, UBC, expressly agreed to its creation. In the Supreme Court of Canada's decision in the Commonwealth case (see Chapter 7), McLachlin J. wrote, with respect to the interplay between freedom of expression and private property:
Freedom of expression does not, historically, imply freedom to express oneself wherever one pleases. Freedom of expression does not automatically comport freedom of forum. For example, it has not historically conferred a right to use another's private property as a forum for expression. A proprietor has had the right to determine who uses his or her property and for what purpose. Moreover, the Charter does not extend to private actions. It is therefore clear that s. 2(b) confers no right to use private property as a forum for expression.
The only qualification I would add to this passage is that section 2(b) of the Charter undoubtedly will apply on private property if the owner agrees to the use of the property for the purpose of protest and that was generally the case here. In fact, UBC tried to limit any restrictions on protest activities on campus, as was made clear by section 6.3 of the Licence Agreement:
6.3 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.
The "noise-free zone" was located on private property, outside the secure zone. No argument was made before me as to whether UBC is subject to the Charter or whether, by agreeing to the restriction on the use of megaphones on its property, UBC contravened the Charter. However, the law is relatively clear that although universities can, in appropriate circumstances, qualify as part of "government" for Charter purposes, the general rule is that universities "do not form part of the government apparatus" (see McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Harrison v. University of British Columbia, [1990] 3 S.C.R. 451).
UBC apparently accepted Mr. Carle's concerns regarding noise as valid. The only police participation was, through Insp. Dingwall, to propose the "noise-free zone." This became the solution, acceptable to everyone as it turned out, to Mr. Carle's initial position that the security fence be moved back to limit potential noise. UBC effectively agreed to the creation of the "noise-free zone" as a "designated area" for the purposes of section 6.3 of the Licence Agreement. Therefore, the protesters simply had no Charter right to use megaphones in that area.
13.4.2. Little Impact on Protests
There was no evidence that the prohibition on the use of megaphones in the "noise-free zone" was enforced. If the RCMP did in fact enforce the prohibition, they acted in accordance with restrictions agreed to by UBC as a private property owner. Therefore, I cannot possibly conclude that the RCMP conduct was inconsistent with the Charter or inappropriate to the circumstances.
As I am satisfied that the RCMP did not act inappropriately, or inconsistently with the Charter, there is no need to consider the efforts of the federal government in this regard. It simply extracted a concession from UBC, as private property owner, which was intended to ensure that the leaders' meeting would not be disrupted by noise. Although the "noise-free zone" may have resulted from Mr. Carle's desire to create a "retreat-like" atmosphere, it had little, if any, effect on protest activities on November 25.