APEC – Commission Interim Report
Signs made by Craig Jones were removed by RCMP members from the fence in front of Green College. More signs were removed from Mr. Jones and other residents of Green College when they gathered on the lawn in front of their residence, outside the secure zone just before the motorcades arrived. Mr. Jones was pushed to the ground and arrested.
21.1. Removal of Signs from the Security Fence
In Chapter 12, I reviewed the placement of Mr. Jones' three signs on the security fence outside Green College and their removal. In all, his signs comprised 30 sheets of paper, each 8½ by 11 inches. Sgt. Thompsett said the signs were a definite security concern because they obstructed the ability of the police to see through the security fence. He also said that if they were allowed to remain they would have been an invitation to others to put up similar signs, which would have further affected visibility. In my opinion, Sgt. Thompsett's reasons for ordering the removal of Mr. Jones' signs from the security fence were sound. He made a proper and appropriate decision in directing their removal.
21.2. Insp. Dingwall Confronts the Green College Protesters
Sometime after 7:30 a.m. on November 25, Sgt. May and Insp. Dingwall set out on a tour of the secure zone on campus. At about 7:50 a.m., their attention was drawn to a small group of people gathering on the lawn outside Green College. Some were displaying anti-APEC signs. Mr. Jones had affixed his two signs ("DEMOCRACY" and "FREE SPEECH"), which had been returned to him the previous evening, to a pair of wheeled, free-standing chrome coat racks. The coat racks were on the sidewalk next to the curb outside the secure zone but very close to where the motorcades were to pass, beginning at about 8:30 that morning.
Insp. Dingwall left Sgt. May and went directly to the Green College site. He erroneously believed the people had no right to be there and he was surprised that a demonstration seemed to be forming. He said he walked over to those assembled, identified himself as the Deputy Operations Commander for APEC, and told them that they could not stay where they were but would be welcome to move to the designated demonstration area across the road at the law school.
21.2.1. A Mistaken Belief
Insp. Dingwall was alone in believing that Green College and the surrounding grounds were within the secure zone. He was wrong in that belief. Both Supts. May and Thompsett acknowledged that the buildings and grounds of Green College were outside the secure zone. Cpl. Anderson knew that to be so. In fact, he had considered and rejected the possibility of protesters engaging in unlawful activity at that location. Under questioning at the hearing he explained:
Q: It was your expectation that they would not engage in any unlawful activities, because it could jeopardize their standing at the University?
A: That's correct.
Q: All right. So your assessment was insofar as the residents of Green College were concerned, that they were people--they were first of all, graduate students. They were responsible and they were people who were not disposed to unlawful activity; correct?
A: Correct.
Q: All right. And when you said that--that you expected they would have a vested interest in behaving themselves. I just want to--when you--when you used that phrase, "behaving themselves," you did not mean that they would not engage in, for example, the perfectly lawful activity of standing on the lawn with signs or banners; correct?
A: No, I meant more of a--a violent nature, such as throwing rocks or projectiles towards a-a slowing motor--motorcade--.
Cpl. Anderson said he believed that if demonstrators did appear in the Green College area, police would be on hand to deal with the situation by, for example, moving the demonstrators back from the fence or further down the road.
Counsel for UBC established with Sgt. May that people were free to demonstrate outside the secure zone and that Green College was outside that zone and then questioned him further:
Q: The residents at Green College had a right to protest with-and you will say-with the proviso that they didn't create a security concern?
A: Correct.
Q: And, you were caught by surprise that there was protests, simply by the fact that you or your other planners hadn't anticipated that the students at Green College would actually protest?
A: That's correct, we hadn't anticipated a protest in that area.
Complainants' counsel similarly questioned Supt May:
Q: And you had no reason to believe that there was anybody at Green College who posed a security threat to the motorcade, right?
A: I had no reason to believe that, no.
Ms. Courtney attended a public information meeting on campus on March 27, 1997. When a question was asked as to where people would be able to protest and be seen by the APEC leaders, her response was that protests could occur anywhere outside the secure zone. Ms. Courtney said that the permitted protest area "absolutely" included the Green College location. Indeed, her understanding was that Green College was a permitted protest site:
Q: And as far as you were aware, based on all of the discussions you had pertaining to APEC security, and the issue of demonstrations, that students were going to be entitled to, for example, stand on the premises of Green College with banners or signs?
A: Yes, that was my understanding.
Q: In all of your dealings with Members of the RCMP had they ever suggested to you that any students of Green College would not be permitted to stand on the grounds with signs or banners?
A: No.
Mr. Vanderloo said it was common knowledge at ACCO that Green College was outside the secure zone. He correctly believed that Sgt. May was aware that Green College was outside the secure zone and he assumed that Insp. Dingwall would have been similarly aware. Mr. Vanderloo was apparently incorrect in that assumption. Insp. Dingwall said he was never told of the November 22 amendment to the Licence Agreement, which revised the site plan attached as Schedule A to the Licence Agreement and clearly showed Green College outside the secure zone. He understood that the site plan attached to the Licence Agreement at the time of its execution placed Green College within the secure zone. Everyone else had known for a considerable time prior to November 22 that Green College was outside the secure zone and how Insp. Dingwall was in the dark on that issue is indeed a mystery.
21.3. Insp. Dingwall Orders the Signs Removed
Richard Emrich, a Masters student at UBC in Mechanical Engineering and a Green College resident, was one of those approached by Insp. Dingwall. Mr. Emrich had just witnessed Mr. Jones roll his signs onto the sidewalk and he said that Insp. Dingwall walked by, looked at the signs and very curtly said: "those aren't going to stay there." He said Mr. Jones responded that they were going to stay there and that Insp. Dingwall kept walking down the road towards the Rose Garden parkade and said as he left: "I'm not going to argue with you. They're just not going to stay there. In fifteen minutes they'll be gone."
Insp. Dingwall was on his way to the Site Command Centre to discuss options for dealing with the situation. It was then about 8:05 a.m. Mr. Emrich said that those present anticipated Insp. Dingwall's return. After his return, Insp. Dingwall told Mr. Emrich that he was responsible for security at the APEC event. (In fact, although he was second in command in respect of security planning for the entire APEC conference he was not in a command position on campus on November 25.) I believe Mr. Emrich to be a reliable witness and I accept his evidence.
While Insp. Dingwall was at the Site Command Centre, he received information that he thought warranted his immediate return to Green College. He ran the distance to Green College and arrived at about 8:15 a.m. Before leaving the Site Command Centre, Insp. Dingwall made it known that he wanted one of the Deputy Site Commanders to come to Green College and take charge. Although the information that prompted Insp. Dingwall's hasty return turned out to be inaccurate, he nevertheless moved quickly to give the protest at Green College the attention that he thought it deserved. He directed five or six Constables on the security line in the vicinity of Gate 3, adjacent to Green College, to follow him out of the secure zone and over to the Green College sidewalk and lawn area.
By this time, with the motorcades due to arrive shortly, Insp. Dingwall had decided that although the signs and banners would have to go, it was too late to insist that the protesters vacate the site. He believed that there could have been a huge incident and there were not enough officers to remove the protesters. He said the risk at that point was too great. Other than Mr. Jones' coat rack signs, most signs were anti-APEC and were either hand held or attached to a stick. They were made of either cardboard, paper or plastic. They were decidedly "home-made" and conveyed messages such as "Freedom of Speech," "APEC Kills," "People not Profits," "Stop APEC," and "Shame."
Insp. Dingwall was asked to explain the concern that prompted his action. He said:
That was the point where two out of the three motorcade routes converged and came in. That was the point of entry that morning, for the motorcades, and the point of exit for the motorcades. Right along Green College it was light fencing, in fact, it was just that eight-foot fencing and--with the small braces that go perpendicular to it. The fence line ended right there. They were right beside the motorcade route, immediately beside the fence, and the motorcade route actually came and--through a series of barricades, through an S-curve, came and came right beside that fence, which would put those motorcades immediately adjacent to that. My concerns were many, including being able to throw anything over that fence; to circumvent the fence by walking around, it ended about 30 yards from that point, they could simply walk around, and stand on the roadway, block the roadway. I was also concerned about the intelligence. Both the information that I received in the weeks leading up to APEC, the intelligence I received during APEC, and in particular, the intelligence received that morning about there going to be three attempts to breach our security. There were many, many issues that were playing on my mind. Here we had spent months and, in particular, the last weeks before the 25th, talking about 10 yards up by the Law School that was 75 yards away from that intersection, and the anguish that went through all of us dealing with that issue. And now we have protestors standing right beside the entrance to Gate Number 3. Clearly, I didn't anticipate them being there, and clearly it was a significant concern to me. (emphasis mine)
Insp. Dingwall was pressed as to why cardboard signs had to go and he responded:
Well, I mean, we could start from the first interaction. In my evidence, what I did say, particularly with respect to cardboard signs, is that this was an extremely vulnerable spot for us. And although cardboard signs, in and of themselves, and quite often, would not pose a security risk, I was not prepared to take that risk at that location. That was the first thing that I said. The second thing is that I didn't have the time to evaluate every sign at that moment. The motorcades were imminent. In fact, I believe they were to start at 8:30 arriving, and I didn't have the time. The third thing I said was that--and I have no doubt in my mind, that had I started to evaluate each and every sign, there would have been endless debate. And clearly, that was not the time to get into any sort of debate over these signs. And fourthly, they had the opportunity, if they wished, to go and put them up on Green College, in the windows or on the buildings, if they wished to do so.
Insp. Dingwall said that the objective was to have a safe and secure site for the 18 world leaders. He described it as an absolutely huge event – the biggest thing he had ever worked on with the most complications, and involving about 500 days of planning. He also said "we weren't trying to thwart demonstrations."
When he came back, Insp. Dingwall's first direction to the protesters was to move back off the sidewalk onto the lawn, which they did. Much was made at the hearing of Insp. Dingwall's explanation that this direction was intended to avoid pedestrian traffic being impeded by protesters. The fact was, the way things were structured, there would not be any pedestrian traffic along the sidewalk there, although Green College resident Isabela Varela acknowledged that police officers may have made use of it. I understand the circumstances under which Insp. Dingwall's reference to pedestrian traffic was made and I do not draw the unfavourable inferences from his answer that Complainants' counsel invited of me.
There was a dispute as to the number of Green College residents at the site. I believe 10 to 15 residents were there at 8:15 a.m., about half of them carrying signs and the rest mere observers. I believe the numbers doubled over the next half hour. There were higher and lower estimates but I do not believe anything of significance turns on the precise numbers. Although more police officers gradually arrived, there were always more Green College residents present than there were police officers and, throughout, I believe the ratio was about two to one.
After Insp. Dingwall directed the protesters to move back from the sidewalk, he gave them three options for avoiding seizure of their signs:
- move to the law school demonstration area;
- place the signs up against the Green College buildings; or
- take the signs back into the residence.
Because of the distance from the roadway and the double fence separating protesters from the secure zone outside the law school, my view is that none of the signs would have had any impact whatsoever if they had been placed there. Relocating them there as suggested by Insp. Dingwall was not a meaningful alternative to their display at the Green College site. It must also be appreciated that, in a conversation late in the evening of November 24, Sgt. Thompsett had told Mr. Jones, with reference to Green College, that he could put his signs "anywhere you like there." He told him there was lots of room and they could be displayed anywhere at that location. He suggested the possibility of the fence on Green College property, but not the security fence erected by the RCMP. Sgt. Thompsett agreed that it would have been perfectly reasonable for Mr. Jones to conclude from their discussion that it would be fine for him to stand behind the security fence at Green College with his signs.
When it became clear that none of the options presented by Insp. Dingwall were acceptable to the protesters, he said the signs would be seized if they were not voluntarily surrendered and those who resisted would be arrested.
21.3.1. Reasons for Removing the Signs
There was a sharp difference in the evidence between what Insp. Dingwall said he gave as his reason, and what the protesters say he told them. Insp. Dingwall was definite that he said he had a security concern because signs could be thrown over the fence in the path of the motorcades, which included motorcycle escorts.
There were a number of objects nearby, mainly on the lawn. Some were hand held, such as coffee cups. There was a bicycle helmet, knapsack, metal coffee cups, coolers and other similar items. With the projectile issue being foremost in Insp. Dingwall's mind, he was asked why those items were not seized. He said he had not seen them.
Cst. Susanne Cowan was one of the officers Insp. Dingwall directed to assist him. She said that Insp. Dingwall first explained his reasons to the officers and then to the protesters. She testified:
Q: Okay. All right, and what's the--what does he say to you and the--and the other Constables with you?
A: He advised us that--that we were going to be removing the signs from this area, that that was a security risk and that he was--he explained the reasons, that they could be used as projectiles or--or to hide things behind them.
Q: And--and at this point, is he just talking to you Police Officers?
A: Yes, that's what he advised us.
Q: Okay. And what happens then?
A: Then he went over to where the protestors were, that were gathered there and advised them of the same thing, that he just advised me.
...
Q: Okay. All right, so he tells you and then you go down and then do you recall any of the wording he used to speak to the protestors?
A: I don't recall specifically, but I--I remained there to--to hear what he had to say. But I don't recall.
Q: Okay, and can you tell us as much as you do recall, of--of the reasons he gave for his concern about the signs? Now this is to the students as opposed to you ahead of time?
A: I do recall that he gave the same explanation as he'd provided for me. And I heard him advise that to the students, that they were--that the signs were a security risk, and that they could be used as projectiles and that the--items could be hidden behind them.
I believe the officer was being truthful when she gave that evidence.
The protesters deny that they received such an explanation. Mr. Emrich said they were told that the area outside Green College was not a designated protest area and that, because the land had been leased to the federal government by UBC, the RCMP were authorized to seize the signs and arrest those who offered resistance.
Jodi Morris was a Masters student in Counselling Psychology and a Green College resident. She carried a hand held 16 x 24 inch cardboard sign that read "Freedom of Speech." She confirmed Mr. Emrich's account of Insp. Dingwall's explanation. She recalled that no reason was given other than that the area had become federal property. She did not recollect any suggestion that the signs posed a danger or a security threat.
Ms. Varela was a Masters student in the Department of Fine Arts and Art History. She carried on a stick a plastic sign that said "APEC Kills." She testified:
...when they kept telling us, you can't have signs, thing like that, and we were saying, on what grounds, with what authority? We were told--we were given a few reasons. One reason was that we were on Crown property. It was explained to us that supposedly the university had leased this property for the duration of the Summit to the Crown. And that because this was Crown property, different rules applied. And the RCMP could basically, I don't know, that basically it was legitimate to tell us not to hold signs on the lawn.
When it was suggested to Ms. Varela that Insp. Dingwall had told the group that they could not have signs because the associated wood and metal objects could be used as projectiles which might pose a danger to motorcycle officers and Internationally Protected Persons, she replied:
A: I would absolutely deny that. My recollection-and I'm completely clear on this-is that it was never said to me that it was a question of security. It was never said to me that he was afraid that I was going to take apart my sign and hurl something over the fence.
Q: Okay.
A: That was never said to me, because if it had been, I would have complied with him. I would have removed the wooden stick, if that made him feel more comfortable, and I would have just held the plastic sign.
Ms. Varela was on the mark in the answer she gave to the following question:
Q: Okay. And it seemed to you that the RCMP didn't expect to see Green College residents protesting where they were that morning?
A: That's right. My impression was that it was an enormous oversight on their part that it did not occur to them that this was, in fact, a graduate student residence, and that as students, we might be interested in the events going on on our campus, and that we might want to observe and possibly peacefully protest. . . . So when I came out that morning and they seemed so surprised to see us, I thought, well, you know, they had the opportunity, they considered the possibility of not having us there at all, but they didn't take that.
Michael Thoms was a doctoral student in Canadian History and a Green College resident. Mr. Thoms did not arrive on the scene until 8:30 a.m. He carried two bedsheets to hold or hang for those passing by to see. One featured someone holding jail bars from within, with the caption "APEC's Vision," and the other said "Dictators are not Welcome at UBC." Mr. Thoms said he was told by the officers that he could not display the sheets on the Green College grounds. He was told he could do so either from inside the windows of his residence or from the demonstration area at the law school building. Mr. Thoms described his ensuing discussion with the officers:
A: I answered that I wanted--that I had the right under the Charter to freedom of assembly and freedom of expression and that I was going to exercise these rights here. And they said, no, you can't. It was a long discussion. In that discussion I pressed them for their reasons. And I was told by one of the Officers that the land in question--this land had been leased or appropriated by the Federal government of Canada and therefore the RCMP could make this request.
Q: Okay.
A: To that I answered, if, in fact, this is Federal land, then the Charter definitely applies to this piece of land.
Mr. Emrich, Ms. Morris, Ms. Varela and Mr. Thoms impressed me as honest and credible witnesses. Given what Cst. Cowan said about the projectile issue on the one hand, and what the four Green College residents said on the other hand, how can their divergent views be rationalized? I have concluded that the tensions, feelings and noise levels at the time were such that the parties were not effectively communicating with each other and this explains the sharp difference in evidence. For all these reasons neither was absorbing what the other was saying. Mr. Jones had come to the point where he did not trust Insp. Dingwall. Insp. Dingwall said that the protesters were lecturing him on freedom of speech, the Charter and not really listening to what he was saying to them. He saw them as confrontational. In his view, there was a failure of communication that morning. He acknowledged that it was conceivable that his own conduct might have been seen the same way by the people on the other side of the exchange – that maybe they felt he was lecturing to them and not listening to what they had to say. Ms. Morris said there were a lot of things going on at once.
21.4. Seizure of the Signs
Insp. Dingwall made a number of requests for the removal of the signs and allowed time for that to happen. Some complied, but when it became clear to Insp. Dingwall that his directions would not be universally followed, he directed the officers to seize the remaining signs and arrest any who resisted.
Ms. Morris did not want to risk arrest and decided that her only option was to put her sign inside the Green College building.
Ms. Varela said she stood her ground, telling Insp. Dingwall that she was not going to give up her Charter rights. Insp. Dingwall reached for her sign and they engaged in what Ms. Varela called a brief tug of war. Then, not wanting to risk arrest, she let Insp. Dingwall take her sign, although she emphasized that she did not relinquish it willingly.
21.5. Mr. Jones' Arrest
Mr. Jones declined to give up his signs. He took a firm, two-handed grip on one of the coat racks. He told the officers that if they were going to take his signs they should be prepared to arrest him.
Mr. Jones' two signs were not anti-APEC in their message. Indeed, there was a distinction between the "democracy" and "free speech" signs he was trying to display to the APEC delegates passing by in the motorcades, and the specific opposition to APEC that was being communicated by most of the other protesters.
Insp. Dingwall directed two officers to seize the signs and arrest Mr. Jones. Mr. Jones gave some resistance but the arrest, I believe, was carried out in an acceptable manner in the circumstances. In my judgment, the officers used no more force than was necessary to accomplish their objective. Mr. Jones soon realized that his signs were gone and he conducted himself in a reasonable manner.
No fault or responsibility rests with the constables who seized the signs or arrested Mr. Jones. They were following instructions from a senior officer.
21.6. Motorcades Pass By
All the signs were gone by 8:25 a.m. Those that were seized, including the coat racks, were taken to a police storage tent close by. Mr. Emrich said that the motorcades started to come through about five minutes after Mr. Jones had been arrested. Insp. Dingwall said that, at 8:35 a.m. he called for either of Insps. Edwards or Killaly to come and take over.
Although the signs were now gone, the students were still there to protest. Ms. Morris explained that they had to be creative in getting their message across. They had access to red paint that had been brought to paint the signs. Some of them painted their hands red, as Ms. Morris said, "to kind of symbolically represent that there's blood on our hands."
They stood as close to the fence as they could and, with their painted hands raised in the air, chanted "free speech" and similar expressions as the vehicles passed.
21.7. Other Officers Arrive to Take Charge
Insp. Killaly said he arrived at about 9:00 a.m. He believed that about half the motorcades had passed at this point. He was told that there had been an arrest and that the prisoner was in custody at the UBC Detachment. He said the members of the protest group had paper signs and were shouting and yelling and holding up APEC signs. It was his assessment that everything was well in hand and he left after the motorcades had passed. It was his belief that those protesting at the Green College site were not a security threat. Insp. Killaly was not very familiar with the arrangements for demonstrations. He was unaware whether protesting was allowed in the area and he explained that he had no part in the initial planning that had made those arrangements.
Insp. Killaly said that, when he arrived, he did not believe anyone was in charge and so he assumed that responsibility. The fact was, however, that the Zone Commander, S/Sgt. Moloci, was already there, and in charge. Insp. Killaly did not know S/Sgt. Moloci. They had never met. Insp. Killaly said he had heard his name during the hearing but could not say who he was. The two officers did not meet at the site, although they were obviously there at the same time, each holding major responsibilities in the security operation for that day. S/Sgt. Moloci estimated that when he arrived there were about six police officers present and 10 or 11 protesters. He was brought up to date by one of the constables as to what had happened, including the Jones arrest. S/Sgt. Moloci was asked what happened next:
A: It was obvious to me that the--the demonstrators that were there were pretty agitated and they were calling at--towards me to come and talk to them and I--I went and talked to them.
Q: And what was that conversation?
A: They basically were upset that--they said to me they were on their side of the fence and they were upset that their friend got arrested and they felt that, since they stayed on their side of the fence, they had followed the rules and should be allowed to keep their signs. Based on the number of policemen and the situation at that time, I--I didn't feel it inappropriate to not let them keep their signs.
Q: Okay. Is there any particular protestor you were talking to or--that you know or?
A: I--I was basically talking to them all, they all kind of crowded around and they were all there. And one of them asked me if they could go in and make signs and I said sure.
Q: Okay.
A: I just told them I--I didn't want them breaching the fence or--or throwing anything over the fence and as long as they followed those rules, they could stay there.
Q: Okay. And as a result of that, what did they do?
A: Some of them went inside, some of them started to--holding onto the signs and some went back inside and made signs and--and they did their thing right there and they seemed--they seemed happy with that and they didn't breach the security, while I was there.
That result confirmed for S/Sgt. Moloci his initial assessment that the student protesters did not pose a threat and that the ratio of police officers to protesters was such that the protesters' presence did not create a risk.
Some of the signs on display after S/Sgt. Moloci gave the green light were retrieved from the residence while others were quickly made from scratch. The students asked if the signs that had been seized and taken to the tent could be returned immediately but they were not made available in time to be used during the motorcades. Zone Commander Moloci left the Green
College location once the motorcades had passed.
21.8. Questions to be Answered
My Terms of Reference require me to decide:
- whether Insp. Dingwall's conduct in requiring the relinquishment of all physical signs of protest at Green College, and in directing the arrest of Mr. Jones, on the morning of November 25 was appropriate to the circumstances; and
- whether that conduct was consistent with respect for the Charter.
I begin my consideration of those two questions by affirming that Sgt. May was correct when he said the residents of Green College had the right to protest on the morning of November 25 at Green College, so long as they did not create a security risk. Resolving whether the residents and their signs posed a security risk will inexorably lead to the answers to these two questions.
21.9. A Precipitous Action
Insp. Dingwall took no time at all to decide that the protesters and their signs had to move from the Green College site. He made his observation, walked the short distance to the site and immediately announced his decision. He was asked at the hearing what efforts he had made to determine who these people were. He said he made no effort to determine who they were and that knowing who they were would have made no difference to him. He said that, at 8:15 a.m., with the motorcades due to arrive at 8:30, he did not have the option of learning whether those preparing to protest were university students, graduate students, law students or people with no history or affiliation with anti-APEC groups. He said such inquiries could be made only if time were available. It is unfortunate that, in nearly two years of close involvement in the security planning process, Insp. Dingwall had not ascertained the background of the Green College residents.
Further, in making his decision that people and signs had to go (though he subsequently allowed the people to stay), Insp. Dingwall gave no consideration to the Charter and what rights it afforded to those who wished to display signs of protest outside their home. In his evidence about this incident, he posed the question: "was I specifically thinking of the Charter at this time?" He answered his own question by saying: "I don't believe so. My mind was on what was reasonable under the circumstances."
21.9.1. A UK Perspective
London Metropolitan Police officers French and Caldwell were asked whether, in their experience, signs and banners carried by protesters in a location similar to the Green College site, some suspended on coat racks and others on wood sticks, and with motorcades scheduled to arrive, would be a concern to police. Officer French was the first to answer, followed by Officer Caldwell:
Stephen French: I think they are an obvious ingredient inasmuch as a sign has a potential for being used as a missile. So there would be a degree of concern that people were carrying signs on sticks, if we're talking about things on--on wooden poles or sticks. So, yes, there would be a degree of concern associated with that. I think there would be a matter of application of judgment. You know, if you had a very small sign on a very large stick, I'd be rather more concerned than, you know, a large sign on a small, thin stick. You know, there's a degree of professional judgment being made at the time.
Q: Would one of your tactical options be to ask that those signs be removed?
Mr. French: I think if we're talking about this situation, as we are, within the context of London or the UK, we would have to--we would have to think about what the legal position might be as far as asking people to--or taking signs away from people.
Q: Mr. Caldwell?
Michael Caldwell: I think the concern might well be, are the signs being used to mask some form of other behaviour? Are they actually using the signs to hinder the view of Police Officers in order for them to achieve something else? But that's very much dependent on the--what's actually the situation there at the time. But, again, it all goes back to the same issue, which is the judgment based on the operational skills of the officers present there, which is why, from a given perspective, we would try and deploy Public Order trained officers there who have got the--that operational skill.
Critical in assessing the presence of a security concern or risk, according to the officers, would be the application of the professional judgment of the police officer, based on his or her operational skills, taking into account the existing situation, including legal issues involved in taking signs away from people.
21.9.2. A Lack of Objectivity
It is my opinion that, in this instance, Insp. Dingwall was not in a position to objectively apply his professional judgment to the task of determining whether a security risk existed. As the number two officer in the line of responsibility for planning security for the APEC conference, he had to have realized that he would carry a major share of the responsibility for a situation that his counsel described as having "slipped through the cracks;" that is, allowing the presence of protesters at the Green College location. Call it a gap, an oversight or whatever, I believe that Insp. Dingwall, in making his decision in such haste, was influenced by the extent of his own responsibility for that oversight.
I am satisfied that there is an additional factor that was bound to affect Insp. Dingwall's ability to objectively apply his professional judgment to the situation he faced. He referred in his testimony to the anguish that he said he and others went through in the last weeks before November 25 in dealing with the placement of the law school fence. That anguish could only have resulted from Mr. Carle's intervention, with which Insp. Dingwall was fully familiar: he was part of the November 13 site tour when Mr. Carle rejected the agreed upon Thompsett/Pavlich line. In his testimony, Insp. Dingwall described Mr. Carle as a "very powerful," and "outspoken" man. Mr. Carle was to arrive on campus on the morning of November 25 in a vehicle travelling close to the one carrying Prime Minister Chrétien. Mr. Carle had major host responsibilities that morning at the museum from 8:30 a.m. onwards. In my view, in addition to the fact that Insp. Dingwall was caught off guard by the presence of the protesters, the anguish caused to him and others by Mr. Carle was bound to affect the objectivity required of Insp. Dingwall in the decision making role he assumed that morning at Green College.
So quick was Insp. Dingwall's decision that he gave no attention to who the protesters were or their propensity for violent acts. Further, and most importantly, he took no time to think about the "legal position" as referred to by Officer French which, in the situation at UBC that morning, meant section 2(b) of the Charter which guarantees "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication."
Counsel for the 44 RCMP officers submitted that APEC week in November 1997 was the largest and most difficult security undertaking in Canadian history. The foundation for the analysis of all complaints against the RCMP, say counsel, must be the burden resting with officers such as Sgt. May and Insp. Dingwall on November 25 to prevent loss of life, assassination attempts, kidnappings, hostage takings or other international incidents. I accept that that is so. That cannot mean, however, that the police conduct on that day, and particularly at Green College that morning, should escape the scrutiny of this Commission whose mandate includes an assessment of the appropriateness of that conduct.
21.10. Was Insp. Dingwall's Conduct Consistent with the Charter?
I now turn to consider whether the officers' conduct in removing the signs from the protesters was consistent with respect for section 2(b) of the Charter and if so, whether it was justified. There can be no doubt that the display of signs outside Green College was constitutionally protected political expression and that the removal of the signs was inconsistent with freedom of expression. The protesters were lawfully protesting in an area where they were entitled to be, and where Sgt. Thompsett had told Mr. Jones they were entitled to be. Therefore, the removal of signs was inconsistent with section 2(b) of the Charter.
21.10.1. Restriction Must be Prescribed by Law
The real issue is whether the removal of the signs was justifiable under section 1 of the Charter. If the government wishes to justify a restriction on a Charter right under section 1, it must first establish that the restriction is "prescribed by law." There are several statutory provisions not referred to by counsel which appear to authorize the RCMP to take reasonable security measures to protect Internationally Protected Persons.
For example, the Canadian government is a signatory to the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents (1973), which came into force on February 20, 1977. This Convention requires Canada to criminalize certain offences against Internationally Protected Persons. Canada has met its treaty obligations by incorporating certain provisions into the Criminal Code. Section 424 of the Criminal Code provides that:
424. Every one who threatens to commit an offence under section 235 [murder], 266 [assault], 279 [kidnapping] or 279.1 [hostage taking] against an internationally protected person or who threatens to commit an offence under section 431 is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Section 431 provides that:
431. Every one who commits an attack on the official premises, private accommodation or means of transport of an internationally protected person that is likely to endanger the life or liberty of such person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Section 18(1)(a) of the RCMP Act sets out the basic duties of the RCMP to preserve the peace and to prevent crime and offences against the laws of Canada:
18(1) It is the duty of members who are peace officers, subject to the orders of the Commissioner,
(a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody.
Given section 18(1)(a) of the RCMP Act, it is clear that the RCMP have a duty to take appropriate steps to prevent the Criminal Code offences referred to above. In addition to the Criminal Code, section 2 of the Security Offences Act (Canada) provides that:
2. Notwithstanding any other Act of Parliament, the Attorney General of Canada may conduct proceedings in respect of an offence under any law of Canada where...
(b) the victim of the alleged offence is an internationally protected person within the meaning of section 2 of the Criminal Code,...
Section 6(1) of the Security Offences Act (Canada) then provides that:
6(1) Members of the Royal Canadian Mounted Police who are peace officers have the primary responsibility to perform the duties that are assigned to peace officers in relation to any offence referred to in section 2 or the apprehension of the commission of such an offence. (emphasis added)
Section 6(1) makes it clear that the RCMP have a duty to take appropriate security measures to prevent "apprehended" offences against Internationally Protected Persons, although I have little doubt that they must act reasonably when doing so. The existence of such a duty at common law was confirmed in Knowlton, which is discussed in Chapter 20.
In my view, the RCMP were authorized, by virtue of section 6(1) of the Security Offences Act (Canada) and section 431 of the Criminal Code to direct the removal of Mr. Jones' two coat racks and any sticks which might have been used as dangerous projectiles. In contrast, I do not believe that the RCMP were authorized to remove any cardboard or plastic signs which did not pose a "real risk of imminent harm." In my view, while the removal of potential projectiles was "prescribed by law" within the meaning of section 1 of the Charter, the removal of cardboard and plastic signs was not.
The displaying of signs was a lawful, constitutionally protected act of political expression. Before removing their signs, Insp. Dingwall should have considered whether infringing the protesters' Charter rights was justifiable in the circumstances. He did not do so. In my view, Insp. Dingwall committed the error referred to in Brown, discussed in Chapter 20. That is, he failed to recognize that the existence of a police duty to do something does not mean the police have the right to act without restriction in furtherance of that duty. Rather, a police duty – in this case to provide for the security of Internationally Protected Persons – gives rise to a police power to take reasonable steps to carry out that duty. It does not confer on police any power that cannot be justified under the ancillary powers test in Waterfield and discussed in Knowlton (see Chapter 20). Although there may have been a "real risk of imminent harm" in respect of Mr. Jones' coat racks and at least some of the sticks to which signs were attached (although that is perhaps questionable), the removal of the other signs, which could not have been used as dangerous projectiles, was not authorized by statute or the common law test set out in Waterfield and, therefore, the RCMP were not entitled to remove those signs. I simply cannot conclude that Insp. Dingwall had reasonable grounds for believing that it was necessary to remove the cardboard and plastic signs carried by protesters in order to ensure the safety of the Internationally Protected Persons. They posed no potential risk, much less a "real risk of imminent harm" to their security. In my view, Insp. Dingwall was under considerable stress because of his experience with Mr. Carle and because he had not anticipated that protesters would gather in the Green College area and he carried a major share of responsibility for that planning gap and any potential adverse consequences. In the circumstances, he was unable to apply objectively his professional judgment and properly assess whether the signs represented a real risk to the motorcades and whether interfering with the protesters' Charter rights was justifiable. As a result, he did not differentiate between signs which presented a risk and those which did not. Although it was suggested that the RCMP did not have time to argue with the protesters about each and every sign, I believe they were in a position to respect the protesters' Charter rights as much as possible by simply removing items such as those sticks and coat racks that presented a real risk and allowing the protesters to retain signs and banners.
21.10.2. Restriction Must be Demonstrably Justified
Having determined that the removal of the coat racks and sticks was "prescribed by law," I must consider whether the removal was "demonstrably justified in a free and democratic society" within the meaning of section 1 of the Charter. This involves a consideration of whether the RCMP's objective was "pressing and substantial" and whether the impugned conduct satisfied each element of the Oakes test (see Chapter 7).
21.10.2.1. Pressing and substantial objective
As to whether the RCMP had a "pressing and substantial objective", the need to protect Internationally Protected Persons is recognized by international treaty and by domestic statutory and common law. I have no doubt that ensuring the security of these people and other diplomats in the passing motorcades was a "pressing and substantial objective." Although Insp. Dingwall may have had additional motivations for wanting protest signs removed from Green College, his primary objective was to secure an area which, due to what I can only characterize as a severe planning blunder, had not been made part of the secure zone, despite the vulnerability of the location.
21.10.2.2. Rational connection
The next hurdle for the RCMP under the section 1 analysis is whether there was a rational connection between the objective of protecting the Internationally Protected Persons and the removal of the coat racks and other sticks that had signs attached to them. In my view, there was such a connection, as I am prepared to assume that the coat racks and sticks could have been used as projectiles and so posed a threat to the passing motorcades.
21.10.2.3. Minimal impairment
Next is the "minimal impairment" test. I am satisfied that the removal of the signs did not impair the right to free expression "as little as possible." In my view, it would have been a simple matter for the RCMP to have asked Mr. Jones and the other protesters to surrender any objects that could have been used as projectiles, on the understanding that they would be entitled to keep their signs. If any protesters refused to comply, the RCMP would have been justified in removing potential projectiles from signs where possible, and allowing the protesters to keep their signs.
This was not a case of one or two officers facing a teeming crowd of protesters. There was roughly one police officer for every two protesters. Furthermore, only about half of those protesters were carrying signs, and some of those signs were not affixed to potential projectiles. In other words, for every protester carrying a potential projectile, there was more than one police officer to assist in either removing the potential projectile or in ensuring that it was not used as a projectile. Given this strong police presence, the most prudent course of action would have been to allow the protesters to keep their signs, potential projectiles and all, as there were sufficient officers available to ensure that no coat racks or other objects were hurled over the fence. Instead, Insp. Dingwall ordered the indiscriminate removal of the signs, without due regard for Charter rights and for the fact that a strong police presence was available to keep the peace. His conduct did not "minimally impair" the protesters' rights guaranteed by section 2(b) of the Charter and, accordingly, is not justifiable under section 1 of the Charter.
I am bolstered in this conclusion by the evidence of S/Sgt. Moloci who testified that, even though the protesters were "pretty agitated" and "upset" when he arrived in the area, he was satisfied, "based on the number of policemen and the situation at that time" that it was not appropriate to deny the protesters the right to display their signs.
21.11. Appropriateness of the Conduct
It is true that police officers are often called upon to make very difficult decisions in the heat of the moment. Nevertheless, reasonableness and common sense are the touchstones against which I must assess whether an acceptable level of professional judgment was exercised in a given situation. In this instance, there was no such acceptable level of professional judgment used. This shortfall is likely explainable by Insp. Dingwall's inability to be objective in arriving at his decision. In my opinion, Insp. Dingwall's conduct was not appropriate to the circumstances. He acted with undue haste that morning. He did not take into account the relevant factors, and in particular the Charter rights of those who wanted to protest outside their residence with signs and banners.
21.12. Arrest Without Warrant
Before discussing the arrest of Mr. Jones, I will describe the authority given to police by the Criminal Code to arrest without a warrant, and some of the legal constraints on that authority, as those are issues which arise in respect of the Jones arrest, and in subsequent chapters of this report.
Section 495(1) of the Criminal Code authorizes a police officer to arrest without warrant:
- a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence,
- a person who he finds committing a criminal offence....
Section 495(1)(b) applies to all criminal offences, but (a) applies only to indictable (more serious) offences. However for the purpose of these arrest powers, the definition of indictable offences is expanded to include hybrid offences (offences that the Crown may choose to proceed with either by indictment or by summary procedure): Interpretation Act, R.S.C. 1985, c. I-21; R. v. Huff (1979), 50 C.C.C. (2d) 324 (Alta. C.A.).
Mischief, assault and obstruction of a police officer are examples of hybrid offences for which police may arrest under section 495(1)(a).
The first branch of section 495(1)(a) ("a person who has committed an indictable offence") deals with situations where the arresting officer personally witnessed an offence being committed but was unable to stop it or make the arrest before it was completed: R. v. Klimchuk (1991), 67 C.C.C. (3d) 385 (B.C.C.A.). Although Klimchuk says that the officer must have actually witnessed the indictable offence and therefore "know" that it occurred, I do not interpret that case to mean that the officer must be correct in the conclusion that an indictable offence has been committed. That is, the arrest will not become unlawful simply because the person is not eventually convicted of an indictable offence. Rather, I believe the appropriate test is whether it would have been apparent to a reasonable person that such an offence had been committed.
The second branch of section 495(1)(a) ("a person who . . . he believes has committed or is about to commit an indictable offence") deals with situations where the officer does not personally witness the offence or where the offence has not yet occurred. In those cases the officer may rely on information from others and arrest on the basis of personal belief, if that belief is based on reasonable and probable grounds: Klimchuk; R. v. Biron (1975), 59 D.L.R. (3d) 409 (S.C.C.). To satisfy this requirement:
- the officer must subjectively believe that there are reasonable grounds for the arrest; and
- those grounds must be objectively justifiable. In other words, a reasonable person in the officer's position would conclude that there were reasonable and probable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241.
Section 495(1)(b) ("finds committing an offence"), which applies to all criminal offences, authorizes an arrest without a warrant where an officer finds a person apparently committing an offence. The officer's power to arrest is based on personal observation. The circumstances that were apparent to the peace officer at the time the arrest was made are what will determine the validity of the arrest: Biron.
The Supreme Court of Canada has clarified that the expression "finds committing an offence" requires an assessment of the circumstances that would have been apparent to a reasonable person placed in the circumstances of the arresting officer at the time: Roberge v. The Queen (1983), 4 C.C.C. (3d) 304 (S.C.C.).
But the existence of reasonable grounds does not end the matter because even where grounds for arrest exist, section 495(2) of the Criminal Code prohibits an officer from making such an arrest if the public interest may be satisfied without the arrest. This limitation on the power to arrest without warrant is discussed further in Chapter 25.
In summary, for present purposes, I believe there is little practical difference between the tests applicable to section 495(1)(b) and the two branches of section 495(1)(a). In all cases, the law is, in effect, that a police officer may arrest without warrant, for any criminal offence:
- if the officer subjectively believes, based on personal observation or otherwise, that an offence has been committed, is being committed or is about to be committed; and
- if that belief is objectively reasonable in the circumstances.
21.13. Jones' Arrest was Appropriate
As I have found, Insp. Dingwall ordered the indiscriminate removal of all signs at the Green College location. I have concluded that doing so was both inappropriate and inconsistent with respect for the Charter. Notwithstanding that finding, I accept that Insp. Dingwall held an honest and reasonable belief that Mr. Jones' coat racks presented a threat to security. He was therefore entitled to direct the removal of the coat racks by virtue of his common law power to protect life and property and his duty to ensure the security of the motorcades.
Mr. Jones, however, gripped the coat racks and told the officers that, if they were going to take his signs, they would have to arrest him. Insp. Dingwall then directed the officers to seize the coat racks, signs and all, and arrest Mr. Jones. Although Mr. Jones would have been perfectly entitled to resist the removal of his signs had they been displayed under circumstances that allowed for their separation from the coat racks, which they were not, he was not entitled to resist the removal of the coat racks, as they presented a credible security risk. Once Insp. Dingwall saw that Mr. Jones was not prepared to release the coat racks, to which the signs were attached, I believe he had the necessary grounds to direct the arrest pursuant to section 495(1)(b) of the Criminal Code, as it would have been apparent to a reasonable person standing in Insp. Dingwall's shoes that Mr. Jones was attempting to prevent the officers from carrying out their duty.
I am satisfied that, although it would have been more prudent for Insp. Dingwall to have directed several of the available officers to stand beside the coat racks as a precaution, it is obvious to me that he never thought of that and that he saw the seizure of the racks as his only alternative to them remaining as potential projectiles. Unfortunately the signs were attached to them in such a way that they could not have been removed separately for "hand held" use by Mr. Jones and his neighbours. I conclude that the RCMP were entitled to arrest Mr. Jones and that they used no more force than necessary to effect the arrest.
I reach the conclusion that the arrest was appropriate to the circumstances with considerable reluctance. Mr. Jones is not a man of violence. His signs were offensive to no one. His attempt to post them on the security fence had been denied, albeit for good reason, so he then applied his ingenuity in fastening them to the racks. However, for reasons I have explained, Insp. Dingwall lacked objectivity and that prevented him from applying reasonableness and common sense to the scene before him, with the result that the "surrender the racks or be arrested" order was given – an order that, under the circumstances that existed at the time, I am bound to conclude, as a matter of law, the Inspector was entitled to give.