APEC – Commission Interim Report
On the morning of November 25 Jamie Doucette took a walkie-talkie to Gate. 3 where the East Timor Alert Network (ETAN) planned a protest and symbolic arrest of President Suharto of Indonesia. Mr. Doucette was arrested. Some time later Annette Muttray went to Gate. 3, also with a walkie-talkie, and she too was arrested. Mr. Doucette and Ms. Muttray complained about their arrests and also that their bicycles and a backpack were not secured by the police.
22.1. Protest Preparations
Mr. Doucette and Ms. Muttray were UBC students who wanted to express their opposition to APEC and the holding of the APEC leaders' meeting on campus. Although neither student was deeply involved in the affairs of APEC Alert, their interest in the group accelerated in the week leading up to November 25.
Mr. Doucette attended workshops and discussion groups sponsored by APEC Alert. He helped set up the tents at the Museum of Anthropology and, in the three or four days before the leaders' meeting, he volunteered in a communications role for APEC Alert by using a walkie-talkie to keep in touch with others performing various tasks on campus.
Ms. Muttray set up her own tent in the tent city that had been established on campus, at first for use by others, but she stayed there herself the night of November 24.
Late in the evening of November 24, Mr. Doucette and Ms. Muttray were at the Student Union Building, with about 200 others. Arrangements were made for many of them to participate in the events planned for the following day. Both Mr. Doucette and Ms. Muttray volunteered to be part of a " peacekeeping communications type of group" which was given access to three walkie-talkies for the next day. The group decided to leave one of the walkie-talkies at a table near the tent city and to issue the other two to members of the group who would be on the grounds assessing events as they occurred.
Ms. Muttray said they decided to have one of the roving units go to the vicinity of Gate. 3 the next morning where ETAN planned a demonstration, the focal point of which was to be an attempted citizens' arrest of President Suharto. Neither Ms. Muttray nor Mr. Doucette were members of ETAN but they were acquainted with some of those associated with that group. Ms. Muttray said that the purpose of observing the ETAN rally was to witness any arrests and assess, based on the ETAN rally, how the other civil disobedience actions planned for November 25 would go. She added:
Like, would they be, you know, peacefully arrested, or would there be, you know, a big--I don't know, like would police react very aggressively. And depending on that, I think, people would have, you know, taken that information and just made up their own mind about whether they would want to do civil disobedience or not; because people--you know, some people are happy to put themselves in certain danger, and other people don't.
Ms. Muttray said the plan was to relay the information gathered by observing the ETAN rally back to tent city via walkie-talkie where those involved in organizing the noon rally could then talk about what had been learned from the ETAN rally.
22.2. Doucette at Gate. 3
In the morning, Mr. Doucette was chosen to go to the Gate. 3 area, observe the ETAN rally, gather information and report back to the APEC Alert table via walkie-talkie. He left the tent city area at about 9:00 a.m. and rode his bicycle to the corner of Newton Crescent and Chancellor Boulevard. As planned, he was in communication, over a three-way line, with those back at the APEC Alert table where Ms. Muttray had remained. He said he reported such information as the number of demonstrators; media representation; the extent of the police presence; and arrests being made.
Jonathan Oppenheim, a leader of the APEC Alert activities, testified that the principal reason for deciding to send an observer to the ETAN rally on November 25 was to ensure that the civil disobedience planned for the noon rally could be carried out safely. Because ETAN's morning event was substantially the same as what APEC Alert planned for later in the day, " if their action went safely, then we could learn from that" and if something went wrong, lessons could be learned from that as well.
22.3. Crowds Pushing onto the Road
While Mr. Doucette was roaming around the periphery of the crowd at Gate. 3, the police were having a difficult time keeping the road open. Cst. Robert Fulks described what he found when he first arrived at Gate. 3 between 8:30 a.m. and 9:30 a.m. A protest was in progress, with several RCMP members lined up along the curb and a large crowd of protesters trying to push through the police line onto the road. He believed they intended to block the road. He helped maintain the security of the roadway but the protesters became very aggressive, pushing like a wave, alternately escalating and then dying down.
One RCMP member said it was difficult for the police to control the surges of protesters onto the road, though he thought they had succeeded.
S/Sgt. Stewart said that Insp. Edwards was in command at the site. He said that the Quick Response Teams were brought in because the world leaders had arrived at the Museum of Anthropology and the protesters were blocking the road. He said that when he arrived at about 9:00 a.m., only one lane of traffic remained open. The crowd was growing and he estimated that, by the time the rally concluded, it numbered between 300 and 400. S/Sgt. Stewart testified that the police had received information that ETAN members would try to get through the fence, confront President Suharto, and arrest him. He said that an ETAN member had read an arrest warrant and there followed a dialogue about why the police would not allow the protesters through the line. S/Sgt. Stewart was asked to describe the gist of that dialogue:
That we were wrong in supporting a murderer, in the form of Suharto. That we were violating the law by protecting the--the IPP's, in particularly, Mr. Suharto. That they had a right as Canadian citizens to arrest him as a war criminal.
When he was asked if this was a congenial discussion, S/Sgt. Stewart said it went from serious discussions to, at some times, rage that the police were not allowing this to happen. He said it got to the point where some people began to push on individual police officers, or tried to slip between two police officers to get onto the roadway, but they were arrested and never made it through the fence.
S/Sgt. Stewart said the pushing continued but the police were able to force the protesters back. Although the police remained in control throughout, I am satisfied that the situation was, as indicated by S/Sgt. Stewart, very difficult for them.
22.4. Doucette's Arrest
While moving about the crowd, Mr. Doucette attracted the attention of the police. According to S/Sgt. Stewart, he was speaking into his jacket where his walkie-talkie was located, not unlike police officers working in the drug squad's plainclothes unit sometimes do.
One of those who had Mr. Doucette under surveillance was Cst. Fulks. He said police had been told at a Threat Assessment Group briefing the previous day that the protesters would be " using portable radios to co-ordinate efforts to frustrate the police activities."
Cst. Fulks reported Mr. Doucette's actions to S/Sgt. Stewart. Together they observed him as he continued his movements and talking into his jacket. Cst. Fulks said he appeared to be " communicating with other people."
S/Sgt. Stewart described his encounter with Mr. Doucette after he had decided to have a talk with him:
I made a number of conclusions at that time and asked him - told him that I wished to speak to him and began moving towards him on foot. He spun around on his bike - turned his bike around and rode away and, as he rode away, told me to F-off.
S/Sgt. Stewart said that, if Mr. Doucette had talked to him, " things might have been totally different." Cst. Fulks, who was present when Mr. Doucette took off on his bicycle, described Mr. Doucette as having taken evasive measures to stay away from the police. Mr. Doucette explained his departure as follows:
And I guess I sort of saw Staff Sgt. Stewart walking, sort of in a southeasterly direction, and then he sort of turned towards me, and I guess kind of made a gruff, sort of a--not a charge, but a, like a--like almost like a grab, but he was too far away to really actually grab me, but sort of this kind of like--like he was about to start running after me or something like that. At that point, I just sort of, like, got on my bike, and I think I--remarked something, like, what the fuck-pardon me-or something along the lines of that.
Mr. Doucette said he told S/Sgt. Stewart to " fuck off" because he had seen S/Sgt. Stewart pushing people around arbitrarily. He did not intend to be pushed arbitrarily, so he left the area swiftly.
At that point, Sgt. Stewart concluded that the reason the police were having such difficulty keeping the crowd from obstructing the roadway may well have been because Mr. Doucette was providing the protesters with specific direction. S/Sgt. Stewart decided that, by directing and guiding the crowd, Mr. Doucette was obstructing the police in their duty to keep the road open and he decided to have him arrested. S/Sgt. Stewart said that Mr. Doucette's profanity did not influence that decision. He said if he had arrested all the people who had sworn at him that day there would have been 1,000 people in custody. Rather, one of the key factors in his decision to arrest Mr. Doucette was the fact that he " took off." S/Sgt. Stewart said that, in his opinion, normally a person who is using a cell phone for a lawful purpose would not react by riding away but would speak with a police officer who had asked to talk. In accepting responsibility for Mr. Doucette's arrest, S/Sgt. Stewart explained:
My direction was to arrest him, because I felt, and I still believe, that he was controlling the crowd. And when the crowd was moving back and forth out onto the road, that he was part of the--the reason that we would push the crowd back onto the--off the open roadway. And then it would move on to a different location. And considering the intelligence information I have--I had, and his actions, and the fact that he fled from me, and the fact that the crowd was moving in that manner. I made the--came to the conclusion, that the crowd was being controlled by him, using a radio.
S/Sgt. Stewart said that, being on foot, he would not have been able to catch Mr. Doucette, who was on a bicycle, so he asked Acting Sgt. Rainey of the VPD to make the arrest. Acting Sgt. Rainey recruited VPD Bike Squad officers for this purpose and those involved from that squad in the arrest were Csts. Kris Wrathall, Leonard Smith and Ronald Bieg. S/Sgt. Stewart was wrong in his conclusion that Mr. Doucette was guiding, directing and controlling the crowd. He was doing what he, Ms. Muttray and Mr. Oppenheim said he was doing and that did not involve directing the crowd of protesters who were creating a difficult and, at times, tense situation for the police at Gate. 3. Mr. Doucette confused the issue, however, by giving a false statement to the arresting officers. He is recorded on a video taken at the time of his arrest, saying " I was trying to control the crowd with the walkie-talkie." When pressed at the hearing on this issue, he said he was simply acting as a " peace observer," available to do what he could to ensure that the crowd acted in an ordinary, peaceful manner. That is not what he was doing. He was observing the events and reporting back to the APEC Alert table. He was not influencing the protesters' action either negatively or positively.
22.5. Muttray's Arrest
22.5.1. Who Directed the Arrest?
I now turn to the circumstances surrounding the arrest of Ms. Muttray. The issue I must first resolve is whether the arrest resulted from a decision made by Acting Sgt. Rainey of the VPD or by S/Sgt. Stewart. When Mr. Doucette was arrested and his group lost contact with him over the walkie-talkie, they decided that Ms. Muttray would go to Gate. 3 to find out what had happened. She took one of the remaining walkie-talkies, leaving the other one at the table so that she could remain in communication with the group. In her search for Mr. Doucette, Ms. Muttray talked to both protesters and police officers, but was unable to locate him. As she searched, her conversations with her associates back at the tent were overheard by VPD officers Bieg and Wrathall, who now had Mr. Doucette's walkie-talkie.
I accept Ms. Muttray's evidence that she had no control over the actions at the ETAN rally: her sole purpose in being there was to find out what had happened to Mr. Doucette. I also accept her evidence that she had stepped back from the police line and was speaking into the walkie-talkie when she was grabbed by both arms, from behind, by two officers who told her she was being arrested.
S/Sgt. Stewart testified that Cst. Bieg had reported to him on the conversation that had been overheard between Ms. Muttray and the APEC Alert group. On the basis of that information, and his conclusion that Ms. Muttray was involved in giving direction to the crowd, he directed that she be arrested.
S/Sgt. Stewart acknowledged that he never saw Ms. Muttray and, in particular, never saw her using the walkie-talkie. He explained his reaction to what Cst. Bieg had reported to him:
I just thought, you know, holy smoke. You know, I was right. Now we should get rid of the second person and we'll be able to clear this up.
During Ms. Muttray's conversations with those back at the APEC Alert table, Cst. Wrathall had called Acting Sgt. Rainey over to the walkie-talkie to hear what was being said. While listening, Acting Sgt. Rainey looked out on the crowd and saw Ms. Muttray holding the radio in her hand and speaking into it. Acting Sgt. Rainey concluded that Ms. Muttray was part of the protest organization. He said she " appeared to be assessing the actions of the police, assessing their strengths and weaknesses." He said this led him to believe that she was obstructing the police by organizing the crowd and the illegal blocking of the road. He also believed that, by using the walkie-talkie, she was able to " strengthen the crowd by calling others in, if necessary."
Acting Sgt. Rainey was incorrect in his conclusions about Ms. Muttray. Nevertheless, he said that, because of his concerns, he talked to Cst. Wrathall and they decided Ms. Muttray was arrestable for obstructing a police officer and breach of the peace. The two officers ran the proposed charges by VPD Insp. Chris Offer, who approved the arrest.
Although S/Sgt. Stewart did direct that Ms. Muttray be arrested, it is clear to me that Acting Sgt. Rainey decided, completely independently of S/Sgt. Stewart, that she was to be arrested:
Q: Sir, turning--turning to the issue of Ms. Muttray's arrest. I take it, sir, from your information Officer Stewart played no role in any decision to arrest her, that was entirely your decision.
A: He may have been advised of the arrest. But no, it was not his decision to arrest.
I conclude that, although the VPD officers may have discussed the matter with S/Sgt. Stewart and S/Sgt. Stewart may have directed that an arrest be made, Acting Sgt. Rainey made an independent decision. S/Sgt. Stewart did acknowledge that he had formed the opinion that Ms. Muttray was committing the criminal offence of obstructing police and he directed that she be arrested. However, as it turned out, Ms. Muttray's arrest resulted from a decision made independently by Acting Sgt. Rainey of the VPD, over whom I have no jurisdiction.
Accordingly, it is not necessary to consider this aspect of Ms. Muttray's complaint any further.
22.5.2. Cst. Hodder's Role
The arrest of Ms. Muttray occurred pretty much as she explained it. Acting Sgt. Rainey said that, with Cst. Wrathall unable to assist because he was holding the walkie-talkie, he asked nearby RCMP Cst. Robert Hodder to assist him in making the arrest. Cst. Hodder, of the Vernon Detachment, was assigned that morning to general security duties within the zone where Gate. 3 was located and, specifically, to control movement through a nearby checkpoint. Ms. Muttray was actually taken into custody by Acting Sgt. Rainey and Cst. Hodder. Cst. Hodder said he knew nothing of the alleged conduct underlying Ms. Muttray's arrest and relied solely on the information of Acting Sgt. Rainey.
The evidence is clear that Acting Sgt. Rainey, not S/Sgt. Stewart, enlisted Cst. Hodder to assist in the arrest. Acting Sgt. Rainey testified that he had asked a nearby RCMP constable to give him a hand in arresting the woman with the walkie-talkie:
Q: Okay. And had Constable Hodder been sort of participating in your deliberations, leading to your decisions to arrest?
A: No, he was not.
Q: All right. Okay, so you--you recruit, as it were, a Constable Hodder and what do you do then?
A: We walked out and walked over to the woman in the crowd. I advised I was a Police Officer and that she was under arrest for obstruct.
I assign no responsibility for Ms. Muttray's arrest to Cst. Hodder. His counsel correctly pointed out that a police officer who is directed to carry out or assist in an arrest is entitled to assume that the officer who initiated the arrest did so lawfully. The legality of the arrest depends on the knowledge of the officer who decided to make the arrest, not that of the officer who carried out the order: R. v. Debot (1989), 52 C.C.C. (3d) 193 (S.C.C.); R. v. Dawson [1998] O.J. No. 5220 (Ont. Gen. Div.); R. v. Venzi [1997] B.C.J. No. 3019 (S.C.). Cst. Hodder was not in any way involved in the decision that led to Ms. Muttray's arrest. His conduct in effecting that arrest was appropriate to the circumstances.
22.6. Doucette Arrest was Not Appropriate
S/Sgt. Stewart decided to arrest Mr. Doucette on the basis of
- the information he had about the use of the walkie-talkies;
- Mr. Doucette's actions in speaking into his jacket;
- the movement of the crowd back and forth onto the road which was preventing the RCMP from keeping the road open and causing them difficulty; and
- the fact that Mr. Doucette fled from S/Sgt. Stewart.
The combination of these factors led S/Sgt. Stewart to conclude that the crowd was being controlled by Mr. Doucette, via walkie-talkie, and that he was orchestrating their movements. I accept that the protesters were struggling to gain access to and block the roadway, with varying degrees of success, and that the police were acting in the lawful execution of their duty in trying to keep the road open. I accept that S/Sgt. Stewart honestly and sincerely believed that Mr. Doucette was playing a role in controlling the crowd and directing protesters to breach the police line. However, the grounds for his belief were not objectively reasonable. The following exchange was particularly telling:
Q: And what information did you imagine that he could possibly be giving them that would in any way help them in their civil disobedience?
A: Well, I believed that he was talking to someone who was causing them to move out in the road in groups.
And as the Police moved down, because we didn't have all of our resources there. As they moved down to deal with one group, with the number of Police we had, we then weakened the Police line on the left, and then they would move out onto the road.
Then we would take the police line, shift it back now, to deal with the group on the road, and the group on the right would move out.
We didn't have enough Police Officers to keep it open. We did not have so many, that we could cover the whole length of the people. And that's what was happening as we moved to deal within one group and the line thinned out, then the other portion of the line would push out.
And I believed that he was doing that.
This was clearly not an answer to the question put to S/Sgt. Stewart. In fact, his response makes it clear that the reason the RCMP were having difficulty keeping the road open was that, to S/Sgt. Stewart's knowledge, there were simply not enough police at that location at that time to deal with the protesters. The fact that they were taking advantage of the RCMP's overly stretched ranks did not provide a reasonable basis for S/Sgt. Stewart's conclusion that Mr. Doucette was controlling the crowd. A reasonable person in S/Sgt. Stewart's position would not have concluded, from seeing Mr. Doucette speaking into his jacket (without hearing what he was saying), from the movements of the crowd, and from Mr. Doucette's flight from the approaching officer, that Mr. Doucette was committing the criminal offence of obstructing police officers in the execution of their duty. He was not, to the knowledge of S/Sgt. Stewart, using a megaphone to exhort the crowd to break the law, and although he may well have appeared to be engaged in some sort of clandestine activity, it was simply not reasonable to conclude that, by his actions, he was somehow orchestrating the actions of a crowd of more than 100 people. I conclude that S/Sgt. Stewart lacked reasonable grounds to direct the arrest of Mr. Doucette and that his conduct in directing the arrest was not " appropriate to the circumstances."
22.7. Miscellaneous Allegations
I find no substance to the allegations of lack of care and attention to Ms. Muttray's backpack and bicycle nor to the suggestion that the RCMP failed to properly investigate her complaint about the location of her bicycle. All of Ms. Muttray's property was returned to her. The RCMP conduct was not inappropriate. With respect to Mr. Doucette's bicycle, which was never recovered, counsel to S/Sgt. Stewart took a very reasonable position, with which I agree, when he said: " I would not quarrel with the proposition that the loss ought not to be borne by him."
Lastly, it was suggested in one of the complaints that S/Sgt. Plante was involved in the arrests of Ms. Muttray and Mr. Doucette but I find that that was not the case.