APEC – Commission Interim Report
Jonathan Oppenheim was arrested on the afternoon of November 25 at Gate 3 when he was suspected of playing a role in the collapse of the security fence near the School of Theology. The complaint is that Mr. Oppenheim was wrongfully arrested and that excessive force was used in his arrest.
24.1. Issues
The primary issue is whether Cpl. Charles J. McDonald, the officer who directed Mr. Oppenheim's arrest, had reasonable grounds to believe that Mr. Oppenheim had committed mischief to the security fence. The secondary issue is whether the police used excessive force in effecting the arrest.
24.2. What Happened at the Fence
This incident occurred between the two buildings on Iona Drive. Those protesters who made the move from the flagpole area to the Gate 3 location of the initial road blockade passed along the outside and to the south of the security fence, close to where the fence came to an end.
Cpl. McDonald was the Assistant Team Leader of Quick Response Team 5. This team had been assigned duties near the School of Theology throughout the day. Cpl. McDonald had become aware of Mr. Oppenheim's name during APEC week by reading the Threat Assessment Group reports at morning briefing sessions. He had also seen Mr. Oppenheim's picture at the RCMP's UBC Detachment office.
At about 2:30 p.m. on November 25, Cpl. McDonald was stationed inside the security fence on Iona Drive. He described the environment:
...And we were in high alert, because the motorcades were attempting to leave and we knew that everyone that was at pol –- at the flagpoles protesting, was now going to occupy or try to occupy the motorcades routes, and prevent the motorcades from getting out. And I knew how many people were there, how many protesters were there.
Considering what had transpired over the previous few hours and the RCMP's responsibility to see to the safe departure of the world leaders over the next two hours or so, I am sure it was indeed a time of "high alert" for Cpl. McDonald and his colleagues.
Cpl. McDonald was paired with Cst. Deri Kinsey as they patrolled the fence near the Theology Centre in the area where the breach took place. Cpl. McDonald's evidence was that scores of people were walking by, quite quietly, considering the commotion he had heard earlier coming from the flagpole area. Cpl. McDonald said he was concerned about the weakness of the security fence.
He said that Mr. Oppenheim stepped out of the crowd of people, walked up to the fence, looked at it, then grabbed it and began ripping it. As a result, the white plastic straps that connected the chain link fencing to the upright fence posts began to pop off. He said that after two or three straps popped off, Mr. Oppenheim began pushing on the fence as hard as he could. As a result, the crowd stopped and, after a few seconds, three more people ran to the fence, jumped on it and joined in pushing it, causing 30 feet of the chain link fence to fall to the ground.
Cpl. McDonald reached for his pepper spray canister and, as he moved towards the four individuals at the fence, Mr. Oppenheim ran away in what Cpl. McDonald believed to be a northerly direction between the law school and the chapel. Two others also ran and the fourth was pepper sprayed by Cpl. McDonald. Cpl. McDonald said he jumped over the barrier and began to chase the men but had to abandon the chase because the crowd closed in on him. He immediately got on his radio, notified dispatch of what had occurred and identified Mr. Oppenheim as "the person responsible for initiating this whole incident." Cpl. McDonald said that he considered Mr. Oppenheim arrestable immediately and therefore broadcast his description.
Cpl. McDonald described the effect that pushing on the fence would have on the plastic straps as follows:
The fence is attached with straps and any pressure applied on the fence, on either side, in either direction, would cause stress on the straps.
Mr. Oppenheim asked Cpl. McDonald to explain why, given that the fence was attached to the other side of the pole, anyone would pull on the fence as Cpl. McDonald said Mr. Oppenheim had done and also why doing so would cause the straps to come off. Cpl. McDonald told him:
The straps came off because you were pulling so hard. And where you were pulling was in the middle of the chain link. So even if the fence is fastened on the other side of the posts, it would still cause enough stress on them, if you were pulling hard enough, to pop the straps off.
Mr. Oppenheim asked Cpl. McDonald why, after the incident, he had not sought out witnesses to the incident or called in an investigation unit:
Q: And I'm going to suggest that the reason you did that was you basically wanted no fuss, no muss in court, just your word against my word. And you knew that judges are almost always going to believe a police officer over some hippy; right?
A: What happened was a very straightforward case of mischief, and the Criminal Code section describing mischief in layman's terms means vandalism. You committed vandalism against the fence with three other people. It was a minor incident, but it was a criminal offence nonetheless. I couldn't arrest you, so I broadcast it to other people. I didn't expect that there were going to be witnesses who would be co-operative. At that point, by the time I came across the fence with pepper spray in my hand, having just pepper sprayed somebody else, there wasn't one person in there who was saying, pick me. I'm a witness. They were screaming at me about police brutality. And I hardly expect any--and if I needed other witnesses, there were members in the area, even members in the area didn't see what happened. At the time, the--they--of paramount importance was protecting the perimeter of the security area, not conducting a thorough investigation and an exhaustive investigation into a minor incident of mischief.
Acting Sgt. Rainey of the VPD heard Cpl. McDonald's broadcast and was asked about his involvement in Mr. Oppenheim's arrest:
The only participation I had in that, I overheard what I believe an RCMP member advise on the radio that Oppenheim was arrestable for mischief. I turned to an RCMP member who was present and then I said 'did you hear that over the radio?' And I advised him what I had heard. And that's the extent of my dealing with the arrest of Oppenheim.
Acting Sgt. Rainey said there was no mention of a warrant during the broadcast and then added: "I don't remember anything about a warrant, it was just, he was arrestable for mischief."
In his examination in chief, Cst. Kinsey outlined the events as he saw them. In cross examination, those events were reviewed with him:
Q: Okay. And the first person that you saw go up to the fence, the person you now say was Jonathan Oppenheim, you say that he shook the fence and the plastic ties tore away, right?
A: That's correct.
Q: And is it fair to say that they tore away immediately?
A: They started to tear away. As soon as they started to tear away--and I would assume that individuals in the crowd saw that it was starting to tear away, and jumped up to assist him.
Q: So it--the sequence was Jonathan Oppenheim, you say, was the first person who shook the fence. The plastic ties teared (sic) away immediately, some of them, right; not all of them?
A: Some of them, yes.
Q: And then after that, two or three or four –-I'm not sure how many numbers--went to the fence, and it was a result of their conduct that the fence came down; right?
A: As a result of the combined conduct of all the individuals that were up on the fence, they finished the job off, yes.
Q: But you can't say that--that--what I hear you saying is that Jonathan Oppenheim shook the fence first, a couple of plastic ties broke away. Then two or three or four other individuals came up, shook the fence, all the plastic ties came away, and the fence was down. Is that a fair--fair description?
A: That's correct, yes.
Mr. Oppenheim acknowledged that, during his walk from the flagpole to Chancellor Boulevard in the vicinity of Gate 3, he had taken off "one or two more" plastic ties from the fence. He described the area where this occurred as near the Theology Centre and near the chapel area. He said he "flicked" the ties off by a wrist movement as they were cold and brittle. With reference to the fence and the ties, he said "I may have just kind of pushed slightly at it but they came off very, very easily." I am satisfied that this was the incident described by Cpl. McDonald and Cst. Kinsey. Mr. Oppenheim's reference to having taken off "more" ties at this location distinguished an earlier incident when he took one or two ties off the fence in the flagpole area, at or about the time he was leaving that area. He was asked why he had taken off the ties in the vicinity of the flagpole:
I remember talking--like it was in some--in front of some police officers and I was basically saying--you know--you have a 20 million dollar or a 50 million dollar security operation and I guess you spent all your money on pepper spray instead of proper fencing or something like that.
Mr. Oppenheim said when he left the fence after removing the ties at the Theology Centre location, the fence was still intact. Suddenly he heard "general chaos" and he "whipped around and basically saw the tail-end of what appeared to be someone probably ripping down the fence or something like that." I am satisfied that what Mr. Oppenheim said he observed was the collapse of the fence where, seconds before, he had removed the ties. Mr. Oppenheim said he yelled into his megaphone to those in the area to "get away from the fence." That evidence of Mr. Oppenheim, with respect to his actions at the fence, is consistent with Cst. Kinsey's observations.
24.3. Eyewitnesses
Protesters Michael Linder, Mathieu Mauser and Rob West, who were in the vicinity when the fence collapsed, also testified. Mr. Linder explained what he had seen:
Q: Could you please describe for us, what you saw while you were on the route, between the flagpole and Chancellor Boulevard?
A: On the way there, there were several people, lots of people going in that direction towards Gate 3. ...There were a few people who had pushed in twist ties along the way just with one hand, just giving a little push and it just popped in. And this one area, where the incident occurred, that I have on my videotape, there was one gentleman who took it a little further than everyone else and pushed it in and the fence fell. He ran in, along this grassy place to the left and ran a few circles and got chased out by a police officer.
He said that the person who ran inside the secure area and was chased out was not Mr. Oppenheim. His testimony continued:
Q: What did you see after that?
A: I saw other people--well when the Police Officer came out of the secured area after he had chased the guy out--he obviously took off--the Police Officer then, he had his pepper spray in hand, as you can see in my video, and what we don't have is him actually spraying it. But, he was spraying it, trying to grab someone near him and he--he eventually got this one guy that we have on the video, who he told to stop and he got him and grabbed him by the arm and--
Q: And what did you do?
A: I was--I went--I walked up to the Police Officer and told him that that was not the guy that pushed in the fence and that--to leave him alone--leave him alone--this was not the guy who pushed in the fence. And there were several other people yelling as well.
Q: And did the Police Officer respond?
A: No, he completely ignored me.
Mr. Linder said he was certain that Mr. Oppenheim was not one of the people he had seen pushing the twist ties on the fence as they walked along. I have concluded that either Mr. Linder had not reached that part of the fence at the time, or his attention at that moment was directed elsewhere.
Mr. Linder identified the man apprehended by the police officer, in a photograph shown to him at the hearing, as "the one in the grey hat" standing beside Cpl. McDonald.
Mr. Linder was correct when he told Cpl. McDonald that the man he had hold of was not the one who had pushed in the fence. Cpl. McDonald identified that man as Aaron Sean Bradfield. He had arrested Mr. Bradfield shortly after returning from chasing those who had been involved in the collapse of the fence. He said that Mr. Bradfield had come up to him while he was talking to some of the peacekeepers and Cpl. McDonald told Mr. Bradfield to just keep moving towards the gate. Mr. Bradfield refused and the officer repeated his instructions. When Mr. Bradfield did not move, Cpl. McDonald placed him under arrest.
Mr. Mauser saw the attack on the fence. He said he remembered "some guy grabbing the fence," but his description of the clothing worn by that individual did not correspond to the clothing worn that day by either Mr. Oppenheim or Mr. Bradfield. He said that he knew Mr. Oppenheim and that he was not the person he saw tearing down the fence. He said he did not remember seeing Mr. Oppenheim on the walk but he believed he was at the blockade later with a megaphone. He said he thought the person who grabbed and tore down part of the fence had tried to run away and he did not know whether he had been arrested.
Mr. West identified the man in the grey toque as the man who had been shaking the fence prior to its collapse. He was mistaken. He said he had seen him going to the fence "through his own volition," grabbing it and shaking it two or three times immediately "before it collapsed inward." He was correct in his observation that the man in the picture, Mr. Bradfield, was arrested by an officer and taken away but incorrect in stating that Mr. Bradfield had been shaking the fence. I understand how Mr. West could have made that mistake. It was a fast moving scene and tensions, anxiety and feelings were running high. Mr. West said that, when the officers were at the fence with the man in the grey toque, Mr. Oppenheim was "up in front of me at least 50 feet, maybe 100 feet. Somewhere up probably near the trees." Mr. West said he could hear Mr. Oppenheim on his megaphone telling everyone to stay away from the fence. When it was suggested that Mr. Oppenheim was one of several who had shaken the fence, and that the fence then came down, Mr. West replied: "I will tell you that I did not see that at all."
I am satisfied that Mr. West, like Mr. Linder and Mr. Mauser, did not see Mr. Oppenheim at the fence at the time when Mr. Oppenheim, Cpl. McDonald and Cst. Kinsey agreed he was there.
24.4. The Arrest
I now turn to the circumstances of the arrest.
Acting Sgt. Rainey passed on the information he had heard over the radio about Mr. Oppenheim to RCMP Cst. Richard Rollings and pointed him out to Cst. Rollings. This happened in the general area where the initial road blockade was occurring, along Chancellor Boulevard near Gate 3.
Cst. Rollings somehow had it in his mind that Mr. Oppenheim was arrestable because there was a warrant out for his arrest. There was no such warrant and I am satisfied that that is not what Acting Sgt. Rainey communicated to Cst. Rollings. Nevertheless, that is what Cst. Rollings thought and, for that reason, he arrested Mr. Oppenheim while he was in the vicinity of the blocked roadway.
At the time of his arrest, Mr. Oppenheim was addressing the crowd, estimated by Cst. Rollings to be about 300 strong. According to Mr. Linder, Mr. Oppenheim was trying to calm people down because they were becoming concerned and very vocal with the police due to the previous pepper spraying incidents. He said Mr. Oppenheim was telling the crowd to be peaceful and avoid violence.
In taking hold of Mr. Oppenheim, Cst. Rollings said he was assisted by another officer, Sgt. Gary Mercer. Having succeeded in bringing Mr. Oppenheim behind the police line, Sgt. Mercer had no further contact with him. Sgt. Mercer acknowledged that his contact with Mr. Oppenheim was a matter of seconds, if that.
Cst. Rollings said that, as soon as Mr. Oppenheim was taken into custody, the crowd level increased dramatically such that he feared for his safety. Sgt. Mercer described the crowd as moving forward and, at that point, he yelled a warning and, for perhaps one second, "let go a cloud of OC spray" in the direction of the crowd, which then moved back. Cst. Rollings said he believed that Sgt. Mercer's actions "saved my bacon that day."
Mr. Oppenheim protested his arrest both verbally and physically. Cst. Sean Powell, who said Mr. Oppenheim was struggling and thrashing about, stepped forward and helped Cst. Rollings move Mr. Oppenheim to a police van parked nearby.
Cst. Rollings told Mr. Oppenheim that he was arrested pursuant to an outstanding warrant. Once Mr. Oppenheim had been placed in the van, Cst. Rollings, realizing that he did not know what the warrant was for, went back and sought an explanation from Acting Sgt. Rainey. Acting Sgt. Rainey's response was the same as he had initially expressed: Mr. Oppenheim was arrestable for mischief. Cst. Rollings said that he understood that the mischief had something to do with the fence and that it could have been a misunderstanding on his part "that there was a warrant for his arrest when in fact Bert Rainey may have just told me he was arrestable for mischief."
Cst. Rollings returned immediately to Mr. Oppenheim and told him that there was no outstanding warrant and that he was under arrest for mischief. Cst. Rollings said Mr. Oppenheim was in custody for about six minutes before he was told of the correct reason for his arrest. Mr. Oppenheim was then taken to the UBC Detachment of the RCMP where he was held in the cells until about 10:00 p.m. He was never charged with an offence.
24.5. Reasonable Grounds
I now turn to answer the question of whether Cpl. McDonald had reasonable grounds to believe that Mr. Oppenheim's contact with the fence constituted mischief and whether he was, therefore, entitled to direct his arrest.
Section 430(1) of the Criminal Code defines the offence of mischief:
430.(1) Every one commits mischief who wilfully
- destroys 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.
By his own admission, Mr. Oppenheim knocked off some plastic straps which connected the chain link fencing to the fence posts. Obviously, this conduct would have damaged the structural integrity of the security fence and interfered with its effectiveness.
Applying the test set out in Storrey (see Chapter 21), I believe that Cpl. McDonald subjectively believed that he had reasonable grounds to arrest Mr. Oppenheim for mischief and that his belief was objectively justifiable. He saw Mr. Oppenheim pop off the straps and the only reasonable conclusion was that it was a deliberate act, as indeed it was. He was therefore perfectly entitled to advise Cst. Rollings of the grounds and instruct him to effect the arrest pursuant to section 495(1)(a) of the Criminal Code.
The grounds for the arrest arose from the mischief committed by Mr. Oppenheim in removing the ties from the security fence near the School of Theology. It is not necessary for me to settle the issue of whether the RCMP had reasonable grounds to conclude that Mr. Oppenheim committed acts of mischief at and on the fence beyond the removal of the ties, as the police officers said was the case and which Mr. Oppenheim denied.
What Mr. Oppenheim did, by his own admission, was an irresponsible act of mischief. He did it with full knowledge of the events of earlier in the day at the security fence by the flagpole. He knew the vulnerability of the poorly constructed security fence, behind which line the world leaders were sequestered, with their safety dependent upon the abilities and performance of the members of the RCMP, including Cpl. McDonald and Cst. Kinsey.
Mr. Oppenheim knew that removing the ties would increase the vulnerability of the fence if it was attacked. He also knew, or should have known, that his actions at the fence, as an acknowledged and widely recognized organizer of the APEC protest at UBC, would be seen as encouragement, if not an invitation, to those behind him to take similar actions in respect of the fence, and this is precisely what occurred within seconds of his own deliberate, destructive conduct. Until Mr. Oppenheim went to the fence and removed the ties, the crowd was passing by peacefully towards the vicinity of Gate 3.
With leadership comes responsibility and, although Mr. Oppenheim was more than willing to assume the former, he proved somewhat reluctant to assume the latter.
The irresponsibility of Mr. Oppenheim's actions is compounded when it is appreciated that his reason for attacking the fragility of the fence was to make a statement about police use of pepper spray earlier in the day under circumstances that, as I have found, also displayed extreme irresponsibility by the APEC Alert leadership, in which Mr. Oppenheim was a major participant.
Complainants' counsel submitted that Mr. Oppenheim may have "inadvertently 'instigated' things by flicking off one or two ties as he went by." There was nothing inadvertent about it. His actions, which were bound to weaken the fence, were intentional and deliberate.
Complainants' counsel made the point that Mr. Oppenheim is not a man of violence and that he put considerable effort into ensuring that the actions of the protesters were carried out in a non-violent manner. There is no evidence that Mr. Oppenheim directly displayed any violent tendencies towards or against any person and I have no reason to conclude that he would initiate direct violence against another person. His agenda, however, was something more than that of the overwhelming number of protesters who participated solely to oppose APEC and all that it stands for, as evidenced by his actions during the day in the vicinity of the flagpole and his mischief at the security fence near the School of Theology. Regardless of the reasons that motivated Mr. Oppenheim to act as he did, his actions were, at times, unbefitting one allegedly committed to peaceful protest. While his actions described here were not violent in and of themselves, the potential for violence occurring as a result of his actions was very real. For that reason alone, his conduct as an organizer and leader of the protest movement was more than unacceptable, it had to be stopped lest he continue on in an irresponsible manner, with potentially adverse consequences.
I find that the conduct of Cpl. McDonald, Cst. Rollings and all other members of the RCMP involved in the arrest of Mr. Oppenheim was appropriate to the circumstances