If the federal government's Bill C-35 becomes law, future APEC, G8, and other intergovernmental conferences held in Canada will become the express protectorates of the RCMP. The Mounties' role could well include deciding how close members of the public can get to the conference centres. Indeed, the RCMP will be explicitly authorized to "take appropriate measures . . . to the extent and in a manner that is reasonable in the circumstances."
This is quite a mandate.
Nowhere does the bill provide the slightest guidance as to how to interpret this rather vague terminology. And nowhere does the bill even attempt to spell out the various interests that need to be accommodated. Effectively, all it says is that the RCMP may do what's "reasonable."
A significant development occurred at the Hughes inquiry into the RCMP handling of the 1997 APEC conference in Vancouver. Under questioning, an RCMP inspector who had been involved in the removal of lawfully displayed protest signs, testified that he was influenced, not by the Charter, but by what was "reasonable under the circumstances." Thus, this officer justified his infringement of free-speech rights on the basis of the very criteria that appear in Bill C-35.
Another defect in the bill is the amount of power it reposes in the RCMP. After all, the decision to keep people out of publicly accessible areas involves more than security considerations. It also involves a wide variety of other interests: those of homeowners, businesses, workers, tourists, and, yes, protesters. Except for emergency and frontline situations, it is not proper for the police to be put in the position of adjudicating among all of these competing interests.
Indeed, the usual role of the police in a democracy is to enforce the judgments made by others, not to make such judgments themselves. The risk created by Bill C-35 is that the RCMP's decisions will look as though they were designed primarily to ease the burdens of the RCMP's job. As sympathetic as any of us may be, we must recognize that these interests must be balanced against others.
Consider, for example, the legitimate interests of protesters who wish to demonstrate. (For these purposes, only lawful protest is worthy of consideration.) In order to be minimally effective, the protesters will seek to create an atmosphere of political tension and censure on those whose policies they are trying to change. This means getting as close as they can to the action.
Of course, they cannot be allowed to come so close that they can physically intimidate; but they must be close enough to politically castigate. This means being at least periodically seen and heard if not, at any time, felt or smelt.
But the interests of the police will be to get protesters as far away as possible. Obviously, it's much easier to provide security and maintain traffic when the protesters are far away rather than close at hand. However, as a labour activist once remarked, it is improper in a democracy for any of us to be the umpires of our own ball game. That is why, apart from emergency and frontline situations, the police should not be establishing these conference perimeters.
In the first instance, this role should be exercised by someone who has political responsibility. Ideally, a cabinet minister should have to carry the can for adjudicating among the competing interests affected. But, because even the interpretations made by cabinet ministers will appear to be more influenced by what is popular than by what is right, ultimate approval should be required by the courts. Of course, the interpretation of statutes and the adjudication of competing interests are exactly what judges do all the time.
Because these intergovernmental conferences are often planned months in advance, there will usually be sufficient time for plans to be created, notice to be provided, and hearings to be conducted.
Considering the centrality of the right of effective protest, such procedures should become mandatory for the establishment of these conference perimeters. By giving the police this kind of power, the government denigrates the importance of our fundamental freedoms. It also puts the police in an unwarranted contentious position.
Bill C-35 should be amended accordingly.
A. Alan Borovoy is general counsel with the Canadian Civil Liberties Association.
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