The kilometres of chain link fence that penned in the leaders of the G20 countries and their entourage, announcements that those approaching the fence could be subject to arrest, and the omnipresent officers in riot gear throughout the downtown area were designed to ensure that leaders would never have to see a single protestor. The designation of the so-called “free speech” zone at Queen’s Park gave the ominous impression that those protesting outside the confines of this area would be subject to arrest.
Of course, as things played out, even those at Queen’s Park were not immune, as the police swept in to assault and arrest protestors seemingly at random on the evening of June 26, 2010. Over the course of the weekend, over 1100 people were arrested, as the police definition of “protestor” got looser and looser, to eventually include virtually anyone walking within the downtown core, even a TTC employee in uniform on his way to work.
The sheer numbers of those arrested are startling. However, the fact that most were not even charged suggests that the main goal of the arrests was to get protestors off the street rather than to prosecute. Of the 1100 people arrested, only 315 were charged. That means that over 70 percent of those held in the inhumane and degrading conditions of the Prisoner Processing Centre for hours, and in many cases days, were never charged with any crime. Of those charged, over 200 have had their charges withdrawn or stayed. Only approximately 99 (less than 10 percent of those arrested) are still facing charges. To date, there have only been 10 cases in which there were findings of guilt. Approximately 19 so-called “ring leaders” charged with conspiracy face years of criminal proceedings and, in at least one case, the spectre of deportation.
What is sometimes lost in the justifiable outcry about what has been described as the largest mass arrests in Canadian history is the fact that these types of police and state actions against protestors have ample historical precedent. The criminal law is a frequently used and powerful tool for silencing dissent. What happened during the G20 demonstrations was a difference of scale, rather than substance.
The Use of Criminal Law to Silence Dissent
The criminal law is incredibly malleable, and can be manipulated to apply to many types of situations that most people would not think of as being “criminal.” As a result, virtually all political demonstrations involve some element of “illegality,” even if this means only that demonstrators have marched without a permit, taken over part of a street or are obstructing a sidewalk. A large range of offences could be applied to a protest, including trespass, unlawful assembly, causing a disturbance, and mischief. In practice, this means that the police have a powerful discretion to decide when a demonstration has crossed the boundary between lawful protest and criminality. In the vast majority of cases, the police do not arrest or charge protestors for such offences.
Where the state wishes to curb the power of a particularly effective social movement, the criminal law provides an effective weapon. Canadian history is replete with examples of political movements that have been subject to criminalization and repression by the state, including the arrest, trial and execution of Louis Riel; the jailing and deportations of labour activists after the Winnipeg General Strike; the internment in 1970 of hundreds of dissidents in Quebec during the October crisis; and the criminalization of First Nations people fighting for their land and freedoms.
In the 1920s and 1930s, the Communist Party was considered an “unlawful association.” The police regularly harassed party members, broke up meetings, raided party offices, confiscated party literature and arrested and deported hundreds of party activists. In 1931, in a move that is now hauntingly familiar in the face of conspiracy charges against G20 activists, Tim Buck and eight other Communist Party members were charged with “seditious conspiracy.” The evidence for this charge stemmed largely from an RCMP officer who had infiltrated the party. Eight of the nine were found guilty. Six were sentenced to five years imprisonment, although ultimately the conviction on this count was overturned on appeal (other charges relating to membership in an unlawful association were upheld). In Quebec, the state then cracked down even harder with the 1937 Padlock Act, which made it illegal for any person who owned or occupied a house to use it to propagate “communism or bolshevism,” or to publish or distribute any newspaper or pamphlet that propagated communism.
One need not go back decades to find examples of the criminalization of dissent. In the United States, the “Chicago Eight” were famously charged with conspiracy, inciting to riot and other charges related to protests at the 1968 Democratic National Convention in Chicago. In the more recent past, the criminal law was used extensively against activists in the global justice movement in Canada. Mass arrests were typical at the larger Canadian demonstrations, including the demonstrations against the Asia-Pacific Economic Cooperation (APEC) in Vancouver in 1997, the Organization of American States in Windsor in 2000 and the Summit of the Americas in 2001.
These are but a few high profile examples of the use of the law to criminalize and incarcerate political activists. There are many more. In the context of the G20 demonstrations, the many ways in which the State can make use of legal tools to silence dissent were all on display including arrests, prohibitions from entering particular locations, criminal charges and bail conditions designed to prohibit political activity.
Guilty Until Proven Innocent
The use of bail conditions in protest situations provides an excellent case study of the way in which the criminal law can be used to drastically impact upon the political capacities of activists, and indeed social movements as a whole.
For example, in advance of the APEC Protests in Vancouver in 1997, the police and Crown prosecutors drafted bail conditions in advance of the protests, with the explicit goal of “breaking” activist organizations. Activist Jaggi Singh, who the police perceived as the leader of the group APEC-Alert!, was a particular target. He was arrested three days before the demonstrations even began, while walking innocently on the University of British Columbia campus. He found himself suddenly surrounded by four police officers and taken to the ground. A police cruiser then rushed up alongside the group and he was thrown into the car. He was charged with assaulting a campus security guard three weeks earlier at another demonstration – the security officer claimed that his ear had been injured when Singh spoke too loudly into a megaphone.
When Singh was eventually brought to court for a bail hearing, at the suggestion of police and the Crown he was released with a condition prohibiting him from being on the University of British Columbia campus. Because the APEC meetings were taking place on campus, the bail conditions effectively prevented him from participating in the anti-APEC demonstrations. Those arrested at the demonstrations that followed were given similar conditions, or in other cases were simply held in custody until the demonstrations were over.
During a subsequent RCMP inquiry into policing at APEC, a memo surfaced that explicitly confirmed that in pre-emptively arresting and charging Singh, the RCMP hoped to “break” the political organization of which he was a member:
“It is hoped that we can obtain support from Crown which may result in a charge of assault against the obvious leader of the group, JAGGY SINGH [sic]. It is our intention if we can obtain a “no-go UBC” with respect to SINGH, we may basically “break the back” of this group [APEC-Alert!].”
Thus, while a bail condition preventing activists from attending particular locations may appear to be innocuous, it is apparent that the intention and the effect was to prevent Singh and others from participating in the demonstrations and undermining the effectiveness of their organizations.
This type of “location-based” bail condition was used extensively with G20 protestors. Most of the G20 arrestees who were brought before the bail court were released on conditions that prevented them from being physically in downtown Toronto until after the G20 summit leaders had safely left the country.
In addition, almost all of those who were released without charge during the G20 demonstrations were forced to agree (verbally) that they would not attend any further G20 demonstrations. Police threatened these protestors that if they were seen at other G20 demonstrations, they would be arrested and charged with very serious offences. While not a legally binding court order, no doubt many of those who were threatened in this fashion voluntarily withdrew from participating in further demonstrations during the G20 demonstration rather than risk another arrest.
In addition to bail conditions that are geared to preventing further participation in ongoing demonstrations, it has become typical for the bail court to impose conditions that have the effect of preventing activists from participating in future political activity. Such conditions were regularly imposed during the crackdown on the Ontario Coalition Against Poverty in the early 2000s and on activists involved with the global justice movement. The G20 demonstrations were no different in this respect.
Common bail conditions for G20 demonstrators included conditions prohibiting participation in, or organizing, any political protests anywhere or under any circumstances. In some more serious cases, this bail condition is coupled with a ban on the use of communication devices, such as telephones or computers. As a result, many G20 arrestees cannot even organize a public fundraiser to help pay for their defence or pick up a phone to speak to a reporter about their case.
Some of the most onerous and politically damaging bail conditions have been reserved for the apparent “ring leaders” of the demonstrations, a group of whom are facing serious charges of “conspiracy” arising directly from their political organizing in advance of the G20 Summit.
In one high profile example, so-called “conspirator” Alex Hundert was released on conditions that prohibited him from taking part in public demonstrations. He was charged with violating that condition when he spoke on a panel at Ryerson University, an activity that most would hardly consider a “public demonstration.” As a result, his conditions were made even stricter, and more explicitly targeted his political activities. He was barred from planning, taking part in or even attending any public event that expresses views on a political issue. Days later he was charged again, this time with “intimidating a court official” – the basis for this charge has not been made public.
The state’s intent of interfering with political organizing and preventing political protest could not be clearer.
The use of the criminal law to target activists can have devastating effects. Activists can spend months and years subject to repressive bail conditions impeding political expression. If they want legal representation, the expense can be in the tens of thousands of dollars. The stress of a possible criminal conviction can be overwhelming. Whether or not a criminal conviction is the ultimate result of a charge, damage has been done.
The widespread use of “conspiracy” charges and undercover operatives is particularly troubling. Almost one hundred activists from Quebec who were being billeted at the University of Toronto were arrested without warrant and changed with “conspiracy to commit a criminal act.” Although those charges have now been withdrawn, the nineteen “ringleaders” continue to face the possibility of jail time for conspiracy related directly to their political organizing against the G20.
Fear of undercover operatives and charges will undoubtedly place a chill on political organizing for other activists. It is impossible to understand the massive commitment of state resources to monitoring and infiltrating small, under-resourced activist organizations prior to the G20 demonstrations as anything other than an attack on political organizing. If organizing a militant demonstration to raise important social justice issues can be called “conspiracy”, all our freedoms are threatened.
It is not only those charged who are affected by the criminalization of dissent. The arrest and criminal charging of activists serves as a warning to others to curb their behaviour. The criminalization of individuals undermines the political work of activist organizations by removing key organizers. Time and financial resources are diverted from political organizing and taken up by the need to fundraise for criminal lawyers and to provide court support.
These actions by the state to criminalize our movements and suppress dissent must be resisted, and we must defend and support those activists who are trapped in the clutches of the criminal law. But at the same time, we should not be naïve about the loyalties and goals of the so-called justice system. The arrests and the criminal charges laid during the G20 protests were not signs of a justice system run amok, without historical precedent. To the contrary, it is precisely one of the functions of the criminal law to impose order, protect private property and maintain structures of power.
When social movements pose a threat to those in power, the criminal law has and will be used. As a result, mobilizations to defend those arrested are also an opportunity to expose and organize around the repressive role of the criminal law more generally.
So while we organize and fundraise to defend activists facing charges, we should take the opportunity to also denounce a justice system that unjustly targets, criminalize and incarcerates far too many.
Jackie Esmonde is a member of the Toronto New Socialists and was an active participant in the global justice movement as well as the G20 demonstrations.