The political trial of John Clarke, a key organizer with the Ontario Coalition Against Poverty (OCAP), continues amidst growing public pressure for the Crown to drop charges. On June 18, 2003 – more than three years after the Queen’s Park Riot and after Superior Court of Ontario Judge Lee Ferrier, declared a mistrial in the first trial – Crown Attorneys declared that they would pursue a second trial against Clarke. Essentially on trial for giving a speech at an anti-poverty demonstration of 1500 people in front of the Provincial Legislature (Queen’s Park) on June 15, 2000, he faces up to five years in prison for “counselling to participate in a riot” and “counselling to assault police.”

The political nature of this trial is unmistakable. The crown is relying on the public order provisions of the Criminal Code, sections that include charges like unlawful assembly, sedition and offenses against her majesty the Queen. Historically, these provisions date back to eighteenth century Britain, and were used in Canada against union organizers and Communists in the 1920s and 30s.

“Those sections were enacted and used for political reasons historically and today,” says Jackie Esmonde, a lawyer with the Ontario Common Front Legal Collective (OCFLC). Another OCFLC lawyer, Irina Ceric, agrees: “I think it is just a concerted witch-hunt, very close to the McCarthyist era.”

Clarke’s lawyer, Peter Rosenthal, questions the Crown’s decision to prosecute by indictment, which carries a more severe punishment than summary offenses.

“I think there is no question the decision to prosecute by indictment was politically motivated,” says Rosenthal. “The police really agitated for that. We have evidence that a senior Crown Attorney had assured the police they would go by indictment against John Clarke.” Rosenthal insists that it is highly unusual to proceed by indictment for such charges. “In all the demonstration cases that I am aware of in Toronto – and I have been following them closely for 35 years –- they have never proceeded by indictment in those sort of situations.”

The first trial began on January 13, 2003. In addition to Clarke, OCAP organizers Gaetan Heroux and Stefan Pilipa were also prosecuted by indictment for “participating in a riot.” After four months the trial concluded on May 11, 2003 in a mistrial. The jury was unable to reach consensus on whether a riot had even occurred, let alone whether Heroux and Pilipa had participated in one, or whether Clarke had counselled anyone to participate.

Nevertheless, after spending more than one million dollars of public funds, and despite over one hundred letters from the public to the Attorney General calling for an end to the prosecution, the Crown has dropped charges only against Heroux and Pilipa. Instead of addressing government policies that caused people to march on the Legislature on June 15, 2000, the crown argued that it was in the public interest to pursue a second trial against Clarke.

During the trial, the defence sought to bring to light the political actors behind the police assault on demonstrators during the Queen’s Park Riot. They argued that the government’s decisions contributed to causing the riot. They wanted to interrogate the government’s security decisions, which were made by the Speaker’s Office. However, lawyers representing the Speaker’s Office brought forward an application arguing that according to “Speaker’s privilege,” defense could not call into question any of their decisions. While such privilege exists in parliament, the judge ruled that it would be extended to the trial, effectively limiting the scope of what could be brought to light in court.

“It was a very unusual decision,” explains Esmonde. “I don’t think the Speaker’s privilege has ever come up in a criminal context, or has ever been that broadly defined, so that really impacted on the kind of defence that could be brought forward. I don’t think somebody’s defence has ever been limited because of Speaker’s privilege.”

Although defense lawyers were still able to make the argument that the police caused the riot by the way they attacked demonstrators with horses and baton charges, the judge’s ruling made it impossible to bring to light who made the operational decisions. The Defence could only question police tactics, not political decisions.

The manner in which this ruling limited the scope of what could be questioned highlights one of the many ways in which the legal system serves as a barrier to achieving justice. “The justice system is totally linked to the state and maintains the status quo,” explains Esmonde, “so why would we expect to get justice through that route?”

“The law is really about the maintenance of private property,” reminds Ceric. “Any time you are challenging the distribution of that property you are challenging the fundamental underpinnings of our legal system.” Rather than a vehicle for achieving justice, the legal system often acts as a tool of repression in the service of state and economic power against the poor and people from racialised communities.

Esmonde illustrates this problem using the example of the bail system: “In terms of getting bail, you need a home for one thing, so homeless people have a very hard time getting out on bail. Your past criminal record will affect if you get bail or not, and we know that there are certain racial groups that are more targeted for policing, so that they are more likely to have a criminal record.”

Even if defendants get out on bail, severe restrictions, which limit their political freedoms, are usually imposed. When first arrested, the three defendants were prohibited from associating with OCAP, as well as each other. They could not participate in demonstrations that became unlawful, and Clarke was prohibited from attending demonstrations at all.

“Essentially for two and a half years they could not attend demonstrations without being at risk of getting arrested,” explains Esmonde. “These are the kinds of conditions that we see over and over again for activists, which are really designed to limit the kind of activities that they can engage in.”

Nevertheless, this trial set a number of important legal precedents. During jury selection, the defence successfully argued that they should have the right to ask whether or not potential jurors had feelings about homelessness or poor people which would interfere with their ability to judge the case based solely on the evidence.

Defense also successfully argued that the defendants’ Charter rights were violated because they were not brought in front of a justice for a bail hearing without unreasonable delay after they were arrested, and because they were unreasonably strip-searched. Although the judge refused to stay (suspend) the charges as a remedy for this violation of rights, he said that, in the future, if police act in this way, stays would be more readily granted because the police were now on notice as a result of his ruling.

Despite these legal victories, this trial signals a disturbing trend in the state’s use of public order provisions to curb political dissent. In a recent article in Canadian Dimension (CD) Magazine, labour historian Bryan Palmer contextualizes this return of the riot provisions in the broader campaign of economic restructuring that began in the mid-1970s.

“Such uses of riot and sedition legislation were common in the epoch of high capitalist antagonism to trade unions associated with the repressive response to upheavals like the Winnipeg General Strike of 1919 or the militant coal-mining battles in Cape Breton in the 1920s,” says Palmer. “Communists were also often targeted in these years, especially during the Great Depression.”

But the post-World War Two compromise between capital and labour brought with it a significant decline in the state’s use of such measures. The renewed assault from the Right over the last 30 years marks a departure from that compromise, and what we are witnessing with the return of the use of these public order provisions appears to be an intensification of this assault.

In addition to the OCAP trial in Toronto, these charges have also been used against organizers of the G20 protests, which took place in October of 2000 in Montreal. However, so far the State has had little success using these charges. In both cases, the Crown failed to convince the jury that the defendants were guilty of these offenses.

OCAP’s Politics

The demonstration on June 15, 2000 at the Ontario Legislature was organized in response to the devastation inflicted on the people of Ontario after the election of the Tories in 1995. With dizzying speed, they slashed welfare programs by more than 20 per cent, made panhandling and squeegeeing illegal, gutted tenant protection legislation, and cut programs to build affordable housing. These policy changes resulted in a dramatic increase in OCAP’s direct action casework – the urgent, sometimes life-or-death work that constitutes the bulk of OCAP’s daily activities and which routinely includes stopping deportations, preventing evictions and securing welfare entitlements.

As a direct action anti-poverty organization OCAP has consistently raised the ire of those in power and has provoked various colourful descriptors. During the trial, crown prosecutor Vincent Paris referred to the three defendants as a cancer that needs to be removed. Toronto’s mayor Mel Lastman referred to OCAP members as “animal”’ and “thugs.”

The reasons OCAP has elicited so much anger and fear from those in positions of power lies in its approach to social change. OCAP’s commitment to effective political action has routinely pitted them against state and economic power at a time when retreat seems the order of the day.

OCAP’s way of organizing moves beyond symbolic protest to a politics of disruption. This approach is grounded in coordinated militant direct actions that disrupt the normal operations of its target, much like a strike. These actions are always oriented toward successfully winning concrete gains that make a real difference in people’s lives. In this way, OCAP’s activities break through and overcome fear, resignation and inertia.

As a “grassroots rank-and-file based organization of poor and homeless people”, as Clarke puts it, OCAP believes in the self-activity of oppressed people as the route to social change. This politic intersects with the politics of socialism from below, which also argues that liberation can only be achieved through the self-organization and mobilization of the oppressed themselves.

This is important because the way our society is organized means that many of our capacities have atrophied: our ability to work together in solidarity, to act in a purposeful way free from following orders, to think and act for ourselves. Top-down approaches to social change prevent us from building our capacities and do not allow us to gain confidence from transforming the world ourselves. By managing struggle from above and mobilizing people as pawns in a manner that seeks to turn their social power on and off like a faucet, these approaches serve to replicate existing power relations.

In addition to seeing the empowerment of the oppressed as the route to social change, OCAP’s orientation toward struggle acknowledges that the root cause of our social grievances is the capitalist system itself. “We’re fighting a system, not just some inappropriate policies coming from some shortsighted politicians,” says Clarke. “We’re confronting an actual political agenda that flows from the whole logic of the capitalist system in its present phase”. This situation requires us to “build a force in society that ultimately is capable of transforming that society”.

As an anti-capitalist organization, OCAP’s method of resisting and organizing keeps one foot firmly planted in the concrete struggles of the day, at the same time as the other foot is pointed toward the world we want to create – a world organized to fulfill human needs. It is a way of resisting that evokes Rosa Luxemburg’s notion of transformative reforms: orienting to reforms in such a way that they serve as a means to a larger end of social and economic transformation (and transforming ourselves in the process) rather than orienting toward reforms as an end in themselves.

“While we may have to defend our crust of bread today, we’re working for the moment when we take over the bakery,” writes Clarke in Anti-Capitalism/Anti-Poverty. If we recognize that the present system does not fulfil human needs such as adequate housing, income, health care, and education – indeed, this system makes the fulfilment of these needs impossible – then a strategy of fulfilling these needs, of fighting for what “we need and not on what they claim is possible”, necessitates looking beyond capitalism.

OCAP is one of the few organizations that have recognized that we are in a period of neo-liberal offensive that is markedly different from the post-World War II compromise, and which requires a new approach from the Left. In response, OCAP has worked to build amongst its members and allies, in the words of Clarke, a “readiness to fight back as seriously as the situation demands”.

In October of 2003 Clarke will be back in court for a second trial. All social justice organizations, including trade unions must take this trial very seriously. Ceric and Esmonde argue that these arrests and trials have had a chilling effect on political activism, making people afraid to participate in demonstrations and give speeches at rallies. If Clarke is convicted of counselling to participate in a riot, which is defined as “disturbing the peace tumultuously”, then it will not be long before striking workers find themselves similarly charged on the grounds that they disturbed an employer’s peace tumultuously.