OTTAWA - More than 150 people who say they were wrongfully arrested during the G20 summit protests only to be released without being charged are too fearful of police retaliation to take part in formal complaints by the Canadian Civil Liberties Association, the organization’s senior lawyer says.
As well, in another potentially disturbing aspect of the largest mass arrest in Canada’s history, the more than 800 protesters who were arrested and detained but released without charges face the prospect of an internal police record and no avenue for erasing it, CCLA general counsel Nathalie Des Rosiers tells Law Times.
Des Rosiers says the association came upon the unsettling effects of police reaction to crowds of thousands of demonstrators as it was preparing a formal complaint to Ontario’s Office of the Independent Police Review Director.
Of the approximately 300 people who were arrested and released and later contacted the CCLA about their concerns, roughly half declined to take part in the complaint.
“They were afraid, afraid that would leave a black mark and they would be subject to some police harassment if they did that,” Des Rosiers says. “So people are afraid of the police and are worried, and it does have a chilling effect on their ability to exercise their democratic rights.”
Des Rosiers disclosed the concerns while discussing a hard-hitting report the association released on the two-month anniversary of the protests and police actions. It contains the harshest criticism the CCLA has made yet about the behaviour of police and the tactics they used.
On top of the protesters who were too fearful to file complaints and the hundreds who will have their arrests logged in Toronto Police Service computer files, many of the roughly 300 protesters who eventually arrived at what was essentially a mass court appearance in Toronto two weeks ago say they faced pressure to settle their charges with charitable donations in order to avoid the cost and difficulty of proving their innocence through lengthy court proceedings.
“The dilemma of the people who have done nothing wrong is, are they going to be subject to a criminal shadow - some say it will be two years before all the trials are done - or do you want to just settle it right now with a charitable donation?” Des Rosiers says.
She notes the prospect of police records for the hundreds who were arrested and released without charge is among the issues the association wants to address over and above the complaint to the independent review office.
“That’s a fairly unsavoury aspect of the whole process to have the police keep information about you, about having been arrested even if the charges are dropped,” Des Rosiers
says. “If you’re 21 or 22 years old, who knows how this information will be treated or understood 20 years from now?”
A spokesman for the Toronto police confirmed that the names of those arrested and released are logged in an “occurrence” database that officers may access.
Nevertheless, he notes the majority of protesters were held for breach of peace, an offence for which authorities don’t release records during employment checks. “Anybody concerned about employment records, that would not be released,” Mark Pugash tells Law Times.
However, Des Rosiers and two of the Toronto lawyers behind two class actions launched against the Toronto Police Services Board, the federal attorney general, and, in one of the lawsuits, the Peel Police Services Board, note the insidious potential of informal police databases separate from the Canadian Police Information Centre for criminal convictions, an issue that came to light last year when it was revealed authorities in Windsor and Barrie, Ont., were passing information from their files over to Crown prosecutors who used it for vetting jury members in murder trials.
In the wake of the G20 controversy, the Toronto board named lawyer Douglas Hunt, a former Ontario assistant deputy attorney general, to develop the terms of reference for an independent civilian review of police actions.
It will be restricted to the statutory authority of the board, which doesn’t include public complaints about individual conduct by officers. The Ontario ombudsman is also investigating.
Murray Klippenstein, one of two lawyers from his firm who filed notification of a class action in the Ontario Superior Court of Justice, says the question of hidden police files on hundreds of protesters arrested and detained without charge is just one of the issues the lawsuit will likely probe.
“The existence and purpose of that information is a real live issue that probably should be looked at, and those mass arrests highlight that problem,” Klippenstein tells Law Times.
David Midanik, a criminal defence lawyer who deals with constitutional issues and has represented several high-profile cases, says Toronto police and other agencies shouldn’t be allowed to maintain any records of those released without charge.
“It’s wrong, it’s ridiculous, especially in the age of computers,” he says. “It’s just insane. There should be an independent monitor of the agencies who is responsible for monitoring the information they get and also mandating destruction of it.”