Lawyers should be “appalled” at news the Ontario Provincial Police videotaped and required attendees at a Napanee bail review to provide personal information as a condition of getting into court, a Toronto criminal defence counsel tells Law Times.
“I have not heard of this happening in Canada,” says Toronto lawyer Peter Rosenthal.
The unusual security measures on Aug. 10 arose in connection with the bail review for Rosenthal’s client, Mohawk activist Shawn Brant, and had such a chilling effect that some of his client’s supporters felt uncomfortable and chose not to attend court.
Those entering the building, which also serves as a municipal structure in Napanee, were videotaped in a small area between the inside and outside doors of the only entrance that was not locked down that day.
Attendees of the Thomas Street East courthouse, including lawyers, were also required to produce identification and to sign in with and their names, addresses, and dates of birth. Rosenthal says he was asked for and provided his personal information, but is unsure if he was videotaped as well. His law clerk Sarah Vance said she was videotaped and signed in.
Those who did not have identification with them were not allowed to enter; some chose not to go in because they felt intimidated. And, as a result, many of Brant’s supporters decided to stay away from his subsequent four-day preliminary inquiry at the Ontario Court of Justice in Napanee, which concluded on Aug. 30.
“In this era where there is undue concern about terrorism, there is always a concern that these types of practices can easily mushroom,” says Rosenthal. “It seemed to many of the people that requiring all that information, including date of birth and address, could not have been for any proper security purpose, but because they wanted to investigate those who are supporting Mr. Brant.”
The measures interfered with the public’s right to attend court, and with his client’s right to an open bail hearing, says Rosenthal.
“I would hope that most every lawyer would be appalled by this,” he says.
Along with those who couldn’t enter due to a lack of ID, some chose not to go inside because they were concerned about the purpose of the measures, says Rosenthal.
“People sometimes have the notion that if you are innocent, you shouldn’t worry about the police investigating you,” he says.
“But as many wrongfully convicted people will tell you, that’s not true. You should worry about it. It is a matter of concern, especially for people who might have been involved in the protest with Mr. Brant,” he says.
“He’s the only one who’s been charged with criminal charges as a result of either the April or June [blockades]. And it would appear that they might have been investigating the possibility of laying charges against others.”
“I complained to the judge at the bail review and he said he doesn’t have jurisdiction over security matters,” says Rosenthal, adding that he also complained at the outset of the preliminary hearing, and the judge said something similarly.
He says this is “one of the things we’ll be investigating. I anticipate having a very long list of the ways in which the OPP has violated Mr. Brant’s charter rights and that might be one of them.”
Brant’s wife, Sue Collis, tells Law Times the heavy police presence and “over-the-top” security measures, in her opinion, reflect the OPP’s attitude toward First Nations communities, particularly those active in voicing grievances.
She says the security for transporting Brant to the court was also “extreme.” Brant was shackled, handcuffed, wore a waist belt, and was transported in a van surrounded by seven other police cars. Seven SWAT team officers drove in the van with Brant - six of them armed with machine guns, she adds. As Brant arrived at the court building, he noticed snipers on the roof, she says.
“The whole thing was extreme,” she says. “It was reminiscent of what you see on CNN when they are hyping a terrorism trial. And none of the offences [Brant] is charged with have anything to do with violence at all.”
Collis says, in her experience, people aren’t usually even searched or “wanded” - checked with a hand-held metal detector - at the Napanee court. The extra measures made people feel like they were being judged themselves, and she asked Brant’s supporters not to come to the preliminary hearing as a result.
“We made a decision that we weren’t going to ask people to subject themselves to unwarranted investigation by the OPP,” she says. Security at the prelim was toned down and more typical of security practices in Toronto courthouses, Collis says. There was not a taping or signing in procedure.
Brendan Crawley, a spokesperson for the Ministry of the Attorney General, says security is entirely within the jurisdiction and responsibility of the police.
“The Crown has no responsibility for security,” he says.
A spokesperson for the OPP could not be reached for comment.
Meanwhile, Brant was ordered to stand trial on nine charges stemming from two protests earlier this year. The first protest, on April 20, involved obstructing a CN Rail line, and the second protest on June 29 involved interfering with the rail line, and with portions of Highway 2 and Highway 401.
Brant was out on bail when both protests occurred. He turned himself in on July 5 and was twice denied bail, but was released on bail under strict conditions at a third review during the prelim.
He faces six counts of mischief by interfering with the lawful use of property, two counts of breach of recognizance, and one count of failing to obey an injunction obtained by CN Rail, said Rosenthal.
The protestors were objecting to quarrying taking place on a portion of land, called the Culbertson Tract, that the government has agreed was unlawfully taken from them, said Rosenthal.
“That’s been accepted as a specific land claim and now there are negotiations about what to do about the unlawful taking,” he said. “On that tract is a quarry where some thousands of tones of stone are carted away each year.”
Earlier this year, protestors occupied the quarry and called upon the provincial government to suspend or stop the quarrying, he says. When nothing happened, the protestors blocked the CN rail lines on April 20.