Trespass Charges result in acquittal, but ban against attending at Queen's Park remains in effect
TORONTO, January 31, 2001 -- What was supposed to be the end of a two-and-a-half-year struggle to lift a permanent ban against going to the Ontario legislature (Queen's Park) was instead a split decision at Toronto Old City Hall Court today.
Five members of Toronto Action for Social Change&endash;Matthew Behrens, mandy hiscocks, Father Robert Holmes, Donald Johnston and Sandra Lang&endash;were acquitted of trespassing charges they received after publicly violating the ban, but the ban itself remains in place.
The five were handed permanent bans from the legislative grounds on Oct. 1, 1998, after they splashed water-soluble stage blood on the outside walls of the legislature to protest the devastating 21.6% cut to social assistance, and the subsequent deaths of the homeless on the streets directly linked to those cuts.
Finding no recourse with Speaker of the House Chris Stockwell, who issued the ban, the five were joined by some 50 others in publicly defying the ban on Martin Luther King Day, 1999. A month later, the five were charged individually at their homes with trespassing.
In today's verdict, Justice of the Peace J.P. Quon said he was powerless to lift the ban against the five. Nevertheless, his decision was noteworthy for chastising the Harris government's use of the ban, which has been in effect for over 2 years against the five.
"It would be untenable for the government to use the law of trespass to quell the voices of dissent and the freedom of expression on state-owned property," Quon said. "The government should not wantonly use the law of trespass to evict legitimate peaceful protesters or stop their voices. This form of expression, expressing dissatisfaction with a government policy and publicizing a particular political view while on state-owned property is a value cherished in a democratic society and is protected by section 2(b)[of the Charter of Rights and Freedoms]."
As a result of today's verdict, NDP MPPs Tony Martin and Shelley Martel, who attended court, informed TASC that leader Howard Hampton would be addressing a letter to House Speaker Gary Carr asking that the ban be lifted once and for all. Carr is out of the country until next week, and in a CBC interview, Sergeant-at-Arms Dennis Clark said he had "serious concerns" about the verdict.
It is also unclear whether the TASC members still face arrest if they return to Queen's Park.
The court decision produced mixed emotions for TASC members. While it was good to see that the court agreed that the Charter of Rights' sections on peaceful assembly and freedom of expression should over-ride the permanent ban, Quon found that the October 1, 1998 demonstration which precipitated the ban was marked by what he termed "violent expression" because it involved the pouring of a small amount of water soluble stage blood on the outside walls of the legislature. Such expression, he believes, is of a nature not protected by the Charter of Rights and Freedoms.
"The question to be asked is whether pouring blood onto a public building is incompatible with the building's function of providing government services. In my opinion, it is incompatible. It affects the public's perception of law and order and is an affront to the idea public buildings are maintained for the public benefit."
By Quon's definition, though, the whole Tory caucus should be removed from the premises and prohibited from re-entry, as their policies of housing, environmental, and education and health care cuts are wholly incompatible with the provision of government services. Indeed, that was the focus of the October 1 protest to begin with.
Quon found that the subsequent ban was justified as a reasonable limitation on freedom of expression because he perceived it as an act of defacement or "vandalism," even though there was no allegation or proof of lasting damage and the fake blood was easily enough washed away.
Indeed, TASC has a history of organizing numerous expressive demonstrations in which activities that might be perceived as "defacement" or "vandalism" took place, yet in those instances acquittals were registered. "We poured blood on the steps of the legislature in 1996, we planted two sets of vegetable gardens later that year, we attempted to evict Mike Harris and transform Queen's Park into a child care centre in 1997," said TASC's Behrens. "In two cases, criminal mischief charges were laid, and in a third the trespass charge was applied; in all three instances acquittals were won. So the perceptions of alleged 'vandalism' on the part of Queen's Park security and the Metro police differ widely from those of the courts, who have found such activity well within the limits of tolerance in a democratic society."
However, in a positive light, Quon found that "the government interest in maintaining law and order and preventing former mischiefmakers from being on their property, does not outweigh the individuals' interest in legitimate peaceful expression on the public areas of public property. Since the defendants' expressive activity is constitutionally protected, the Trespass to Property Act must yield to the Charter and consequently, the charges against the defendants cannot stand."
Quon notes that current ban "becomes dormant during a period when expressive activity on the public areas of public property falls within section 2(b) [which accounts for freedom of thought, belief, opinion and expression]. The ban is still alive but ineffective when the section 2(b) protection comes into play. This is a window of opportunity in which the defendants may enter the grounds at Queen's Park. As long as the defendants' expressive activities at Queen's Park come within the protection of section 2(b), any future charges under the Trespass to Property Act would fail. The Speaker's ban would not be saved by section 1 [the Charter's notation that those freedoms are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."] in any situation where the expressive activity is peaceful. However, if the defendants become involved in non-expressive activity [sic], such as defacing public property, while at Queen's Park the Speaker's ban would still apply and trespass charges would not be nullified by section 2(b). The window of opportunity would then close."
Quon notes that "because of the special nature of public property vis-a-vis members of the public, it would be excessive for the Speaker to issue an indefinite prohibition against the defendants from entering the public areas of Queen's Park, especially when the main activity conducted by the defendants has been to participate in political demonstrations, which are prime facie protected by section 2 of the Charter...Although the ban remains intact, it would be ineffectual in a Trespass to Property Act charge, as long as the defendants in any future entry onto Queen's Park for political demonstrations behave nonviolently and do not deface public property while there."
Quon does not believe that the government is acting in prior restraint mode by requiring the five to sign documents stating they would not engage in a range of particular activities. TASC members refused to sign any such document and thereby surrender to a partisan government the right to define what constitutes "acceptable" protest.
"If we were to sign something like that, then it becomes government-sanctioned protest, like in the former USSR or in China or Iraq, and what would be the point of that?" asks hiscocks. "The whole point is to have the freedom to express views which may not be popular with the government."
The defendants noted that their case represents only a small part of a much larger picture in Harris's Ontario, where the rights of vulnerable people especially are violated on a daily basis, even drawing stinging criticism from the United Nations. In a context where peaceful dissent is becoming increasingly criminalized, the ban remains a criminal sanction used to stifle public protest.
TASC members are likely to test whether the ban's application has changed in any manner within the month.
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