Tornto Action for Social
PO Box 73620
509 St. Clair Ave. West
Tornto, ON M6C 1C0
Members of Nonviolent Action Group Remain on "Lookout List" as Threats to Legislative Security;
Court Verdict on Constitutionality of the Ban Delayed due to Unusual and Inappropriate Move on Part of Speaker's Lawyer
TORONTO, AUGUST 18, 2004 -- One of the longest recent Ontario legal sagas will have to wait another day for its conclusion, as a final ruling on the constitutionality of the six-year-old Queen's Park ban was delayed by some apparent government malfeasance and the surprise (and suspiciously timed) lifting of the ban.
As members of Toronto Action for Social Change (TASC) prepared for their August 18 court date, they learned on August 17 that Speaker of the Ontario Legislature Alvin Curling lifted the ban against attendance at Queen's Park that has been in effect almost six years.
Curling suddenly decided to review the ban and, in the end, concluded it was time to finally lift it. However, no apology was made for placing it on us in the first place and, to make matters worse, the Speaker has threatened to place it back on us if we persist in the kinds of nonviolent demonstrations which led to the ban in the first place.
In fact, the letter reads like a parent chiding a child for disobedience, noting our defiance of the ban -- the only way we could get the matter before a court of law -- "has been a factor that weighed heavily against lifting the prohibition."
Curling says there were "more than enough grounds to issue the banning notice" (grounds which have never been explained), but that it was lifted after considering the length of time it had been in place.
The lifting of the ban does not alter the flow of events in the courts, though, as the charge for defying the ban has yet to be determined, as does the constitutional challenge to the Speaker's perceived authority to arbitrarily issue such a draconian prohibition.
Indeed, a new court date has been set to hear further submissions on the question of some research in which Justice Bovard of the Ontario Court of Justice had been engaged. Apparently, House Speaker Curling's lawyer, Cathy Beagan Flood (of the Bay Street law firm Blake Cassels) may have breached the rules of judicial privilege and secrecy when she inquired about the nature of research Justice Bovard was conducting in order to render his decision.
In a letter to a judicial researcher who had been engaged for specific research by Justice Bovard, Beagan Flood says it has come to her attention that certain queries had been sent to various legislative assemblies asking for information related to their physical boundaries. She says that since her client, the Ontario Speaker, is involved in such a case, she would like to know whether the information was being gathered for the Queen's Park ban case. If indeed it were, she asked, she would like to know as soon as possible given that a decision was forthcoming.
Today Bovard read aloud a letter sent to Beagan Flood from the legal counsel for the Centre for Judicial Research and Education, which calls her request "unusual and inappropriate", noting that "confidentiality is crucial to the proper execution of our role and to judicial independence."
She was then questioned by the judge, who demanded to know how she learned of this research, since "this is a great concern to me and to other judges...we don't want counsel looking over our shoulders." He says that Beagan Flood put the legal researcher to whom she wrote in a difficult position given that "I asked her to do research and then counsel wants to know what she's up to....I would have wished you would have contacted me straight off. It's a big concern to me that a counsel on a case finds this [sort of information] out. What goes on between me and research assistants should be confidential."
Beagan Flood apologized and claimed that she did not intend to breach confidence, but acted only "because I had so few facts" about the confidential research.
Following the rescheduling of the hearing, TASC members headed to Queen's Park to set foot on the grounds for the first time in six years without the possibility of automatic arrest. They discussed the odd tone of the Speaker's letter lifting the ban, noting that Curling retains the right to issue such bans in future if he -- and not any court -- determines that someone has contravened the policy, procedures and guidelines of the House, or any by-law, provincial or federal statute.
"Take notice that if you commit yet another serious contravention of the Legislative Assembly's policies, you may once again be prohibited to the Legislative Precinct."
The tone of the letter is odd, given that nothing of a serious nature gave rise to the ban (it was a minor trespassing charge) and the defiance of the ban also resulted in a minor charge of trespass. What has been serious, however, is the effect of a six year ban preventing five people from exercising their Charter-protected rights to protest, to speak out, to associate with fellow residents concerned about provincial policies.
Curling is in a funny position, noting in his letter that it is the Speaker's responsibility to ensure there are no interruptions to the proper functioning of the legislature. He seems to have forgotten, however, that he committed an historic act of civil disobedience in the House, interrupting the business of the House for 26 hours in January, 1996, the same day TASC members were arrested on the legislative steps for attempting to conduct a pray-in against the Omnibus Bill, which concentrated massive powers in the Harris cabinet. While TASC members were eventually banned for their history of demos -- none of which interfered with the functioning of the legislature, all of which took place on the grounds -- Curling maintained his standing as an MPP and was never given the boot.
As we walked up the steps of Queen's Park, security immediately radioed inside the building that something was afoot. We asked to see the Speaker for a friendly dialogue, and as our names were punched into the computer, a yellow triangle of warning, surrounded by a large exclamation mark, started flashing on the screen.
"That means you're on the look-out list," the guard explained to us, noting this was a special list for those whose presence allegedly constitutes a threat to the legislature's security. They immediately radioed for "Force Command" to meet us and sort out this dangerous request for a quick meeting.
We were informed that the ban would be back faster than we could say "denial of democratic rights" if we planted a garden, conducted a pray-in, or engaged in any of the other activities which courts have not only found to be legal, but encouraged.
(report from Matthew Behrens, who along with Father Robert Holmes, mandy hiscocks, Don Johnston and Sandra Lang, still await a decision on whether the old ban was unconstitutional in the eyes of the courts).
BACK TO TASC HOMEPAGE