September 12 & 13, 2002
Crown Likely to Seek Jail Term and Probation if Convictions Registered against Smog Resisters
"Your honor, we are having great difficulty in trying to adjust to the atmosphere of a court from which the world has been excluded, and the events that brought us here are excluded deliberately, in the charge to the jury. Our moral passion was excluded. It is as though we were subjects of an autopsy, were being dismembered by people who wondered whether or not we had a soul. We are sure that we have a soul. It is our soul that brought us here. It is our soul that got us in trouble. It is our conception of humanity. But our moral passion is banished from this court. It is as though the legal process were an autopsy." -- Daniel Berrigan, addressing the judge, in the Trial of the Catonsville Nine
The courtroom 121 at Toronto's Old City Hall is an historic chamber, a place where Toronto City Council used to meet, and a place where, if the powers that be have their way, no one can actually hear what is going on as the wheels of justice grind on.
In a place that must have the worst acoustics this side of the Skydome, seven individuals and their unindicted co-conspirators gathered to be tried for the crime of nonviolently resisting poison in the air on Sept. 12 and 13.
From the beginning, it was clear that the criminalization of nonviolent dissent was the purpose of this trial, held some 13 months after the seven individuals were arrested for briefly sitting and standing in a lane of University Avenue that had been blocked by police on August 20, 2001, in front of the headquarters of Ontario Power Generation or, more accurately, Ontario Pollution Generation. The seven were charged with criminal mischief, something about interfering with the lawful use and enjoyment of property, strip searched at 52 division, held overnight, and not brought before a justice of the peace until some 27 hours later.
But none of the executives from Canada's largest polluter are on hand to answer to the charges of criminal mischief and their own interference with the lawful enjoyment and use of the province of Ontario. They are ably represented, though, by a vindictive Crown counsel named Judy York and Detective Brigham, who will shepherd their case before a representative of the Ontario Provincial Bench, a middle aged white man named Judge Parry.
Before the trial even begins, proceedings are adjourned so that the issue of an agreed upon statement of fact can be worked out. A new judge is brought in, and hears from one of the defednants that four separate attempts were made to meet with Ms. York to discuss the agreed upon statement, go over video material, and other bits of information which could considerably shorten the whole process. York has refused on each occasion, contemptuously stating that we are nothing but accused, and the fact that we are representing ourselves is pure "tough luck."
We explain to the new judge our concern that evidence alleging an ambulance had been partially slowed down because of our action is without merit, and our concern that having two ambulance attendants testify would unnecessarily inflame the court atmosphere against us.
York takes one look at our draft statement of facts and dismisses it with a huff. "This is useless," she declares, throwing it back at us. We will not have much agreement.
Parry returns, and we are arraigned. When asked whether we plead guilty or not guilty to the charge, we immediately set ourselves apart&endash;we do not want to be part of an autopsy, we want our passion to be heard. "I plead for the day when I can ride my bicycle without choking on the poison in the air," says Greg Bonser. Parry cautions him: that is not a plea. Bonser also says not guilty.
Defendant Sue Breeze pleads for the day when she can go walking without worrying that the smog will aggravate her heart condition. Matthew Behrens pleads for an end to the 300 air pollution Walkertons which take place in Ontario every year, rerferring to the 1,900 people who die prematurely as a result of smog. The other defendants, including Mary Hutchinson, Shane Sarsfield, Angela Bischoff, and Kirsten Romaine, also enter not guilty pleas, and the attempt to paint the defendants as irresponsible, dangerous individuals begins.
York's job is to read through the thick police disclosure and repeat eveything the police have written down, whether or not it is accurate. She is ill-prepared to the task, and appears to have looked over the file only briefly before entering court. But her approach shows she has looked at the Crown pre-trial recommendations, including a jail term and anger management for Behrens (due to his criminal record for nonviolent protests) and probation and other punishments for the other OPG resisters. Securing a conviction against these individuals, representing themselves, will be a cakewalk as far as she is concerned.
Before things proceed much further, York shows her colours as Sue Breeze says she cannot hear the proceedings. Deaf in one ear with a 30% deficit in her other ear, she needs to be seated where she can read lips. York calls for a sign language interpreter, but Breeze only needs York to stand such that her lips can be read. York complains, and is finally chided by the judge to stop making a big deal of this.
The first Crown witness is police officer Sharon Cook, who admits she blocked soutbound traffic on University as she followed the demonstrators from Queen Street to College, going the wrong way up University as we walked on the sidewalk. She also admits that upon their arrival, police shut down the curb lane of traffic and set up with officers and bikes. She also confirms it was a nonviolent gathering, and recalls, almost with a sense of happy reminiscence, the air filter fashion show and the theatrical staging of The Lorax, with a new interpretation based on OPG.
We attempt to introduce video evidence at this point to have Cook confirm it is an accurate version of events (the tape is made by a videographer from Toronto Video Activist Collective, an essential part of any demo where charges may be laid!). York jumps all over this with objections, but Parry gently reminds her this is a perfectly acceptable way of proceeding. In a similar fashion, we introduce a series of photos taken by a Dundas indymedia journalist, photos which confirm it was police, not demonstrators, who blocked the traffic. York huffs again, but Parry sees nothing wrong with this approach.
There follows a parade of police witnesses who describe the arrests, each contradicting the next, each failing to remember that the police wagon not only blocked University but College St. as well. York brings out the testimony that an ambulance was coming down University Avenue around this time. We show a video that clearly shows that everyone has long been arrested by the time the ambulance sails down University Ave. The video also shows traffic was never even disrupted, even when we were sitting in the curb lane.
Despite the best efforts of York, the police admit the demo was a peaceful one, relaxed as these things go. We break early on Thursday afternoon because numerous Crown witnesses are not there yet.
On Friday morning, the parade begins again. This time, it appears that police have been coached by York, as their testimony is far more direct and accusatory. PC Maccsheyne, when pushed during cross examination, gets angry, and accuses us of doctoring the video evidence (evidence which has already been accepted by the court and the Crown). Maccsheyne tries to pepper his testimony with sneaky phrases like "breaking through the police line" to refer to people who walked up to the police and, not being able to get around them, sat down.
The Crown then calls the two ambulance attendants. We need to break because we have not had any disclosure from them. We receive two handwritten statements they had made at the request of their supervisors. It obviously wasn't a disruption serious enough to justify their writing one up on their own. Police notes indicate the request for statements came from police, not the ambulance supervisor&endash;again, since there is no criminality involved in the short protest, throwing in an ambualnce with sirens wailing will hopefully catch the seven!
The attendants are nice guys, basically pawns in this court case. Their testimony is confused, contradictory, and makes no case at all that they were stopped by the demo. In fact, it appears that the regular run of traffic has created their short delay, forcing them over the median and down the other side of University Ave. for a short block.
"It's not unusual to go the wrong way in traffic," one of them states, showing that this is in fact fairly standard stuff.
After a short break, the defence begins its case. Behrens takes the stand, and it is clear that the Judge would rather this be an autopsy than an understanding of the whys and wherefors of the demo. He knows it's about smog, but we state that we need to show the urgency of the situation, and are able to rush through the facts from an Ontario Medical Association study: 1,900 dead, 9,800 hospital admissions, 13,000 emergency room visits, 43 million illnesses, and $10 billion in economic damage, all due to air pollution's ill effects EVERY YEAR! Weighed against this, criminally charging a group of seven for sitting on the road for 30 seconds or so seems a bit out of balance.
We go through the building of the action, the care taken to alert emergency authorities, the media, OPG employees, and other folks that we plan to hold an earth friendly energy alternatives fair on the streets in front of OPG.
We take this action not to block traffic but to open up the public space necessary to protest. We talk of the attempt to create a landing pad for Venusians, whose interest in colonizing earth has grown due to the fact that our horrid air is beginning to resemble the toxic mix on Venus.
At this point York's eyes are rolling to the top of her head so often she must be spinning. How will she explain this at the next Crown lunch??? How do you seriously question someone who has invited creatures from Venus to take part in a demo?
The answer is simple: you don't question, you attack. You try and bring out the need for anger management and prison for the defendant, but she seems the only one in court who needs anger management.
York goes on the offensive. "You wanted to get arrested, didn't you. You are a professional demonstrator, aren't you?"
Behrens explains that the designation of professional demonstrator comes from police notes and, while it is flattering to have such an assessment of our demonstration skills (doesn't professional mean well done?), none of us was paid to organize this demo and, in fact, we are all pretty much volunteers who do this in our spare time because we believe in justice for everyone.
" You do have a criminal record, don't you. Admit it, you do!" she exclaims reading off some prior convictions.
He points out that those convictions are for similar sit-down protests against Canadian complicity in torture in Central America and in support of the Innu nation.
"How many causes do you demonstrate for? Do you do this every day?" York is exasperate
She shows a video clip of Behrens walking down the sidewalk past a mailbox before entering the blocked curb lane, and screams, "You sneaked around a mailbox. You sneaked around it, admit it, you were being sneaky!"
It gets so intense that even Judge Parry must interrupt, chiding York and offering a reminder that such confrontational tactics are not particularly helpful.
It is a draining experience, for when we take the stand, it is no longer the facts of the case that are being tried, which is the goal of the judge and the stated aim of the Crown. Rather, it is our lifestyle, our beliefs, which are the problem. York looks around the court and sees a group of people for whom such direct action protests are not a passing fad, but part of a life lived in opposition to the very notion that a society can be healthy all the while it produces collateral damage in the hundreds of thousands annually in the name of a solid economic bottom line.
York sees people younger than her, of her own generation, and her elders. We are all one in court, sharing information, coming up with questions, offering suggestions. After some 25 minutes or so of fairly blistering invective, she gives up.
Following lunch, Greg Bonser takes the stand and explains his motivation for the action. Someone long concerned about the ill effects of OPG on the environment, from the Pickering nuclear plant to the toxic waste leftovers of a power plant in his own neighbourhood, Bonser speaks of the necessity of an action that cannot be ignored, one that may interrupt a bit of traffic. He has spoken with his grandfather, a former fire chief of Toronto, and confirmed that there are alternative routes for emergency vehicles to get to hospital. We ask him one question: would he have moved if an ambulance were coming down the road and he himself were still demonstrating on the road? Of course.
We move to submissions. Defence submissions consist of showing the inaccuracies of the ambulance testimony, then addressing the criminalization of dissent.
"On August 20, 2001, we acted in the spirit of deference to the growing body of international law and Canadian Jurisprudence which recognizes, hopefully not too late, that a clean and safe environment is a human right, and that efforts to prevent the desecration of the environmment are not only a right, but a responsibility, an obligation."
We talk about the growing body of international and Canadian law which is supposed to protect the environment, , but their enforcement is lax at best, which is where citizen obligation comes in. It is our obligation to draw attention to social evil, and to try and compel positive social change, even knowing there might be personal risks to ourselves.
We finally present a half dozen cases of criminal charge acquittals which some or all of us have been involved in. In each instance, we have undertaken a nonviolent action and been criminalized by poice, but acquitted by the courts. Like these precedents, the OPG action was built along similar lines.
York has no case law to submit, only a brief statement that we should have known better and, if there were no ambulance involved, this might not have resulted in charges,. She neglects to point out that charges were laid before the ambulance showed up, and that this is all an attempt to string together two unrelated pieces of information to criminalize behaviour which is supposed to be Charter protected.
Judge Parry says he will reserve judgment until October 22 at 10 in courtroom 124. At that time, we will know whether we are seen as "guilty" or not, and whether we will be punished for trying to stop the slow but sure poisoning of the world. As the judge leaves the court, York contemptuously returns her copies of our case law to us. She has no patience for them.
We retire outside, where Raging Grannies Phyllis Creighton and Judy Greenwood-Speers serenade us with great anti-smog tunes. The smokestacks at OPG's Nanticoke facility continue to belch out their deadly combination of toxic chemicals, and funeral arrangements for many of the victims of this year's record smog summer continue in an orderly fashion.
Thanks to all who gave of their time to come and sit in the courtroom with us! Your loving and supportive presence was most appreciated! And yes, the garlic did ward off some of the evil!
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