in the wee hours of october 16, protestors on their way to the OCAP/Common Front rally were shocked to find a human barricade of black-clad cops near Nathan Phillips Square searching anyone who attempted to walk through. As demonstrators took note of this, they clustered uncertainly, watching while bags were searched, mugs were photographed, items were seized and arrests made. Some people turned back, intimidated by the police presence. Others approached and carefully made their way through, allowing the cops to look through their bags, take away their defensive equipment or arrest them for having "weapons": goggles, gas masks or sticks to which flags had been tied.
Before the sun even rose on the protest, many of the total of 40 people arrested had been taken away and photographed. About half of them were charged with breach of public peace and kept in police vans for several hours before finally being taken to police headquarters to be strip-searched, processed and put in cells.
A new twist on crowd control, these pre-emptive strikes are as shocking to civil rights lawyers as they are to protestors. When the activists finally have their charges heard in court, they won't be alone -- the precious Charter Of Rights And Freedoms will be on trial alongside them.
Police claim they did their homework before searching every last protestor. According to 52 Division superintendent Aidan Maher, when they drew up their strategy law enforcers sought legal council to ensure they wouldn't be accused of violations under the Charter. But they contextualized the target group, he says, taking into account OCAP's previous history.
When I ask about the fact that 60 other groups participated in the rally, Maher declares, "How do we separate out 2,000 people?" Officers were merely acting responsibly, he tells me, in the face of "a grave threat of civil disorder, and beyond civil disorder, to the disruption of people's everyday life in the business community."
But many prominent lawyers don't believe police have covered their Charter bases at all. "What these actions are designed to do is intimidate people from participating in demonstrations or in any political work," says lawyer Paul Copeland. "It's a guarantee in the Charter Of Rights not to be searched, and the only basis for (having your photograph taken) is if you've been arrested for an indictable offence."
According to Osgoode Hall law professor Alan Young, the Criminal Code does not define breach of peace, so it is subject to considerable abuse if left to the discretion of police officers.
"It's difficult constitutionally when you give the police a power where the exercise of it is extremely vague. And it can raise questions about the Charter Of Rights if it is used in an overtly political context to prevent a protest from even taking place.'
Breach of peace has been used to prevent barroom brawls, he says, and is valid if used in that way. But its open-endedness is worrisome. "Once protestors throw rocks, you have breach of peace. But while they're moving toward (a demonstration), I can't imagine how under the Criminal Code the breach of peace charge could be activated. There is no power in the Criminal Code to arrest for apprehension of breach of peace."
For those activists who braved pre-sunrise searches, the experience was jolting. Says medic Jesse Bergman. "I told (the policeman) I didn't think they had the right to do that. He told me that he would then arrest me first and search me. So I chose to have my stuff searched, figuring I had nothing to hide.' He was arrested anyway.
John Milton, an indy journalist from Hamilton, arrived prepared to cover the event with bags full of media equipment, only to be confronted by a cop who said he was going to search his bags. When Milton asked if he was under arrest and then said no to the search, he was arrested and photographed with his gas mask. He spent hours in a police van, arms cuffed behind his back, wrists eventually blood-blistered, watching other activists on the verge of passing out.
Stories from protestors about ill-treatment by the police are common. OCAP organizer Shawn Grant, Milton, Bergman and others were all back-cuffed for several hours and refused a phone call. Some didn't get fed until night. They were also strip-searched.
"Certainly the treatment of people arrested was illegal," says Copeland. "You have the possibility of complaining to the police, which is a waste of time, or you have the choice of suing them. There are some people contemplating doing that."