It will be tough to get charges against John Clarke to stick in court
The police are throwing everything they’ve got at abrasive poverty activist John Clarke. Laying charges is one thing, but making them stand up in court will be quite another, defence lawyers tell NOW.
As well as charging the leader of the Ontario Coalition Against Poverty with participating in a riot, failing to comply with recognizance and failing to comply with a probation order, the cops also threw in counselling to commit an indictable offence, marking Clarke alone as the director of the demo that turned violent at Queen’s Park.
Then there are the court-imposed bail conditions, which prevent Clarke and three colleagues from associating with each other, effectively shutting down the group’s leadership.
But the cops are in for a tough court battle before OCAP lies down. For starters, the group’s lawyers, Bob Kellerman and Jeff House, plan to appeal the excessive bail conditions.
Other defence lawyers NOW surveyed also say the charges of participating in a riot and counselling won’t be so easy to make stick.
The charge of participating in a riot has already been struck down in Quebec court as unconstitutional. Defence lawyer Clayton Ruby says it’s likely that same judgment could be made about the broadly defined law here in Ontario.
“(The charge) doesn’t actually require that the participation be one that advances the riot,” Ruby says. “You can be half a mile away and under the law as it stands you can be participating in a riot.”
As for Clarke’s counselling charge, Osgoode Hall law professor Allan Young suspects the Crown is overcharging.
“(It suggests) their case is a little bit threadbare when it comes to the actual participation in the riot, because perhaps it’s not clear who was doing what and who instigated the riot and whether or not there will be defences to the riot,” he says. “So in order to hedge their bets to ensure maximum coverage of the law, they go a bit before the riot and presumably have evidence that Clarke was encouraging people.”
Young says the counselling charge is usually dropped if the person is charged with carrying out the crime — which in Clarke’s case is his alleged participation in the riot.
“There may be an argument in law that once the offence is committed, the counselling offence has no further application,” Young says.
Another question is whether the cops even have enough evidence to go on if a court upholds the media’s decision not to hand over their photos and video footage. The police pursuit of media material suggests they don’t have enough evidence or, possibly, that they want to make sure the media record won’t contradict their version of events.
“We’re seeking to see what information they might hold,” says police staff sergeant Fred Ellarby. “We believe there’s evidence involved in those tapes.”
In full spin mode, police chief Julian Fantino has already branded the fiasco as “pre-meditated violence” on the part of Clarke and OCAP. And the conventional wisdom suggests that the violent outbreak is hurting the homeless cause.
“It’s being portrayed as more of an organized protest by a professional organizer,” says John Wright, the senior vice-president at the polling firm Angus Reid.
But others disagree and say the arrests may turn more people on to OCAP.
“The police have overplayed their hand and miscalculated,” says York University political science professor David McNally, a member of the OCAP allies group that includes community activists and unions. “This will allow us to bring more people on board in defence of civil rights and OCAP members.”
Union support for OCAP is also solid. While the unions have disagreed with some of OCAP’s tactics in the past, both the CAW’s Buzz Hargrove and CUPE’s Syd Ryan say that while they oppose violent protest, they will continue to fund the group.
Opposition critics at Queen’s Park, meanwhile, aren’t exactly running to Clarke’s defence.
Liberal MPP Gerard Kennedy says he’s not buying the police version of events, but he has reservations about the intent of the protest. “I’ve got a big question mark about what the hell was planned here,” says Kennedy.
NDP leader Howard Hampton says his party has always supported OCAP’s aims and objectives.
“I don’t always support the outcomes of what he organizes,” says Hampton, “but I recognize that he’s a very good organizer.”
NDP bad boy Peter Kormos says that, while he continues to support OCAP, many of his caucus colleagues are turned off by their tactics.
“Many NDP caucus members are reluctant to participate in OCAP events,” he says.
The political blow that councillor Olivia Chow took as a result of her comments about the police tactics at the demo seems to have cast a dome of silence over City Hall.
Jack Layton, however, says the court action brought by the police is a waste of time and money. He also believes the bail conditions imposed on Clarke and other OCAP members were excessive.
“I don’t see any reason why such bail conditions were even requested in the first place,” he says. “They’ve been out there talking about some of the injustices in the street and we need to be hearing about that stuff.”