After watching the proceedings for much of the six-week trial against three OCAP activists, I'm somehow not surprised that three days into deliberations the jury fell into a tailspin of stress, illness, confusion and infighting. The judge ended their misery Sunday, May 11, by declaring a mistrial, thus leaving the case against John Clarke, Gaetan Héroux and Stefan Pilipa, charged for their alleged role in the June 15, 2000, anti-poverty demonstration at Queen's Park, in legal limbo.As of Saturday, May 10, the jury was split nine-to-three on the definition of "force,' whether demonstrators used it and whether the protest was a riot, according to a letter they sent to Judge Lee Ferrier, who had told the jury that in order to find the defendants guilty it was important to show that they had "intent to oppose anyone by force."
Resolving this issue seems to have been very difficult for them. Week after week I watched jurors trying to make sense of astonishingly discrepant versions of what happened that June day. Word is leaking out now that the Crown tried unsuccessfully to cut a deal with the defence, which managed to put police credibility on trial as much as the three demonstrators.
"It's very rare that a trial has that kind of physical and emotional effect on a jury," says civil rights lawyer Clayton Ruby. "You don't usually ask jurors to make a decision on the establishment."
The case was confusing from the start. The 350 videotapes and photos presented as evidence often seemed to contradict one another in the hands of the Crown and the defence. Particularly contentious was the claim that Clarke, facing five years for charges of counselling to riot and to assault police, had planned and orchestrated a physical confrontation with police.
Clarke's personal notes on the demonstration, seized from his backpack by police two months after the fact, were touted as irrefutable proof both of his guilt and of his innocence. The Crown claimed that Clarke's shorthand regarding the bringing of "projects" referred to projectiles, while the defence said it meant noise projectors, as in megaphones.
The defence also said the extreme language that occasionally turned up in the notes - phrases like "neutralize lackeys" - was tongue-in-cheek. "If the notes had any evidence of criminal wrongdoing, as the Crown suggests, Mr. Clarke would have eaten them on June 16," Clarke's lawyer, Peter Rosenthal, joked to the jury.
The Crown alleged that OCAP set a trap for the police. "This was a cohesive, organized group that knew what they were there for," Crown lawyer John Ciserio told the jury. Crucial to the Crown's case was proving that there was indeed a riot and that it was caused by the demonstrators and not the police. Clarke also needed to be implicated in the planning.
"Do you have any doubt that Mr. Clarke had control over this group?" Ciserio asked. In the end, the jury did.
Their letter to the judge says they were "extremely emotionally upset, resulting yesterday in the hospital visit of one juror, a panic attack of another, migraine headaches and emotional outbursts among the group." On Sunday, one juror was removed due to illness, and three of the 11 remaining jurors said they could not go on, resulting in the declaration of a mistrial.
From the defence point of view, the jury was a "microcosm" of a city politically polarized by years of Tory government. "It was a huge victory," says Clarke. Perhaps an overstament - in the end, police just didn't have the goods to make the charges stick.
Lead Crown attorney Vincent Paris would not confirm or deny rumours that the Crown had unsuccessfully attempted to a make a deal in which Clarke would plead guilty in exchange for dropping charges against Héroux. Paris insists, however, that the Crown still has a "reasonable chance of conviction" of all three men and will be weighing its appeal options.
A temporary community of OCAP supporters formed during the course of the trial. Police attempts to remove homeless people sleeping around the courthouse drove home the point that the plight of the city's poor - the reason for the demonstration that's been the focus of this trial - is getting worse.