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Protests can be alternate universes, where familiar spaces are used in unfamiliar ways. In time the buzz fades, as surely as chalk graffiti under rush-hour tires, and the spectacle is forgotten. But it haunts those who attended, especially if they found themselves in police wagons. This is the case with the snake march organized by the Ontario Common Front on October 16, 2001, which aimed to disrupt the financial district and make Premier Harris a liability. I was among the 1,200 or so who showed up that rainy morning, but I don’t presume to be able to tell you what happened. There were as many protests as people, and I still collect stories of the day.
Some of the more fateful involve four pre-dawn arrestees – Josh Barndt, Adam Chaleff-Freudenthaler, Sarah Kardash and John Milton – who were locked up on breach of peace before the protest even started. Breach of peace is not a charge it allows officers to hold people on the pretext that they might later disturb the peace.
The arrestees complained later to police about their treatment but got no satisfaction. Then they launched an appeal to the Ontario Civilian Commission on Police Services, which ordered disciplinary reviews of some officers involved, four of whom appealed the ruling. Two officers chose to face a police tribunal: Staff Sargeant Sharon Davis and Inspector Tony Crawford.
Their tribunal hearings provided protest stories not usually available – those from the police perspective. They also demonstrated that if riot police don’t get you, police prosecutors might.
Davis, head of lockup at 52 Division at the time and the first to sit before the tribunal, faced a charge of dereliction of duty, having allegedly mistreated the three male detainees. (Females went to another division.)
She was accused of pre-empting their right to speak with a lawyer and not allowing Chaleff-Freudenthaler or Barndt, who were minors at the time, to speak with their parents. The tribunal met in April of this year.
A police tribunal is superficially like a judicial trial, with prosecution, defence and someone important they both try to win over. But Chaleff-Freudenthaler summed up the major difference: “The defendant was wearing a police uniform. The adjudicator was wearing a police uniform. The witness was (often) wearing a police uniform. The prosecutor was wearing a police uniform.”
Prosecutors in these matters are inspectors, and the Davis hearing was prosecuted by Inspector Douglas Grady. We later learned that Grady had been given the case during his first week on the job.
The hearing was slow to start. Grady hadn’t consulted or interviewed the complainants, and had only disclosed relevant documents that week. The so-called “lay people” – the complainants – had little idea what arguments would be presented on their behalf. They succeeded in getting a temporary adjournment to review the material. The adjudicator ruled with apparent frustration that the hearing would resume at the end of June.
Come June, little had changed except the layout of the room. Inspector Grady set the stage, taking us back to the carefree days of the Harris regime and 9/11 terror. Hours before sunrise that day in October 2001, the downtown core was already in a “state of emergency” because of the coming “violent demonstration.”
The hundreds of officers necessary to ensure Toronto’s safety were searching everyone gathering at City Hall, the rally’s starting point. It was at this time that the complainants were found to possess protective gear in the form of vinegar-soaked bandanas and breathing masks, and were arrested. They were held until late that night, since, according to Grady, they could not simply be “allowed back into the fray.”
I don’t know what a lawyer would call such an introduction, but a boxer would call it throwing the fight.
During a break in the proceedings, the complainants viewed video from the protests that Grady planned on submitting. A rough montage filmed by police showed noisy, angry people, things being thrown, and confiscated pointy things. Since the four complainants were arrested before the action took place, they were unimpressed.
“You don’t want it in?” asked Grady.
“I’m trying to figure out why you want it in,” replied arrestee Milton.
In the end, it wasn’t the reverse-psychology tactics of the inspector that hamstrung the charges, but plain mishandling. Grady spent the day arguing that Davis had contravened Section 11e of the Charter by holding arrestees without cause. Except sometimes it was 10b and the right to a speedy trial, though, as I have said, for breach of peace there is no charge and hence no trial.
In the end, the adjudicator threw the case out because Grady had been prosecuting on discreditable conduct, though the charge in the OCCOPS ruling was listed as dereliction of duty.
However, Grady, in spite of himself, made a case. Police regulations stipulate that “familiarization with matters” is mandatory for officers in charge. Davis took over control of 52 Division from another sergeant after the arrests.
At that time, none of the arrested had been granted access to counsel, and paperwork for the protestors’ release had already been drawn up. However, they were not released until many hours later. At best, Davis chose not to be informed. At worst, she ignored the information.
The grinding hearing process recommenced the first week of August, when the tribunal convened to hear charges of discreditable conduct against Inspector Tony Crawford, commander of uniform officers on October 16, 2001.
Sarah Kardash was now in attendance, as the charge related specifically to her detention for many hours in a police wagon.
Where Davis had been tense and distant, Crawford walked into the room with a spring in his step. The prosecutor, Staff Inspector George Cowley, formerly of Scotland Yard, was equally cheery, and the superintendent cheeriest of all, reminiscent of a sitcom dad. Everyone else seemed tired, and I felt my energy drain slightly when Cowley – the prosecutor – began his argument with the words, “A month after the tragic events of September 11 . ”
The testimony of the first witness, Sergeant Robert Ellis, member of the public safety unit and author of the mission plan for October 16, offered a glimpse into the police preparations before protest convergences. While protestors stumbled from friends’ couches at 4 am for last-minute placard checks, police headed for a mission briefing at the Sheraton Centre.
Poverty activists may have picked up a dumpstered bagel on the way, but police had already arranged a catered lunch at the Sheraton. In contrast to police’s lunch plans for arrestees: none. No one had drafted procedures for the vans, except that they were to stay in the field and follow the riot lines.
Ellis testified that field operations were coordinated through one central command, essentially a modified RV. Superintendent Aiden Mahar testified that while he was technically in charge, he had chosen to work the streets that day. Kardash’s counsel, Julie Kirkpatrick, took this to mean that Crawford, who was at the command centre, was therefore the only one privy to all relevant field communications.
“In theory,” replied Mahar, the other theory presumably being that everyone decided the chain of command wasn’t in effect for that day.
This became particularly relevant when a tape of transmissions from the paddy wagons was played in court. The driver was heard to say a “mini-protest of their own” was going on in back. Arrestees would later describe the conditions they experienced. “There was no ventilation,” recalled Barndt. “I was starting to have breathing problems.” At length, they got the attention of the driver, who turned on the heat. “Perspiration was soon streaming down the (van’s) sides in rivulets,” said Milton. Those sides were slanted, forcing prisoners to remain hunched forward, wrists cuffed behind their back. This position led Milton’s hands to go into spasms.
Not content to let his case be proven, prosecutor Cowley stood up and objected. “Superintendent,” he pled to the tribunal, “some of these complaints were not even brought forward until six months later. This seems unfair.” Apparently, you don’t learn what a prosecutor does at Scotland Yard.
Mahar was happy to help. He said that not everything would be reported in from the field immediately. And he had been unavailable to advise underlings. “If anyone should have been charged, it should have been me,” he concluded. Mahar is retired and cannot face charges – but he can absorb them.
The next day, deliberations were closed while the parties hammered out an apology from Crawford in return for a dismissal.
The apology is verbose, acknowledging the complainants’ mistreatment in full. However, there is no mention of the mass pre-emptive arrests.
It’s an inherent weakness of the complaints system that policy matters cannot be dealt with by the public, because you can’t put policy on the witness stand. Mistreated civilians are left with systemic grievances carved up into procedural regulations, thrown to a police force visibly reluctant to censure itself.
And while a vague entity called “the police force” maintains that it has learned from this, it’s an open question whether that learning will trickle down through the cracks in police culture.
