The G20: Doing Security the Wrong Way

Blair, McGuinty, and company would do well to learn four simple rules for dealing with security threats.

After spending the last several years dealing with police and security intelligence services as commission counsel to the Arar Inquiry and as a special advocate in security certificate cases, I have learned that four rules are fundamental if we are to effectively to deal with security threats whether they be public or national security threats in a free and democratic society. Our recent experience with the G20 summit shows that we have learned none of these rules.

The first rule is that, although much security and police intelligence work and methods must be kept secret, the laws empowering the police and intelligence services must comply with the Charter of Rights and must be enacted in a transparent manner.

One of the key concerns of many Ontarians with the G20 summit is the scope of the powers given to the police and private guards under the Public Works Protection Act and the manner in which these powers were given by the government of Ontario. The power to force citizens to identify themselves in the middle of the city and the power to search and arrest a citizen without a warrant or cause are police powers which very likely contravene the Charter of Rights and Freedoms. The regulation granting these powers was enacted in a non-transparent manner so that legal challenges could not be mounted before the G20 summit.

As counsel to the Canadian Civil Liberties Association and the Canadian Labour Congress, I was in court in the week before the summit seeking an injunction to restrain certain uses of sonic cannons by the police. At no time were we advised of this new regulation even though my clients were in continuous communication with the police about what rules applied during the protests. Had they been advised of it, they would also have challenged the regulation as part of their court application.

The sad irony is that none of these powers were necessary, as they only applied in the area of the convention centre. As we know today, all of the action was elsewhere because of the massive police presence in the secure zone. One or two arrests were made under the new regulation. Some price to pay for this suspension of our civil liberties.

This leads to the second rule. Governments are responsible for making policy relating to how we deal with security threats and what powers we give police and intelligence services to address such threats. Such policy making is too important to be left to the security and police services.

Elected politicians must be accountable for policies in this area because these policies often intrude on our liberties and the rule of law. Due to the fundamental importance of the interests at stake, political accountability is imperative. Yet last week, the premier’s office advised that he would not be answering any questions about his cabinet giving the police such extensive powers. This week he has admitted that certain mistakes were made regarding the uncertainty of the scope of the application of the regulation.

The solicitor general gave a brief and meaningless response by stating that the weekend’s events showed that these extraordinary powers were necessary. This is nonsense – the powers did not apply in the areas where the police are accused of over-reacting.

Unfortunately, it has been left to Toronto Police Chief Blair for the most part to defend all of the arbitrary powers given to the police under the Public Works Protection Act. The conferral of such powers, even for a temporary period, is of very questionable constitutional legitimacy. It should be the premier and solicitor general defending these arbitrary powers to the public.

The third rule is that the most effective way to deal with security threats is good security and police intelligence and good old fashioned planning.

All of the money in the world will not resolve these threats without these basic human endeavors: expensive technology does not replace the need for the police and security personnel to collect, analyze, and share information relating to the security threat they face. All of the new or updated weapons like sonic cannons, water cannons, sprays, and teargas will not eliminate any threat if your intelligence is soft or your planning or execution are inadequate. It really comes down to good policing, smart intelligence, and common sense. The G20 summit showed that $1 billion did not prevent the kind of lawless havoc which horrified most Canadians.

The fourth and most important rule is that in light of the extensive powers given to them, police and security services must scrupulously act within the powers given to them by the state.

A review of what happened during the G20 summit shows that the police over-reacted when it arrested hundreds of innocent people. No nation dedicated to the rule of law can tolerate this kind of unlawful detention of its citizens even for short periods.

On numerous occasions, the Supreme Court of Canada has stated that police are required to have reasonable and probable grounds to believe that a person committed an offense before they arrest someone. One of Canada’s leading jurists, Justice Cory, stated that without such important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. Our courts have also been clear that the “ends do not justify the means” in the administration of the criminal law.

The lawless behaviour of some never justifies the arrest and detention of others. An independent inquiry is necessary in order to determine how this kind of state misconduct could have occurred, and to ensure that no other government so cavalierly suspends our civil liberties – even for a weekend.