Colton Fehr
Colton Fehr spoke 6 times across 1 day of testimony.
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Colton Fehr, Prof. (Law – Thompson Rivers University)
First, I’d like to thank the Commission for having me. And in addition to Robert’s comments, I think that that’s sort of a law you propose you seems to be something that falls into the POGG, or Peace, Order, and Good Government national concern emergency grants power and seems quite prudent. But I, too, authored, with my co-author, Professor Steven Penney, a paper for the Commission. And in that paper, we co-author -- we detailed the available police powers for responding to public order emergencies under federal and provincial legislation, some select municipal bylaws, and then also under the common law. And today I want to focus on two major themes that arise from the paper; so the first is institutional, and the second is constitutional. So first I’m concerned about which institution, courts or legislatures, should craft police powers to address existing gaps with respect to public order emergencies. And under something commonly called the ancillary powers doctrine, the Supreme Court has granted judges broad authority to craft common law police powers; a tool that many judges have not been overly shy in using. And for some authors, judges should craft extensive police powers because it is, and I’m quoting the former Chief Justice of Ontario, Justice Roy McMurtry: “It’s impractical and unnecessary to legislate an extensive code of police powers.” (As read) And with great respect, I'm not sure that such an approach is prudent. I think it overlooks problems that are inherent to judges crafting police powers, so sanctioning police powers after the fact renders it impossible for citizens to know the scope of police authority before they are subjected to that authority. And in my view, this is troubling from a rule of law perspective as citizens do not know the actual extent of police power. And further, the Canadian experience has shown that courts often make these types of criminal procedure rules in inadequate evidentiary environments, and I think this occurs in large part because the evidence upon which rules must be based in the adversarial system of justice must come from the parties pleading their respective cases. And a host of limitations can result in that evidence failing to raise interests or facts that are pertinent to developing the law. So I think it's thus prudent for courts to require legislatures who are not hindered by the adversarial process to craft rules in the criminal procedure context, and then have courts use the Charter to rigorously analyze the scope of those powers as informed by both the judicial and legislative records. Second, I have concerns about the constitutionality of the available police powers that can be employed in the context of public order emergencies and the fact that a good many of these laws just simply haven't been amended or updated, looked at sometimes in more than a century. So, for instance, my reading of the relevant Criminal Code provisions suggests that if an antiquated provision commonly known as the Riot Act is read, police may resort without fear of criminal or civil liability to potentially unlimited force against anyone who resists state efforts to suppress the riot, and the stakes here are obviously quite high. So this power, which I think is substantively similar to the English Riot Act first adopted in the early 18th century threatens to deprive individuals, in my view, of life, liberty and security in a manner that is inconsistent with fundamental justice. And also troubling is a power in the Criminal Code allowing police to arrest anyone found or about to join in or renew a so-called breach of peace. And importantly, breaching the peace is not an offence under the criminal law, rendering it the only non-offence for which a citizen may be arrested under the Criminal Code. And to my mind, permitting police to arrest for non-criminal conduct sits uncomfortably with the rule of law. The provision arguably fails to give people fair notice of the possibility of arrest, and it's also largely immune from judicial review as citizens would need to bring what would be an expensive civil suit to the courts before the issue can be legally resolved because it's unlikely to get there in the criminal justice system because we're not dealing with a criminal charge. And that renders the provision what we would call low visibility; in other words, it's unlikely to be scrutinized in a public forum. So if it's kept on the books, I think that that really has the potential to facilitate abusive use of arrest powers in the context of these public emergencies, order emergencies especially, a fact that has actually been well documented during the G20 protests. So I also share some concerns with Professor Diab about whether Canada should rely too heavily on models for regulating public order emergencies adopted in other countries such as public order acts authorizing exclusion zones, and Professor Diab cited a -- or an Australian example, but he also wrote about a UK example. And I think authorizing these laws is prudent in one sense as it communicates, again, the scope of police powers in advance, which is a good thing. But it also appeared quite valuable in bringing recent protests to an end when invoked pursuant to the Emergencies Act. But I also think such a power must be carefully crafted to ensure freedom of expression, assembly and other fundamental liberties are duly protected. So, for instance, requiring individuals to give notice of their protest to the state as occurs under the UK legislation doesn't sit all that comfortably with me because it could very well chill fundamental democratic rights. And then similarly, other proposals such as requiring protesters use alternative protest sites when the initially chosen protest space is deemed problematic by the state would also, to my mind, engage constitutional assembly and expression interests because the place in which a protest takes place, say in front of a government building or on contested lands, can also convey meaning in itself, thereby engaging some constitutional interest. So any such policy would, therefore, need to ensure that it arises only in response to a need to protect vitally important public interests such as upholding public safety. So just to summarize, I think it's prudent for legislatures to both fill any existing gaps in police powers and to update existing police powers to accord with the Canadian Charter. And while courts may serve that latter role if an appropriate case arises and also provide a check on any legislation that the -- that is passed, I do think that a proactive approach here by legislatures is preferrable as that could avoid rights violations before they happen, especially when some of these violations could be very serious. Thank you very much for hearing me.
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Colton Fehr, Prof. (Law – Thompson Rivers University)
I wonder if that problem would always come up just because if, say, the federal government says we can declare that this is something of national concern, or emergency, thereby giving us, the feds, it would have to be litigated after the fact as to whether they were wrong on that question. So in the moment of the protest, would that be an issue? I’m curious as to your thoughts.
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Colton Fehr, Prof. (Law – Thompson Rivers University)
Yeah. I think I'd agree with Robert that even though it addresses the -- or impacts the expression interest, that what I'd like to see from a legislature is some sort of clear set of guidance as to what threshold would be in place before -- what type of interest, public interests are being jeopardised before we should shift or allow the police to require a protest to be shifted. And if that was defined more clearly in legislation that seems like it could be the type of thing that withstands our justifiably infringed right under section 1 of the Charter. So that is the, perhaps the main response I would have to Robert.
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Colton Fehr, Prof. (Law – Thompson Rivers University)
And just building on Michael's point. I think also that the state should be required to use the vast amount of police powers that they have, and in some instances, the criminal law to catch those problematic protesters early on so as to show the protest that the state means business. You know, we have all sorts of tools under federal criminal law, under provincial regulatory statutes, and so on, that can be used to kind of send that message first. And I would want that to be something that would be considered first before we start saying, “Here’s a green space and let’s make people go there,” just because of the importance of protesting in a symbolic space. Thank you.
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Colton Fehr, Prof. (Law – Thompson Rivers University)
We have ---
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Colton Fehr, Prof. (Law – Thompson Rivers University)
Thank you. We haven’t spoken about some of these very strange, antiquated police powers that you find in the Criminal Code. And some of these I just wasn’t aware of, as a person who is a professor in the field of criminal law, before I started taking a deep dive here. And this -- as with many criminal justice issues in Canada, legislative reform is direly needed, and we don’t see that reform coming very frequently. And hopefully this Parliament takes the opportunity to reflect on some of these very troublesome powers. And again I point to the -- this antiquated Riot Act, which derives really from the English Riot Act from the early 18th century. Why do we have this? If you look at other states in the Commonwealth; the New Zealands, Australias, even the UK, they’ve repealed this type of legislation long, long ago. It’s time for us to follow suit, I think.