Robert Diab
Robert Diab spoke 8 times across 1 day of testimony.
-
Robert Diab, Prof. (Law – Thompson Rivers University)
Sure, thank you. Cal, I have a question about the decision about whether thresholds are met. So you spoke earlier about the idea that different police agencies in the future could police large protests by having a set of standards and protocols that would work out in advance, you know, who would do what, when, and where, and on the one hand, and maybe also a set of thresholds that would determine, you know, when this agency or -- would step in or not. Who do you envision deciding whether those thresholds are met? And what I have in mind is what would guarantee or what would suggest that in the future we wouldn't have the kind of confusion we've seen in these earlier events arise in the event of a dispute over whether the threshold was met?
-
Robert Diab, Prof. (Law – Thompson Rivers University)
Thank you. Well, thank you to the Commissioner to begin with, and the Commission for inviting me to speak. So I provided a background paper to the Commission, and in it I make two main points that speak to lessons that may be learned from the February event for police in future protests. The first pertains to exclusion zones. So the Government of Canada, as I understand it, found it necessary to invoke emergency powers partly to authorise the police to create an exclusion zone, and the government found it necessary to rely on emergency law because of a gap in ordinary law allowing for this. I believe this was the correct assumption. As I note in my paper, the only authority to create large exclusion zones, you know, zones where the police can, you know, close large areas of public space for not only vehicles but also pedestrians, is found in emergency legislation, emergency acts across the province, and also in the Foreign Missions and International Organizations Act. I'll call it the Foreign Missions Act, which is a power that only applies to intergovernmental conferences. Incidentally, I understand the Commission has heard evidence about powers in municipal or provincial traffic law that allows for street closures. So again, these -- my understanding is that these deal with vehicle traffic closing roads, not closing or regulating, you know, big areas of public space. So one takeaway is that, as with other major public events in the past two decades, creating exclusion zones is something important for police at these events at the moment, outside of these -- outside of intergovernmental conferences, the only source for doing this is emergency law. So to avoid relying on emergency law in the future, we need to give police the authority to create these zones in ordinary legislation, if we want police to have these powers. What would this add to existing law? Well, the power in emergency law and in the Foreign Missions Act to create these zones is vague. So police can create them under these Acts, but the law provides the police no guidance as to the size, the duration, the rules about, you know, passes; it says nothing about compensation for disruption, that sort of thing. So police at present, when these powers are invoked, they decide all of this in, essentially, a vacuum, and they do so behind closed doors so there’s very limited transparency or accountability. An ordinary statute would rectify this. A second lesson pertains to a topic that’s taken up a lot of time today; how -- what lessons for the future should we draw about how police agencies work together? The gap in the law I pointed to about exclusion zones is part of a larger gap on the policing of public order events generally, and a big part of that gap pertains to the way police agencies work together when these -- when they’re policing a big event. So the Commission has heard a lot of evidence about whether, when, and how the Ottawa Police or agencies across the country should have worked with outside agencies. The very same issue, as I believe Cal mentioned, and maybe Michael as well, the very same issue has come up in numerous other inquiries about big public order events, including the G20, and even as far back at least as the APEC meeting in Vancouver in ’97. All of these events, possibly including the trucker convoy, suggest that when police agencies don’t work together effectively what follows is disorder on the ground, rights violations, and limited accountability in how they decide to regulate the protest. Now, I believe what I’m going to propose here is consistent with what Cal has proposed, perhaps a little different; I think it may be a bit different from what Michael has proposed. I’m going to suggest the problem may be straightforward. The problem may come down to the fact that in all of these cases, it’s unclear who has lead command. If we assume that that’s the problem; that the lack of clarity on who had lead command is the real reason that coordination was ineffective or even broke down, there are, I think, generally speaking, two inferences to draw. One is that we need better -- a better set of rules or protocols on how they should coordinate; that we should go no further than that; then, you know, working out a set of protocols or standards, but let the police decide when those standards are met or thresholds or what have you. Let them -- do not tie their hands about how they should work together. Another inference to draw, one I advocate, is that the law should clearly state that in a certain kind of event, one agency has authority. The Foreign Missions Act does precisely this. Section 10.1 of the Act says, and I’m quoting: “The Royal Canadian Mounted Police has...primary responsibility to ensure the security for the proper functioning of any intergovernmental conference...” Sorry; I’m just losing my place. So for this kind of event, this agency should take the lead, full stop; no confusion. You know, it’s not a protocol that would risk being tucked away and neglected, you know, relatively quickly. The section does go on to say that the RCMP can make arrangements with other forces, but it’s clear that for this kind of event, they’re in charge. So this points us, I think, at two things that happened in February. The first is that before the emergency powers were invoked, there was no ordinary legislation giving one agency a lead authority over what we might call a nationwide protest or, you know, a national-scale protest. So if we were to assume that there was legislation, that had given -- that had named something, given a name to a species of public order event that we could call a national protest, among others; like, for example, the World Cup, you know, a major sporting event, among other kinds, if it had done so, what difference would that have made? A second problem is that when the emergency was invoked, the Emergencies Act did the opposite. Section 20 of the Act says, contrary to what section 10 of the Foreign Mission Act says -- I’m going to paraphrase but it says something like nothing in a emergency declaration will derogate from the ordinary chain of command over the police of a city or a province. I would suggest that the February emergency compels us to ask whether this is a good idea; whether instead section 20 should give a specific agency lead authority over a public order emergency. In my view, I think that would avoid the confusion that is likely to follow over, you know, who does what when, or when should this agency start working with that agency, and so on. Another way to put it is; try to imagine how this might have worked had there been ordinary legislation that said, for example, not necessarily the RCMP but in the event of a nationwide protest, the RCMP has lead authority. Maybe they could have been involved earlier on; maybe they could have coordinated more effectively; maybe there would not have been a different approach in places like Toronto, downtown Toronto, or Ottawa. So to close, in my view an important lesson for policing future protests of a national scale or other large events, is that we can avoid resorting to emergency powers; we have ordinary law setting out who has lead authority over specific events, and precisely what police can do. I advocate drawing on the example found in legislation from Australia, discussed in the paper. But the Act I point to there carefully circumscribed police powers to create an exclusion zone, how it would work, what they were allowed to do. So that, that piece, along with a law giving one agency authority over specific -- a specific kind of event would, in my view, go a long way to avoid the confusion about, you know, who should be involved and when. I’ll stop there.
-
Robert Diab, Prof. (Law – Thompson Rivers University)
Michael, I think that’s a great, absolutely great criticism or question to raise about what I’m proposing. So the way it works right now in the Emergencies Act is that the decision maker is the federal government. It must decide whether it thinks the standard is met, and then the Commission is the after-the-fact referee. But I think if we had ordinary legislation, maybe the model would be something like a warrant, where you have an independent decision maker. So you know, if there were a dispute about whether we were in something called, you know, a nation-scale protest, we could maybe -- there could be an independent figure who we quickly consult and, you know, on the basis of something like a warrant. You know, some sort of brief report, and then that figure would provide an independent decision quickly based on, you know, objective evidence, or evidence seen in an objective way. There are many mechanisms like this in the world, in legislative frameworks of national security and counter-terrorism, and just in ordinary criminal law as well. But that’s a great, absolutely great point.
-
Robert Diab, Prof. (Law – Thompson Rivers University)
Shall I go first?
-
Robert Diab, Prof. (Law – Thompson Rivers University)
Sure. So very briefly, the exclusion zone, sorry, the protest zone raises its own set of issues distinct from exclusions. I agree with my college, Professor Fehr, that you know, they engage expression rights and assembly rights and even liberty rights, and -- but on the other hand, they have been considered already in Canada in a number of cases, and in some cases, they are deemed, you know, not to violate rights or reasonable limits on rights. Because among other things they do, is they facilitate, you know, the safe expression, like the safe conduct of a protest. So they're not simply restrictive, but they are - - on the other hand, they are restrictive and they are -- they do -- they may have a chilling effect. And -- but so those are really case-by-case and they're factual and so on. Exclusion zones, I think, raise a different set of issues, and they can be, I think, enormously invasive or, you know, contrary to our rights. So I'm just -- my understanding is from, you know, the media coverage prior to the Commission conducting the fact-finding Inquiry, was that the exclusion zone in Ottawa was something like 70 blocks, and you know, there were, according to one news source, something like 100 checkpoints. This is an extraordinary thing in Canada to -- so -- and like another example would be Quebec City where several - - at least a few square miles of the Old City were closed off. If you lived in the Old City, you needed a pass, you had to register to get one, and you couldn't have visitors. Like, you know, you couldn't have like your friends over for the weekend, or at least not without a lot of... This is -- you know, this is a extraordinary thing. It's an extraordinary incursion on our liberty. Whether it's necessary and justified is one question, but the light I'm trying to shine on the issue is not to say it's not justified, it can never be justified, it's to say that the decisions about whether in this one case it was reasonable are made in the dark, are made in the dark, like legally in the dark, no guidance, and also, behind closed doors. And that that's -- that seems contrary to the rule of law and to Canadian traditions that the place to do -- to make these decisions is the legislature. The only, I think, alternative we can point to is something like the Olympics in 2010, where somewhat similar issues were decided quite effectively in advance, but in public forums, mainly City Hall, but -- which wouldn't be ideal going forward for, you know, small protests in small towns or smaller cities that can't afford to conduct the kind of preparation that we saw in 2010. So I hope that addresses the question.
-
Robert Diab, Prof. (Law – Thompson Rivers University)
Maybe two quick points. One is that I’m not sure that every kind of major event is truly new and unique. I would suggest instead that there’s a finite number -- there’s a finite variation. There’s only, you know, certain kinds, there’s a -- techniques or strategies in this current protest were interesting and new, but the general idea of a national protest; a protest unfolding on a national scale was not new. The second point is that history suggests that they don’t just work it out. So if we look at what went wrong in all -- like, in a series of major events that have generated inquiries, one thing I’m trying to show in my paper was that a common motif in all those inquiries was that coordination broke down because the nature of the leadership or of the arrangement was unclear. So to just take one example, in the G20 event, the Foreign Missions Act said to the RCMP, “You have primary responsibility over the meeting.” So they created a zone, a small zone around the conference centre itself, and there were, like, not many problems in around that. Most of the problems -- the civil unrest, the confusion, the rights breaches and so forth -- unfolded around the areas that were larger, where it wasn’t clear who could do what where, when, what the police powers were. So another way of putting it is to say that this question of a lack of clarity is closely related to a lack of clarity about what they can do. So I’m really calling for -- I’m suggesting we’re going to keep seeing this confusion and disorder unless we have clear leadership, and also, a clear delineation of what police can do; what tools are on the table for what kinds of events?
-
Robert Diab, Prof. (Law – Thompson Rivers University)
So I take this question to be asked in the absence of a plan or the approach that I was proposing a minute ago. So in other words, like I assume that the question is really prefaced by saying something like assuming we don't do what you're -- what I'm proposing, assuming we don't have either provincial public order police acts or a federal or both that define kinds of events and then set out, like, you know, who leads and what they're allowed to do and so on. I think -- so that -- this is a good question. What then would happen? How would we deal with resource allocation in dealing with protests of various scales that involve more than one agency? And I think the interesting part of the question to me is if you wanted to give that any teeth, if you wanted to make that viable in a meaningful way, rather than just have a set of standards where we agree we might do X, Y and Z when this or that happens, you'd have to amend the provincial police acts and you'd have to amend -- and/or you'd have to amend the RCMP Act. Put another way, you'd have to find places to put this in federal, provincial legislation that create the obligation on the part of one or more agency to -- or one more government to commit resources. And I don't know how that would -- I don't know what that would like, you know, in a way that didn't become some version of what I'm proposing. In other words, in order for that to happen you'd have to have some sort of definition of the kinds of events that trigger these obligations and what the money should be used for if that makes sense. So -- or at least, you know, those questions would be in the picture. And so I'll leave it at that. Thanks.
-
Robert Diab, Prof. (Law – Thompson Rivers University)
You know, I don't know the answer to that question. Again, if we, in the absence of something like an approach from the ground up, or for, you know, to go back to square one and say to create -- to treat public order policing as a special thing that requires, you know, its own law and so on, in the absence of that I don't know the answer. I'm simply pointing to the fact that policing straddles both heads of government or both powers. And so you're -- we're getting into an area where both governments may be in a disagreement about who should pay, and really this is question about money. I mean, it's been couched of a question of, you know, who is going to commit so many officers to this protest and so on, but really it's about money, I think, but it also, as you suggest, involves decisions about what's appropriate. "Do you really need 200 more officers?" "I don't think so." And who makes that decision, and so on. It's thorny, and I don't know the answer, but the tentative one I proposed was that maybe acts -- events of a national scope, a national nature, like the Olympics, the World Cup, national protests, maybe they belong in -- you know, maybe the Federal Government should take -- should assume authority over them, and conversely, you know, events of a provincial nature should be something that the provincial governments assume authority for. So -- but nevertheless, I just think you can't divorce these two questions. You know, you can't -- if you reject the approach I'm contemplating, you're really dealing with the same problem. Thank you.