The G20 protests, bail, and rights restrictions: a ‘free’ and ‘democratic’ society?
According to internet reports, after having been threatened with solitary confinement in the Toronto East Detention Centre’s “hole” (likely not a euphemism) without being permitted any communication and after having been refused contact with legal counsel, G20 arrestee Alex Hundert has been ‘released’ on bail. Alex’s bail restrictions are nothing short of incredibly restrictive: amongst other conditions, he is not to directly or indirectly post anything on the internet, he is not to associate or communicate with any number of fellow community organizers and activists, he is not to attend or plan any public meeting or demonstration, and perhaps most tellingly, he is not to express views on political issues.
Bail conditions and restrictions are supposed to be a way for someone charged with an offence to be released with a restrictions to prevent further alleged crimes from being committed. The restrictions in Alex’s case beg the question: what are the Crown prosecutors and courts concerned about?
Restricting Alex’s freedom of expression – taking away his human freedom, his human right, to have an opinion and share it – shows that the threat that he poses to the Canadian “public order” is not any action that Alex could take, out on the street with a sign, but his very thoughts and opinions.
Here’s what happens in an allegedly “free” and “democratic” society when your opinions and your thoughts and your political stances threaten the dominant order. You get your rights restricted. Speak truth about power? Now you’re not allowed to speak.
‘Constitutionally’ guaranteed rights?
Alex is not the only activist facing charges or restrictions of their civil liberties, but his bail conditions seem to be the most restrictive. Importantly, his bail conditions significantly infringe on his theoretically guaranteed rights under the Canadian Charter of Rights and Freedoms – part of Canada’s constitutional law – notably those found under section 2, labelled as our “fundamental freedoms.” Alex’s bail conditions expressly and clearly violate his freedoms of opinion, expression, and assembly.
At first blush, readers would be forgiven for wondering just how the courts could impose such restrictive conditions, especially restrictions that so clearly and flagrantly violate fundamental freedoms. Especially those that are supposedly guaranteed under the constitution of our country, which takes great pride in publicly trumpeting its fairness and its democracy to the rest of the world.
Well, the Charter of Rights and Freedoms opens with an important clause: all of the rights contained within are subject to “such reasonable limits, prescribed by law, as can be demonstrably justified in a free and democratic society.” So, folks, your rights contain a very important expiry clause in the fine print.
According to the Toronto Star, York University Osgoode Hall Law School professor Alan Young says
[T]he court has gone too far.
“It’s basically putting a gag order on a citizen of Canada, when it’s not clear that the gag order is at all necessary to protect public order,” he said, of Hundert’s restriction from speaking to the media.
“People have to be able to air grievances, and the media is a primary tool in which people can air grievances effectively.”
Young called the strict bail conditions “astonishing” — something unheard of in modern-day Canada.
This means that the government and the courts can – and do, regularly – infringe on your rights. In order to do this, they just have to plan to meet what’s called the “Oakes test,” judicial jargon for an analytical test applied to the situation to see if the restrictions are permitted under the constitution.
(more after the jump) Continue reading As can be “justified” in a “free” and “democratic” society?