-- Download As can be “justified” in a “free” and “democratic” society? as PDF --

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)

The Oakes test is generally stated as follows: any restrictions to Charter Rights must be prescribed in law in order to realize a “pressing and substantial objective,” the restriction must have a “rational connection” to that objective, there must be a “minimal impairment” of rights in order to accomplish the objective, and there must be “proportionality” between the effects of the restriction and the objective that the restriction is intending to achieve.

Working through this not in a straight line, it is obvious that Alex’s (and others) rights are being infringed.  He’s not allowed to attend public meetings or express views on political issues.  There’s the infringement right there, plain as day.

The infringement is indeed prescribed in law – the Criminal Code of Canada allows for “interim release” before trial (bail) to be granted, with effectively any restrictions imposed by a justice on the recommendation of a Crown prosecutor, provided that they are ‘reasonable.’

However, in order to think about whether or not the restrictions in Alex’s case have a rational connection to an objective, a minimal impairment of rights, and whether or not there is any proportionality, we need to first tease out the objective.  What is it that the Crown and government are trying to do, in order to impose these restrictions?

The answer is effectively provided by the law – bail restrictions and conditions can be imposed in order to maintain public order and prevent crimes from being committed.  Seems simple.  But it’s not.

How is Alex speaking or expressing political views committing a crime? This isn’t a crime.  In fact, it’s a protected activity under the Charter.  So it’s an infringement.  And it’s not a pressing or substantial objective, unless Alex was inciting violence with his public opinions, which he wasn’t (and he’d be charged with something other than conspiracy if he was).  And since there isn’t really a pressing or substantial objective to be achieved, invoking this part of the legislation to restrict Alex’s freedoms through bail would fail the Oakes test.  No need to think about proportionality or the other bits.

However, the Crown could argue that ‘public order’ was threatened, and the Criminal Code allows the justice impose conditions if s/he finds them “desirable” in this case.  So let’s walk through the test again: is the infringement prescribed by law? Yes, the Criminal Code.  Is there an objective? Yes: protect ‘public order’ by preventing Alex from expressing opinions or attending public meetings.  Rational connection to the objective? If the objective is to maintain public order by preventing Alex from speaking, yes, this is a rational connection.  Minimal impairment of rights and proportionality? These are connected to the objective: if Alex’s opinions threaten public order, then his expressing those opinions must be prevented, and arguably, this is as minimal an impairment as one can get.  Proportionality? Arguable.  But it seems to have been argued and accepted.

What’s really terrifying here is the concept that the Crown could – and seems to have – argue that allowing Alex Hundert to express his political opinion threatens the public order or safety.

When opinions are so dangerous they threaten public order [read: ‘hegemony’]

Now, I come to this conclusion through some entirely untrained legal analysis.  Any second-year law student might be able to poke holes in my analysis above.

But here’s the deal: there is really only one way – with two sides – that the restrictions being imposed on Alex and others can be justified under the Canadian constitution and legal framework.  And it’s this: Alex Hundert, and his opinions and actions, threaten the “public order.”  The two sides are at odds: either this threat exists because Alex is out inciting violence daily and would do so again if released, or that Alex’s opinions, which are shared by so many, are so dangerous to “public order” that they can’t be shared.

The Crown prosecutors have argued the first side, that Alex and other activists are thugs that are just out for ‘smashy smashy’ and destroying everything in sight.  But that’s not the case – and the prosecutors know it.  What’s more dangerous to the public order – and by this I mean capitalism, neoliberalism, colonialism, and so forth – is the opinions and views that Alex and so many others hold.

These opinions and views are dangerous to the hegemony in which we find ourselves.  These opinions and views threaten the happy complacency of capitalism.  This is why Alex isn’t allowed to publicly, or even loudly, have political views.

The danger, of course, is that if they were widely spread, that if people heard what we – Alex and so many others – know and feel and see every day, then maybe we’d change something.

And that’s a threat to public order.

And that’s why Alex was pre-emptively arrested in a pre-dawn raid before the protests happened.  Before any streets were closed.  Before any windows were broken.

And that’s why the government wants to silence him.

And so many others.

And you.

Rights aren’t things ‘granted’ by ‘governments’

An important thing to remember here is that rights aren’t things that government deign to grant to us.  The rights that are enumerated in the Charter of Rights and Freedoms aren’t things that Trudeau and Levesque and other politicians thought up and put on paper and had ol’ Liz II sign off on in Ottawa on Parliament Hill.

Our ‘right’ to have an opinion, to associate with the people we choose and love, is a condition, a facet, of our humanity.  Deny our ability to think, and you deny our humanity.  Deny our ability to dream of a better world, and you deny our ability to dream.

Rights aren’t things handed down from our political masters on high.  They’re truths and realities that we have to fight for.  They’re truths and realities that Alex fought for, and dared to share – and now he’s not allowed to share these views. These opinions.

These truths and realities.

It’s not any actions that Alex and others could take that threaten the “public order.”

It’s our thoughts.  And our views.  And our opinions.

A better world is needed.  We need to dream of it, we need to build it, we need to work for it.

And we can’t let them silence us.

Support the G20 arrestees, support freedom, support each other

By now, many of the readers of this website will have read about the ongoing legal battles faced by any number of activists involved in the G20 protests in Toronto.  Community organizers who had planned marches and protests in Toronto to resist the ongoing neoliberal agenda pushed by the G20, along with the governmental calls for ‘austerity’ measures, were preemptively arrested and charged with conspiracy charges.  Arrests, which often involve plainclothes Toronto Police Service officers grabbing people off of the streets and throwing them into unmarked vans, reminiscent of the ‘disappearances’ in military dictatorship era Argentina and Chile, are ongoing.

Legal restrictions on organising or even communicating are one facet of a broader campaign to quell dissent, chill organising, and silence people who think outside of the bounds proscribed for them by capitalism, neoliberalism, and the dominant order.

If you’re concerned about this, like I am, I encourage you to support the G20 arrestees  – financially, if you can, because defending against ridiculous and eventually-to-be-proven-as-illegal charges is incredibly expensive – or in person. On the street. However you can.

Visit the Community Solidarity Network’s website to learn how to donate online. And speak up.

The following two tabs change content below.

• Bio
• Latest Posts

kevin harding

Kevin is a cooperator, an always-student, and passionate about the arts. As a principal of the Incipe Cooperative, Kevin works with colleagues in a workers' co-op offering services for advocacy and nonprofit organizations. He's passionate about education policy, having been through twenty some-odd years of schooling and still thinking it changes the world. He also thinks that art changes the world, and he works with Art for Impact to celebrate art's power for social change. A Vancouver born and raised resident who is exiled from Toronto, he constantly loses umbrellas and probably rants too much.

Latest posts by kevin harding (see all)

• On Ghomeshi - October 29, 2014
• Resistance is Futile: Steveston, Developers, PR flacks, and the Borg - April 7, 2014
• Vancouver’s ‘Progressive’ Council and Housing - December 17, 2013