The police will not just be skating on thin legal ice when they shut down streets, cordon off public spaces, set up checkpoints, and search people without cause during the 2010 Winter Games.
In the absence of legislation granting them the power to implement these measures, they’ll be “acting beyond the law”, contends a paper written by lawyer Robert Diab and Wesley Pue, a UBC law professor.
“If we see those sorts of tactics, there will be a question about whether they’re legal,” Diab told the Georgia Straight by phone. “And we’ve looked, and we haven’t found any authority for it.”
Diab teaches legal studies at Capilano University. The North Shore–based lawyer wrote the 2008 book Guantanamo North: Terrorism and the Administration of Justice in Canada, which examined the government’s security policies after 9/11. Pue edited Pepper in Our Eyes: The APEC Affair, a 2000 book focusing on the violent RCMP dispersal of students protesting at the UBC campus during Asia-Pacific Economic Cooperation meetings in 1997.
“Canadian police lack specific statutory authorization to take measures commonly thought essential to good public order policing,” the authors argue. “The erection of security fences, creation of designated ”˜protest areas’, restriction of access to public space, surveillance, and search without cause intrude massively on ordinary freedoms of law-abiding subjects. Such measures may be helpful, perhaps necessary. But no Canadian legislature has ever expressly conferred such powers. They do not reside in the domain of the common law.”
They also suggest that the province should consider as a template the APEC Meeting (Police Powers) Act 2007, a law adopted by New South Wales in Australia when it hosted the world leaders’ forum that year. The legislation not only defined an “APEC period” but, more importantly, it explicitly granted police special powers.
“British Columbia urgently needs a provincial ”˜Public Order Policing Act’ authorizing the creation of police exclusion zones, providing principled and explicit guidance to their proper extent and duration, establishing criteria about who would be allowed admission to ”˜secure’ areas (workers, business owners, homeowners, emergency medical personnel, security officials, journalists, and others?), specify decision-making processes, establish principles of compensation, set out ”˜notice’ requirements, and so on,” the authors recommend.
The paper notes that without specific legislation, “police officials are forced to make up operational principles as they go, developed in secret, without public scrutiny, and lacking the quality of law.”
Citizens, for their part, are left “in a legal limbo, our rights affected by police actions that cannot be measured against any publicly disclosed standards. Constitutionally guaranteed freedoms of assembly and expression are compromised.
“For such infringements to be constitutionally justifiable, they need, first, to be authorized by law,” stresses the paper, which is set for publication in the Vancouver Bar Association’s journal, The Advocate. The article—"Security for the Olympics: British Columbia Needs a ”˜Public Order Policing Act’"—was made available on-line last spring through the Social Science Research Network, a site that disseminates academic articles.
But having such an Olympics-specific law is the least of the concerns of the Vancouver 2010 Integrated Security Unit. Addressing Vancouver city council on July 7, assistant RCMP commissioner and VISU head Bud Mercer said that his force neither wants nor needs any special laws.
The City of Vancouver itself may do what Diab and Pue are warning against. On January 22, council voted to ask the province to amend the Vancouver Charter to give the city enhanced powers to close down streets and regulate signage and advertising material on vehicles and streets (such as banners, leaflets, placards, and stickers).
The amendments would also empower the city to remove “graffiti” and “illegal signs” from private property without notice. The city could likewise impose fines of $10,000 per day for violations of signage bylaws. These changes need the approval of the B.C. legislative assembly.
The city’s move to seek greater powers is one of the reasons Olympic Resistance Network member Alissa Westergard-Thorpe doesn’t find much comfort in Mercer’s pledge to council that protests will be allowed even outside designated “free speech” zones.
“He [Mercer] has to say things like, ”˜Oh, we support the [Canadian] Charter [of Rights and Freedoms], just like city hall has to say, ”˜Of course we support the charter,’ ” Westergard-Thorpe told the Straight. “But they’re crafting bylaws and policing policies that, in effect, will contradict the charter.”