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Ombudsman finds G20 regulation of “dubious legality”; Citizens unfairly trapped by secret expansion

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Ombudsman finds G20 regulation of “dubious legality”; Citizens unfairly trapped by secret expansion of police powers

Date: 2010-12-07

TORONTO (December 7, 2010) – The Ministry of Community Safety and Correctional Services quietly promoted the use of a likely illegal regulation to grant police “extravagant” powers on the eve of the G20 summit, Ontario Ombudsman André Marin says in his latest report, released today.

The controversial measure – Regulation 233/10 under the 71-year-old Public Works Protection Act (PWPA) – “was of dubious legality and no utility” and resulted in a mass violation of civil rights, Mr. Marin says in Caught in the Act.  The Toronto Police Service, which had requested the regulation because it was responsible for policing the areas around the security fence in downtown Toronto, compounded matters through its miscommunication about the reach of the regulation’s extraordinary powers, he said.  

The Ombudsman found the Ministry, which had decided not to publicize the new legal measure, was “caught short” when Toronto Police misapprehended the regulation’s reach and used the authority of the PWPA to arrest or detain people who were simply in the vicinity of the security fence.  Throughout the weekend of the G20 summit, police exercised their powers under the Act well beyond the limits of the security perimeter, even after the misinterpretation had been corrected.

It was “opportunistic and inappropriate” to use the PWPA – a “war measure” that allows “extravagant police authority” to arrest and search people in the name of protecting public works – for this purpose, Mr. Marin said.  “Here in 2010 is the province of Ontario conferring wartime powers on police officers in peacetime.  That is a decision that should not have been taken lightly or kept shrouded in secrecy, particularly not in the era of the Canadian Charter of Rights and Freedoms.”

Going into the weekend of the G20 summit, no one knew about the regulation – not the public, not the press, city administrators or even key members of the Integrated Security Unit (ISU) in charge of management and co-ordination of summit security, the Ombudsman’s investigation found.

Worse, the Ministry’s decision not to publicize the regulation entrapped citizens who took the trouble to inform themselves of their rights and wound up “caught in the Act’s all but invisible web,” Mr. Marin said.  “By changing the legal landscape without warning, regulation 233/10 operated as a trap for those who relied on their ordinary legal rights.”

The Ministry also failed to ensure that police were adequately trained on the regulation, which contributed in part to the “chaos and confusion” on city streets during the summit, he said. “The Ministry simply handed over to the Toronto Police inordinate powers, without any efforts made to ensure those powers would not be misunderstood.”

Ordinary citizens were shocked to discover that police had the power to detain and search even people who did not try to breach the fence or who declined to produce ID and tried to walk away, he noted.  “Apart from insiders in the government of Ontario, only members of the Toronto Police Service knew that the rules of the game had changed, and they were the ones holding the ‘go directly to jail’ cards.”

The Ombudsman’s investigation was conducted by the Special Ombudsman Response Team (SORT) and involved 49 interviews with senior government officials and numerous stakeholders, including several of the 167 complainants who came forward.  The team also reviewed hundreds of pages of internal government documents and emails and, for the first time, a wealth of evidence obtained via social media such as YouTube, Twitter and Facebook.

Mr. Marin recommended the Public Works Protection Act be revised or replaced, and that the Ministry examine whether any of the sweeping police powers it confers should be included in any new version, particularly whether it is appropriate to give police the authority to arrest those who have already been excluded entry to secured areas.  He also said the Ministry should develop a protocol calling for public information campaigns whenever police powers are modified by subordinate legislation.

The Ministry has accepted all the recommendations and agreed to report back to the Ombudsman on its progress in implementing them.  The Minister’s response, included in the report, notes that the enactment of the regulation could have been better handled and that in future it will take greater care to ensure the public is informed.

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Note: The Ombudsman’s news conference will be webcast live at 1 p.m. and archived at www.ombudsman.on.ca . It will be posted later at www.YouTube.com/OntarioOmbudsman.

For more information, please contact:

Linda Williamson
Director of Communications
Tel: 416-586-3426
lwilliamson@ombudsman.on.ca

Elena Yunusov
Communications Officer
Tel: 416-586-3521
eyunusov@ombudsman.on.ca

Patricia Tomasi
Communications Officer
Tel: 416-586-3402
ptomasi@ombudsman.on.ca