Tuesday, May 8, 2001
2000 Citizen Inspectors Mischief Trail Verdict: NOT GUILTY
A "not guilty" verdict was delivered to 14 people arrested at last year's Hamilton War Show protest. In a courtroom crowded with family and supporters, the four day trial concluded as Judge Timothy Culver delivered a "not guilty" verdict, eliciting a hearty round of applause from the 60 people in courtroom 200.
Immediately after the trial outcome, a group of about 40 walked around the corner from the courthouse to the war show offices (92 King Street, Suite 853) to deliver a letter inviting dialogue in efforts to transform the war show from a show celebrating the technology of death, into a true air show that celebrates flight with instructive displays,kites, gliders, civilian aircraft, hot-air balloons, poetry, birds, air-quality initiatives and other life-affirming events.
In 1999 and 2000, the war show has refused all forms of public dialogue initiated by the Father's Day Coalition for Peace and others, even though they are a publicly subsidized event, with charitable status. War Show executive director Don Genrick was in the office as the group arrived.
Genrick stated that he would take a request for a public meeting to his board of directors.
At one point, 5-year-old Evelyna Kay asked Genrick to cancel the war show event "Kiddie Commando", a simulated war training obstacle course run by soldiers from CFB Borden who shoot water guns at children as young as 2-years of age as they make their way through the course wearing military helmets and camouflage paint.
Genrick's answer was an immediate and direct: "No" they will not cancel Kiddie Commando.
Evelyna waited until she had another opportunity to speak, and then explained the nature of war to Genrick: "War kills children, babies, mothers, fathers, sisters, brothers, uncles and aunts. It kills animals, and people and hurts the environment. You should close the war show."
Her descriptive comments reveal the side of the war show that organizers of the event try and conceal: the planes on display are weapons of mass-destruction, including the most up-to-date killing machines from the Canadian and primarily, the U.S. arsenals. War Show Chairperson Wayne Thompson testified during the trial that the war show had "no interest in showing the ugly face of war," contrary to requirements for charitable status as an "educational" event.
The Father's Day Coalition for Peace is planning a two-day Festival of Life and nonviolent direct action at the 2001 War Show.
The text notes of the summation read on Friday, are pretty much reproduced below. Note that the text of the decisions from which I read are only referenced here; anyone who would like the complete text of those decisions can let me know and I've got photocopies of all of them.
I think as well that some folks wanted the quote with which I began, in reference to the McCarthy-ite questioning of Andrew, so here that one is.
During WWII, resolutions calling for the stripping of citizen rights of "subversives" were passed at the municipal level throughout Ontario. In Hamilton, following the passage of one such resolution, the Mayor went even further, declaring: "I would like to add pacifism, disarmament and brotherly love to the things we are against."
Interestingly enough, the Judge, Timothy Culver, asked whether we knew if there were any demos that occurred during the period 1966-1972 at the war show. One wonders whether our judge, in his younger days, perhaps entertained similar ideas about festivals of life....
Anyway, it's been an intense week, with lots of emotional roller coaster moments, lots of travel back and forth, lots of sweating in the heat and humidity, car/van troubles, missing of family far away, but lots of solidarity and love and support!
PS: Note that we do not have the text of the excellent summation which was also given by Lyn, Brian E., Aaron, Marie, Andy, and Andria. Also, special thanks to Aaron's eagle eyes, who found numerous mistakes in this text the night before it was read.
Matthew Behrens' Summation at the War Show trial, Hamilton ON, Friday May 4, 2001
First off, an apology for reading from text: we try and speak from the heart, but in this manner, we have a judge who I think it is safe to say appreciates certain exact truths and facts and details, as a result, for accuracy's sake, I wish to read from these notes to ensure a smooth and efficient presentation of summation.
Thanks for respecting our choices regarding whether or not to stand. Too often, we see dissenting views are met not with understanding but with criminalization, violence and repression, so I appreciate your willingness to honor our beliefs within a very specific context that forms your day-to day life. I think if more of that kind of respect were exhibited that we would not have celebrations of war-the like of which we have been on trial for protesting. Nor would we be quite as likely to kill one another in world affairs before actually taking the time to listen to and try to understand one another.
I also appreciate your dedication to ensuring from your perspective that our rights have been respected in this process: it may have proven frustrating on our behalf because of the extra time involved in this, but I recognize that satisfying the requirements not just for law but justice requires going the extra mile, and that's something which is unfortunately far too uncommon, not only in the court system but in governments and corporations as well.
Summation will focus on two key areas: the application of a very real and sincere belief in the applicability of international law in a Canadian context, and the concerns regarding the criminalization of nonviolent, peaceful dissent, such dissent which is not only allowed for in this country, but encouraged by case law and the Charter of Rights and Freedoms.
1. Criminalization of Dissent
I should say from the outset that in my summation I am of course arguing for acquittal.
It should become quite clear upon examination of these first five cases that this demonstration at the war show was planned to fall well within the parameters as set out by these decisions.
Before going into the cases, though, I'd like to review a number of facts of this case which lead us to believe that the charge of mischief in this instance is an attempt by the authorities of this community to criminalize and discourage the kind of dissent which has been shown the past two years at an event which can justifiably be described as a sacred cow in Hamilton.
In this case, we have seen or learned of the following: 1. A member of the Hamilton Police Intelligence Division secretly spent
four hours in a field behind the Mennonite church where demonstrators were staying the night before the demonstration, videotaping individuals, without their consent or knowledge, in a manner which suggests a presumption of criminal activity on the part of the demonstrators. It also reeks of an invasion of privacy.
I would submit that this surveillance-again, done surreptitiously and without the consent or knowledge of this group-is tantamount to an illegal wiretap in which there is no court-ordered authority or informing of the subject of the tap, no substantial allegation that the demonstrators were violent or posed a threat to public safety in any way, or were engaged in or planning criminal acts. This covert taping of what was clearly a lawful gathering of individuals to eat dinner and discuss plans for a nonviolent demonstration seems to me to not only speak of police belief that this whole enterprise was criminal, but that the actions of the police themselves in this instance were criminal in and of themselves.
2. We are concerned about an apparent apprehension of bias on the part of the police, whom we have learned through the testimony of Wayne Thompson and Inspector DeMascio, were in the payroll on the day in question of the Hamilton War Show, otherwise known as the Hamilton International Air Show Foundation. I wonder how officers of the law can impartially enforce the law when they are hired by one party in a dispute. This applies not only to the treatment and arrest and criminal charging of demonstrators, but also the refusal of police to entertain the legal concerns raised by the demonstrators with respect to the potential criminality of the planes and crews inside the war show. Procedural fairness, we might note (as noted in the Baker decision, page 18) requires that decisions be made free from a reasonable apprehension of bias by an impartial decisionmaker).--ACTUALLY, READ THE WHOLE THING FROM BAKER, SEC. 45)
3. We are concerned about the attempt to "single out" so-called leaders on the part of the police, specifically either myself (Matthew Behrens), Andrew Loucks, or Brian Burch, but also anyone else who may have been the focus of surveillance before, on, or after that day. We believe it is clear from the video evidence we have seen that the demonstrators acted on individual conscience and with collective responsibility to ensure a safe and peaceful day. Attempting to single out leaders, we feel, seems to imply that again this is a criminal enterprise in which certain individuals are in charge of leading the troops into battle. This was clearly not the case: part of the purpose of nonviolent direct action is to develop our capacity to feel our own sense of power and dignity: to simply assume that these demonstrators are automatons taking orders has a sinister overtone once again-that choices originating from the deepest held moral and political convictions are secondary to strategic orders, such orders being akin, in our view, to violence.
4. We are concerned, as the Agreed Statement of Fact clearly bears out, that Inspector DeMascio identified a few individuals who had a past history with civil disobedience. It is unclear who these individual were, how Mr. DeMascio knew about their history, why this was a matter of concern such that it would be taken note of, and whether since, many of the demonstrators were from out of town, consultation was made either by DeMascio or members of the intelligence division with police figures in home cities, the RCMP or CSIS. Again, it seems to imply an attempt on the part of the demonstrators to undertake planning for and execution of a crime, and that their very presence to oppose the war show constitutes an act worthy of suspicion in a society where we are supposed to be presumed innocent before proven guilty. Just as the colour of one's skin should not make one suspect, as it all too often does, the shade of one's political perspective, association or past should not be cause for such identification, surveillance, or singling out.
5. We have concerns that at the morning briefing with Mr. DeMascio and other officers, the charges of cause disturbance and mischief, both criminal code offences, were discussed as potential charges to lay in the event of a demonstration which police did not see fit to tolerate at that moment in time. To assume from the start that demonstrators will be involved in an activity that involves criminal charges is, again, an assumption of criminality, especially when they do not know the specifics of the potential offence.
This becomes even more a matter of concern when, repeatedly, as we have seen in video testimony, from the testimony of Officer DeMascio, and from the defense, that on perhaps half a dozen occasions, DeMascio informed the Citizen Inspectors that they would be arrested for trespassing. Once DeMascio has seen what he considers an offense and seems, by his insistent
and repeated warnings of a trespass charge, to be convinced that this is the offence which is being committed, and his officers are heard on video informing arrestees they are charged with trespassing, we're struck by two very distinct points: the certainty with which a 23-year veteran police inspector on the ground clearly makes a strong case that the offence at hand is the non-criminal trespass the ease with which the above-stated trespass charge becomes mischief, and the timing of that decision.
6. In terms of the timing of that decision, we are concerned at the laying of mischief charges for the 15 originally charged with trespassing after a second set of demonstrators has been charged with mischief for praying against war in front of the A-10 warplane.
I want you to imagine being a war show representative working with police on that day. You breathe a sigh of relief when you think the whole demonstration is over by noon when everyone goes away and the 15 are arrested for trespassing. Then, once it seems the war show can continue without any alternative viewpoints, that confidence bubble is burst by the appearance of the prayer group, who are immediately charged with mischief, as confirmed by testimony of Officer DeMascio.
Interestingly enough, a group of individuals charged for doing the exact same thing-praying behind the roped off area of the A-10 Warthog-at the 1999 war show were charged with trespassing. So we see from year one to year two an escalation of criminal charges. For 24 years, the war show has been a hallowed, unquestioned community event. In 1999, that changes when local individuals start to question the war show, and five are arrested in a protest of perhaps 10 or a dozen people. In 2000, the number increases ten fold, with over 100 people demonstrating and, as we have seen, 22 arrests and criminal charges.
In examination, Mr. Halcovitch, who decides the more appropriate charge is mischief, says something to the effect that because we were a group, and not a series of individuals, we were given the more severe charge of mischief. There seems no strong legal backing to this rationale.
Is it possible, we have to wonder, given the presumption of criminality already discussed, that there was concern even more demonstrations would take place following the arrests of the prayer group, and that the laying of additional criminal charges was meant to be a deterrent not only to those on the outside still working for peace, but for those on the inside, arrested for working for peace, who may be so dismayed by this charge as not to return the next year? As you yourself have stated, Mr. Culver, when we are discussing criminal charges, we are talking serious business. These are not parking tickets here. While we are not suggesting this chain of events is an established fact, there is considerable room for speculation given the points we have raised and the testimony we have all heard in this court.
7. We continue to see a pattern of criminalization of peaceful dissent based on the testimony of Detective David Halcovitch and peacemaker Christine Forand, noted May 2. Recall that Forand discussed the war show with Halcovitch outside of court on May 1, 2001, during which Forand reported, and Halcovitch confirmed, the following facts: Forand, who had been arrested as part of the prayer group in 2000, but whose charges were dropped, was discussing being back in Hamilton for the
2001 Festival of Life which protests the war show.
Halcovitch offered to Forand the fact that there would be a different procedure for 2001 and that you, meaning the demonstrators, will not be let off. You, the demonstrators, will be arrested and charged with mischief, a serious criminal charge.
Halcovitch also asked that Forand spread the word so that everyone knew that any act out of the ordinary would result in mischief charges, and mischief charges that would stick.
Forand reported in her testimony that this information from Halcovitch felt intimidating, threatening, and spoke to a sense that any activity in which she and other potential anti-war demonstrators took part would face criminalization. I think it's safe to say that such talk, and such actions as I have discussed, are meant exactly to do just that: to intimidate and scare off potential dissenters, and, if possible to silence through the process of criminalization those who engage in various forms of nonviolent action.
In terms of the specific allegation on which the crown seems to rest his case-that traffic was blocked-we need to examine some key events, some key questions, and some key testimony.
ADVANCE NOTICE: Letters in exhibit show the war show and police knew of the demonstration more than two months in advance of the event, and both the police surveillance of our gathering the night before at the Mennonite church and DeMascio's visit to the church indicate police were prepared for this event.
1. First off, it has been established that the TONE OF THE DAY was nonviolent. "Everyone's very open with one another, it's peaceful", DeMascio states. He mentions that the nature of the alleged offence all was civil, and acknowledges that the video in which one of the demonstrators, stated if DiMascio felt threatened, they would sit down.
2. Secondly, there was NO DAMAGE. No allegation has been made about violence to individual human beings or other animals, and in terms of the war show itself, Wayne Thompson clearly states "I can't relate the lose of revenues to any particular thing."
3. Now we turn to the matter of potential inconvenience. Wayne Thompson noted that although there is a general admission gate, there are in fact two entrances, and anyone can enter off Dickenson Road, another entrance, if they so please. This is important because the Crown seems to be basing his case on the theory that there is only one entrance to the war show.
Thompson stated that traffic backups "are a problem that we have wrestled with, and special measures are required to deal with them. Tie-ups are not a problem that started with demonstrations-they preceded them and are a logical result of thousands of cars pouring into two entrances.
So it is clear that it is impossible to distinguish how much of the traffic jam was created by the citizens inspectors and how much of it was merely a normal part of thousands of spectators trying to enter through two entrances. It is clear from DeMascio's testimony as well that indeed there are delays experienced by motorists simply because of volume. "There are always delays," DeMascio says, as he has pulled duty at the war show previously,.
Acknowledging these delays, DeMascio nonetheless admits, and is backed up by the agreed upon statement of fact, that he decides to "shut down traffic for 5 minutes," and the statement of fact admits it may indeed have been longer, some 5-8 minutes. He admits under defence questioning that having the frustration meter go up on the part of waiting motorists is a trade-off for what he considers the right of the demonstrators to express themselves for the die-in. I would submit that this police blockage was no different than the blockage of the road they set up later on when arrests occurred.
WHO IS ALLOWED INTO THE WAR SHOW?
Wayne Thompson stated anyone who is law-abiding and peaceful can come into the war show. At the time of our attempting to enter the war show, the police immediately formed a line to keep us out. No offence had occurred, no offence seemed likely to occur, and police failed to ask whether any of the inspectors intended to pay admission to the grounds. Indeed, Andrew Loucks is clearly heard on the defense video stating that he intends to pay admission, but is still stopped by the officers. Yet there are other spectators entering at the time, one with a baby stroller that Loucks notes.
WERE WE BLOCKING TRAFFIC?
The answer would be no. The Key question is who was doing the blocking. I would submit that as with the die-in, police took the initiative to stop the flow of traffic. No traffic was going up the road as the inspectors walked on to it. It is obvious from close police surveillance of the group that they knew before we even entered the road what our intentions were; hence, the line of police blocking the road, and the placement of a police wagon in the middle of the road, straddling the middle yellow line. Two defence exhibits clearly bear out this police set-up. Police intentions were clear: prevent entry to the war show of the citizens inspectors, even if that means closing off traffic, as was done with the die-in. The stopping of traffic was purely incidental to the goals of the inspectors. Our intention was to enter the war show.
DeMascio admitted under questioning from Andrew Loucks that even if the inspectors had walked up the gravel part of the road, off the asphalt, that he would still stop them and question them. So the issue here is not the nature of how or where we were entering the area, the question was who we were and why we were entering, a subject of far more intense scrutiny than that subjected to any other entrant to the war show.
Hence, the real issue here is not whether we sat in the road and interfered with property, the issue is what we were doing and who we were, and the fact that police saw our activity as criminal at most and likely to lead to some form of provincial offence charge at least speaks to the whole crux of this line of argument: that ongoing efforts are underway here to criminalize nonviolent peaceful dissent.
CASE LAW DEVELOPMENT
At this point, I'd like to refer you to the four Ontario Court cases which we've provided for you.
This demonstration of June 17, as you will see, is set clearly within the framework of four cases which have been heard and which have produced acquittals in criminal matters. The cases are the work of four separate Ontario Court judges which have been heard in three jurisdictions: Toronto, Ottawa, and Guelph. I trust that your name will be added to the list of those who respect the right and necessity of protest against social injustice.
The fact that you might recognize in these cases some names of those who are on trial here does not in the least speak to criminality; rather, it speaks to a respect and willingness on the part of the demonstrators to express themselves in a manner which is not only tolerated within the framework of civil and political rights guarantees in the Charter, but, as you will see in our first case, encouraged.
Throughout these cases are some common themes: nonviolence, generous advance notice of the demonstrators' intentions, no damage, colourful forms of dissenting expression, a refusal to demonize police and others with whom we disagree, and rather an approach which treats them as sometime opponents whose humanity is respected, and the need to allow for certain types of disruptions to business as usual in the interests of broadening our sense of tolerance for differing opinions which are expressed in such a manner as not to hurt anyone.
They were political cases designed to draw attention to a specific social issue: poverty and social welfare, war and the victims of war, including those who suffer from homelessness while war is heavily funded. The Crown takes the narrower view that this is a simple case of a criminal code offence and should be removed from its political context. We see that here
Minimal or no damage: no allegation of damage has been made here, and even Wayne Thompson has not been able to pin the loss of any potential revenues on a particular factor. No one was hurt, and air show spectators were treated not to rocks and verbal abuse but peace cranes and flyers and offers of dialogue as they waited in the inevitable traffic jams that form
MAY DAY ON BAY
Political case, in this case poverty and corporate greed It was polite and peaceful. Advance notice was given of the attempt to occupy the busy intersection of King and Bay in downtown Toronto during morning rush hour. In fact, Burch walked instead if being dragged. The Crux of both cases is a concern about the obstruction of traffic I say this because an allegation has been made that the demonstrators blocked traffic. Again, it cannot be repeated enough, Police formed a line to block the entrance, as statement of fact shows.
While we feel it is clear that the blocking of traffic was purely incidental to the goals and intentions of the demonstrators, even if we were to look at the possibility that as a consequence of police actions combined with our sitting down that traffic was delayed for a short period, let us break down that time period of 10-15 minutes before the road is again opened to incoming traffic. The amount of time spent on the roadway until that first arrest by the inspectors was just over 5 minutes, as will be borne out in police and defence video. Slightly less time than the 5-8 minutes that was spent by police blocking not east Cargo Road, but the main artery in the area, Airport Road, for the die-in approximately one hour earlier. The amount of time between the first request to disperse-what we may to use a crass military term--would be DeMascio's line in the sand--and the first arrest is perhaps one to two minutes. If there are real concerns about opening up the road to traffic, it is not apparent from police actions. In addition to maintaining a line of police up to the first arrest, Police chose to take demonstrators to a wagon not off to the side of the road, but in the middle of the road: any subsequent delay is, again, a result of police decisions to use the roadway as a staging area for preliminary post arrest niceties of searching and padding down. Nevertheless, the 10-15 minute time period is relatively short, the interference minimal at worst, as with May Day decision.
Now let us assume for a moment, though we will not concede this, the Crown's position that this alleged blocking of traffic on East Cargo Rd, which he continues to attribute not to the police but to the demonstrators, was a willful act, a conscious blocking of the traffic to make our message known. In this instance, we look at the line in the sand argument. Inspector Deeves in the Guelph case was in a position similar to what Mr. DeMascio alleges was his own position: a group of demonstrators about to engage in an activity which he found would be contrary to some criminal code office or provincial offence. Now, although there was no conscious intention of blocking a vehicle in this instance, let us explore how Justice Frazer dealt with an incident in which a minimal disruption of five to ten minutes is caused by a willful act. Within this context, he asks whether, even if the facts of the case appear to bear out a mischief charge, that given the context of the case at hand, such alleged criminal misconduct is excused by virtue of section 2 of the Charter.
Police again played the role of blocking traffic as demonstrators set up their protest(s) Generous advance warning of nonviolent protests: in this case at hand, April 20 was when Wayne CC-ed a letter to Andrew Loucks of the coalition to Jim Cairns of Hamilton police 'DeMascio confirmed that police knew of this event a good two months in advance Police were able to figure out on their own steam, obviously, where to find the demonstrators at the Mennonite church, and DeMascio had a complement of officers on hand in anticipation of the event. Colourful, peaceful, nonviolent it was a festival, police were able to maintain a line of communication in both instances Well-organized: people were able to stage a festival from 8:30 in the
morning until just past 12 noon with no damage, no violence, no injury. THE MOOD OF THE DEMO, taken from the statement of fact There was a question of concern re international law, citizens inspectors seeking entry warning was
given to those on the bridge, so the demonstrators are on the bridge for a full hour, with police redirecting traffic at each end.
(first warning to remove themselves-what could be called a line in the sand-was at 8:30 in the am, first arrests began to occur some 40 minutes later, a far sight longer time than that seen here in Hamilton.)
In both cases, the gravamen of the offence is the alleged blocking of traffic after the disperse order is given. Frustration meters.
Now, the irony in all this is that as a group, it think it is safe to say that we went to the war show not to break any laws, but to uphold them, not to engage in criminal activity, but to prevent criminal activity, and to uphold those international covenants and obligations to which Canada is a signatory, and which, as we have seen in numerous Supreme Court decisions, should inform our interpretation of domestic statute and administration of justice.
Regardless of whether you feel this is a case in which international law can be applied, I think we can agree with a reasonable degree of certainty that international law forms a solid backbone to not only the case of the defendants but of the agreed upon statement of fact, wherein we see numerous references to concerns about potential violations as well as the Citizens Inspection certificate, a copy of which is a court exhibit.
It is my hope that, regardless of what you would deem its relevance, you would appreciate the deep-seated , sincere , powerful belief in international law which informs our intentions and goals on June 17 and in this case. Not only that, but that in determining the legality of what it is we have done-or the need to recognize that it is well within the aforementioned limits of tolerance in a democratic society-that you recognize we have attempted to act in concert with these international and domestic obligations, and that their substance should inform any decision you make, much as they have done so in a growing body of Supreme Court case law, some of which I would like to quote from here briefly.
1. VIENNA CONVENTION ON THE LAW OF TREATIES
The using of domestic law to say we are not part of following international law.
ON INT LAW
not in incorporated, but does inform.
PUBLIC SERVICE EMPLOYEES RELATIONS AB INFORMS CHARTER INTERPRETATION (ESP. FRAZER)
ignorance of the law no excuse for not following it. DeMascio did not follow-up on our request to investigate the potential obligations, We asked police to read the certificates, they refused.
lookout lookout, from your school room windows
lookup young children, from your play;
your bright young eyes, will turn to ashes
in the blinding light, of Enola Gay
"Enola Gay" Utah Philips
Contact the Fathers Day Coalition for Peace
c/o Hamilton Action for Social Change
firstname.lastname@example.org (905) 627-2696 or (905) 528-5925
1280 Main Street West, Box 19
Hamilton ON L8S 1C0