RCMP Act - Part VII Subsection 45.45(14)
COMMISSION INTERIM REPORT
20. COMPLAINT CATEGORY 8: REMOVAL OF TIBETAN FLAG
20. COMPLAINT CATEGORY 8: REMOVAL OF TIBETAN FLAG
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The complaint is that RCMP members wrongly removed the Tibetan flag from the Graduate Student Society building, wrongly removed Kevin Dwyer' s security accreditation, and inadequately investigated complaints of criminal acts by students of Chinese heritage. |
20.1. Complaints Not Pursued
I do not propose to consider the alleged wrongful removal on November 25 of the security accreditation of Kevin Dwyer, the President of the Graduate Student Society, as Mr. Dwyer made no complaint about the incident. Commission Counsel suggested that the complaint filed by Dr. Piper of UBC "may be broad enough to encompass the conduct that led to the removal of [Mr. Dwyer' s] security accreditation." I believe that to be questionable and, furthermore, counsel for UBC made no representations on that issue in his closing statement. It will not be pursued further.
With respect to the complaint involving the alleged inadequacy of the investigation of complaints of criminal acts by Chinese students, Commission Counsel said this complaint had been largely retracted by the complainant, Deke Samchok. Upon reviewing Ms. Samchok' s evidence, I have concluded that that is so and, therefore, her complaint on this issue will not be pursued further.
20.2. Removal of Tibetan Flag: Background
The only remaining aspect of this complaint is the alleged wrongful removal of the Tibetan flag from the top of the Graduate Student Society building, inside the secure zone across Northwest Marine Drive from the museum.
20.2.1. The Canada Tibet Committee
Ms. Samchok, who was not a UBC student in 1997, was a member of the Canada Tibet Committee. The committee was formed in Montreal in 1987 in response to what she
described as "an uprising in Tibet, which was violently cracked down on" and during which "thousands of people were killed or arrested." The Vancouver branch was formed in 1988 and Ms. Samchok has been a member since then. She was born in India to Tibetan parents who she said fled Tibet in 1959 along with several hundred thousand others following the Chinese invasion and occupation of Tibet.
Ms. Samchok says the committee tries to raise awareness about Chinese abuses in Tibet through the organization of public events, lectures and films. Peaceful protests when Chinese leaders visit Canada is also part of the committee' s agenda. The Vancouver branch of the committee took part in a human rights forum in the city during APEC week, focusing protests against the visit of Chinese President Jiang Zemin so as to bring attention to China' s existing policy on Tibet. The group did not make any statement on APEC itself.
20.2.2. The Tibetan flag
Speaking of the Tibetan flag, Ms. Samchok said:
A: . . . . It' s banned in Tibet, people have been shot, you know, on sight for displaying the flag. It' s-if I were to display the flag in Tibet, or even if I' m caught in the possession of a flag, I would certainly be arrested, maybe tortured, and possibly, you know, killed. So it' s an extremely sensitive symbol to the Chinese, because of its--because it' s a symbol of Tibet' s history--of historical independence. . . . One of the worst, you know, crimes in Tibet is to display that flag, which is exactly why we felt it' s important to be able to display it here in Canada.
Q: Okay, Can you explain that? Why was it important to you that the flag--the flag of Tibet be flown over the Graduate Student Society during the APEC conference?
A: Well, I thought that because of the fact that it' s banned inside Tibet and people are routinely, you know, arrested and tortured because of the flag, I felt that as people--or as citizens of a free country here, it' s--it behooves us to exercise our freedoms, living in one of the freest countries in the world to show this flag, especially when the Chinese leader is in town; to show them that we' re opposed -- that people here are opposed to their policies in Tibet, so, that' s the significance of it. And the other point being that it' s--it was simply a flag. There was no bodies attached to it, so it' s strictly a symbolic act. There was no security issue relating to it, and it' s about a benign an act of protest as possible, so I couldn' t see any justification for removing it.
20.2.3. The Graduate Student Society
The Graduate Student Society has a membership of approximately 6,400 graduate students. In 1997, Mr. Dwyer was working on a Masters degree in Political Studies. In May of that year, the society established a position in opposition to the APEC leaders' meeting planned for campus. Mr. Dwyer said that was done, firstly, because of what the society saw as a unilateral decision by UBC to hold the leaders' meeting on campus and, secondly, the absence of human rights issues from the agenda. In October 1997, the society decided that it would show its opposition by raising the Tibetan flag on the rooftop of its building during the APEC conference. When asked why the Tibetan flag was chosen, Mr. Dwyer said:
And specifically the Tibetan flag has traditionally been an item where individuals act peacefully around. Protests are all peacefully designed and these are symbolic protests, and so it fit into the scheme of what the GSS wanted to do in regard to the general emotion, which was to oppose publicly, the APEC event.
Mr. Dwyer said the Tibetan flag would draw attention to human rights violations. He believed that it would be visible to the motorcades approaching the museum and he hoped that it would be seen by the leaders as they passed by.
20.2.4. APEC plans for the Graduate Student Society building
Aware of the RCMP' s interest in the Graduate Student Society building to house support services at the time of APEC on campus, the society sent a letter dated October 29, 1997 to the RCMP Detachment at UBC advising of its opposition to any use of its building for APEC-related purposes. The letter invited a written explanation of any legal basis the RCMP believed it had to occupy the building if indeed that was its goal.
After he received the letter, Supt. Thompsett spoke with Mr. Dwyer by telephone. Then he wrote to him on November 14. Besides setting out the legal basis as requested, Supt. Thompsett asked for the society' s cooperation in closing the building from 5:00 p.m. on November 24 to 6:00 p.m. on November 25, with accreditation privileges to be given to society staff and to five of its members. Mr. Dwyer was one of them. It was made clear that the building would not be used to facilitate any RCMP operations. The RCMP agreed to pay a stipulated sum to the society to compensate it for the anticipated loss of revenue during the closure.
On the same day that Supt. Thompsett sent his letter of reply, he and Mr. Dwyer had a further telephone conversation. As before, Mr. Dwyer made it quite clear that the Graduate Student Society planned to hang banners on its building, expressing opposition to APEC. The society had made it known that the Tibetan flag would be raised on the flagpole atop its building at 11:00 a.m. on November 21. It specifically invited Ms. Samchok to attend and she did so.
During the afternoon of November 24, Supt. Thompsett came to the building and had a chat with Mr. Dwyer. Supt. Thompsett explained what occurred:
And I had not heard back from Mr. Dwyer from my letter, so on November 24th, I thought it was around noon time, or it could be shortly after noon, I went to his office and he was there with a--some of his staff, or people who I believed to be his staff. I asked him if we had a deal? He said we may have a deal. He said we' ve got some banners on the building, and when I walked in the building I recalled seeing a banner, at least one or two banners. And he said we have a flag on the roof, and he said we want those to stay up. I said, Mr. Dwyer, I have--I' m not concerned with your banners or flag. They can stay up as far as I' m concerned, so have we got a deal? He said, we' ve got a deal.
Having received Supt. Thompsett' s assurance about the banners and flag, Mr. Dwyer acknowledged that they did indeed have a deal.
20.2.5. The Flag Controversy
Within an hour of Supt. Thompsett' s departure, Mr. Dwyer received a telephone call from a Mr. Cong Jin Lu who he described as the President of the Chinese Students and Scholars Association. The two had previously met. Mr. Dwyer said that Mr. Lu was extremely agitated and upset that the Tibetan flag had been raised. Mr. Dwyer said that Mr. Lu demanded its removal. Mr. Dwyer was quick to advise that the Tibetan flag would not be removed. He said that Mr. Lu talked of possible retaliation in mainland China against relatives of Chinese nationals studying at UBC, and who were members of the Graduate Student Society, as such students would be viewed as having approved the flying of the flag. Despite this "emotional blackmail", as Mr. Dwyer described it, he held his ground and advised that the Tibetan flag would remain atop the building. According to Mr. Dwyer, Mr. Lu said that, in light of Mr. Dwyer' s refusal to remove the flag, he would use whatever means were available to him to have the flag removed, including going over and ripping the flag down and going through anything that obstructed him on his way.
At about 11:00 p.m. on November 24, S/Sgt. Plante, who was still at work in the UBC Detachment office, received a telephone call from APEC Command Centre telling him that there was a person outside the detachment office who wanted to communicate information about an incident or protest planned for the next day in respect of the flying of the Tibetan flag atop the Graduate Student Society building. At this point, the detachment office was closed for the day. S/Sgt. Plante contacted Cst. Steven James of the detachment police staff and told him to attend to the person standing outside. S/Sgt. Plante never saw the person, nor does he know the person' s name, although he was aware that it was someone with what he described as a "Chinese name."
After talking to the individual, Cst. James, who was not a witness at the hearing, told S/Sgt. Plante that the protest might involve 500 people intent on entering the secure zone and removing the Tibetan flag from the building. The informant had indicated that the likelihood of violence was very strong. At the hearing, S/Sgt. Plante described his response to Cst. James' oral report and the action he decided to take to avoid the possibility of violence erupting from an entry into the secure zone:
A: So based on that information and I made a decision, that I felt that to eliminate that possibility, that it would be appropriate to remove the flag from the top of the Graduate Student Society. I then contacted our Site Command, I believe it was Cpl. Rick Anderson, was at the Site Command at that particular location. I advised him of the information that I had received, I also advised him of the decision that I felt would be appropriate in this particular case, i.e. removal of the flag. And I asked that he would ensure that it was removed by 5:00 o' clock of the morning of the 25th.
Q: Okay, now did you have any intelligence on how much danger the persons that didn' t want the flag to be flying, posed?
A: No, I did not. Not any specific information.
At some point after that decision was made, another constable on the UBC Detachment staff, Cst. Ryan Schlecker, told S/Sgt. Plante that he had received the same information that had been communicated to Cst. James. S/Sgt. Plante believed that Cst. Schlecker's informant was a different person than the one who had talked with Cst. James. S/Sgt. Plante contacted Supt. Thompsett's assistant, Cpl. (now Sgt.) Anderson, between 11:00 p.m. and midnight. When he made his call, S/Sgt. Plante was unaware that the flag had been the subject of discussion between Mr. Dwyer and Supt. Thompsett and that they had struck a deal allowing the flag to fly atop the Graduate Student Society building until after the leaders left campus.
Cpl. Anderson said that, in their telephone conversation, S/Sgt. Plante told him that a demonstration could possibly occur the next day involving up to 500 Chinese students protesting the flying of the Tibetan flag. Cpl. Anderson acknowledged that S/Sgt. Plante had expressed a preference for the flag to be down by 5:00 a.m. the following morning. I accept Cpl. Anderson's evidence that he decided, in his own mind, that he would not deal with the situation until the next morning and that, before he did so, he would talk again with S/Sgt. Plante to see if there were any new developments.
S/Sgt. Plante thought he had received a guarantee from Cpl. Anderson that the flag would come down. I believe he was genuine, albeit mistaken, in that belief. S/Sgt. Plante relayed the information to Cst. James and it is S/Sgt. Plante's belief that Cst. James then passed on the information that the flag would be down by 5:00 a.m. the following morning to the initial informant.
S/Sgt. Plante took responsibility for the decision to have the flag removed. The fact was, however, that it was not his decision to make. The flag was flying inside the secure zone and he knew that his jurisdiction as Detachment Commander on November 24-25 did not extend into that zone. In his drive to accomplish what he thought should be done, I believe he overlooked that fact.
20.2.6. The Chinese Consulate
At about 8:15-8:20 a.m. on November 25, S/Sgt. Plante received a telephone call from the Chinese Consulate in Vancouver complaining that the flag was still flying. The caller had understood that the flag was to have been removed by 5:00 a.m. Obviously there had been some direct or indirect communication between the initial informant and the Chinese Consulate about the removal of the flag, and the Chinese government representative decided to complain to the RCMP directly.
I find it alarming that the Chinese Consulate was in contact with the informant and took steps to influence the RCMP to remove the flag. In my view, that intervention raises the possibility that the informant provided his "information" to the RCMP Detachment at the request of the Chinese Consulate. There is, however, no direct evidence on this issue and, as a result, I cannot find as a fact that the Chinese Consulate instigated the informant's actions. However, I do wish to make it very clear that the RCMP must not tolerate interference by foreign diplomats or officials into security matters, particularly where the constitutional rights of Canadian citizens are at stake.
In any event, after receiving the telephone call from the Chinese Consulate, S/Sgt. Plante immediately called the Site Command office and again asked that the flag be removed. He said he was assured that it would be removed. In that call, S/Sgt. Plante did not speak with Cpl. Anderson as he had done the night before. The message was communicated to the dispatch operator. This was an extremely busy time at the Site Command Centre which was situated very close to the museum. Prime Minister Chrétien had arrived by the time S/Sgt. Plante made his call and the arrival of the other motorcades was imminent. S/Sgt. Plante had directed the removal of the flag the night before, and the telephone call from the Chinese Consulate simply served as notice that his direction had not yet been carried out, and prompted him to follow up.
20.2.7. Removal of the Flag
The dispatcher reported S/Sgt. Plante's call to Cpl. Anderson shortly after it was received and Cpl. Anderson soon decided that the flag would come down. With so much happening at that time, he did not consult further with S/Sgt. Plante or with Supt. Thompsett. I accept Cpl. Anderson's evidence that, although he was aware of Supt. Thompsett's discussion with Mr. Dwyer about banners flying on the building, he was unaware that the two had made a deal about the flag.
At about that time, Supt. Thompsett heard some discussion over a radio communication system about the flag and protesters wanting it removed from the building. He did not become involved other than to advise where keys to the building could be obtained. He had confidence in those who were assisting him and he devoted his time to the arrival of the motorcades. At that point, he held responsibility for the safety of the world leaders who were arriving at the museum and I do not fault him for leaving it to others to deal with the flag issue, the particulars of which were not known to him.
On the instructions of Cpl. Anderson, the officers assigned to perimeter security in the vicinity of the Graduate Student Society building did as directed and removed the flag. At 9:22 a.m. it was reported that the flag was gone. No fault or responsibility rests with those involved in the actual removal of the flag. They knew nothing of the background of the matter and were simply following orders from those who had the responsibility to make the decision.
20.2.8. Reasons for the Removal
Cpl. Anderson was asked what problem he was trying to address in ordering the removal of the flag. He said it was to quell the demonstration by the 500 Chinese students and to avoid a clash between them and the 200 or more APEC Alert participants that Cpl. Anderson anticipated would be out demonstrating. Cpl. Anderson said that he was motivated to act because of the confidence he had in S/Sgt. Plante. Specifically, Cpl. Anderson was asked whether he had turned his mind to the possibility that the suggestion that 500 angry Chinese students might mobilize was simply a smoke screen. He said that, had the information come from someone other than S/Sgt. Plante, "alarms would ring." But as S/Sgt. Plante was "the Detachment Commander out there, knowing the situation and being quite concerned about it and valuing his opinion," Cpl. Anderson said he acted on what he saw as being S/Sgt. Plante's recommendation, not his decision.
I believe that S/Sgt. Plante came on very strong with respect to what he wanted to see happen. He incorrectly believed that he had decision-making authority on the issue. He did not consider that he was making a recommendation but rather a decision that he expected to be carried out. I have no doubt that that message, coming from someone considerably superior in rank, played a significant role in Cpl. Anderson's decision to order the removal of the flag.
Cpl. Anderson acknowledged that between 8:15 and 9:30 a.m. he had received no indication that angry Chinese students were actually mobilizing anywhere on the campus to go after the flag. He also acknowledged that all officers providing security services on site had communication devices through which they could have communicated any such development if any sight or sound of it appeared, which it did not. Supt. Thompsett acknowledged that, as Site Commander, he received no information on November 25 that angry Chinese students opposed to the presence of the Tibetan flag were creating any sort of problems for RCMP officers under his command. He would have expected to receive that information if it had been happening.
S/Sgt. Plante was queried extensively about his decision that the flag should be taken down, made immediately after receiving Cst. James' oral report and without any information to back it up. A picture of his motivation emerges from the following extracts from his evidence:
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In response to a question about whether he had made a judgment call to remove the flag to avoid the possibility of other unlawful activities:
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Yes, that's correct . . . I was already aware at that point, that there was likely to be a fairly strong protest in reference to the meeting organized for the 25th at the MOA. I felt that this was sort of a side line issue that could be, perhaps eliminated by a mere removal of the flag for a short period of time. And it was a decision--a judgment call that I made, yes.
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In answer to a question about why he did not recommend that more police officers be placed near the Graduate Student Society building:
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Well my sole purpose was to eliminate or reduce the likelihood of--of confrontation. I felt with the increased presence, from the information I had, that increased presence of police would have just contributed perhaps, to the confrontation.
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In answer to a question about what he considered to be the RCMP's legal authority for removing the flag:
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After acknowledging that he knew that some people view the Chinese occupation of Tibet to be improper or unlawful and that some of them assert it by flying the Tibetan flag, he was asked why he did not turn his mind to those matters on that day or realize that they were of importance:
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Frankly I didn't really include that portion of the side of the story in my decision. Frankly, my decision was predicated entirely on the issue of one issue alone.
Q: Hmm hmm.
A: Is that I wanted to avoid another confrontation. And I felt it was a decision that I, at that point, that I made. And like I say, my whole intent was to avoid confrontation.
Q: All right. I think I understand. So that--that aspect of it, really just completely took precedence for you and other--other concerns just didn't enter into it?
A: That's correct.
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After acknowledging that his concern was the prospect of a number of Chinese students planning to take the flag down, he was asked if he considered the importance of the right to freedom of expression:
A: As I've indicated, I didn't--I didn't consider the other side of that, what you've just stated. My only issue was to attempt to reduce the likelihood of confrontation.
Q: And you accept that the RCMP are subject to the Charter rights, sir?
A: Yes.
Q: And you know that the RCMP can only infringe Charter rights if first of all, there's a law that allows you to do so? Do you know that, sir?
A: A law that allows us to breach the Charter, yes.
Q: Yea. And you also know, sir, that-that--that one shouldn't infringe Charter rights unless it's necessary to do so?
A: Yes.
At about 11:00 a.m., Ms. Samchok telephoned the Graduate Student Society office and learned that the flag had been removed earlier in the morning by two RCMP officers. She then telephoned S/Sgt. Plante who told her he had given the order for the flag to come down because threats had been made that a violent protest by Chinese students would result if the flag remained in place.
S/Sgt. Plante then telephoned Supt. Thompsett and learned that he had told Mr. Dwyer that he saw no reason why the flag could not remain atop the building. Supt. Thompsett confirmed that he told S/Sgt. Plante that he had no problem with the flag being up.
20.2.9. Re-Raising the Flag
Ms. Samchok then called Mr. Dwyer at his home and told him the flag had been removed. They agreed to meet and go to UBC with another Tibetan flag and try to have it raised on the same flagpole. They did not succeed because RCMP officers would not let Mr. Dwyer near the building unless he surrendered either the flag or his accreditation pass. He opted to keep the flag and surrendered his pass. He emphasized to the officers at the time, as he did at the hearing, that he was the President of the Graduate Student Society and that he and Ms. Samchok were not there to engage in acts of civil disobedience.
While at the site, Mr. Dwyer spoke by telephone to S/Sgt. Plante who said he had not been aware of the agreement with Supt. Thompsett about the flag. S/Sgt. Plante told Mr. Dwyer that, after learning of the plans of the angry Chinese students, he decided to have the flag removed and he took responsibility for that decision.
On November 26, the Tibetan flag was again raised on the Graduate Student Society building and it remained there until the society decided to remove it on November 30. Mr. Dwyer explained that the purpose of again raising the flag was to re-establish the right to free expression. This prompted what Mr. Dwyer described as "quite a stir amongst the Chinese nationals at UBC." It brought several complaints by both e-mail and telephone. S/Sgt. Plante received some of those complaints at the UBC Detachment office. Interestingly, his response was that the RCMP would not become involved in removing the flag because it was not illegal for the society to fly the flag atop its building.
20.3. Issues
The issues for my consideration are whether the removal of the Tibetan flag from the Graduate Student Society building was consistent with respect for the Charter and appropriate to the circumstances.
20.3.1. Was the Flag Removal Justified?
I will first address the Charter issue. In my view, it is not necessary to engage in a detailed analysis of whether the removal of the Tibetan flag by the RCMP infringed the Charter. Undoubtedly, the flying of the flag was constitutionally protected political expression and its removal was inconsistent with section 2(b) of the Charter, which guarantees "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication." Counsel for the 44 RCMP members conceded this to be so.
The issue then becomes whether the removal of the flag was justifiable under section 1 of the Charter. Section 1 qualifies the rights set out in the Charter by providing that they are guaranteed "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." That is, government conduct which infringes Charter rights may still be lawful if it can be justified under section 1 (see Chapter 7).
20.3.1.1. Was the flag removal prescribed by law?
To determine whether conduct that infringes a Charter right is nevertheless justified under section 1, the first question that must be answered is whether it was "prescribed by law." In other words, was the conduct authorized by a statute or regulation, or by the application of a common law rule? (R. v. Therens, [1985] 1 S.C.R. 613.) According to Professor Peter Hogg, the words "prescribed by law" make it clear that "an act that is not legally authorized can never be justified under section 1, no matter how reasonable or demonstrably justified it may appear to be."
20.3.1.2. Statutory authority
Counsel for the 44 RCMP members relied on section 30 of the Criminal Code as providing the necessary authority for the removal of the flag:
30. Every one who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal thereof and may detain any person who commits or is about to join in or to renew the breach of the peace, for the purpose of giving him into the custody of a peace officer, if he uses no more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of the breach of the peace.
Counsel cited R. v. White [1994] O.J. No. 1766 (Gen. Div.) for the proposition that section 30 authorizes police to interfere with the rights of someone other than the person actually breaching the peace, if the interference is for the purpose of preventing the breach of the peace. The implication is that the RCMP were entitled to infringe the rights of those who raised the Tibetan flag, even though they had not breached the peace.
In my view, neither section 30 nor the decision in White provide the RCMP with the necessary authority, as they only apply to situations where a police officer actually witnesses a breach of the peace or where a breach of the peace is imminent. No breach of the peace had occurred, nor was one imminent.
20.3.1.3. Common law authority
In addition to the statutory power, under the Criminal Code, to prevent the continuation or repetition of a breach of the peace, counsel submitted that the RCMP were authorized by the common law to remove the Tibetan flag to prevent an "apprehended" breach of the peace. Counsel relied on Hayes v. Thompson (1985), 18 C.C.C. (3d) 254 (B.C.C.A.) and Knowlton v. The Queen (1973), 10 C.C.C. (2d) 377 to support this proposition.
20.3.1.4. Police duties and powers
The issue in Knowlton, a pre-Charter case, was police duty and the use of powers associated with such duty. Knowlton arose out of the official visit of Premier Kosygin of the U.S.S.R. to Canada in 1971. Just before the arrival of Premier Kosygin at his Edmonton hotel, a Mr. Knowlton told police he wanted to enter an area that had been cordoned off and take pictures. The officer told him he could not, but Mr. Knowlton nevertheless entered the restricted area and was arrested for obstructing a police officer.
He was acquitted at trial but convicted on appeal. On further appeal to the Supreme Court of Canada, Fauteux C.J. considered the powers of the police to prevent apprehended breaches of the peace. In doing so, he applied what has come to be known as the "ancillary powers doctrine" developed by the English Court of Appeal in R. v. Waterfield [1964] 1 Q.B. 164 (C.A.). It is a two-step test for ascertaining the scope of police powers to interfere with individual rights:
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Was the conduct within the general scope of a duty imposed on police, either by statute or common law? and
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If so, did it involve an unjustified use of powers associated with that duty?
After noting that police officers have a statutory duty to preserve the peace, Fauteux C.J. held that the police conduct fell within the general scope of their duties and, therefore, met the first branch of the test:
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country, friendly as either may be, is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls, therefore, for the adoption of proper and reasonable security measures in and by the host country. Demonstration of this assertion can hardly be here more to the point than by merely referring to the criminal assault actually committed on the person of Premier Kosygin, in the City of Ottawa, a few days only before his visit to the City of Edmonton.
According to the principles which, for the preservation of peace and prevention of crime, underlie the provisions of section 30, amongst others, of the Criminal Code, these official authorities were not only entitled but in duty bound, as peace officers, to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada. In this respect, they had a specific and binding obligation to take proper and reasonable steps. The restriction of the right of free access of the public to public streets, at the strategic point mentioned above, was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid. In my opinion, such conduct was clearly falling within the general scope of the duties imposed upon them.
Fauteux C.J. went on to find that the police had not resorted to any unjustifiable use of the powers associated with the duty imposed on them. I note that he did not rely upon section 30 but, rather, the common law principles underlying section 30, which impose a duty upon police officers to take proper and reasonable steps to prevent breaches of the peace.
The Waterfield test was approved by the Supreme Court of Canada, post-Charter, in R. v. Dedman, [1985] 2 S.C.R. 2 and, more recently, in R. v. Godoy, [1999] 1 S.C.R. 311. In Dedman, the court made it clear that, at common law, the principal duties of police officers are the preservation of the peace, the prevention of crime, and the protection of life and property, and that police powers derive from the nature and scope of those duties. However, it is also clear that police conduct is not rendered lawful merely because it assists in the performance of the duties assigned to them: R. v. Simpson (1993), 12 O.R. (3d) 182 (C.A.).
The second branch of the test for determining whether police conduct that infringes on individual rights is justifiable is one of "reasonable necessity." That is, it must be necessary for carrying out the particular police duty, and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference.
The Quebec Superior Court, considering police conduct at the Summit of the Americas in Quebec City in April, 2001 appears to have accepted that an interference with individual liberties that is both necessary and reasonable will be "prescribed by law" for the purposes of section 1 of the Charter: Tremblay v. Québec (Procureur Général) [2001] J.Q. No. 1504 (Que. S.C.), application for leave to appeal dismissed [2001] S.C.C.A. No. 231.
20.3.1.5. Common law power to arrest to prevent a breach of the peace
In Knowlton, the court established the test for determining the extent of police powers to fulfill police duties. In Hayes, the court considered whether the police have a common law power to arrest where there are reasonable grounds to believe a person is about to breach the peace. The court confirmed that, at common law, a peace officer who reasonably and honestly believes that a breach of the peace will be committed in the immediate future has the power to arrest without warrant even though no breach has been committed. Even if the officer is mistaken in the belief that a breach of the peace is imminent, the arrest will be lawful if that belief is honestly held, and based on reasonable grounds.
The court in Hayes referred to section 18(1) of the RCMP Act, which imposes a duty on police officers to keep the peace and said that these provisions clarify that the RCMP are obligated to preserve the peace, and have the accompanying common law power to arrest for an apprehended breach of the peace, provided the belief is honestly and reasonably held.
20.3.1.6. Is there a power to arrest to prevent a breach of the peace that is not imminent?
In my view, this leaves unresolved the issue of whether the police may act to prevent a breach of the peace which is not "imminent" by taking proactive steps, as the RCMP did in respect of the Tibetan flag.
In Brown v. Regional Municipality of Durham Police Service Board (1998), 43 O.R. (3d) 223 (C.A.), Doherty J.A. considered the common law powers of police officers, including the ability of the police to take "proactive" steps to prevent breaches of the peace. In that case, police had used roadside checkpoints to detain members of a motorcycle club who were gathering at a beach resort. The club members challenged the detentions under section 9 of the Charter which guarantees the right not to be arbitrarily detained or imprisoned. The action was dismissed and the members appealed.
Doherty J.A. nevertheless considered whether the detentions were authorized at common law. The police relied on the "ancillary powers doctrine" to argue that when acting in the execution of their duty to maintain the peace, they may interfere with individual rights and liberties if the interference is justifiable. The court confirmed that the ancillary powers doctrine is "the established means by which the courts must draw the line between police conduct which is lawful and that which amounts to an unconstitutional interference with individual liberties."
Doherty J.A. went on to note that, in some cases, "proactive" policing will be justifiable:
Proactive policing is in many ways more efficient and effective than reactive policing. Where proactive steps do not collide with individual rights, that increased efficiency and effectiveness comes at no constitutional cost. Even where there is interference with individual rights, the societal gains are sometimes worth the interference.
However, Doherty J.A. made it clear that an arrest of a person who the officer determines is about to breach the peace will be constitutionally unjustifiable unless the apprehended breach is "imminent" and there is a "real" or "substantial" risk that it will occur:
In the circumstances, Doherty J.A. found that the apprehended harm was not imminent and that the detentions were not necessary to maintain the public peace. He drew a distinction between the police duty to keep the peace and the police power to take steps to fulfil that duty, as equating the two "ignores the importance attached to individual liberties in our society".
I cannot do better than to quote Doherty J.A.'s statement of the law in this area:
The balance struck between common law police powers and individual liberties puts a premium on individual freedom and makes crime prevention and peacekeeping more difficult for the police. In some situations, the requirement that there must be a real risk of imminent harm before the police can interfere with individual rights will leave the police powerless to prevent crime. The efficacy of laws controlling the relationship between the police and the individual is not, however, measured only from the perspective of crime control and public safety. We want to be safe, but we need to be free.
In this case, I do not believe that the removal of the flag by the RCMP was prescribed by the common law. I do not believe that either Cpl. Anderson or S/Sgt. Plante had reasonable grounds to believe that a "real" or "substantial" breach of the peace was imminent.
The flying of the flag was a lawful, constitutionally protected act of political expression yet, with no knowledge of the credibility or motivations of the informants S/Sgt. Plante took it upon himself to direct its removal. His only reason was his unsubstantiated concern about a potential confrontation between Chinese students and 200 APEC Alert members, based on no evidence whatsoever, except that of one or possibly two unidentified informants, that 500 Chinese students intended to storm the Graduate Student Society building.
There is no doubt that the RCMP were required to safeguard the visiting leaders and generally ensure site security. There is also no doubt that this was an extremely important and difficult task. However, I do not believe that the RCMP were entitled to simply eliminate every conceivable source of conflict, regardless of the constitutional rights of Canadians. If the RCMP were so entitled, the Charter would be rendered of no effect.
In this case, to prevent a very likely non-existent group of Chinese students from committing a potentially unlawful act, S/Sgt. Plante completely negated the Charter right to free expression of the students who wished to fly the Tibetan flag. He directed no investigation into the matter, made no inquiries and gave no consideration whatsoever to the reason the flag was flying and the sensitivities surrounding the issue. He dismissed the other options afforded by the substantial police presence on campus at the time.
I agree substantially with the following submission by counsel for the B.C. Civil Liberties Association:
If the actual reason for the RCMP's removal of the Tibetan flag were the same as its claimed justification for doing so - i.e., as a response to threats by Chinese students to violently protest and remove the Tibetan flag themselves - then it would represent the most perverse approach to policing imaginable. That is, faced with the threat of a violent and unlawful act, the RCMP supposedly decided neither to restrain those who had made the threats nor to arrest them when they attempted to commit the threatened offence, but to instead take action against those law-abiding citizens who were the object of the threats.
In my view, the RCMP were not entitled to interfere with Charter rights without first determining whether the group of angry Chinese students in fact existed and if so, taking steps to deter their actions. S/Sgt. Plante committed the error referred to in Brown: he equated the police duty to keep the peace with the police power to take steps to keep the peace. Because there was no real risk of imminent harm, the removal of the flag was not prescribed by statute or by common law and the RCMP were not entitled to remove the flag. Therefore, I am satisfied that the removal of the Tibetan flag from the Graduate Student Society Building was inconsistent with a respect for Charter rights.
20.3.2. Was the Flag Removal Inappropriate?
Similarly, I have no doubt that the RCMP conduct was not appropriate to the circumstances. The raising of the Tibetan flag was perfectly lawful and, for the reasons given above, it should not have been removed. This is particularly so given the fact that Supt. Thompsett had struck a deal with Mr. Dwyer and confirmed that the flag could fly.
I assign no responsibility to those who carried out the actual removal of the flag. They were simply following the orders of Cpl. Anderson who, in turn, was motivated to give the order by S/Sgt. Plante's "recommendation" that the flag be removed.
As to Cpl. Anderson, who had taken charge of the matter from Supt. Thompsett, he gave the order to remove the flag and, in doing so, acted inappropriately. Although I am satisfied that Cpl. Anderson was influenced by the fact that the recommendation to remove the flag came from S/Sgt. Plante, a higher ranking officer whose opinion he valued, Cpl. Anderson knew that the decision was his alone to make and that Supt. Thompsett, not S/Sgt. Plante, had authority over the secure zone. Cpl. Anderson ordered the removal of the flag even though he had received no indication that Chinese students were gathering and preparing to storm the Graduate Student Society building and remove the flag. There was clearly no real or substantial risk of imminent harm to justify the negation of the right to freedom of expression being exercised by the flying of the flag.
S/Sgt. Plante placed Cpl. Anderson in a very difficult situation. In reality the Staff Sergeant was ordering the Corporal to follow an order he had no authority to give. It was expecting a lot of the Corporal to decline to follow the direction given him and I can understand the pressure this put on him. He should, nevertheless, have withstood the pressure and declined. I have no doubt that his superior, Supt. Thompsett, a most reasonable man well-fortified with common sense, would have supported him. Under the circumstances, I do not believe that Cpl. Anderson's actions warrant censure. He is a good officer who was placed in a most difficult position by both the actions of an officer superior in rank and the pressures of the moment with the arrival of the 18 leaders.
As to S/Sgt. Plante, he was motivated to ensure the safety of the visiting leaders by eliminating any possible sources of confrontation. He did so without due regard for the limits on police authority to interfere with individual rights, and without investigating the reliability of information provided by informants. He believed, incorrectly, that he had the authority to order the removal of the flag and he expected Cpl. Anderson to carry out his order. He did not have that authority and I am satisfied that he acted inappropriately in his handling of the matter, both late in the evening of November 24 and in the morning hours of November 25