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(An edited version of the following comment first appeared in the August edition of Common Ground magazine).
.....
I felt I was watching history being made on April 17, 1982, the day I saw Queen Elizabeth and Prime Minister Trudeau sign the new Canadian Constitution on the front lawn of the Parliament Buildings. As a second year law student attending the University of Ottawa in 1982, I realized that the Charter of Rights and Freedoms was an important new piece of legislation that would redefine many aspects of Canadian life. However, I had no inkling that some 28 years later I might be making a bit of Charter history myself.
On July 23, 2010, the Supreme Court of Canada issued its decision in Ward v. City of Vancouver, unanimously declaring that Canadians may have the right to sue for monetary compensation if their constitutional rights are violated. How did I, a Vancouver civil litigation lawyer, end up as a party in a case some commentators are hailing as a significant development in the law pertaining to civil liberties?
To answer that question we must go back to the evening of November 25, 1997. I received a call at home from a client who said she was in jail in Richmond, having been arrested in connection with the APEC summit at UBC, and would I please come quickly to help? It turned out that my client was one of dozens of people arrested at UBC that day by overzealous members of the RCMP, who had pepper-sprayed and detained student demonstrators who were alarmed that their campus was playing host to the likes of President Suharto of Indonesia and President Jiang Zemin of China. Many speculated that Prime Minister Jean Chretien (“Pepper? For me, I put it on my plate”) or his aides had been responsible for the police crackdown and two years of high-profile public hearings ensued.
I continued to act as legal counsel for many of the student complainants and as a result of the attention the case received, I became something of a lightning rod for those with grievances against the police. My practice changed, and I found myself frequently representing the families of those who had died at the hands of the police or those who had been injured by police conduct. A year later, for example, I found myself representing those injured by police batons at the so-called “Riot at the Hyatt”, which was not a riot at all, but one of the most egregious examples of police brutality I have witnessed. A squad of Vancouver crowd control police emerged from the breezeway under the Hyatt Hotel on Burrard Street and began indiscriminately clubbing protesters who had congregated there to protest a speaking engagement by Prime Minister Chretien. I also represented the families of Jeff Berg, Tom Stevenson and Robert Bagnell, men killed by Vancouver police in separate unrelated incidents.
All of this was difficult, challenging and frustrating work, and it probably made me no new friends in the police community, nor for that matter in the legal community, where most prefer to believe that the police can do no wrong. While I have always respected the work police officers do, they enjoy enormous power and I firmly believe they must be held accountable when that power is abused. The only effective check on police misconduct, in my experience, is the civil justice system, and my cases on behalf of a variety of plaintiffs attracted some public attention.
This was the context then for the events of August 1, 2002, a day I will not soon forget. Prime Minister Chretien, he of APEC and Hyatt fame, was again in Vancouver, this time to conduct an opening ceremony at the new Millenium Gate on Pender Street. I stopped on my way in to my office and parked my car at a meter. It was before 10:00 a.m. I wandered over out of curiosity and watched a bit of the ceremony. I was struck by the level of security, heavy even by APEC standards, and was a bit unnerved by the sight of police on rooftops with automatic weapons. I became bored by the speeches and left briskly in the direction of my car.
A Vancouver police officer confronted me and demanded, “Were you planning to throw a pie at the Prime Minister?” I looked at him incredulously and said, “No, of course not.” While I may have had my differences with Mr. Chretien, it would never have occurred to me to plaster him with meringue. The police officer then said, “Show me your ID” in the same forceful tone. I suppose it was the lawyer in me that responded “Why?”. I knew that in my country, police did not have the right to demand identification from a pedestrian in the street without some legitimate reason for the request. It seemed my answer was not the one the officer wanted, for I immediately found myself in handcuffs. Two more officers arrived and I repeatedly asked them whether I was under arrest, without receiving an answer.
I became frustrated and the started asking to call a lawyer. Again I received no answer. I realized I had my cellphone in my pocket and reached in with one hand, took it out, and began punching in a number. One of the police officers promptly took it away. I was searched and my wallet and keys were removed. I heard the police call my identification in.
I continued asking, over and over again, whether I was under arrest and whether I could call a lawyer. The police ignored these requests and I became more and more frustrated. I was trying to convey that there was a misunderstanding, but they would have none of it. Remembering that one of my clients had once escaped a trip to jail by attracting attention to his plight while detained on the street by police, I began to raise my voice in the hope that a passerby would come to my aid. I felt helpless; the police were ignoring me, I couldn’t summon help by telephone, so what was I to do?
A police wagon was called to the scene and I was unceremoniously deposited inside. I was driven to the jail, still in handcuffs, and left in the stationary wagon for what seemed like an interminable time. I could see police walking around outside and I shouted for help. They laughed.
After awhile, I was taken out of the wagon by one of the officers involved in my arrest. He showed me my possessions and told me, for the first time, that I was under arrest “for investigation of assault on the Prime Minister”. I shook my head in disbelief and asked, again, to call a lawyer. The request was denied. “There is no privacy here”, I was told. I responded, “I will gladly waive my right to privacy, let me call a lawyer.” Again, I was getting nowhere.
I was taken into the jail. I began repeating, over and over, “I want to call a lawyer”. I must have made this request thirty times by now, over the course of an hour, and was getting no closer to exercising my right to contact counsel. The sergeant in charge of the jail grew impatient, saying “We can do this the easy way or the hard way”. I was deposited in a large cell for awhile, presumably to discourage me from asking for a lawyer. I gave up and was soon taken to a smaller room where two large men with blue rubber gloves told me to take off all my clothes. This was getting uncomfortable. I noticed my knees trembling as I disrobed, but couldn’t tell whether it was from fear or cold. I suppose it made little difference. When I was standing only in my briefs, I decided to again speak out. “Look, I am a lawyer, I know what the law is, and it’s against the law to strip search me”, I said, with as much bravery as I could muster.
A conference ensued between the two and sergeant “hard way”. I was spared further embarrassment and was allowed to dress, less my shoelaces. I was taken to a cell marked “INTOX” and the door closed heavily behind me. I looked around. I was alone in a tiny concrete cell. It measured about one metre by two metres and was completely barren, save for a video camera in the top corner of one wall. I sat on the cement floor and waited. Many hours passed. I remained alone, staring at a blank cement wall with smears of dried blood and perhaps other bodily fluid, contemplating my fate. I knew I had done absolutely nothing wrong, and had certainly not assaulted the Prime Minister, but hey, why was I here? I thought to myself, the World Trade Center attacks of September 11 were less than a year ago, does someone think I am a terrorist? Will I get out of here? I am not necessarily claustrophobic, but as I sat uncomfortably in that confined space, with all kinds of thoughts running through my head, I realized I would probably sign just about anything in exchange for a promise to be released.
Finally, I was removed from the cell. Two detectives met me at the booking desk. One said, “You were arrested because you matched the description of someone who we had information was going to throw a pie at the Prime Minister. We arrested him and realized you were not involved.” “What”, I sputtered. “When did you arrest him? I’ve been here all day.”
“That’s all I can tell you”, the detective said. “We’ll take you to your car now”.
“Thanks”, I replied. “I’ll show you where it is.”
“That won’t be necessary. We have it”
I was driven to an impound lot and told not to touch anything, as there were other “crime vehicles” within. I got in my car and drove home. I had no sooner walked in the door than a friend called and told me he had seen me on the evening news, in handcuffs, being put in a police wagon.
That was distressing. I consulted a lawyer friend and we decided to seek an immediate apology from the Vancouver police. They refused, and published comments making matters worse, so I lodged a formal complaint with the Office of the Police Complaint Commissioner and sued the police and jailers.
The police complaint was investigated by Abbotsford police and dismissed as “unsubstantiated”. I pressed on with the lawsuit. A week before trial, I offered to drop the case and walk away in exchange for an apology. The defendants refused and we had a six day trial which resulted in the judge awarding me a total of $10,100 in damages for my unlawful detention, the unreasonable search of my person and the unreasonable seizure of my car.
The defendants appealed to the Court of Appeal and to the Supreme Court of Canada, losing in both instances. They probably spent hundreds of thousands of dollars over the eight year process. I had my own counsel, Brian Samuels, who generously devoted hundreds of unpaid hours to my case. It was quite an education.
What did I learn? I learned how powerless one can be in the face of authority. The police officers who dealt with me that day were arrogant and rude and clearly felt they could abuse me as they saw fit. I also learned firsthand how daunting, time-consuming and expensive it can be to try to vindicate oneself. I am now even more acutely aware of and sensitive to violations of constitutional rights.
Would I do it again, knowing what I know now? Unquestionably, yes. Staying silent is not an option. When our rights as citizens in this democracy are violated, we must stand up and fight for them. Civil rights and liberties are under assault and are being eroded daily in this country. If we turn the other cheek, we will lose all that we cherish and hold dear.
