[Hpn] Homeless Protesters Acquitted of Traspass by Toronto Court / TASC press release press release

Tom Boland wgcp@earthlink.net
Wed, 31 Jan 2001 06:20:32 -0800 (PST)


FWD

January 30, 2001 for immediate release

Toronto Action for Social Change
PO Box 73620, 509 St. Clair Ave. West
Toronto, ON M6C 1C0
(416) 651-5800     <TASC@web.ca>

Banned Queen's Park Activists Receive Split Decision:
Trespass Charges end in Acquittal, but ban against attending at Queen's
Park remains in effect


	What was supposed to be the end of a two-and-a-half-year struggle
to lift a permanent ban against going to the Ontario legislature (Queen's
Park) was instead a split decision at Toronto Old City Hall Court today.
	Five members of Toronto Action for Social Change - Matthew Behrens,
mandy hiscocks, Father Robert Holmes, Donald Johnston and Sandra Lang - were
acquitted of trespassing charges they received after publicly violating the
ban, but the ban itself remains in place.
	The five were handed permanent bans from the legislative grounds on
Oct. 1, 1998, after they splashed water-soluble stage blood on the outside
walls of the legislature to protest the devastating 21.6% cut to social
assistance, and the subsequent deaths of the homeless on the streets
directly linked to those cuts.
	 Finding no recourse with Speaker of the House Chris Stockwell, who
issued the ban, the five were joined by some 50 others in publicly defying
the ban on Martin Luther King Day, 1999. A month later, the five were
charged individually at their homes with trespassing.
	In today's verdict, Justice of the Peace J.P. Quon said he was
powerless to lift the ban against the five.  	Nevertheless, his decision
was noteworthy for chastising the Harris government's use of the ban, which
has been in effect for over 2 years against the five.
	"It would be untenable for the government to use the law of
trespass to quell the voices of dissent and the freedom of expression on
state-owned property," Quon said.  "The government should not wantonly use
the law of trespass to evict legitimate peaceful protesters or stop their
voices. This form of expression, expressing dissatisfaction with a
government policy and publicizing a particular political view while on
state-owned property is a value cherished in a democratic society and is
protected by section 2(b)[of the Charter of Rights and Freedoms]."
	As a result of today's verdict, NDP MPPs Tony Martin and Shelley
Martel, who attended court, informed TASC that leader Howard Hampton would
be addressing a letter to House Speaker Gary Carr asking that the ban be
lifted once and for all (see text of letter below). Carr is out of the
country until next week, and in a CBC interview, Queen's Park
Sergeant-at-Arms Dennis Clark said he had "serious concerns" about the
verdict.
	It is also unclear whether the TASC members still face arrest if
they return to Queen's Park.

	The court decision produced mixed emotions for TASC members. While
it was good to see that the court agreed that the Charter of Rights'
sections on peaceful assembly and freedom of expression should over-ride
the permanent ban, Quon found that the October 1, 1998 demonstration which
precipitated the ban was marked by what he termed "violent expression"
because it involved the pouring of a small amount of water soluble stage
blood on the outside walls of the legislature. Such expression, he
believes, is of a nature not protected by the Charter of Rights and
Freedoms.
	"The question to be asked is whether pouring blood onto a public
building is incompatible with the building's function of providing
government services. In my opinion, it is incompatible. It affects the
public's perception of law and order and is an affront to the idea public
buildings are maintained for the public benefit."
	By Quon's definition, though, the whole Tory caucus should be
removed from the premises and prohibited from re-entry, as their policies
of housing, environmental, and education and health care cuts are wholly
incompatible with the provision of government services. Indeed, that was
the focus of the October 1 protest to begin with.
	Quon found that the subsequent ban was justified as a reasonable
limitation on freedom of expression because he perceived the blood pouring
as an act of defacement or "vandalism," even though there was no allegation
or proof of lasting damage, and the fake blood was easily enough washed
away.
	Indeed, TASC has a history of organizing numerous expressive
demonstrations in which activities that might be perceived as "defacement"
or "vandalism" took place, yet in those instances acquittals were
registered. "We poured blood on the steps of the legislature in 1996, we
planted two sets of vegetable gardens later that year, we attempted to
evict Mike Harris and transform Queen's Park into a child care centre in
1997," said TASC's Behrens. "In two cases, criminal mischief charges were
laid, and in a third the trespass charge was applied; in all three
instances acquittals were won. So the perceptions of alleged 'vandalism' on
the part of Queen's Park security and the Metro police differ widely from
those of the courts, who have found such activity well within the limits of
tolerance in a democratic society."

	However, in a positive light, Quon found that "the government
interest in maintaining law and order and preventing former mischiefmakers
from being on their property, does not outweigh the individuals' interest
in legitimate peaceful expression on the public areas of public property.
Since the defendants' expressive activity is constitutionally protected,
the Trespass to Property Act must yield to the Charter and consequently,
the charges against the defendants cannot stand."
	Quon notes that current ban "becomes dormant during a period when
expressive activity on the public areas of public property falls within
section 2(b) [which accounts for freedom of thought, belief, opinion and
expression]. The ban is still alive but ineffective when the section 2(b)
protection comes into play. This is a window of opportunity in which the
defendants may enter the grounds at Queen's Park. As long as the
defendants' expressive activities at Queen's Park come within the
protection of section 2(b), any future charges under the Trespass to
Property Act would fail. The Speaker's ban would not be saved by section 1
[the Charter's notation that those freedoms are "subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society."] in any situation where the expressive
activity is peaceful. However, if the defendants become involved in
non-expressive activity [sic], such as defacing public property, while at
Queen's Park the Speaker's ban would still apply and trespass charges would
not be nullified by section 2(b). The window of opportunity would then
close."
	Quon notes that "because of the special nature of public property
vis-a-vis members of the public, it would be excessive for the Speaker to
issue an indefinite prohibition against the defendants from entering the
public areas of Queen's Park, especially when the main activity conducted
by the defendants has been to participate in political demonstrations,
which are prime facie protected by section 2 of the Charter...Although the
ban remains intact, it would be ineffectual in a Trespass to Property Act
charge, as long as the defendants in any future entry onto Queen's Park for
political demonstrations behave nonviolently and do not deface public
property while there."

	Quon does not believe that the government is acting in prior
restraint mode by requiring the five to sign documents stating they would
not engage in a range of particular activities.  TASC members refused to
sign any such document and thereby surrender to a partisan government the
right to define what constitutes "acceptable" protest.
	"If we were to sign something like that, then it becomes
government-sanctioned protest, like in the former USSR or in China or Iraq,
and what would be the point of that?" asks hiscocks.  "The whole point is
to have the freedom to express views which may not be popular with the
government."
	The defendants noted that their case represents only a small part
of a much larger picture in Harris's Ontario, where the rights of
vulnerable people especially are violated on a daily basis, even drawing
stinging criticism from the United Nations. In a context where peaceful
dissent is becoming increasingly criminalized, the ban remains a criminal
sanction used to stifle public protest.
	TASC members are likely to test whether the ban's application has
changed in any manner within the month.

(the following letter was sent to Speaker Gary Carr by Ontario New
Democratic Party Leader Howard Hampton this afternoon)


January 30, 2001


Hon. Gary Carr
Speaker of the Legislative Assembly
Room 180
Legislative Building, Queenís Park
M7A 1A2

Dear Mr. Speaker,

Given today's Ontario Court decision, I am calling on you to lift the
permanent ban from the Legislative grounds imposed by your predecessor on
five Ontario citizens.

Former speaker Chris Stockwell imposed the ban on Oct. 1, 1998 against
Matthew Behrens; Amanda Hiscocks; Robert Holmes; Donald Johnston and Sandra
Lang. On. Jan. 18, 1999 they defied the ban and appeared at Queen's Park
during a peaceful protest against government policies and were charged with
trespassing.

Today, the court dismissed those charges. Further Justice R. Quon strongly
denounced the heavy-handed use of trespassing laws to subdue legitimate
protests.

"The government should not wantonly use the law of trespass to evict
legitimate, peaceful protesters or stop their voices," Justice Quon said.
"This form of expression, expressing dissatisfaction with a government
policy and publicizing a particular political view while on state-owned
property is a value cherished in a democratic society."

Justice Quon was also critical of your predecessor's role in this matter.
He said the Speaker "does not have an absolute right to exclude persons
form the public areas of the public property."  Further, Judge Quon said
"an indefinite prohibition is excessive when a relatively simple mechanism
does not exist for the banned person to contest the prohibition or to have
it reviewed."

However, Justice Quon has no authority to overturn the ban. Therefore,
instead of forcing these citizens to appeal to a higher court, I am calling
on you to respect today's decision and quickly lift the ban.

I believe this is an important issue of fairness and justice and trust you
will act accordingly.

Sincerely,

Howard Hampton, Leader
Ontario NDP

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