Tuesday, June 29, 2010

There was no 5 metre rule?

Update (9:20 p.m. and 11:30 p.m.) below.

What a mess.
Toronto lawyer Rob Kittredge, an avid photographer who works near the G20 site, said Tuesday he was handcuffed and searched by police last week for taking pictures of the security fence, from the outside.

Mr. Kittredge said he knows his rights – or at least thought he did in this case – and always politely refuses to comply with police demands for identification if he feels they have no grounds.

“They told me that I did in fact have an obligation to answer their questions and provide identification and cited the Public Works Protection Act,” said Mr. Kittredge.

“They explained they had the right to ask me the purpose of my being there, they had the right to ask my name and demand identification and my address.”
There was no 5 metre rule, according to the police chief, but they were enforcing one.

The instances like those experienced by the lawyer cited in the Globe, along with such arrests created a perception that indeed there was a 5 metre rule in effect, pursuant to that Public Works Protection Act. To be disavowing it all now is just sowing further confusion and there needs to be accountability and leadership to ensure such abuses of this Act don't happen again. But, that would be the optimistic view.

Update (9:20 p.m.): Further elaboration of the above is required.

I suggest that people read the Jurist's post this afternoon for the reason why this 5 metre point is really irrelevant. What's important are the PWPA provisions (s. 4) that permit officials to state what the boundaries of the public work are. So once a "public work" or government building or what have you is designated under that Act, and it can be done so by regulation, the boundaries are flexible. What may be a matter of ongoing debate would be the police applying a very liberal boundary surrounding the designated area, taking it into the streets, so to say. Whether the PWPA was contemplated to be used in this manner and whether a roaming boundary would survive a Charter challenge is an open question.

None of the discussion about the PWPA should take away from other questions, such as those raised here.

Update (11:30 p.m.): Since the facts surrounding the tale of the 5 metre perimeter rule seem to be evolving, this is the latest from the Globe. The police chief who publicly represented, on Friday morning, that there was a 5 metre perimeter zone beyond the fence in which people could be searched received information that afternoon clarifying that this was not actually the case. Notice did not go out to the public regarding the chief's mistaken representation.

Whether police continued to demand identification and conducted searches according to a 5 metre rule, after the chief learned of the correct scope of the regulation, is a question. And for how long before the chief learned of his mistake were the police on the streets enforcing that impermissible 5 metre rule?

Also, regarding the 9:20 update above, and section 4 of the PWPA...that update may give the police too much credit. While arguably they could have been using section 4 to apply a flexible boundary, they were likely following the mistaken 5 metre rule, given the discussion we're hearing. The simplest explanation seems like the most likely here.