Saturday, June 26, 2010

Public Works Protection Act valid - #G20

The Public Works Protection Act has been in force in its current form since at least 1990, and dates to 1939.

In 2005 the Court of Appeal in R. v Campanella (April 13, 2005) DOCKET: C39402 upheld the law as constitutional saying, in a careful and lengthy decision:

[25]          I am sensitive to the concern that we should not erode the benefits and protections of s. 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears.  We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them.  However, the record in this case establishes the justification for the kinds of searches carried out in this case. 

"[26]          I agree with the reasons of Jewers J. in R. v. Lindsay (2001), 158 Man. R. (2d) 176  (Q.B.) at para. 58 (approved in R. v. Lindsay (2004), 187 Man. R. (2d) 236 (C.A.) at para. 18), considering a similar statutory scheme in Manitoba:

In summary I find the law to be reasonable. The legislation addresses a legitimate concern - the safety of all those in the court complex; experience both here and in other jurisdictions has shown that weapons are being brought into the courthouses and it is desirable that they be detected and prohibited. The Manitoba authorities could have chosen to rely upon the pre-existing security regime but that was not sufficient to discover all of the many varied types of weapons or potential weapons that were being brought into the court complex. The current system makes for a safer and more reassuring environment. The means chosen are non-intrusive and bear no stigma. A requirement for prior authorization based on reasonable and probable grounds would not be feasible. The law is neither vague nor over-reaching. It is constitutional."


The only thing that Cabinet changed was to define the G20 summit area as a "public work".  All the "new" police powers been in existence for decades. 

There is some issue as to whether or not the G20 summit area should have been defined as a "public work" and whether or not the manner in which the regulation was passed gave fair notice to the citizenry that is, after all, presumed to know the law. (In Campanella the fact that the public area had signs posted warning of potential searches was relevant to the Court). But this issue is fairly minor compared to the claims made suggesting the law is the first step towards a Police State.

6 comments:

Unknown said...

If they can make this change and not tell the public, until July 3, when the change will be public, what next.

What if they made this permanent?

What if they secretly made your house part of the "public works"? When can they do this? When ever the police chief wants it to happen?

Secrecy and deception by elected officials in redefining a "public work" regardless of its legal status is the big issue here.

Was this constitutional will be vetted through the courts in the next year or more?

Dave said...

"Reasonable" would have been to include the G20 as a "Public Work" in "reasonable" time to allow public consumption and response.

There is no evidence that such was done. The Ontario government could be accused of a lack of due diligence in this case.

The only thing that inhibits a police state is the limits placed on police. Remove those limits and what do you have?

Clearly, this expansion had nothing to do with the public except to clandestinely circumvent entrenched rights to create an environment of comfort for those who find legitimate protest a political inconvenience.

Do you think this would withstand a Charter challenge?

Stephen Downes said...

After watching the live coverage of the protests on CBC this afternoon, it appears that the public works zone was very mobile, eventually expanding to engulf the putative 'free speech' zone set up in a downtown park week away from the conference site.

It also appeared, watching the video, that the 'mob of thugs' that warranted such a substantial police presence was made up mostly of people walking their dog, photographers and journalists, some skateboarders, parents and children, and other onlookers. At no time, other than in the sanctioned and completely peaceful parade, did the mob every outnumber the police. This did not prevent the use of pepper spray, tear gas, and rubber bullets.

Yes, there was a 'black block' brigade composed of about 200 people. This group was allowed to operate with no response from police at all, and they also participated in torching three police cars that had been left unattended in the middle of intersections for no apparent reason (the best best, articulated by a Toronto council member, is that they were decoys, intended to draw anarchist activity (and hence provide good visuals)).

I watched the police take action on unarmed and inoffensive people, I watched them clear a park that was being used mostly as a park (and had far fewer people than would be seen on a Saturday), I saw people arrested for no reason, injured for no reason. Nobody got near the fence, of course - nobody really tried.

Yet you think all this is OK.

The Liberal handling of this entire fiasco has been deplorable. There was no particular concern about the cost of security, no concern about the waste and extravagance (not to mention more than a little pork barrel) and now this.

I have in the past alternated my voted between Liberal and NDP, depending on who needed it - I was one of those people, for example, who voted twice for Edmonton's Anne McLellan. But I guess after this I should know better.

Mark Richard Francis said...

It appears, then, that anything and any space of any size can be designated as a "public works." This is dangerous.

Anonymous said...

Okay, this is making my brain hurt. I'm reading the Act and the regulation, and I can't see how section 1 paragraph 1 of the regulation designates anything as a public work that isn't already a public work under the Act.

Except from the Regulation

1. The following are designated as public works for the purposes of the Act:

1. Everything described in clause (a) of the definition of “public work” in section 1 of the Act that is located in the area described in Schedule 1, including, without limitation and for greater certainty, every sidewalk in that area.

2. The places described in paragraphs 1, 2 and 3 of Schedule 2.

-- http://www.e-laws.gov.on.ca/html/source/regs/english/2010/elaws_src_regs_r10233_e.htm

Excerpt from the Act

“public work” includes,

(a) any railway, canal, highway, bridge, power works including all property used for the generation, transformation, transmission, distribution or supply of hydraulic or electrical power, gas works, water works, public utility or other work, owned, operated or carried on by the Government of Ontario or by any board or commission thereof, or by any municipal corporation, public utility commission or by private enterprises,

(b) any provincial and any municipal public building, and

(c) any other building, place or work designated a public work by the Lieutenant Governor in Council.

-- http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90p55_e.htm

I see how reg sec 1 para 2 actually designates new public works: the area within five meters of a parking lot behind the Rogers Centre and an underground driveway.

But back to reg sec 1 para 1... It only designates as public works everything within a certain area that is already designated by clause (a) of the definition of "public work" in the Act itself. Already designated ... wuh?

So two things I'm not understanding:

1. Why is it sometimes implied that the whole area inside the fence was designated (as it could have been under clause (c) of the definition of "public work" in the Act -- but wasn't)? The fact that the whole area wasn't designated by paragraph 1 is reinforced by paragraph 2 which designates some more areas inside the fence.

2. On the flip side what does sec 1 para 1 do at all, given that all highways are already designated as public works even before regulation? Add sidewalks?

Okay, three things I'm not understanding:

3. As highways are already public works, does that mean the police already have the authority to ask for ID when I'm in the street?

That, I guess is my best understanding of what's going on here:

* The regulation is being overreported in terms of what it covers.

* It adds sidewalks inside the fence ("for greater clarity" - implying that they might have already been included without the regulation).

* It adds some 5m-wide strips that aren't sidewalks or streets inside the fence.

* It adds one underground driveway.

* Outside the fence, without the regulation, you can already be asked for ID and searched when on highways, but you can, at least by constitution and common law, get out of that by getting back on the sidewalk, which may or may not be a public work under the Act (preregulation).

I'm not a lawyer. These are not statements. Though phrased as statements, they are questions. And I'm really curious to know the answers from a real lawyer.

Thanks!

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