Can bail conditions conflict with the right to participate in public gatherings?

The following is taken from an article published by the Toronto Star. I have inserted by thoughts about the issues raised in the article.

Montreal’s Jaggi Singh, one of dozens of community organizers arrested even before last summer’s G20 protests began, has launched a constitutional challenge against his bail conditions. Although most of his co-accused have had similar restrictions imposed on their actions and movements, Singh, a noted anti-globalization and social justice activist, is the first to take the constitutional route.

He is to appear in Ontario Superior Court on April 13, 2011 with the support of PEN Canada which is intervening in his case, citing that Singh’s right to freedom of expression has been violated.

Singh claims, “The conditions are being used in a very exaggerated punitive way to simply make the process of being charged the actual punishment.” He says this despite the fact that he is facing charges of conspiracy to commit mischief and conspiracy to assault and obstruct police.

Aside from $85,000 in bail, Singh’s conditions for release include staying away from organizing or participating in any demonstrations, not associating with any of his co-accused, house arrest, the inability to use any wireless device and not possessing a passport.

“I do a monthly (community) radio show and I have a condition that prevents me from using a wireless device: Am I using a wireless device?’’ Singh said on the phone from Montreal. “The transmitter on top of Mount Royal is the ultimate wireless device. Am I allowed to use a laptop with wireless Internet?’’

Among his many concerns, he said, is that the conditions are subject to arbitrary interpretation, as co-accused Alex Hundert discovered in September when he was arrested for participating in a university panel discussion.
As for the right to freedom of expression, PEN said: “Preventing someone from

participating in a public demonstration does nothing to ensure the safety of a single Canadian. On the contrary, the practice of censorship harms the rights of all Canadians and is repugnant to any society that values its right to freedom of expression.”

“There is a constitutional right to a reasonable bail,’’ said Singh’s lawyer, Peter Rosenthal. “We’re saying that the bail conditions were entirely unreasonable.
“That in our view clearly violates freedom of expression, freedom of association, and the right to lawful assembly. There’s no possible justification for any such condition in our view.”

My thoughts on this issue:

The difficulty that is facing all Canadians with respect to these kinds of bail conditions is that it appears on the surface to conflict with our constitution right to publicly express ourselves.

I don’t know what it is that Singh is alleged to have publicly stated that justified his arrest for conspiracy but if he publicly advocated that protesters should destroy property during demonstrations, then the conditions are justified. On the other hand, if he stated that if the police ordered demonstrators to move, they should ignore those orders, I don’t think that such stringent bail conditions are justified at all.

We have already seen events around the world where police officers ordered demonstrators to move and the orders were disobeyed. In Tunisia and Egypt, the demonstrations resulted in the removal of the presidents of those two nations. During the protests in Egypt, the Egyptian army finally stated that it was willing to let the protests continue and even grow as long as they remained peaceful, even if that lead to the fall of Mubarak, which it did.

Unless the demonstrations are getting out of hand and riots are the direct result, the arresting of demonstrators and charging them with obstructing police is just asking for trouble.

Further, unless a demonstration is undertaken for the purpose of causing damage or harming individuals, I don’t see how demonstrations can be considered illegitimate. I know that the cities prefer to make the leaders of demonstrators seek permission to demonstrate but let’s face it; some demonstrations can come about spontaneously especially when the demonstrators are incensed by some form of injustice brought about by government authorities.

Civil disobedience means breaking the law nonviolently for conscientious reasons. The term is a recent one, probably coined in the nineteenth century by Henry David Thoreau, but the practice is an old one, found in ancient Greek drama, in the life of the prophet Daniel and, arguably, in Israel’s exodus from Egypt. The use of civil disobedience as a social tactic has developed over the past centuries.

Noteworthy examples include the campaigns against slavery and the slave trade, the fight for women’s suffrage, Gandhi’s campaigns against the British in South Africa and India, and Martin Luther King’s campaigns for civil rights in the United States. Tactics can include sit-ins, illegal marches, tax boycotts and blockades. Many of these people were arrested but where their arrests justified? Certainly not.

Disobedience is different from rebellion, revolution or any other attempt unconstitutionally and violently to overthrow a government, a regime or a political order. It is an attempt not to overthrow an order but to dissent from it in some way and to show that dissent in actions more than words. In some cases, for instance, in blocking a logging road, a nuclear plant or an abortion clinic, (although blocking those clinics is now illegal) it is an attempt to impose an outcome by nonviolent means. It is not merely a symbol or a statement, though it will have these overtones as well, but an active attempt to stop something from happening or to start something. In other cases it is simply a collective, or an individual, act of conscientious refusal to pay a tax or to obey a law or an order because people believe that they cannot morally carry out a particular directive from a government. They have no wish to start a political movement; they just will not let governments or corporations violate their conscience.

Disobedience can be carried out against an entire regime, against only a particular law or against only a particular government action. If the disobedience is against a particular law or action, typically those involved continue to accept the overall legitimacy of the government as such.

Surely when the protesters at the G20 Summit were protesting, they were not advocating the overthrow of Canada’s government or advocating mayhem. They were voicing their views about what they perceived as being wrong.

In Cambodia, the authorities often refuse to authorize demonstrations, or delay granting authorization for demonstrations shortly before they are due to take place. Unauthorized strikes and demonstrations are suppressed by force.

On May 15, 1919 the Winnipeg General Strike erupted sending 35,000 workers from all types of industries into the street in order to protest the working conditions, wages, and other grievances they were being forced to endure. The workers pointed out that they were being forced to work in near poverty conditions while the owners of big business continued to live a prosperous life.

The employers called on the federal, provincial and municipal governments to put down, what the Committee of One Thousand called, a ‘Bolshevik rebellion’. The federal government complied with the employers’ request on Saturday June 21 by sending in the Royal North West Mounted Police Force (R.N.W.M.P.) and the military to break up a large public demonstration which became known as ‘Bloody Saturday’

The Chicago Seven were seven defendants—Abbie Hoffman, Jerry Rubin, David Dellinger, Tom Hayden, Rennie Davis, John Froines, and Lee Weiner—charged with conspiracy, inciting to riot, and other charges related to protests that took place in Chicago, Illinois on the occasion of the 1968 Democratic National Convention. Bobby Seale, the eighth man charged, had his trial severed during the proceedings, lowering the number from eight to seven.

On February 18, 1970, all seven defendants were found not guilty of conspiracy. Two (Froines and Weiner) were acquitted completely, while the remaining five were convicted of crossing state lines with the intent to incite a riot, a crime instituted by the anti-riot provisions of the Civil Rights Act of 1968. On February 20, they were each fined $5,000 and sentenced to five years in prison. At his sentencing, Abbie Hoffman recommended that the judge try LSD, offering to set him up with a dealer he knew in Florida. On November 21, 1972, all of the convictions were reversed by the United States Court of Appeals for the Seventh Circuit on the basis that the judge was biased in his refusal to permit defense attorneys to screen prospective jurors for cultural and racial bias. The Justice Department decided not to retry the case.

Despite the billions of dollars stolen, embezzled and extorted by banks and investment companies that led to a recent recession, the police were not in the habit of kicking down doors on Bay Street in Toronto but they were kicking down doors of private homes, ticketing, arresting, and beating people who were exercising their rights to demonstrate.

On November 12, 1969 the City of Montreal passed an ordinance prohibiting “the holding of any assembly, parade or gathering on the public domain of the City of Montreal for a time-period of thirty days”. This ordinance was passed under By-law 3926, passed the same day, s. 5 of which allowed the Executive Committee to take such a measure if there were “reasonable grounds to believe that the holding of assemblies, parades or gatherings will cause tumult, endanger safety, peace or public order.

Section 5 is a catch-all section which in effect could even be used to prohibit a gathering of grandmothers protesting pension decreases.

This kind of issue was dealt with in the Supreme Court of Canada in 1978. The court’s ruling stated in part;

“Freedoms of speech, of assembly and association, of the press and of religion are distinct and independent of the faculty of holding assemblies, parades, gatherings, demonstrations or processions on the public domain of a city. This is particularly so with respect to freedom of speech and freedom of the press. Demonstrations are not a form of speech but of collective action. They are of the nature of a display of force rather than of that of an appeal to reason; their inarticulateness prevents them from becoming part of language and from reaching the level of discourse.

The right to hold public meetings on a highway or in a park is unknown to English law. Far from being the object of a right, the holding of a public meeting on a street or in a park may constitute a trespass against the urban authority in whom the ownership of the street is vested even though no one is obstructed and no injury is done; it may also amount to a nuisance.

A claim on the part of persons so minded to assemble in any numbers, and for so long a time as they please to remain assembled, upon a highway, to the detriment of others having equal rights, is in its nature irreconcilable with the right of free passage, and there is, so far as we have been able to ascertain, no authority whatever in favour of it. It was urged that the right of public meeting, and the right of occupying any unoccupied land or highway that might seem appropriate to those of her Majesty’s subjects who wish to meet there, were, if not synonymous, at least correlative. We fail to appreciate the argument, nor are we at all impressed with the serious consequences which it was said would follow from a contrary view.

There has been no difficulty experienced in the past, and we anticipate none in the future, when the only and legitimate object is public discussion, and no ulterior and injurious results are likely to happen. Things are done every day, in every part of the kingdom, without let or hindrance, which there is not and cannot be a legal right to do, and not infrequently are submitted to with a good grace because they are in their nature incapable, by whatever amount of user, of growing into a right.

The holding of assemblies, parades or gatherings on the public domain is a matter which, depending on the aspect, comes under federal or provincial competence and falls to be governed by federal and provincial legislation such as the Criminal Code, laws relating to picketing, civil laws, municipal regulations and the like including s. 5 of the impugned By-law and the Ordinance passed pursuant to it.

The Canadian Bill of Rights, assuming it has anything to do with the holding of assemblies, parades or gatherings on the public domain, does not apply to provincial and municipal legislation.” unquote

That ruling applies to public property and does not apply to a large hall in a university for example. If a university permits people to gather in a large hall in their university to hear a speaker, the governments, (federal, provincial and municipal) cannot intercede.

However, the issue before the Superior Court with respect to Mr. Singh’s case may involve his right to promote (via public meeting or via the Internet) demonstrations on public streets in which the Municipality of Metro Toronto has the right to deny.

He was arrested because he addressed a public meeting in a university after he was told by a court that he could not do this. The question that the Supreme Court judge must rhetorically ask is; did the lower court judge have the right to deny Mr. Singh his right to participate in a public discussion on private property.

This is going to be an interesting case to follow up on and I will update my readers on the final outcome when I learn of that decision.