Legality of arrests, detention questionable

Monday’s police actions at the Justice For Our Stolen Children camp were high-handed, writes Meara Conway.

Three days before National Indigenous Peoples Day, several supporters of the Justice For Our Stolen Children camp were arrested and detained in an attempt by Regina Police Service to dismantle the camp.

While it makes good sense that the RPS opted not to lay charges against the six individuals arrested as part of the camp Monday, the decision to arrest and detain these protesters in the first place was unfortunate and highly questionable under the circumstances.

The supporters were apparently arrested on an “obstruction” charge, as the RPS had issued a notice to dismantle the camp on the basis of the provincial Trespass to Property Act and local bylaws. Obstruction was an entirely inappropriate charge in this scenario. Case law from our Supreme Court suggests that merely failing to comply with an officer’s order under provincial legislation or municipal bylaws does not amount to obstruction, as these regulations provide other means of enforcement.

Camp supporters were arrested and transported to the local station, where they were held in separate cells for several hours. Despite attempts to negotiate their release, the protesters were not released until the ceremonial fire was put out, and the teepee — the symbolic heart of the camp — was disbanded, a task that park staff and a Justice Ministry spokesperson eventually undertook.

Unfortunately, the optics suggest the RPS essentially detained protesters to get the outcome it wanted, which of course is a thoroughly unlawful basis to detain people.

This was a high-handed and unfortunate decision that ignored — among others — the protesters’ right to freedom of expression, a right that is guaranteed under the Charter of Rights and Freedoms, particularly when non-violent protest takes place on public property, like parks or legislative grounds.

The democratic process allows for and indeed depends upon our ability to oppose government policy and engage in peaceful actions to communicate disagreement and to bring matters of public interest to the attention of the public. Without a doubt, the law also provides for state intervention to facilitate its function. Against the backdrop of the charter, there must be a balancing of these competing interests.

While the camp did not interfere with any corresponding intended use of the park, what was at stake was significant. The fire had been burning 111 days and the camp had become a gathering place to voice grievances regarding racism and inequality in the criminal justice and child apprehension systems, among others. Even the location of this camp, within view of the offices of the Legislative Building, conveyed a message of resistance, defiance, but also engagement.

Indeed, camp supporters publicly called on the government to participate in a discussion several times, but were stood up or rebuffed. Having exhausted alternatives, supporters continued their organized, co-operative and peaceful protest.

Even if the camp support- ers were technically not in compliance with the trespass act or city bylaws, the decision to arrest and detain them ignored key constitutional protections and the competing interests at play.

The right to express one’s views on social and political issues resides at the heart of a democracy. A strong and vibrant civil society is key to a strong and vibrant democracy. Despite this, the power of arrest and detention was used to break this camp. It was a careless use of the criminal law against those who peacefully assembled to express their collective displeasure.

What does it say about the prospects of reconciliation if we cannot face the uncomfortable realities of our country on its birthday? What does it say that there are those amongst us that would shut down this camp rather than be forced to confront the everyday, invisible lives of Indigenous communities in our midst?