G20 ‘kettle’ cop appeals his conviction
Complainants say the move makes a mockery of the apology he offered them last summer
Toronto police Supt. Mark Fenton, found guilty of misconduct for twice ordering the mass arrest of hundreds during the G20, is appealing his conviction, the Star has learned.
The move comes one month after Fenton, the only senior officer convicted for his actions at the notorious summit, was sentenced to a formal reprimand and 30 days’ lost vacation — an “absurd” penalty deemed so light complainants in the case have launched their own applications to appeal, seeking a tougher sentence.
The competing applications mean the search for justice by hundreds caught up in Fenton’s so-called “kettles” — includ- ing the hours-long detention at Queen and Spadina during a torrential downpour — is far from over, six years after the G20.
Complainants say Fenton’s appeal undermines the senior officer’s apology last summer, issued the same day a tribunal hearing officer found him guilty of two counts of unlawful arrest and one count of discreditable conduct under the Police Services Act.
“What’s the point of the apology?” asked Shervin Akhavi, who was kettled at Queen and Spadina. “I originally accept- ed his apology; I officially reject it because of this action.”
“Supt. Fenton is back to maintaining that he did nothing wrong,” said Adrienne Lei, one of the lawyers representing those “kettled” at the summit.
Michael Lacy, one of Fenton’s lawyers, disagreed, saying Fenton sincerely apologized for the negative effect his decisions had on innocent people “with the benefit of hindsight.”
“There is nothing inconsistent or insincere about his position. Based on what he knew at the time he maintains that he did not act in such a way as to be guilty of professional misconduct,” Lacy said in an email Monday.
In a notice of appeal filed this month to the Ontario Civilian Police Commission, a quasi-judicial body that hears appeals of police tribunal decisions, Fenton’s lawyers seek either a finding of not guilty on all counts, or a new hearing.
Alternatively, they are asking for the penalty of 30 days’ lost vacation days to be tossed and replaced by formal reprimands, the most lenient sentence that can be handed down after a misconduct finding.
Among the reasons cited in Fenton’s appeal is that the hearing officer, retired judge John Hamilton, erred in concluding Fenton’s lack of reasonable and probable grounds to order the arrests amounted to misconduct when the officer was “acting in good faith and with the safety of the city in mind.”
The appeal also states that the Canadian Civil Liberties Association (CCLA) — granted intervenor status in Fenton’s hearing — should not have been allowed to participate at the tribunal because the judge who made the decision “lacked the jurisdiction to do so.”
“It is in our view that it was an error,” Lacy told the Star Monday.
It is, in fact, rare for a third party to be given intervenor status at a police tribunal. This month, the Ontario Human Rights Commission was denied participation in the high-profile “Neptune Four” case involving the gunpoint arrests of four black youths by Toronto police after the hearing officer in that case found he did not have the legal jurisdiction to grant status.
But Paul Cavalluzzo, a lawyer who represented both the CCLA and some of the “kettling” complainants, said the CCLA undoubtedly had a right to be there, especially because the case has implications beyond Fenton.
“We’re talking about the violations of the civil liberties of hundreds of Canadians,” Cavalluzzo said. “There is no institution in this country that brings more expertise and experience to the judge in this kind of situation than the CCLA.”
Fenton, now superintendent at Toronto police’s east-end 43 Division, was the only senior officer charged under Ontario’s police act for his actions during the June 2010 summit. The officer was night commander when he ordered the mass arrest of hundreds of people, in one instance outside the Novotel hotel on the Esplanade, in the other the next day at Queen St. W. and Spadina Ave.
In his Augustruling that found Fenton guilty of three counts of misconduct, Hamilton, a retired judge, was sympathetic to the situation Fenton had inherited. Just before his shift began, Toronto was host to unprecedented levels of property damage caused by protestors who smashed windows and lit police cruisers ablaze.
But Hamilton ruled Fenton’s solution to the chaos — the decision to indiscriminately box-in and arrest people — was too extreme and indicated “a lack of understanding of the right to protest.”
“His use of power was not rationally connected to the purported risk to be managed,” Hamilton said, finding Fenton guilty of one count of unlawful arrest for each kettling incident.
He also found Fenton guilty of discreditable conduct for keeping those boxed in at Queen St. W. and Spadina Ave. during an “ugly” thunderstorm, ruling that Fenton had the responsibility to ensure that prisoners had protection from the elements.
Hamilton found Fenton not guilty of two other misconduct charges related to the detention of hundreds at a makeshift prisoner processing centre.
Reading out his decision last month to dock Fenton 30 days’ vacation, Hamilton said the officer did not have sufficient training to be the incident commander and should have been stopped by his superiors. He also called Fenton’s public apology “a genuine indication of remorse.”
Cavalluzzo called the penalty decision “absurd;” complainants had argued Fenton’s penalty should be automatic dismissal.
In an application seeking leave to appeal the sentence on behalf of the CCLA and complainants kettled at the Novotel, Cavalluzzo said Hamilton erred by imposing the “grossly disproportionate penalty” of a reprimand in relation to that kettling incident.
That application also challenges Hamilton’s decision last year to quash a subpoena to compel former Toronto police chief Bill Blair to testify at Fenton’s hearing.
Complainants kettled at Queen and Spadina are also seeking leave to appeal Hamilton’s sentence. The penalty handed down was “unreasonable in light of the serious scale and nature of the subject officer’s deliberate violation of the Charter rights of hundreds of persons,” lawyers for the complainants wrote.
Lucius Dechausay, who was kettled at the G20, said he is “appalled” by Fenton’s appeal considering how light the sentence was.
“He made a decision to mass arrest hundreds of innocent citizens and peaceful protestors on two separate occasions when there was no imminent threat,” he said. “His actions were in direct conflict with the Charter of Rights and Freedoms and placed countless vulnerable citizens in an entirely unsafe situation.” Wendy Gillis can be reached at wgillis@thestar.ca