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What’s at Stake in the OCAP Trial?


On June 15, 2000, the Ontario Coalition Against Poverty (OCAP) brought a crowd of 1,500 people to the Ontario Legislature at Queen’s Park. The March was organized to demand action from the Provincial Tory Government on the growing crisis of homelessness. The organizers of the event sought to break through that Government’s notorious intransigence by demanding that a delegation of six people affected by homelessness be allowed to address a session of the Legislative Assembly. In this way, it was hoped, the Tories might be pressured into dealing with the grievances of an oppressed constituency and that such a breakthrough might also encourage others to join the ranks of a reawakened social mobilization.


Writing with the benefit of hindsight, it is possible to say that OCAP did not fully appreciate, as it made plans for this event, what a clear break with previous forms of governing Ontario the regime of Mike Harris represented. The Tories never had any intention of granting any mark of respect to the homeless marchers and their delegation. Unlike any other government in the post war period, they were ready to rebuff a major aggrieved constituency and have them dealt with as a ‘police matter’ without regard to the implications of such a decision. Such an extreme course flowed from the logic of the Tory ‘Common Sense Revolution’. This platform was not simply a series of harsh political measures. It was also a way of viewing the world that rejected the deal making and forms of consensus that previous governments had developed. The new breed of Tory that took power in 1995 had plans to reshape Ontario, to ‘open it for business’, that were not up for discussion. Opposition, if it took innocuous forms, would be ignored. Should it start to assume more serious shape, then there was always the riot squad.


So it was that, on June 15, the Tories considered any negotiation, let alone concessions to the homeless, to be totally out of the question. For their part, the Toronto Police Force, once responsibility for the matter had been handed to them, were quite happy to get into the spirit of things. We did expect to be initially blocked in front of the Legislature but thought it very possible that a militant mobilization of the homeless and their allies might be able to win some negotiated mark of respect. We would march to the barricades and insist on our right to be heard. Even if no official response were obtained, such a strong and compelling form of activity from those being left to die on the streets would have an important political impact. We did think it likely that some heavy handed police responses to our actions might occur and we brought with us some forms of protection to deal with such an eventuality. These included bandanas and goggles to limit the effects of pepper spray and stronger than normal picket signs as a partial defence against batons. However, we discounted the notion that they might actually launch and all out attack on the crowd and move to clear the grounds. Yet this is exactly the extreme and brutal course they took on that day.


Elsewhere, we have examined in detail the unfolding of the events on June 15 and there is no need to repeat the exercise here. It is enough to establish that the Tory sponsored plans of the police to clear Queen’s Park did, indeed, provoke a major clash. Dozens of people have been criminalized as a result of the wave of state retaliation that followed the event. Under general courtroom assumptions that selectively condemn those who resist but view police violence as almost invariably justified, there have been precious few acquittals. Now, an extraordinary trial is underway before a jury in Toronto that constitutes a major assault on civil liberties and the right to dissent. In fact, it can only be understood by examining the record of an earlier time in the history of Canada when social conflict was more naked and political repression more overt.


The jury trial is, in essence, an attempt by the state to single out and remove three people viewed as ‘leaders’ of a social movement that Police Intelligence has described in Court as a ‘criminal organization’. After Stefan Pilipa, Gaetan Heroux and I were first arrested on this matter, in July of 2000, we were described by the Crown who is prosecuting the case, Vincent Paris, as ‘a cancer that needs to be removed’. If we have even been able to function as part of the organization throughout this period, it is no thanks to Mr. Paris and his colleagues. Initial bail conditions were imposed on all those arrested after June 15 that banned any association with anyone belonging to OCAP. The Superior Court only overturned this over the objections of the Crown’s Office.


The charges that have been laid against the three of us are not run of the mill nor is the way in which they are being applied. We are being presented as leaders and organizers of a ‘planned riot’ that involved an attempt to violently force entry into the Legislative Building. Stefan and Gaetan are charged with ‘participating in a riot’ and face two years in jail. There is no allegation that they engaged in any acts that day that were particularly outstanding or dripping with criminality. They are simply deemed to be ‘leaders’ and, accordingly, have been selected from among 1,500 ‘riot’ participants for prosecution. The state reserves the right to decide that a riot has taken place and then to decide if it wants to prosecute some of those it sees as leaders or everyone who was there. In this case, two particular people have been singled out but next time around the net might well be cast much more widely.


I have been hit with two charges. I am alleged to have ‘counselled to participate in a riot’ and ‘counselled to assault police’. These carry maximum terms of two and five years respectively. The charges flow from a speech I made at the Legislature in which I informed the crowd that the delegation had been refused, urged people to put on goggles and other precautions against pepper spray and to help the delegation press its demand to be heard. To support its contention that there was an intent to promote riotous and assaultive behaviour, the Crown will produce some notes taken from me at the time of arrest that roughly sketch out the plan to move to the barricades and pressure the authorities. It will also show video footage of a speech I delivered and a media interview I gave in which I am insufficiently contrite after the event.


To be clear as to our position, we fully and cheerfully acknowledge that we planned , counselled and participated in a militant demonstration that, if it became a riot, was turned into one by an arrogant Government and an incompetent and provocative police force. For these ‘crimes’, charges have been dusted off and utilized that social movements and civil libertarians should take a look at and give some thought to. Harry Glasbeek, who is Professor Emeritus and Senior Scholar at Osgoode Law School, recently wrote a letter to the Attorney-General of Ontario deploring the laying of these charges. He describes them as ‘rarely used provisions of criminal law aimed at the protection of the political status quo’. In truth, ‘riot’, ‘sedition’ and other ‘public order’ provisions of the Criminal Code had fallen into something approaching disuse. Certainly, their being used to try and take out the supposed leadership of a social movement, is a shocking throwback to an earlier time. The whole period since World War Two had generated a political climate that sought to limit social conflict and prevent anything so extreme and ugly as the laying of indictable charges against protesters and organizers. To-day, however, the demands of neo liberalism and fiscal conservatism put such sedate arrangements in peril. When people have the impudence to resist the assault on their social rights, the Law has some serious items in its toolkit that had almost been forgotten about.


It would be beyond the scope of this article to go into any huge detail as to the historical record but a mere glimpse at some of the legal persecutions of the first half of the last Century will give us what we need. There was a time in the not so distant past when very serious legal consequences could be attached to trying to organize around social demands or attempting to win the right to bargain collectively with your employer. The Winnipeg General Strike of 1919 was brought to an end in a climate of political witch-hunt. A frenzy of hatred was unleashed to try to strangle the ideas and practices of militant syndicalism that had taken the form of the One Big Union. Strike leaders were hauled into court on charges of ‘seditious conspiracy’ and ‘seditious libel’. The very ideas they advanced and their very claim to organize to win them were treated as serious criminal acts and violations of public order.


In 1923, striking steelworkers in Nova Scotia faced a brutal police assault on their picket lines. Miners’ leader, J.B. McLachlan, wrote a letter to his own union members in which he described the violence of the authorities and stated, “The Government of Nova Scotia is the guilty and responsible party for this crime. No miner or mine worker can remain at work”. Call a meeting of your Local at once and decide to spread the fight “to every mine in Nova Scotia. Act at once. To-morrow may be too late.”


For these comments, McLachlan was tried and sentenced to two years for seditious libel. This provision is still part of the Criminal Code to-day. The Crown told the Court in his case that, “The issue is not whether the statement published is false or true. There are many things which are true but cannot be published.” It is “a question of whether it was said with the intention of creating dissatisfaction and disturbance”. [Emphasis added]


In 1931, eight members of the Communist Party of Canada were arrested in Toronto. That party’s role in organizing militant unions and a powerful unemployed struggle had made it the deadly enemy of the authorities. Tim Buck, Tom McEwen, Malcolm Bruce, Sam Carr, Tom Hill, Matthew Popovich, John Boychuk and Tom Cacic faced two charges under Section 98 of the Criminal Code (repealed in 1945) and one of ‘seditious conspiracy’ that could be laid to-day. Sedition, as defined by their judge in his charge to the jury, “consists in acts, words or writings intended” to disturb the tranquility of the state by creating ill will, discontent “or contempt towards” the Constitution or Parliament “[or] to be exciting ill will between different classes”. [Emphasis added] The accused were handed a total of thirty seven years in jail for expressing their views and belonging to an organization that put these forward.


Finally, an example that cuts closest of all to the present situation. In 1946, textile workers in Valleyfield, Quebec, were on strike for their basic rights and living wages. Under the control of the arch reactionary Premier of Quebec, Maurice Duplessis, the provincial police sought to crush the strike. On August 13, the workers made a concerted effort to defend their picket lines and, with tear gas grenades being used against them, fought back by ripping up paving stones and using them as missiles. The strike was won but union organizer, Kent Rowley was later convicted of ‘inciting a riot’ and paid for the victory by being confined to Bordeaux Prison. To-day, a monument stands on the site to him and his fellow organizer and partner, Madeleine Parent.


It is important to remember that the examples I give above are a selection of the futile attempts of the state authorities in this Country to silence movements that ultimately prevailed and established political rights and social gains that we must defend to-day. The ‘public order’ provisions of the Criminal Code that were utilized in these cases are still on the books for the most part. When the state authorities, spurred on by the National Citizens Coalition and the National Post, feel the time is right, there is no legal reason why they should confine themselves to charging organizers of homeless protests with riot offences. In law, a riot is only a gathering of three or more people ‘that has begun to disturb the peace tumultuously’. A hundred picket lines a year and a dozen protests a month could be deemed to fit that description if the political balance of forces allowed it. As CAW President, Buzz Hargrove, argued in a letter to the Ontario Attorney-General on our behalf, “..these charges are political in nature. If Clarke is convicted on the charge of counselling, no one is free from prosecution who makes an impassioned speech against injustice at a demonstration which subsequently turns violent. If Heroux and Pilipa are convicted of participation, so can anyone who happens to be at a demonstration which subsequently turns violent. These charges could effectively criminalize protest itself.”


In the end, these charges and the criminal trial that flows from them are an experiment in political intimidation. The test the authorities are conducting is to find out whether they can impose serious prison terms on members of a movement they don’t like without paying too great a political price for it. From the standpoint both of civil liberties and the struggle for social justice, it is very important that this experiment end in failure. The key to the whole matter is support and solidarity. In the examples from the past that I just gave, state repression worked best when movements were divided and the more cautious and conservative minded were ready to let them go after the ‘radicals’ as they saw fit. It’s no different to-day.


A criminal trial offers political activists only a highly imperfect means of bringing out the real issues. The conservative framework and assumptions that overlay the proceedings are hard to overcome. We will mount a strong defence and do so with confidence but, even with substantial support behind us, there can be no guarantee of acquittal. We are ready for all possibilities. Regardless of the verdict, however, what we need in order to win a major political victory is for these proceedings to take place in a climate of outrage and denunciation. If we have that, we will be able to turn back their attempt to damage us and emerge stronger from this present challenge.


OCAP has not allowed the hundreds of charges they laid after June 15 to stop us but has continued and advanced its fight against poverty. Last year, we organized the Pope Squat and, this year, we are making plans for a campaign for housing that will be stronger still. We are even discussing a new march on Queen’s Park that would have about it a scale and diversity of support that could neutralize the threat of police violence and force the authorities to deal with it as a political issue. We need the broadest support for this work as we need our supporters to fill the courtroom and flood the Attorney-General with demands that these charges be dropped.


We all are working for and very much hope for a legal victory but the most important question is to make them pay a price for what they have set in motion in that courtroom. Those who want to socially and legally turn back the clock have to be made to realize that that the days of the political show trial are over.



PLEASE NOTE:


I deliberately didn’t burden this article with source references and suchlike. Those interested in following up on some of the historical examples can contact me at [email protected].


Please consider signing our solidarity statement on the OCAP website at www.ocap.ca. Letters to the Ontario Attorney-General are also appreciated and information and examples are also to be found on the website. Those interested in getting more information or offering other forms of concrete support can contact me at my e-mail address or phone OCAP at (416) 925-6939. JC

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