One of Canada’s most powerful protests takes its case to Queen’s Bench
Feature | by Gregory Beatty
The latest salvo in the dispute between the Justice for Our Stolen Children camp and the Saskatchewan government came literally when, on Aug. 12 at 2 a.m. some “jackwagon” (h/t to Brad Wall for that term) fired a roman candle at the tipis clustered across from legislature in Wascana Centre.
No one was injured, thankfully, and the alleged assailant was arrested and now faces criminal charges including arson with disregard for human life.
More drama, hopefully of the non-violent variety, awaits when the government and camp square off in Queen’s Bench Court on Aug. 23.
The camp is seeking a declaration that their constitutional rights were infringed on when the Regina Police Service dismantled the camp and arrested six campers on June 18. The government, in turn, is seeking an order compelling the camp to vacate the park, and for RPS Chief Evan Bray to act on that order.
The government’s action against Bray has its roots in a move the province made in 2017 to establish the Provincial Capital Commission (PCC) to govern Wascana Centre. Before that, it had shared jurisdiction with the City of Regina and University of Regina.
According to Regina city councillor Andrew Stevens, the move came as a surprise.
“To my knowledge there was no consultation. There was some speculation the province was dissatisfied with the governance model, so there might have been some hints, but I don’t think anyone saw the longstanding stewardship model that involved three equal partners changing as radically as it did.”
Under s. 9-3 of the PCC Act, the city is tasked with providing fire protection and law enforcement in Wascana Centre. That would seem to make for an airtight case against Bray. But the situation isn’t as simple as that, says Regina lawyer Merrilee Rasmussen.
“This is this complicated situation where municipalities are creatures of provincial statue, so the province can certainly enact those laws,” says Rasmussen. “But I would argue those laws don’t take away the discretion the police have to prosecute or not depending on the circumstances. More importantly, it does not mean the RPS is required to arrest somebody when the premier picks up the phone.”
It is well established in case law, says Rasmussen, that police officers do not act as government agents. Instead, they have discretion in how they carry out their duties. That creates a firewall between the government and police. Without it, you’ve got the potential for a police state to emerge — which is a kiss of death for a liberal democracy.
When the Saskatchewan government issued a call for police to dismantle the camp for a second time in late June [see timeline], Regina city councillor Joel Murray — who sits on the Board of Police Commissioners, the municipal body that oversees police operations — tweeted: “I never want to see the day that police are operationally directed by politicians. There are numerous examples of how that is a very dangerous precedent.”
The Gestapo (Nazi Germany), KGB (Soviet Union), SSD (North Korea) and Mubahith (Saudi Arabia) are some of the more notorious examples of state police. But Canada has its own sordid history, with governments at various levels in the 1920s/30s directing police to break up labour protests, including the Regina Riot in 1935.
More recently, there were the Ipperwash and APEC affairs in 1995 and 1997. In both instances, inquiries were held and the governments involved (the Harris PCs in Ontario and Chretien “pepper, I put it on my plate” Liberals in Ottawa) were found to have acted inappropriately when they pressured the Ontario Provincial Police and RCMP to act against demonstrators.
Typically with police discretion, says Rasmussen, complaints arise when police exercise too much discretion rather than too little. In R. v. Beaudry (2007), for instance, an officer caught a fellow officer driving while impaired but didn’t collect the evidence necessary to charge him. On appeal to the Supreme Court, his conviction for obstruction of justice was upheld.
“When courts look at these situations, what they’re looking at is not just a subjective test of whether the police officer thought they were exercising their discretion [properly], but whether they were doing it in a reasonable manner,” says Rasmussen. “So there has to be valid and reasonable grounds on which they’re making that judgment.”
When RPS officers dismantled the first camp in mid-June, they acted with respect and compassion. But the optics of seeing Indigenous protestors, including elders, being dragged away were not good — especially since the government’s stated goal was to clear the space for Canada Day festivities.
A repeat spectacle, surely involving a larger group of both Indigenous and non-Indigenous protestors, would be contrary to work Regina is doing to improve relations with the Indigenous community, says Stevens.
“Starting formally in 2016, but with some earlier discussion with local First Nations around urban reserves, the mayor and council have been [working] to address the Truth & Reconciliation Commission’s calls to action that are specific to municipalities,” he says.
The police have been in the forefront of that effort, says Stevens. One example is a satellite office at the mâmawêyatitân centre in Regina’s predominantly Indigenous north-central neighbourhood. Other outreach efforts include round dances, a Treaty Four police academy and having an Indigenous representative on the police board.
Not only is the effort just, it makes practical sense too, says Stevens.
“The settler colonial model in which we live is no longer sustainable,” he says. “In the past, one way or another, you could hide or defer it, but from every angle we can’t go on like this. The costs through the justice system, if we think of health, educational outcomes, we’re coming to a breaking point.”
Regina NDP MLA Carla Beck is equally critical of the Saskatchewan government for putting Regina’s outreach effort at risk, and its general disinterest in moving on TRC calls to action that are in provincial jurisdiction.
“What we’re seeing is the government attempting to litigate their way out of a problem that has escalated through its refusal to meet with the camp and listen to their concerns and those of First Nations leadership,” says Beck.
“One concern is the state of the child welfare system,” she says. “Going back to 2013, I believe, the government has been talking about a review. But we’ve actually seen an increase in both the number of children in care, and the proportion that are First Nations or Métis.”
The education gap for Indigenous students is another concern, says Beck.
“There has been some effort put toward that — so credit to the government. But when they cut $54 million from K to 12, or cut money from the post-secondary system, it makes it very difficult to reduce the gap.
“They talk like their goals are priorities, but there seems to be a lack of political will to get serious and start moving those numbers in the right direction,” Beck says.
Following the recent Danforth shooting, Toronto police chief Mark Saunders spoke about the need to move beyond reactionary police-driven responses to crime to look at root causes tied to poverty, homelessness, addiction, mental health and other factors.
“I don’t want to put words in our chief’s mouth, but he’s often said the same thing,” Stevens says. “But if politicians don’t start investing in these issues, and don’t start addressing crime as an outcome of social inequality, we’re just going to be pumping millions more into police services every year with no effective solution.”
With racial tensions on the rise in Saskatchewan, Stevens, Beck and Rasmussen all expressed concern about the outcome should the government win its case, with Rasmussen calling it a “powder keg”.
“It’s been stressful, and I can’t help but think it could’ve been resolved with some goodwill, respect and conversation,” says Beck. “But here we are, heading to court.”
When the Justice for Our Stolen Children campers got to court on Thursday, Aug. 23, they will argue their right to free expression under s. 2 of the Charter was infringed when they were evicted. The campers are also seeking an order that their June 18 arrest violated their s. 9 Charter right not to be arbitrarily detained or imprisoned.
The test the government will have to meet was set out in R. v. Oakes (1986), says camp lawyer Dan LeBlanc. “The first part of the analysis is ‘Is the government’s activity interfering with their right to express themselves?’ The obvious answer seems to be yes. The second question is, ‘Is the government’s action justified to achieve goals it’s trying to pursue?’”
Those goals, as laid out in the government’s court filings, include park maintenance in the camp area, public safety and the ability of people to access to the park.
“From our perspective, there’s a lot of park,” says LeBlanc. “People are still having a good time, and events are occurring. As for public safety, there’s no allegation the camp itself is making people feel unsafe.” Instead, the government’s concern rests primarily with adverse public reaction to the camp.
Previous Supreme Court decisions have held that freedom of expression exists on a spectrum, says LeBlanc. “At the high end, where we say we fall, is expression aimed at taking part in social and political decision-making. At the low end is something like advertising as commercial expression. At the higher end, the government has to put more on the scale to justify interfering with expression.”
The government argues the campers are still free to protest in the park. But LeBlanc says the camp — with its high visibility, and proven ability to teach people about the campers’ views on colonization and systemic racism — is integral to their s. 2 Charter right.
With the s. 9 challenge, says LeBlanc, the campers will argue that without a court order there was no basis in law to arrest and hold them for four hours on June 18 while the first tipi was dismantled.
“We’re looking for a declaration their rights were upset, and some clarification around the proper purposes for which police can arrest and detain people,” says LeBlanc. “That may have implications for the way people feel free to express themselves going forward — especially in connection with the TRC calls to action.”
Timeline For Camp Justice
Feb. 15: The camp is set up in Wascana Centre across from the legislature. It’s focus: the overrepresentation of Indigenous children in foster care, and Indigenous men and women in the justice system.
May 14: The government issues a formal response, saying the camp is in violation of several Provincial Capital Commission bylaws. On June 5, the PCC, along with the Ministry of Justice, issue an eviction notice.
June 15–18: Regina Police Service act on the notice and dismantle the camp. Six people are arrested and held for four hours for obstruction of justice, but no charges are laid.
June 21: The main tipi is reinstalled, and on June 22 Justice Minister Don Morgan calls on RPS to remove it. On June 23, a second tipi is erected. The number now stands at 15.
June 27: Citing a meeting that’s set for July 2 between the government and camp in Fort Qu’Appelle, RPS Chief Evan Bray issues a statement that reads, in part, “Right now, our focus is community safety. We assess [the situation] multiple times a day. We make sure there’s no risk to the public, which at this point we don’t feel there is. So our response right now is to let that discussion happen and ultimately hope for a peaceful resolution.”
July 2: Following the meeting, the camp asks for a moratorium on adoptions and a review of social services related to permanent and long-term wards. They also request a second meeting. On July 12, Premier Scott Moe denies that request and says he has no plans to visit the camp.
July 16: The camp launches legal action. The government follows suit the next day.
Scheduled for Aug. 23: Proceedings on the two actions begin in Queen’s Bench Court.