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Regulation 233/10: Counter-law and Special Police Powers at the G20

. Published on June 27, 2010

Downtown Toronto has been transformed quite effectively into an armed camp, with walls patrolled by a temporary paramilitary police garrison drawn from across the country. Members of this (in)security force designated as ‘guards’ have been given special powers to arrest and detain both residents and visitors to Toronto who, being near the G20 security zone, elect not to identify themselves when challenged by police.

Put differently, downtown Toronto is currently subject to a state of exception, where security forces have been empowered to circumvent otherwise-protected rights, a state of affairs that has been described by government officials as a necessary contingency given the extraordinary security situation. Reasonable suspicion of some kind of wrongdoing is unnecessary for these powers to be exercised – simply refusing to comply with a request for “papers, please” is sufficient to land one in a temporary detention cage.

All of this is, we are assured, purely temporary.

The announcement from the Toronto Police Service of the new police powers (which also denied that they were at all new) came unexpectedly, after they had already been used to detain G20 protester  Dave Vasey. The secretive implementation and use of this new power prompted criticism from many corners, including an editorial from the Toronto Star calling the situation “outrageous” and an editorial from the Ottawa Citizen decrying the “arbitrary harassment of passers-by” and highlighting the disturbing lack of public consultation or debate.

G20 police ‘guards’ did not acquire their powers through the clandestine passage of a wholly new piece of legislation, or through the formal invocation of a state of emergency and concomitant suspension of civil liberties (as per the old War Measures Act). Instead, the powers were obtained through the creative extension of existing law – in this case Ontario’s Public Works Protection Act R.S.O. 1990, Chapter P.55.

This maneuver, which is rightly considered anti-democratic and underhanded, closely resembles what Canadian criminologist Richard Ericson described in his 2007 book, “Crime in an Insecure World” as ‘counter-law’ or the use of  ‘laws against law’, whereby “new laws are enacted and new uses of existing law are invented to erode or eliminate traditional principles, standards, and procedures of criminal law that get in the way of preempting imagined sources of harm” (Ericson, 2007: 24). I have found the concept of counter-law to be an invaluable resource for making sense of new forms of surveillance and control which are characterized by a precautionary, pre-emptive focus and a fluid and ambiguous legal form.

Counter-laws tend to be either ad-hoc and temporary ‘solutions’ to particular perceived security problems, as is the case with the G-20 force’s manipulation of the Public Works Protection Act, or open-ended frameworks where administrative law is pressed into service as pseudo-criminal national security law (as is the case with the Canadian security certificate regime). This approach is attractive to (in)security professionals, as it sidesteps the messy checks and balances associated with the drafting and passage of new criminal legislation, and tends to substitute the due process and reasonableness standards of criminal law with the considerably diminished standards of administrative law. This also makes counter-law difficult to oppose, as it involves the reinterpretation and repurposing of existing law (in a sense, the securitization of law), rather than a traditional legislative process.

In this instance, security managers wanted expanded powers to identity challenge, arrest, and detain, as well as a reduced threshold for action. Attempting to obtain these powers through the usual channels would have been difficult, if not impossible (they fly in the face of the Charter), and certainly a source of extreme controversy. The solution was found in s. 2.(1) of the Public Works Protection Act, which allows a number of Provincial and Municipal officials to appoint ‘guards’ with special powers in order to secure ‘public works’. The definition of ‘public works’ is open-ended ended, and the Lieutenant Governor in Council has the power to extend this designation to any building or place. ‘Guards’ enjoy peace officer status and, per s.3 of the Act:

A guard or peace officer,

(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and address, to identify himself or herself and to state the purpose for which he or she desires to enter the public work, in writing or otherwise;
(b) may search, without warrant, any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger; and
(c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering. R.S.O. 1990, c. P.55, s. 3.

Further, per s.5,

(1) Every person who neglects or refuses to comply with a request or direction made under this Act by a guard or peace officer, and every person found upon a public work or any approach thereto without lawful authority, the proof whereof lies on him or her, is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months, or to both.

Arrest

(2) A guard or peace officer may arrest, without warrant, any person who neglects or refuses to comply with a request or direction of a guard or peace officer, or who is found upon or attempting to enter a public work without lawful authority. R.S.O. 1990, c. P.55, s. 5.

On June 2, the Ontario cabinet quietly issued a regulation (233/10) that designated massive swathes of downtown Toronto – including sidewalks – as ‘public works’, resulting in the creation of a five metre conter-legal perimeter around the physical perimeter of the G-20 security zone, where troublesome civil rights and standard rules of procedure have been circumvented.

Certainly, Regulation 233/10 and the counter-legal use of the Public Works Protection Act as an impromptu ‘G20 Security Zone Enforcement Act’ will be challenged in the courts (long after the powers have been used to coerce, arrest, and detain, of course). Perhaps the Regulation will be found to be an infringement of Charter rights. Perhaps it will instead be found to be an application of law that toes the line without constituting a full breach. Regardless of the outcome of such a challenge, the political maneuver that gave rise to Regulation 233/10 warrants scrutiny and condemnation. This sort of cynical redeployment of existing laws to fit the whims of security managers is disingenuous and, as Ericson argued, it results in the “undermining of law as a democratic institution” (2007: pp. 208-209).

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8 Responses to Regulation 233/10: Counter-law and Special Police Powers at the G20

  1. sis

    December 14, 2010 at 1:44 pm

    please help me find something on the police act during the October crisis

  2. Jeff

    September 18, 2010 at 6:45 pm

    I still don't think the Public Works Protection Act is a good example of Ericson's concept of counter-law. The Act was, from its very inception in 1939, intended to be used "to pursue a precautionary security agenda while simultaneously circumventing constitutional protections and due process." Its use in 2010 was entirely in keeping with its original purpose.

    There are several good grounds for a court challenge of the law and the 2010 Regulation, but Ericson's theory is not one of them.

  3. Mike Larsen

    July 30, 2010 at 6:56 am

    A quick response to Jeff's comments:

    Thanks, Jeff, for stepping in to provide some much-needed updates. It is always risky to write about unfolding security operations as the potential for mis- and dis-information is high. But we have to go with the info that we have when it is available. Rest assured I will be writing future articles about G20 detention for PRISM. Right now, I am handling ATI and FOI requests with all of the principal agencies involved.

    Re: your point no. 2, I stand by my use of Ericson's concept of counter-law. The use of this obscure piece of dated legislation to fit the purposes of today's integrated (in)security agenda definitely fits with the spirit of his theory. Counter-law is about government's use of any and all available legal resources to pursue a precautionary security agenda while simultaneously circumventing constitutional protections and due process. The dredging up of the Public Works Protection Act for the purpose of G20 policing seems to fit the bill. Things get a bit more complicated when we try to distinguish between the actual application of that Act during the G20 and the rhetorical invocation of the Act in government discourse.

    All the best,

    - Mike

  4. Jeff

    July 9, 2010 at 6:01 pm

    Michael Larsen's article, understandably, was based on media reports, which in turn were based on (as we now know) disinformation from the police and a calculated refusal by provincial authorities to correct the disinformation.

    In light of subsequent revelations, we can now identify the principal errors in Larsen's article:

    1. The special powers of search, arrest, and detention without reasonable cause given to "guards" and anyone else designated as a "peace officer" came not from the Regulation secretly passed by the Ontario government on June 2, but from the Public Works Protection Act itself. The Act's provisions are quoted in the Larsen article. They have been part of the Act since it was passed in 1939. Their draconian prescription for suspension of civil liberties and due process of law were originally aimed at protecting public buildings and utilities from German spies and saboteurs. They were passed without opposition amid the hysteria that led up to World War 2, and have remained on the books ever since.

    2. The Regulation itself, no. 233/10 (linked to in Larsen's article), merely describes the boundaries of the G20 "Security Zone" that was surrounded by the notorious fence, and designates the area as a public work under the Act. This was not a "creative extension" or "manipulation" of the existing law. The law had been hiding in plain sight for decades.

    3. The "within five metres" part of the Regulation does not refer to the area within five metres of the outside of the boundary fence, but rather a five-metre zone *inside* the defined Security Zone: Note that the "designated places" defined in Schedule 2 of the Regulation are "within the area described in Schedule 1", not outside of it. In other words, the cops were lying when they said they had the right to stop and search anyone outside the Security Zone.

    Larsen's article is correct in the suggestion that the Act conflicts with the Charter of Rights; it should also be noted that the Ontario government has no constitutional power to enact criminal law. Unfortunately the courts will probably not have an opportunity to rule on those points if, as is expected, the charges issued under the Act are withdrawn before trial.

  5. Mike Larsen

    July 2, 2010 at 8:42 am

    Another update:

    As the story continues to unfold, what began as a secretive application of counter-law has morphed into a confusing mix of denials and obfuscation. The effect of the regulation in-the-moment remains unchanged – when it mattered, Torontonians were given the impression that they could be arrested for refusing to respond to an identity challenge near the summit security zone. But it will take some time to piece together the real story. I have filed Access to Information requests with the RCMP and a Freedom of Information request with the Ontario Ministry of Community Safety and Correctional Services for records relating to detention policy, and for records relating to interagency communications about Regulation 233/10. I'm sure that many journalists and citizens have done the same. If these requests bear fruit, I will definitely write about it here.

    In the meantime, the Globe's Adam Radwanski has put together a useful timeline of the Regulation 233/10 story, which you can read here: http://www.theglobeandmail.com/news/politics/adam… .

  6. Ken Taylor

    June 30, 2010 at 5:25 am

    Excellent article which helps the lay person understand the murky waters of existing laws(as they pertain to security and G20-related issues) and how these laws are being corrupted/debased by our unaccountable federal and provincial governments.

    The police forces(not services) deployed to "secure" Toronto and intimidate its citizens were there to do the bidding of the higher ups…like Harper. Most Canadians can appreciate Harper's love of free societies and open debates about the issues!

    This was expressed through the actions of the police, who were there to protect the G20 participants, not Torontonians.

  7. Steve

    June 29, 2010 at 3:12 pm

    Thanks, Mike for a great report.

    I noticed today that top cop Bill Blair is now saying he was purposefully exaggerating the powers of the law in order to deter protesters from nearing the fence, and lets not leave out deterring protest altogether….

    http://www.theglobeandmail.com/news/national/toro…

  8. Mike Larsen

    June 29, 2010 at 5:31 am

    An update:

    The Monday June 28 edition of the Toronto Star included an article entitled 'Cabinet secrecy opens door to legal challenge: G20 search powers ripe for constitutional attack, experts say' (http://www.thestar.com/news/gta/torontog20summit/article/829917–cabinet-secrecy-opens-door-to-legal-challenge).

    The article discusses pending Charter challenges to Regulation 233/10 (including one from the first person arrested under the regulation, Dave Vasey of York University), and emphasizes the secretive nature of its swift passage and implementation.