G20 Kettling Victims Will Have to Wait Until April 2016 for Sentencing of David (Mark) Fenton

Update: see previous post – August 25, 2015 G20: Toronto Police Supt. Convicted Over 5 Years Later, After “Kettling” Incidents

Toronto police Supt. David (Mark) Fenton (on right) speaking to his lawyer, Peter Brauti. Peter Brauti is also currently representing murder suspect Toronto Police constable James Forcillo in the streetcar shooting death of Sammy Yatim. Photo by the globeandmail.com

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It’s been a long slow trip toward justice with Supt. Mark Fenton — the only high-ranking Toronto police officer found guilty for actions during the 2010 summit.

Originally scheduled to begin this month, the sentencing hearing for Toronto police Supt. David (Mark) Fenton — the only high-ranking officer found guilty of misconduct for his actions during the notorious G20 summit — has been delayed until April 2016.

For those keeping track, the setback means discussions about sentencing, never mind an actual decision, will start eight months after Fenton was found guilty of misconduct, more than a year after his much-delayed disciplinary hearing finally began, and close to six years since the summit itself led to public outrage about police behaviour.

The sentencing hearing has been put off because Fenton’s lawyer, Peter Brauti, is currently representing Const. James Forcillo, the Toronto officer facing charges of second-degree murder and attempted murder in the July 2013 shooting death of Sammy Yatim. That trial is set to continue into 2016.

“(The delay) is pretty distressing, because this was obviously one of the most egregious things that has happened in policing in Toronto and in Canada,” said Adrienne Lei, a Toronto lawyer who represented some complainants affected by Fenton’s order to “kettle” hundreds of people during the G20.

Lei stressed that administrative setbacks are often unavoidable, and all parties involved are upset about this delay. That includes Fenton, says Brauti. “At the end of the day, he’d like to put it behind him and move on with his career.”

Delays at police disciplinary hearings are frequent. At the Toronto tribunal on Monday, for instance, a hearing on alleged misconduct from 2007 was scheduled to begin, but was delayed and may be put off until well into 2016.

Some legal experts say the Ontario government should consider writing time restrictions into the province’s Police Services Act, which governs police tribunals. That legislation is currently under revision by Ontario’s ministry of community safety and correctional services.

“Obviously, I can see the public’s concern about this being put off even further,” said Paul Cavalluzzo, a lawyer for some G20 complainants and the Canadian Civil Liberties Association in the Fenton hearing. “It speaks to time limits being put in the legislation.”

Mr. Paul J.J. Cavalluzzo was appointed to the Order of Canada on September 12, 2014. This honour recognized his dedication to the pursuit of social justice as both a constitutional and labour lawyer. “You don’t do that in this country. This is not a police state, this is Canada,” said Paul Cavalluzzo, a lawyer for some of the “kettling” complainants and the Canadian Civil Liberties Association.
Mr. Paul J.J. Cavalluzzo was appointed to the Order of Canada on September 12, 2014. This honour recognized his dedication to the pursuit of social justice as both a constitutional and labour lawyer. “You don’t do that in this country. This is not a police state, this is Canada,” said Paul Cavalluzzo, a lawyer for some of the “kettling” complainants and the Canadian Civil Liberties Association.

“You certainly do have the sense that there’s no great desire by the police to proceed quickly on these things,” said John Sewell, former Toronto mayor and head of the Toronto Police Accountability Coalition.

“We will be looking at all options as we work with our community safety partners to comprehensively review the Police Services Act,” Lauren Callighen said.

Barry Swadron, a Toronto lawyer who often represents people suing police, said disciplinary hearings involving officers should be resolved quickly for a number of reasons, including the risk that the officer may continue problematic behaviour.

“At the same time, the accused officer should be entitled to make full answer and defence to the charges and to an early resolution of them,” Swadron wrote in an email. “Justice delayed is justice denied both for the officer and for the members of the community.”

While Brauti wants to see the disciplinary hearings completed faster, he doesn’t believe putting time limits on them will have an effect because few will be able to meet them. To really cut down on delays, the disciplinary system itself would need to be overhauled, he said, adding currently these hearings more closely resemble a criminal trial involving multiple players than the employee-employer process that exists in other professions.

“The more complex you make it, the longer it’s going to take. It’s that simple,” Brauti said.

Fenton was convicted in August on two counts of unlawful arrest and one count of discreditable conduct relating to two “kettling” incidents, including the hours-long containment of hundreds at Queen St. W. and Spadina Ave. during a torrential downpour.

Toronto Police used the "kettling" tactic during the G20 held in Toronto to surround protesters and bystanders, near Queen St. and Spadina Ave. on June 27, 2010. Retired Judge John Hamilton also found Fenton guilty of discreditable conduct for keeping hundreds boxed in at Queen and Spadina during a thunderstorm. When the weather “turned ugly,” Fenton had the responsibility to ensure that prisoners had adequate protection from the elements, Hamilton ruled. Toronto Police Supt. David (Mark) Fenton will face sentencing under the Police Services Act which will begin on December 21, 2015 almost 6 years after the incident.
Toronto Police used the “kettling” tactic during the G20 held in Toronto to surround protesters and bystanders, near Queen St. and Spadina Ave. on June 27, 2010. Retired Judge John Hamilton found Toronto Police Sup’t. responsible for the decision, David (Mark) Fenton guilty of discreditable conduct for keeping hundreds boxed in at Queen and Spadina during a thunderstorm. When the weather “turned ugly,” Fenton had the responsibility to ensure that prisoners had adequate protection from the elements, Hamilton ruled. Toronto Police Supt. David (Mark) Fenton will face sentencing under the Police Services Act which will begin on December 21, 2015 almost 6 years after the incident.

In a statement shortly after the decision was released, Fenton said he deeply regretted that some of his decisions during the G20 “led to the arrest of people who were not involved in the violence and that some people were held in the rain for hours.”

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