G20: Toronto Police Supt. Convicted Over 5 Years Later, After “Kettling” Incidents

Update: see previous posts – January 12, 2013 G20: Protester Convicted Despite Rights Violation, March 15, 2012 Kettling – Kettle’em and Control’em, Ok in Europe

The G20 held in Toronto in 2010 had many unwelcomed comments emanating from judge's who closely examined it. In one case, R. v. Bodin, Justice Sachs said the following: “The contempt demonstrated by this behaviour has the eerie overtones of the worst sort of abuse orchestrated by fascist states,”. Not surprisingly, convicted Toronto Police Supt. David (Mark) Fenton, referred to the G20 protesters as "terrorists" and treated them accordingly. He threatened to remove the framed Canadian Charter of Rights and Freedoms from his wall if convicted.
The G20 held in Toronto in 2010 had many unwelcomed comments emanating from judge’s who closely examined it. In one case, R. v. Botten, Justice Sachs said the following: “The contempt demonstrated by this behaviour (of Police) has the eerie overtones of the worst sort of abuse orchestrated by fascist states,”. Not surprisingly, convicted Toronto Police Supt. David (Mark) Fenton, referred to the G20 protesters as “terrorists” and treated them accordingly. He threatened to remove the framed Canadian Charter of Rights and Freedoms from his wall if convicted.

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Supt. Mark Fenton said he ‘deeply regrets’ the “kettling” of innocent people during the June 2010 summit. His mass-arrest orders “demonstrated a lack of understanding of the right to protest,” judge says.

For the hundreds of protesters and bystanders boxed in, arrested and detained during Toronto’s notorious G20 summit, it is a taste of justice at last.

More than five years after the largest mass arrests in Canadian peacetime history, the senior officer who twice issued the highly controversial order to “kettle” people during the the G20 summit was found guilty of three charges at a police disciplinary tribunal Tuesday.

Supt. David (Mark) Fenton was convicted on two counts of unlawful arrest and one count of discreditable conduct relating to two incidents of “kettling” — including the hours-long containment of hundreds during a torrential downpour.

“This decision to order mass arrests demonstrated a lack of understanding of the right to protest,” said retired judge John Hamilton, who was tapped by former chief Bill Blair to oversee the hearing.

Hamilton found Fenton not guilty of two other misconduct charges in connection to hundreds of detentions at the makeshift “prisoner processing centre.”

Fenton is the only upper command officer charged under the province’s Police Services Act for his actions during the summit and one of only a handful of cops to ever see any consequence from the events of that June 2010 weekend.

The senior officer, who held the reins at the G20 command centre, had no reasonable grounds to call for the mass arrest during two police blockades, one outside an Esplanade hotel, the other at Queen St. W. and Spadina Ave., Hamilton ruled.

Fenton said nothing following the brief judgment at Toronto police headquarters, held inside an auditorium packed with police colleagues and upper command officers. Through his lawyer, Fenton — who had pleaded not guilty to the charges — issued an apology shortly after the tribunal decision came down.

“He deeply regrets that some of those decisions led to the arrest of people who were not involved in the violence and that some people were held in the rain for hours,” lawyer Peter Brauti said in a statement. “He would like to personally apologize to all those innocent parties that were negatively affected.”

Civil rights groups have long been calling for consequences for senior officers who ordered the indiscriminate arrest then detainment of a total of 1,100 people over the entire weekend.

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 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.

“At least somebody, Supt. Fenton, has been held to account. Unfortunately, not everybody has been.”

Adrienne Lei, who represented complainants kettled at Queen and Spadina, called the decision “an important recognition that the police disgraced themselves at the G20” — but she is disappointed in the timing.

“It’s a joke that this is the fifth-year anniversary, and we’re finally getting a decision,” she said.

In his ruling, Hamilton was sympathetic to the situation Fenton “inherited:” unprecedented levels of property damage and protesters he dubbed “hooligans,” who smashed windows and lighted police cruisers ablaze earlier that weekend. Upper command had not been adequately prepared for the G20, and as a result officers on the ground were caught “flat-footed,” Hamilton said.

Fenton, with his extensive policing experience and an “unblemished” career, took his role as G20 commander seriously, Hamilton noted. The officer had testified during the hearing that the chaos of the G20 reminded him of violence in his native Northern Ireland, calling the protesters “terrorists.”

But Hamilton found Fenton’s solution to the chaos — the decision to box in protesters, which Fenton testified he made on the fly — was too extreme.

“His use of power was not rationally connected to the purported risk to be managed,” the retired judge said, finding Fenton guilty of one count of unlawful arrest for each kettling incident.

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.

The two charges Fenton was exonerated of relate to the detention of prisoners and the G20’s processing centre. Hamilton ruled that another commander of equal rank was responsible for the “unduly harsh” detentions at the processing centre and that Fenton cannot be held responsible.

“I find that there is not clear and convincing evidence that Supt. Fenton was guilty of misconduct by failing to monitor the detentions of all complainants at the (prisoner processing centre).”

The sentencing hearing is set to begin Dec. 21. Under the Police Services Act, the consequence of Fenton’s convictions could range from reprimand to dismissal.

Asked if he was concerned that Fenton, who has nearly 27 years on the force, could choose to retire before being sentenced, Cavalluzzo said “it would make the situation more absurd than it already is.”

“People should be held to account. The chief of police at the time (Blair) is running now for federal parliament for the Liberals. The Prime Minister is on the hustings trying to get re-elected. Why aren’t people concerned about the fact that so many Canadians peacefully protesting were arrested? That to me is just intolerable.”

Fenton’s legal team was disappointed with the result, but respects Hamilton’s ruling “and the process that allowed all of the complainants the opportunity to participate,” Brauti said.

“Supt. Fenton had a very difficult job during the G20 trying to control unprecedented violence and property damage that was occurring in the city of Toronto. He had to make quick decisions and judgment calls to protect the city.”

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.

For Shervin Akhavi, who was kettled at Queen and Spadina, Hamilton’s ruling was both satisfactory and insufficient. He is pleased to see Fenton found guilty, but disappointed no one other than him has been held accountable.

Nonethless, after threatening for years to take down his framed copy of the Charter of Rights and Freedoms if Fenton was not found guilty, Akhavi says his shaken faith in Canada has been restored.

“It’s staying up,” he said.

THE CHARGES

Here’s how Fenton’s charges broke down:

Guilty: Two counts of unlawful or unnecessary arrests

Former Superior Court judge John Hamilton found Toronto Police Sup't. Guilty of two (2) counts of unlawful or unnecessary arrests.
Former Superior Court judge John Hamilton found Toronto Police Sup’t. Guilty of two (2) counts of unlawful or unnecessary arrests.

Former Superior Court judge John Hamilton, who oversaw the hearing, found Fenton did not have reasonable grounds to order the mass arrest and detention of protesters at each of the “kettling” incidents.

He also ruled that Fenton did not give the officers on the ground the ability to decide who was to be arrested.

“There was evidence before this tribunal suggesting that Supt. Fenton expected that bystanders would not be arrested at either location. Had bystanders been excluded from the containment, and not subject to arrest, that still would have left legitimate protesters. They had the right not to be subject to arrest for making noise, chanting and sitting in the public street.”

Guilty: discreditable conduct

Fenton was charged with discreditable conduct for keeping protesters and bystanders in the Queen St. W. and Spadina Ave. kettle “notwithstanding the onset of sustained, severe and inclement weather…”

Hamilton agreed, saying Fenton should have taken action to ensure the health and wellbeing of those being detained outside.

“When the weather turned ugly, there was a responsibility on the part of Supt. Fenton and others to ensure that prisoners had adequate protection from the elements.”

Not guilty: discreditable conduct and one count of unlawful or unnecessary arrest

Fenton was charged with discreditable conduct and unlawful arrest in connection with the “kettlings” on the Esplanade. The allegations included that Fenton “failed to monitor the status of the detentions … (and) in doing so, (Fenton) caused those so arrested to be arbitrarily and unlawfully detained…”

Hamilton agreed that the detentions at the G20’s so-called “Prisoner Processing Centre” (PPC) were “unduly harsh” and that the cells were “cage-like.”

Retired Judge John Hamilton agreed that the detentions at the G20’s so-called “Prisoner Processing Centre” (PPC) were “unduly harsh” and that the cells were “cage-like.”
Retired Superior Court Judge, John Hamilton, agreed that the detentions at the G20’s so-called “Prisoner Processing Centre” (PPC) were “unduly harsh” and that the cells were “cage-like.”

But the retired judge ruled that another commander, of equal rank to Fenton, was responsible for the processing centre, meaning Fenton “cannot be held responsible for the happenings at the PPC.”

“I find that there is not clear and convincing evidence that Supt. Fenton was guilty of misconduct by failing to monitor the detentions of all complainants at the PPC.”

Police officer charges after G20

By the numbers

91

Officers docked a day’s pay for removing their badges

23

Cases concerning G20 matters to be heard before a Toronto police disciplinary tribunal

31

Officers actually charged with misconduct in those cases

8

Officers convicted of misconduct

3

Convictions under appeal

1

Case is still waiting to be heard

Source: Toronto Star

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