by Gary McHale - The Regional
May 12, 2010
About a month ago there was a pre-enquete to lay charges against senior OPP officers for their failure to suppress a riot in 2006 in Caledonia. The case was adjourned for reasons that turned out be the single most important legal point for the residents of Haldimand county to understand.
Since then there has arisen a key question about what is the authority of any Mayor in relationship to law and order issues and the answer will shock you.
Canada’s criminal justice system is based on British Common Law which is the unwritten law based on custom or court decision, as distinct from statute law. For example, the Crown's right to withdraw a charge is not found in any written law passed by Parliament but in traditional court rulings. Common Law ensures that lower courts follow the rulings of higher courts thereby ensuring stable and consistent rulings throughout a nation.
This rich history of Common Law is meant to protect individuals against the abuses of the courts and by the state. Common law developed over the past 800 years during times of great abuse by the state or individuals in office. The courts and parliament have had to adjust as various problems within society become a major issue.
One of these problems occurred in 1780 during the Gordon riots in London England. Lord George Gordon incited Protestants to rise up against Catholics out of fear that Catholics in the military would join forces with Catholics outside of Britain to overthrow the Government.
Gordon lead 40,000 to 60,000 people, with a petition in hand, to the steps of Parliament. Despite being aware of the possibility of trouble, the authorities failed to take steps to prevent violence breaking out. Severe destruction was inflicted on Catholic churches and homes and chapels on the grounds of several embassies, as well as on the Bank of England, Fleet Prison, and the house of the Lord Chief Justice.
The army was called out and given orders to fire upon groups of four or more who refused to disperse. About 285 people were shot dead, and several hundred more were wounded.
Because of this event laws were enacted to ensure such violence did not occur again. These laws have been passed down and became part of the Canadian Criminal Code.
One of the first things that needed to be addressed is who is in charge during a riot and who is accountable for failing to suppress a riot. The British solution to this problem is quite amazing.
Ultimately the responsibility of suppressing a riot appears to fall on the shoulders of the Mayor of the jurisdiction where the riot occurs. The historical authority of a Mayor to directly order police and military to suppress a riot has been confirmed by Canadian courts.
In 1997 the Supreme Court of B.C. was dealing with the Stanley Cup Riot of 1994 that occurred in Vancouver. The court quoted the case of Stevenson v. Wilson (1857) where the Mayor of Montreal ORDERED police to open fire on rioters. Mr. Stevenson was injured and sued the Mayor for giving the order.
The 1850s riot was prior to the enactment of the Criminal Code. The court found that the Mayor was entitled to claim the protection of the law when acting in the exercise of his discretion to suppress a riot. Since then the Criminal Code has made it a crime for officials not to do everything reasonable to suppress a riot.
Section 69 states, "A peace officer who receives notice that there is a riot within his jurisdiction and, without reasonable excuse, fails to take all reasonable steps to suppress the riot is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years."
What is amazing is the definition of who is a 'peace officer'? We naturally think of a police officer as a peace officer which would be true. However, section 2 of the Criminal Code gives the legal definition of who is a peace officer and the first person listed is "a mayor".
Under the British system the only politician that has a dual role is a Mayor - as both a politician and peace officer which is enshrined in the Criminal Code.
In the 1850s the Mayor of Montreal had the authority, even prior to the Criminal Code, to order police to suppress a riot. The Mayor was protected by law in the discretionary duty to use all government resources to reasonably suppress a riot.
What is equally important to understand is that the police in Montreal understood their duty to obey the orders of the Mayor. One could argue that during a riot the Mayor is the chief peace officer with the absolute authority over police to use all reasonable force, and any officer refusing to obey would be subject to a criminal offence as stated above in section 69.
This role of a Mayor to actively suppress a riot is further supported by section 67 of the Criminal Code which states:
"A person who is a justice, mayor or sheriff... who receives notice that, at any place within the jurisdiction of the person, twelve or more persons are unlawfully and riotously assembled together shall go to that place and, after approaching as near as is safe, if the person is satisfied that a riot is in progress, shall command silence and thereupon make or cause to be made in a loud voice a proclamation in the following words or to the like effect: Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business on the pain of being guilty of an offence for which, on conviction, they may be sentenced to imprisonment for life. GOD SAVE THE QUEEN."
According to section 67 it is a justice, mayor or sheriff (police officer is not listed) who 'shall', meaning must, go to the place of a riot, and read off the proclamation telling people to disperse.
Being a member of a riot is punishable up to two years in jail. However, 30 minutes after the proclamation is read out, the people who do not disperse are liable to imprisonment for life.
The Mayor, during a riot, is the spokesperson for the Queen and refusal to obey is seen as treason. As such the Mayor has authority over police to suppress the treasonous act of rioting.
Continued next week