Authority of the Mayor - Part 2

by Gary McHale - The Regional

May 19, 2010

As stated last week the Mayor has a dual role - one as a politician and also as a peace officer which is confirmed by both the Criminal Code of Canada as well as British Common Law. During a riot the Mayor is required by law to take all reasonable steps to bring the riot under control including the authority to order the police to take action.

The question remains what is a riot? The Criminal Code defines a riot as "an unlawful assembly that has begun to disturb the peace tumultuously."

The B.C. Court of Appeal stated, "It must be remembered that the offence of 'riot' had its roots in the crime of treason..." This same court  ruled that the word 'tumultuously' meant something more than boisterous, noisy or disorderly conduct and includes "force or violence displayed in such a manner as to alarm at least one person of reasonable firmness and courage."

The Courts have upheld the view that a riot occurs even when serious property damage has not happened. In 1998 Prime Minister Chretien attended a fund-raising dinner for the Federal Liberal Party in downtown Vancouver. A group of protesters gathered outside and a small group of 12 protesters broke through the police line and attempted to enter the hotel while several officers were injured. The police responded with force and were later sued. The court accepted the defence argument that police officers were protected by law in using force to suppress a riot.

While the Criminal Code allows peace officers to use force while enforcing the law, there are also special provisions which authorize the use of force in suppressing a riot. Section 32 states, "Every peace officer is justified in using or in ordering the use of as much force as the peace officer believes, in good faith and on reasonable grounds is necessary to suppress a riot..."

Section 33 states that once the proclamation to disperse is read off the peace officer is duty bound to 'to arrest persons who do not comply with the proclamation.' Because this is the legal duty of the peace officer this section also states, "No civil or criminal proceedings lie against a peace officer in respect of any death or injury that by reason of resistance is caused as a result of the performance by the peace officer..."

Riots are considered so serious that the Criminal Code empowers all citizens with the right to use force to suppress a riot before police involvement. Section 32(4) states, "Everyone who, in good faith and on reasonable grounds, believes that serious mischief will result from a riot before it is possible to secure the attendance of a peace officer is justified in using as much force as he believes in good faith and on reasonable grounds, is necessary to suppress the riot."

Remember riots are rooted in the idea of treason and thus the Mayor, Police Officers and citizens are authorized and thus justified in using reasonable force to suppress a riot.

Can it be said that there was a riot in Caledonia in 2006? I believe the answer is that there were several riots in Caledonia where no action was taken to suppress them.

The first riot started on April 20, 2006 when Native Protesters repelled the OPP who were obeying a court order to remove the protesters from DCE. The OPP Press Release regarding this event states, "During this time three OPP officers were injured and required medical attention. Our officers showed tremendous restraint while confronted by the protesters with weapons which included axes, crowbars, rocks and a various assortment of make-shift batons." We also need to remember that several tire fires were started which blocked various roads.

Certainly one could also argue that a riot occurred on June 9, 2006 when after the so-called relative peace had been established Native Protesters committed a hat trick of crimes. Within 2 hours they swarmed an elderly couple at Canadian Tire, hospitalized the CH TV cameraman and attacked the OPP/USA officers which resulted in an attempted murder charge.

OPP Insp. Haggith's response to the June 9 event was entered into evidence in the Chatwell/Brown lawsuit trial. Insp. Haggith testified that he told senior officers that "the OPP had to start to arrest Native Protesters as they committed crimes." He was ordered not to and also ordered to create a plan to control residents. The Toronto riot squad was brought into Caledonia and ordered to line up against the residents. The Toronto police refused this order and got back on their buses and left Caledonia.

While the Criminal Code and British Common Law make it clear that the police are duty bound to suppress a riot, we all saw the OPP and the McGuinty Government do and say everything they could not to obey the Law and the courts. We all heard the OPP and Government talk about police discretion.

Unlike other crimes committed where police do have discretion the Criminal Code makes it a criminal offense not to suppress a riot and therefore there is no such thing as police discretion when it comes to a riot. The police cannot stand by, day after day, and watch a riot continue.

Furthermore, there has to be a reason why the Law empowers non-police people to take action to ensure a riot is suppressed. Why is it the Mayor, Justice of the Peace and Sheriff are the ones to read off the riot proclamation? Why not just have the police do that?

The answer appears to be that British Common Law requires the Mayor, and if the Mayor was unavailable or unwilling to act then the Sheriff or Justice of the Peace, to take charge and to order government resources (OPP, RCMP, Army) to suppress a riot.

Section 69 makes it a crime punishable by 2 years in jail, for any peace officer (OPP or Mayor) who fails to take all reasonable steps to suppress a riot.

I think there is little doubt that in 2006 the OPP, McGuinty Government and even Haldimand Council did everything they could to ensure that the Mayor did not exercise her legal authority to restore peace.

We have laws for a reason which have been developed over the past 1000 years during times of great chaos. Could it be that the Rule of Law, and not political appeasement, is what brings about long-lasting peace?