Chapter 6: Policing
Peaceful public demonstrations are a right in liberal Western democracies. Such demonstrations must be permitted to enable free speech. In Canada, this right is protected under section 2 of the Canadian Charter of Rights and Freedoms as a freedom of peaceful assembly and expression. While police officers must respect and allow freedom of peaceful assembly and freedom of expression, tension arises when these freedoms are at times contrary to the duty of law enforcement officers to ensure public safety and security.
Policing public demonstrations is historically difficult. Police reaction to public demonstrations often results in criticism of the police for either being too lax in enforcement, resulting in riotous situations, or too restrictive, resulting in the restriction of the rights enshrined under the Charter. Police reaction is also criticized when the mere presence of officers escalates a situation or the public perceives their use of force to be excessive. This tension is exacerbated by the nature of public demonstrations, as demonstration groups can range from violent anti-authority groups to groups that historically participate only in peaceful protest.
Because of the potential volatility of protest groups, the police use intelligence sources to identify potentially aggressive or violent members. Once identified, police may apply a technique called strategic incapacitation to counter the violence that may result from aggressive protesters within protest groups (Gillham and Noakes, 2007). Although this tactic allows police to preserve or restore short-term order, it is also gives them a potential tool to suppress the civil liberties of protesters, which may result in further protest against the police, and turn arrested protesters or protesters who have been illegitimately treated by police into martyrs. Techniques used by police are not meant to protect civil rights, but to ensure peace, protect property, and safeguard society and the government against a state of anarchy. Police strategies include the establishment of no protest zones, increased use of less lethal weapons, strategic use of arrests, and the surveillance and infiltration of protest groups (Gillham and Noakes, 2007).
The establishment of no protest zones was used during the Quebec City Summit of the Americas in 2001. As protesters from a wide range of causes descended upon Quebec City, large fences were erected allowing the meetings of officials to proceed unhindered (King and Waddington, 2005). The fences prevented protesters from assembling at any meaningful location, essentially muting their voices to the dignitaries attending the summit. To the protesters, these tactics represented a suppression of their right to voice legitimate grievances and strengthened their resolve to protest (King and Waddington, 2005). Such actions by police, while increasing the potential for order, served as evidence to protesters that the police and the government did not respect the rights of citizens to protest (Redekop and Pare, 2010). In Quebec City, the final conclusion drawn by protesters was that the police were acting illegitimately, thus providing ample ammunition to further their protest (Redekop and Pare, 2010). As protesters penetrated the fence, their grievances spread beyond their original cause to the perceived illegitimacy of police actions that denied their rights to express their opinion. The police countered that the protest was not peaceful, and thus the protesters’ rights were not protected by the Canadian Charter of Rights and Freedoms. The severity of these new grievances caused the protesters to focus directly on those officers who, in their minds, were directly responsible for these egregious actions. Therefore, the police must be mindful that their actions are constantly observed and weighed as being for or against the democratic right to protest, and, when such actions are taken, protesters view the actions as illegitimate even if they are legitimate.
Increasing the use of less lethal weapons is also fraught when this tactic is used in situations where there is no legitimate threat to safety and property. In Canada, using weapons on crowds is unlawful and unjustified under the Criminal Code unless officers feel their lives or the lives of the general public are threatened (Criminal Code, 2015, Sec. 25). Weapons can only be used against the person who is posing the threat as there are no provisions allowing the use of a weapon on a collective mass, no matter how benign the weapon. A protest that is not a riot as defined in the Criminal Code is not an appropriate venue for the police to use weapons. A riot is defined in the Criminal Code as an “unlawful assembly that has begun to disturb the peace tumultuously” (Criminal Code, 2015, Sec. 64).
Even in situations that can be deemed to be a riot, police can face criticisms by the public and the media and in judicial reviews. Police can also be subject to civilian lawsuits and criminal charges. In the 2011 Stanley Cup riots in Vancouver, police were criticized for using the Anti Riot Weapon Enfield (ARWEN) gun, which propels plastic batons (Furlong and Keefe, 2011; Lee, 2011). Less lethal weapons, such as water cannons and ARWEN guns, are not approved for use in Vancouver due to concerns with the civil litigation resulting from the first Stanley Cup riot in 1994 (Furlong and Keefe, 2011).
The use of non-lethal weapons is also symbolic of repressing the right to protest and can cause police to lose legitimacy among the public and the protesters. In the August 2011 riots in England, Peter Waddington (Kelly and Fraser, 2011) stated that the use of water cannons and baton rounds symbolically “looks like the end of the world” and may cause the police to lose “the moral high ground,” and thus lose legitimacy with protesters and the general public. Since the implementation of these weapons is frowned upon when used against rioters committing criminal acts, their use against protesters would likely be even less acceptable.
The strategic use of arrests should only be implemented when there are sufficient grounds for arrest, regardless of the context. When police pre-emptively arrest potential agitators on charges that would not normally be entertained, their legitimacy can only be questioned. Arrests were strategically utilized in the 1997 Asia-Pacific Economic Cooperation (APEC) conference in Vancouver. While the arrests resulted in incapacitating the protest, they ultimately demonstrated, in the long term, the illegitimacy of police and government actions with respect to protesters’ rights (Ericson and Doyle, 1999). Of the 49 arrests made, only one party was eventually charged for the original arrest, and this charge was eventually dropped (Ericson and Doyle, 1999).
In the APEC example, noted Canadian anti-globalization protester Jaggi Singh was arrested for assault days before the APEC conference was to start (CBC News, 1999 Panitch, 2002). The charge of assault occurred as a result of Singh talking through a megaphone and causing temporary damage to a security guard’s ear. Singh was imprisoned during the APEC conference, thus suppressing his right to protest (CBC News, 1999; Panitch, 2002). Once the APEC conference was over, Crown counsel determined that the charge was not worth pursuing and charges were stayed (CBC News,1 999). This strategy, while preventing some protesters from protesting, abuses police authority and is demonstrative of the tactics used to achieve an end (institutional protest) without regard to the means (legitimate protest). This utilitarian example of using any means to justify a peaceful end resulted in the denial of Singh’s rights to express his opinion under the Canadian Charter of Rights and Freedoms. From a police standpoint, this tactic also resulted in the future mistrust of police making legitimate arrests or conducting active surveillance for public safety. While some measure of safety and security may have been accomplished by pre-emptively arresting Singh, we will never know whether the consequences of arresting him were positive or negative in this regard; we know only that the end result was negative.
Surveillance of protest groups by police is a tactic used on groups that do not cooperate with the police. This lack of cooperation by some groups results in a lack of intelligence-gathering through open communication (Waddington, 1998). These tactics may include surveillance of protesters before a protest begins (Waddington, 1998), or the surveillance of online activities of protesters (della Porta, 2006). della Porta (2006) argues that, when used, these tactics demonstrate a suspension of civil liberties and a lack of respect for protesters’ rights, and that their use must be limited to those rare occasions when police feel the group is threatening the safety of the general public, or, in Canada, where the peace will be disturbed tumultuously (Criminal Code, 2015, Sec. 63).
The infiltration of protest groups is a way in which police can gather information about protesters’ strategies when there is no communication between the police and protestors. However, tactics such as these were used in the 1960s in the United States, and were widely seen as an abuse of civil liberties and are disallowed in some American jurisdictions (Gillham and Marx, 2000). Police, in response to the perception of such tactics, must continue attempts to communicate with all protest groups regardless of the cause of the protest or the plans of the protesters.
To achieve ethical control of protest groups, communicating with these groups is important because it enables law enforcement officers to understand the goals of a protest and to assess the type of protest they will face (Reicher, Stott, Cronin, and Adang, 2004). Reicher et al. (2004) consider communication with protesters to be a vital part of crowd control. Without it, police lack vital intelligence that would inform them about how to manage and differentiate the crowd. These are important considerations for police if they are to behave in a manner that will allow protesters their freedom of speech while maintaining public order, which is the end result desired in order for police to fulfill their common law duties.
Policing all public order events is a difficult task regardless of the groups involved. Protest groups are especially difficult to police due to the lack of a hierarchical structure affecting communication. In attempting to police disorder resulting from protest groups, police must continually assess whether their values lean toward public order or respect of the right to protest and civil liberties. When this assessment leans toward public order, tactics of strategic incapacitation may result in the public order being maintained at the expense of the right to protest in a meaningful way. The tactics used against protest groups may have lasting implications regarding the credibility of the police. Additionally, institutionalizing protest groups may yield few results immediately, compared to strategic incapacitation, but may result in long-term meaningful protest that is also peaceful. Ultimately, police must demonstrate their legitimacy through their acceptance of the democratic right to protest. In doing so, police must recognize that their duty is also the protection of rights under the Canadian Charter of Rights and Freedoms, and not merely their duty to uphold the Canadian Criminal Code. Often these two duties are at odds with one another, which can create a situation where law enforcement leaders responsible for crowd control and public order face an ethical dilemma that is high profile with high stakes.