Excerpt from Toronto Star Article:
Before their arrests they had all taken a voluntary justice program, offered by the Ontario Justice Education Network. It ended with a mock trial before a real judge, and certificates were issued.
One thing the well-spoken young men said they learned is that they have rights during encounters with police.
“And then we learned that we didn’t have them,” said one of the teens, referring to the arrests.
“Everyone gets stopped in our area, because there’s lots of black people,” said the twin who was punched. “Lots of black people get stopped. Guys get stopped a lot more than girls.”
Asked if he would ever try to walk away from police again, the twin who was punched replied: “I’m not walking away and getting beaten up and charged again. If that video camera wasn’t there, I’d have no chance. It would be my word against police.”
The others agree that would be a bad idea.
While I clearly don’t know the specific content of the OJEN program discussed, this drives home the point for me that when lawyers talk about “rights” it is really important for them to talk about rights in a way that is embedded in social context.
In the “know your rights” work that I’m involved in, we definitely try to communicate what the law actually is, but we also always try to create a space in the workshop for participants to talk about (or act out using theatre) the lived experience of their rights in the street. If there is a gap between the rights in the courts and the rights (or lack thereof) in the streets, and if there’s a perceived difference in your rights depending on what streets or neighbourhoods you’re in (Lawrence Heights vs. neighbouring Forest Hill), or the colour of your skin, or the clothes you’re wearing, then we unpack the possible implications and causes of these differences. Systemic poverty and racism usually come up in such conversations.
Of course, it’s very possible that the youth in this story knew from their own experiences that enforcing their rights as learned in the OJEN program might put them at risk vis-à-vis the police, and decided to do so anyway.
In such workshops, I also think its relevant to talk about the fact that even though courts will vindicate rights, it is only a very rare case that ends up going to trial, which means that almost all interactions with the police fly well under the judicial radar. And further, even if a particular case does go to trial (or reaches an appeals court), while an individual may see some justice, there is no direct connection between the legal enforcement of rights in one case and the general behaviour of the police on the ground.
This was made clear by McLachlin C.J. and Charron J. in R. v. Grant. In that case, the Supreme Court of Canada looked at s.24(2) of the Charter. That section is the “remedy” section, which is used after the court has found that an individual’s rights have been violated. Under s.24(2) the court decides whether any evidence collected as a result of the violation should be left out of the case. For example, should drugs found after an illegal search be excluded?
At para. 73 of Grant, when discussing the purpose of s.24(2), McLachlin C.J. and Charron J. said that the “concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence.” I repeat the concern is NOT to punish police or to deter future Charter breaches. In other words, the goal is not to change police behaviour so that it will result in fewer rights violations in the future.
Nor does the court’s inquiry ever focus on institutional failures of the police to instruct their officers as to the rights of civilians. I have reviewed all the cases that followed Grant and only very rarely are institutional failures even mentioned. It seems to be commonly understood that police often do not know the specifics ofCharter rights, and that there is little effort taken by police forces to instruct their officers.
And what are people supposed to do if their rights are violated by the police? People are supposed to seek remedies through the police complaints process or through civil actions, both of which have serious shortcomings, and neither of which lead to any kind of institutional reform.