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Trials And Tribulation, Or, Seven Things I Learned From The OCAP Trial

May 16, 2003
It’s last weekend. The OCAP Three — John Clarke, Gaetan Heroux and Stefan Philipa, activists from the Ontario Coalition Against Poverty (OCAP) — have been on trial, including weeks of pre-trial motions, since January 13, 2003 for their actions on June 15, 2000 at the Ontario Legislature. Roughly twenty police witnesses have been called to testify, and dozens of photos and videotapes have been shown to the jury. The decision is eagerly awaiting by not just the three on trial but by a large activist community who supports them.

Finally, a decision comes down. It’s a mistrial.

The Crown prosecution team argued that the three accused, defined as the leaders of OCAP and organizers of that day’s demonstration, came with the intent to riot and should be held legally accountable for their actions.

The defense team countered that it was actually police overreaction and misconduct that led to the violence at the demonstration and, although the three accused did plan and participated in a spirited and militant demonstration, their intent was not to cause a riot on the lawn of Queen’s Park.

Here are seven lessons I picked up from the trial:

1. Riots are Exciting, Court is Boring

Going to court is so boooring! It’s a lot of sitting around and waiting (even when you’re involved). There were delays from the get-go. On February 28, 2003, for the ruling on the pre-trial motions, Judge Ferrier made us wait an extra hour due to “technical reasons.” A member of the Crown prosecution team (a junior member, I’m sure) was spinning around in his swivel chair while he waited.

You don’t really have to dress up or, at least, you only have to for the important parts. True to their roots, the defendants looked no different than the audience sitting on the hard benches at the back of the courtroom. The only people who looked really dressed up were the lawyers and the police — also true to their roots, I guess.

Court isn’t like a Town Hall or community meeting, though, let one “SHAME!” slip and you’re turfed from the room. Town Hall or community meetings don’t have huge metal detectors greeting you with big, open arms at the door, either.

I think having to attend court is punishment enough, a crazy antithesis to the energy of an explosively powerful demonstration. Court isn’t boring for the jury, though, it seems, since their emotional and communication meltdown is what led to the mistrial.

2. Anything Juicy Happens at the Pre-Trial (Why Publication Bans Suck)

The pre-trial is where it’s at — though it could not be written about until now due to a publication ban — where hot, precedent-setting rulings are debated.

One notable pre-trial motion related to this case was the defense argument (which they won) that they should be allowed to ask questions of prospective jurors to determine if they had any prejudice or bias towards people who are homeless or poor. Objected to by the Crown, this line of questioning was meant to secure a non-biased jury for the OCAP Three.

In affidavits filed by J. Bruce Porter and Joseph Hermer to support the defense, they outlined the concern for a potential bias against people who are homeless and poor.
While an earlier court decision allows potential jury members to be asked about their bias concerning people of colour, this is the first time question were allowed about bias concerning people of lower economic status. Bruce Porter argued that class discrimination was similar to racial discrimination.

This is a strong step towards equalizing the justice process in Canada, which is why, I guess, the Crown fought against it so hard.

3. The State Fears Activist Who Ride Bicycles and Speak with British Accents

To the Tory government (whoever may lead it), John Clarke must be like kryptonite. (One of my favourite OCAP slogans is: “Kicking the ass of the ruling class since 1992.” John must have the biggest boot of them all.)

In fact, when he finally took the stand, his introduction from his lawyer was a dramatic, if a little sarcastic, “Without further ado, John Clarke.” There he sat in the witness box, the leader/non-leader of the Queen’s Park riot/non-riot.

Honest and unapologetic about his views, when asked by Crown prosecutor, Vincent Paris, why he had not done “prior research” into the rules for addressing the Legislature, citing an earlier quote from a media interview where John said, “I don’t give a rat’s ass about parliamentary traditions,” John gave a clarification in his usual manner,
"What I meant is that we are not concerned about the niceties of tradition,” he said.

I wonder if John should consider running a charm-school-for-activists because all the politeness of the movement hasn’t gotten us anywhere. While I’m sure few powerful people in Ontario remember the civil liberties demo that happened in December of 2001, they no doubt remember O16, the anti-poverty demo the same year that nearly drove Mel Lastman and Julian Fantino crazy. I’m sure they also remember the Pope Squat.

4. There’s More than One Way to Start a Riot

The June 15 riot could have started with a firebomb thrown over anti-poverty demonstrator’s heads, exploding physically and symbolically on the steps of the legislature.

The reaction from the crowd was a split between “Hardcore!” and “Holy Shit!”

Speaking of horse shit, the Molotov is thought to be what provoked the police that day to dispatch a mounted unit into the crowd, destabilizing a “relatively peaceful demonstration” into a riotous situation, testified activist and rabble publisher Judy Rebick.

Or perhaps the spark came earlier in the day, though without flame, with the collapse of a dual set of barricades used to guard Queen’s Park. John, in his testimony, said he never ever imagined such a situation would happen, calling it an “unanticipated and unwelcome success."

I guess it’s important to remember you could be held responsible for good shit that happens even if you didn’t plan for it ahead of time.

5. Cops Go Through Training, But Don’t Assume You’ll Like What They’re Trained To Do

The defense highlighted this point, holding police behaviour responsible for sparking the chaos. Peter Rosenthal (council for John Clarke) put the blame on the police for not reading the Riot Act to the demonstrators and for bungling an attempt to communicate with the crowd.

As an example brought up during trial, Inspector Wes Ryan, unit commander for the force’s public safety (public safety!) unit, said police had brought five meter banners with them bearing messages like, “Leave Now: Force will be used,” etc, but they were never displayed to the crowd. They also had a loud hailer, but they didn’t use that either.

So no longer convinced that I can predict police behaviour, I’ve gone out and bought a second hand copy of The Art of War.

6. The State is Not an Equal Opportunity Prosecutor

The grand tally of trials for people’s involvement in the June 15 riot is forty-five, including the OCAP three. Eighteen have entered guilty pleas, six were found guilty after trial, five have been acquitted, four others entered peace bonds, four had their charges withdrawn and the rest are approaching their trial date in the coming months.
Most of these people were affiliated in OCAP and prominent in activism in some way.

In regards to this trial in particular, Stefan Philipa and Gaetan Heroux, who were present along with the 1,500 other activists on the lawn of Queen’s Park, were accused of participating in a riot. But only these two prominent members of OCAP were accused of the charge, denying 1,498 other activists the equal opportunity to be arrested for also being in attendance that day.

7. Tax Payers’ Money Has Better Things To Do than Pay for a Re-trial

The most important lesson I learned from the OCAP trial is that the money could have been better spent. And the money that might be spent on a re-trial (we won’t know until June 18 whether or not the Crown will take another go at it) can be better spent too.

Gaetan had a message to the Crown and government outside the courtroom after the news of a mistrial was passed down: “Instead of spending the money retrying the case, spend in on housing.”

I have to agree.