TORONTO – It is vital that Toronto’s police chief explain his involvement in a senior officer’s decision to order mass arrests during the city’s tumultuous G20 summit, lawyers for complainants in a disciplinary hearing on the matter argued on Monday.
But counsel for police Chief Bill Blair and his former deputy police chief sought to prevent the two top officers from being called to testify in the case of Supt. David Fenton, arguing their evidence would be irrelevant and that the police chief could not be compelled to appear.
Fenton has pleaded not guilty to five Police Services Act charges stemming from two “kettling” incidents that occurred over the summit weekend in 2010 and resulted in the largest peacetime arrests in Canadian history.
The first took place on Saturday, June 26, 2010, hours after a small group of vandals smashed windows and set police cruisers alight.
Fenton ordered officers to box in protesters in front of a downtown hotel. More than 260 people were arrested and taken to a makeshift prisoner processing centre, which came under severe criticism for its deplorable conditions.
The second incident occurred the next day when, six minutes after coming on shift, Fenton ordered police to keep scores of people standing for hours at a downtown intersection despite a severe thunderstorm that left them drenched.
When he took the stand in his own defence in mid-December – before the hearing broke for the holidays – Fenton said his superiors were fully aware of the manner in which he had ordered the arrests to take place, had not stopped him from proceeding and noted that Blair thanked him after the first incident for “saving the city.”
It was after hearing those details of Fenton’s testimony that lawyers for three complainants decided they needed to call on Blair and former deputy chief Tony Warr to test Fenton’s statements.
“Supt. Fenton appears to be running a Nuremberg defence in saying that he was simply following orders, that appears to be where he appears to be going with this,” explained Sean Dewart, who made the request for Blair and Warr to be called before the hearing. “We believe that the hearing officer should hear evidence from the people who supposedly gave the orders in question.”
While Blair’s lawyers are arguing the police chief wouldn’t have anything of note to offer to the proceedings, Dewart has countered that Blair’s testimony would be “plainly relevant.”
“It is untenable to say that what the superior officers have to say is not relevant,” he told the hearing.
Dewart is being supported in his request by a lawyer for another set of complainants, who told Fenton’s hearing that the decision on whether or not the superior officers should be called to testify could set an important precedent.
“In the future, all a police officer has to do is say the chief instructed me to do it, and the chief is not compellable in those circumstances?” asked Paul Cavalluzzo.
“If that’s the case then the proceedings we have under the Police Act to ensure the accountability of the police officers in this province is undermined.”
In arguing that the police chief is not a “compellable” witness, Blair’s lawyers have explained that he has the authority of a hearing officer under the Police Services Act – powers he has delegated in Fenton’s case to a retired Ontario judge hearing the proceedings, but authority he still nonetheless holds.
But Cavalluzzo took issue with that argument.
“How can the chief be the hearing officer when we’re involved in the case where his conduct is being brought into the issue,” he said. “No person can be the judge of his own conduct.”
Blair’s lawyers have countered that the arguments put forth by counsel for the complainants in the proceedings were an attempt to shift the focus of the hearing.
“The conduct of the chief and of the deputy chief is not the subject of this hearing,”said Marianne Wright. “To hijack it and carry it in that direction is to do exactly what we’ve been warning of, to turn it into a public inquiry.”
Blair’s evidence would also be prejudicial, Wright added, because of the weight he would hold in the proceedings.
“It would be quite probably bringing some sort of bias into the proceeding,” she told the hearing officer. “This hearing and the matters that arise before you are before the chief.”
Meanwhile, Fenton’s lawyer said “it’s late in the day” for such a summons request from the complainants’ lawyers.
“They are inflating our reliance on the chief and deputy Warr,” said Peter Brauti.
“While (Fenton) didn’t receive a specific instruction to box (people in), the command was privy to it, allowed it to happen and condoned it after the fact.”
Retired judge John Hamilton, who is presiding over the hearing, is expected to determine by Tuesday afternoon whether to call Blair and Warr to testify.