Camp Justice Goes To Court

One of Canada’s most powerful protests takes its case to Queen’s Bench

Feature | by Gregory Beatty

The latest salvo in the dispute between the Justice for Our Stolen Children camp and the Saskatchewan government came literally when, on Aug. 12 at 2 a.m. some “jackwagon” (h/t to Brad Wall for that term) fired a roman candle at the tipis clustered across from legislature in Wascana Centre.

No one was injured, thankfully, and the alleged assailant was arrested and now faces criminal charges including arson with disregard for human life.

More drama, hopefully of the non-violent variety, awaits when the government and camp square off in Queen’s Bench Court on Aug. 23.

The camp is seeking a declaration that their constitutional rights were infringed on when the Regina Police Service dismantled the camp and arrested six campers on June 18. The government, in turn, is seeking an order compelling the camp to vacate the park, and for RPS Chief Evan Bray to act on that order.

The government’s action against Bray has its roots in a move the province made in 2017 to establish the Provincial Capital Commission (PCC) to govern Wascana Centre. Before that, it had shared jurisdiction with the City of Regina and University of Regina.

According to Regina city councillor Andrew Stevens, the move came as a surprise.

“To my knowledge there was no consultation. There was some speculation the province was dissatisfied with the governance model, so there might have been some hints, but I don’t think anyone saw the longstanding stewardship model that involved three equal partners changing as radically as it did.”

Under s. 9-3 of the PCC Act, the city is tasked with providing fire protection and law enforcement in Wascana Centre. That would seem to make for an airtight case against Bray. But the situation isn’t as simple as that, says Regina lawyer Merrilee Rasmussen.

“This is this complicated situation where municipalities are creatures of provincial statue, so the province can certainly enact those laws,” says Rasmussen. “But I would argue those laws don’t take away the discretion the police have to prosecute or not depending on the circumstances. More importantly, it does not mean the RPS is required to arrest somebody when the premier picks up the phone.”

It is well established in case law, says Rasmussen, that police officers do not act as government agents. Instead, they have discretion in how they carry out their duties. That creates a firewall between the government and police. Without it, you’ve got the potential for a police state to emerge — which is a kiss of death for a liberal democracy.

When the Saskatchewan government issued a call for police to dismantle the camp for a second time in late June [see timeline], Regina city councillor Joel Murray — who sits on the Board of Police Commissioners, the municipal body that oversees police operations — tweeted: “I never want to see the day that police are operationally directed by politicians. There are numerous examples of how that is a very dangerous precedent.”

The Gestapo (Nazi Germany), KGB (Soviet Union), SSD (North Korea) and Mubahith (Saudi Arabia) are some of the more notorious examples of state police. But Canada has its own sordid history, with governments at various levels in the 1920s/30s directing police to break up labour protests, including the Regina Riot in 1935.

More recently, there were the Ipperwash and APEC affairs in 1995 and 1997. In both instances, inquiries were held and the governments involved (the Harris PCs in Ontario and Chretien “pepper, I put it on my plate” Liberals in Ottawa) were found to have acted inappropriately when they pressured the Ontario Provincial Police and RCMP to act against demonstrators.

Typically with police discretion, says Rasmussen, complaints arise when police exercise too much discretion rather than too little. In R. v. Beaudry (2007), for instance, an officer caught a fellow officer driving while impaired but didn’t collect the evidence necessary to charge him. On appeal to the Supreme Court, his conviction for obstruction of justice was upheld.

“When courts look at these situations, what they’re looking at is not just a subjective test of whether the police officer thought they were exercising their discretion [properly], but whether they were doing it in a reasonable manner,” says Rasmussen. “So there has to be valid and reasonable grounds on which they’re making that judgment.”

Building Bridges

When RPS officers dismantled the first camp in mid-June, they acted with respect and compassion. But the optics of seeing Indigenous protestors, including elders, being dragged away were not good — especially since the government’s stated goal was to clear the space for Canada Day festivities.

A repeat spectacle, surely involving a larger group of both Indigenous and non-Indigenous protestors, would be contrary to work Regina is doing to improve relations with the Indigenous community, says Stevens.

“Starting formally in 2016, but with some earlier discussion with local First Nations around urban reserves, the mayor and council have been [working] to address the Truth & Reconciliation Commission’s calls to action that are specific to municipalities,” he says.

The police have been in the forefront of that effort, says Stevens. One example is a satellite office at the mâmawêyatitân centre in Regina’s predominantly Indigenous north-central neighbourhood. Other outreach efforts include round dances, a Treaty Four police academy and having an Indigenous representative on the police board.

Not only is the effort just, it makes practical sense too, says Stevens.

“The settler colonial model in which we live is no longer sustainable,” he says. “In the past, one way or another, you could hide or defer it, but from every angle we can’t go on like this. The costs through the justice system, if we think of health, educational outcomes, we’re coming to a breaking point.”

Regina NDP MLA Carla Beck is equally critical of the Saskatchewan government for putting Regina’s outreach effort at risk, and its general disinterest in moving on TRC calls to action that are in provincial jurisdiction.

“What we’re seeing is the government attempting to litigate their way out of a problem that has escalated through its refusal to meet with the camp and listen to their concerns and those of First Nations leadership,” says Beck.

“One concern is the state of the child welfare system,” she says. “Going back to 2013, I believe, the government has been talking about a review. But we’ve actually seen an increase in both the number of children in care, and the proportion that are First Nations or Métis.”

The education gap for Indigenous students is another concern, says Beck.

“There has been some effort put toward that — so credit to the government. But when they cut $54 million from K to 12, or cut money from the post-secondary system, it makes it very difficult to reduce the gap.

“They talk like their goals are priorities, but there seems to be a lack of political will to get serious and start moving those numbers in the right direction,” Beck says.

#JUSTICECAMPSTRONG

Following the recent Danforth shooting, Toronto police chief Mark Saunders spoke about the need to move beyond reactionary police-driven responses to crime to look at root causes tied to poverty, homelessness, addiction, mental health and other factors.

“I don’t want to put words in our chief’s mouth, but he’s often said the same thing,” Stevens says. “But if politicians don’t start investing in these issues, and don’t start addressing crime as an outcome of social inequality, we’re just going to be pumping millions more into police services every year with no effective solution.”

With racial tensions on the rise in Saskatchewan, Stevens, Beck and Rasmussen all expressed concern about the outcome should the government win its case, with Rasmussen calling it a “powder keg”.

“It’s been stressful, and I can’t help but think it could’ve been resolved with some goodwill, respect and conversation,” says Beck. “But here we are, heading to court.”


Sidebar

Duelling Lawsuits

When the Justice for Our Stolen Children campers got to court on Thursday, Aug. 23, they will argue their right to free expression under s. 2 of the Charter was infringed when they were evicted. The campers are also seeking an order that their June 18 arrest violated their s. 9 Charter right not to be arbitrarily detained or imprisoned.

The test the government will have to meet was set out in R. v. Oakes (1986), says camp lawyer Dan LeBlanc. “The first part of the analysis is ‘Is the government’s activity interfering with their right to express themselves?’ The obvious answer seems to be yes. The second question is, ‘Is the government’s action justified to achieve goals it’s trying to pursue?’”

Those goals, as laid out in the government’s court filings, include park maintenance in the camp area, public safety and the ability of people to access to the park.

“From our perspective, there’s a lot of park,” says LeBlanc. “People are still having a good time, and events are occurring. As for public safety, there’s no allegation the camp itself is making people feel unsafe.” Instead, the government’s concern rests primarily with adverse public reaction to the camp.

Previous Supreme Court decisions have held that freedom of expression exists on a spectrum, says LeBlanc. “At the high end, where we say we fall, is expression aimed at taking part in social and political decision-making. At the low end is something like advertising as commercial expression. At the higher end, the government has to put more on the scale to justify interfering with expression.”

The government argues the campers are still free to protest in the park. But LeBlanc says the camp — with its high visibility, and proven ability to teach people about the campers’ views on colonization and systemic racism — is integral to their s. 2 Charter right.

With the s. 9 challenge, says LeBlanc, the campers will argue that without a court order there was no basis in law to arrest and hold them for four hours on June 18 while the first tipi was dismantled.

“We’re looking for a declaration their rights were upset, and some clarification around the proper purposes for which police can arrest and detain people,” says LeBlanc. “That may have implications for the way people feel free to express themselves going forward — especially in connection with the TRC calls to action.”


Sidebar

Timeline For Camp Justice

Feb. 15: The camp is set up in Wascana Centre across from the legislature. It’s focus: the overrepresentation of Indigenous children in foster care, and Indigenous men and women in the justice system.

May 14: The government issues a formal response, saying the camp is in violation of several Provincial Capital Commission bylaws. On June 5, the PCC, along with the Ministry of Justice, issue an eviction notice.

June 15–18: Regina Police Service act on the notice and dismantle the camp. Six people are arrested and held for four hours for obstruction of justice, but no charges are laid.

June 21: The main tipi is reinstalled, and on June 22 Justice Minister Don Morgan calls on RPS to remove it. On June 23, a second tipi is erected. The number now stands at 15.

June 27: Citing a meeting that’s set for July 2 between the government and camp in Fort Qu’Appelle, RPS Chief Evan Bray issues a statement that reads, in part, “Right now, our focus is community safety.  We assess [the situation] multiple times a day.  We make sure there’s no risk to the public, which at this point we don’t feel there is. So our response right now is to let that discussion happen and ultimately hope for a peaceful resolution.”

July 2: Following the meeting, the camp asks for a moratorium on adoptions and a review of social services related to permanent and long-term wards. They also request a second meeting. On July 12, Premier Scott Moe denies that request and says he has no plans to visit the camp.

July 16: The camp launches legal action. The government follows suit the next day.

Scheduled for Aug. 23: Proceedings on the two actions begin in Queen’s Bench Court.

6 thoughts on “Camp Justice Goes To Court”

  1. Mr Beatty has written a cover story on the Justice Camp without quoting a single person from the camp — or even a single Indigenous person period.

    And here’s the real tell in terms of how out of touch Mr. Beatty and the PD are: “When RPS officers dismantled the first camp in mid-June, they acted with respect and compassion. ”

    This is laughable. And grotesque. Handcuffing Indigenous protestors with stolen children, including a kookum (grandmother), dragging them out of a teepee, jailing them, extinguishing their sacred fire, and tearing down their teepee, is respectful and compassionate?

    Even if you can’t be bothered to interview any of the people who were arrested to see if they found their treatment by RPS respectful and compassionate, there is Facebook live footage of the arrests featuring Elder Brenda Dubois absolutely irate with RPS officers, sarcastically thanking them for their contributions to reconciliation after asking them to stop what they are doing.

    When I first moved to Regina five years ago to edit Briarpatch Magazine (now edited by Saima Desai), I was impressed with the PD’s coverage of local issues. Five years later, I’m honestly not sure what the point of the PD is. If I want to read entitled white journalists writing apologetics for the police, without interviewing any affected Indigenous people, Post Media is widely available.

    The PD is run and dominated by a small crew of cis white dudes who are increasingly out of touch with the vibrancy and dignity of local social movements. Maybe you guys should pack it in and find permanent work in advertising or something; stop fooling yourselves into thinking you have something vital to offer as an independent outlet.

    Interview half a dozen white professionals for a cover story on a historic five-month Indigenous encampment at the legislature and call it a day, eh?

    Setting aside the politics, it’s shitty journalism. But I’m honestly not sure if you guys — and you seem to all be guys — are interested in doing better. You seem immune to calls for accountability.

    When longtime editor Stephen Whitworth used PD’s Twitter account to engage in adolescent ranting about local activists (all women and non-binary activists if memory serves), there were no consequences.

    How many women — never mind Indigenous women — even write for you regularly or have editorial input?

    Your publication is fucked up — and increasingly useless unless I want to know who has the most popular french fries in town. Independent media FTW.

  2. What the hell is this: “When RPS officers dismantled the first camp in mid-June, they acted with respect and compassion.”?? Dragging grandmothers away from a sacred fire despite recent promises from the police chief that that wouldn’t happen, and holding people ransom in jail, without charges, until the tipi was taken down was… “respect and compassion?”

    When the Prairie Dog publishes stuff like this, in an article with comment from zero Indigenous people and no mention of treaty land rights, it places you to the right of basically every other media outlet in the province, aside from Gormley & company. And that is really troubling to see from “Regina’s Only Alternative.”

  3. Maybe not the best article, but I still feel like PD hit on a few interesting comments with this article and maybe there will be a part two of this where people from the camp are included in the dialogue. I didn’t see any of the Post Media outlets looking at the angle of historical government/police control. So there is that. I don’t see this as a reason to abandon PD as liberal media… it’s really a contentious issue and while I agree that a few comments from the camp would have been great – maybe there will be more to come on this and opportunity taken… in any case… I thank the PD for the slant and I too agree that there were some moments where dragging people off wasn’t necessarily gentle.

    For what it’s worth – this is still a far slant from what Gormley would report and while it wasn’t all-encompassing this time, maybe it will be next, and I wouldn’t put it past the PD to do that.

  4. This was a story about the legal and political situation around a court case. Who better to represent the legal position of the camp than the legal counsel they retained? He granted the interview because he saw that as part of his job. Who better to call out the government than the local Opposition MLA? Other stories will have a different focus and go to frontline sources at the camp, but I think this is a pretty good story that puts the legal battle in context.

    Andrew and David are right about Prairie Dog not being the best it could be, though. In fact, it’s far from it. There’s a crisis for all print media, really. I don’t know you, but as people who worked for Briarpatch you both must be intimately aware of this. Encouraging newspapers to fold during a tough times isn’t going to help Indigenous people get their stories told. What Prairie Dog needs is a dump truck full of money to invest in reporters and support staff. That’s the path to more and better journalism.

    I understand the anger but I think it’s misplaced. As a Métis women, as well as an original Prairie Dog staffer, I think Prairie Dog is pretty good, all things considered.

  5. Wow, what a sad, bitter world Mr. Loewen must live in for him to post such a vicious attack against a newspaper and the people behind it, just because he takes issue with one of the articles it recently printed. It sounds like someone with a huge chip on their shoulder, who simply doesn’t like Prairie Dog or no longer thinks it’s relevant in their life.

    I have a simple solution — stop reading it. But, don’t deign to speak for all of Regina and area by saying the paper should shut down, because there are still plenty of people, including me, who find Prairie Dog necessary and relevant as hell.

    I LOVE that little paper. I love the humour and sarcastic wit of its editorial tone. I love its regular inclusion of nationally and internationally known authors like David Suzuki and Gwynn Dyer, along with occasional articles from people like Paul Constant and _______. I love that it supports and promotes the local music, arts and cultural scene. I don’t always agree with them, but I love the movie reviews and hilarious take on movie listings by Jorge Castillo and Shane Hnetka. I love the thoughtful and well-researched pieces by Greg Beatty. I love Paul Dechene’s unique and in-depth coverage of the goings-on at City Hall. I love that Prairie Dog always provides me with a huge list of events and activities the city and surrounding area has to offer. I love that it gives local writers, artists and designers a chance to see their work in print (although I agree it would be nice to see more diversity in its contributors — I suspect that has something to do with Prairie Dog running on a shoestring budget rather than what Mr. Loewen seems to think is some nefarious plot by cis white boys to exclude women and others). I love that it’s available for free at numerous locations across the city so it’s accessible to anyone and everyone no matter their financial circumstances. And, I even love that it tells me where I can get the best french fries in Regina!

    Mr. Loewen says he came to Regina a few years ago to be the Briarpatch editor. That’s interesting. I would think his experience would give Mr. Loewen an iota of sympathy for the challenges facing small, independent print media. I used to read the Briarpatch. I was even once a subscriber. But, it became less and less relevant and readable to me. So, I cancelled my subscription and now, I might occasionally give it a quick scan if I happen to pass it by at the Library. But, the Briarpatch just isn’t my thing any more. More and more, I disagreed with idealistic take on certain global issues, or just couldn’t stomach its tone or attitude even if the topics covered were interesting and educational. But, that doesn’t mean I wished it harm or obsolescence. Because I know that other people might still place value in the Briarpatch. And, I know we need more publications that fall outside Post Media’s monopoly. So, I don’t read it but I continue to wish Briarpatch good luck. I think the same should be said about Prairie Dog.

    I imagine it’s a hard-working, talented group that’s responsible for the Prairie Dog. But, I also imagine they’re human. They make mistakes. And they write articles that sometimes don’t appeal to some readers. And, sometimes their take on a situation isn’t described as I might see it. But, overwhelmingly, I LOVE that paper and I love that the staff do the best they can in a challenging environment.

    I just wish people like Mr. Loewen weren’t so hell-bent on destroying what I consider to be one of the city’s gems — Prairie Dog. Lots of things in life aren’t perfect, and they’re not all made in an image deemed acceptable to Mr. Loewen. That doesn’t mean they should be stamped out. There’s enough pressure on print journalism in today’s world. Wouldn’t it be better if more people provided constructive criticism, and maybe a little cash, to Prairie Dog and its staff so it could rebuild itself into the type of publication it surely wants to be? I know there are thousands of Prairie Dog readers and supporters who agree with me.

  6. Hey Loewen;

    “The PD is run and dominated by a small crew of cis white dudes.”

    Since my name failed to tip you off, let me break the news to you: I’m Latino. Also, I find Jason Isaacs very handsome.

    Do your research before you go on a rant.

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