2012-10-07
*Despite evidence of “organized and deliberate state misconduct” during the arrest of G20 protester Eva Botten, mischief charges against the 31-year-old accused will stand, a Superior Court judge ruled Thursday.*
Ms. Botten, accused of smashing shop windows during violent G20 protests in the downtown core two years ago, sought to have her mischief charges stayed on the basis that her Charter rights were violated when police kettled a group of protesters in the rain outside the Novotel hotel.
While Justice Harriet Sachs agreed the manner of Ms. Botten’s initial arrest breached section 9 of the Charter — which protects against arbitrary detention or imprisonment — she declined to toss out the charges, instead opting to exclude evidence gathered during the Novotel incident.
“This kind of wholesale abuse of fundamental rights does not go unnoticed,” Judge Sachs said, pointing to five separate reports examining police conduct during the G20 summit, which included stinging criticism of how protests were handled that weekend.
“The conduct of the police will not be ignored if the prosecution against Ms. Botten is not stayed,” Judge Sachs said.
Instead, she found the appropriate remedy was to exclude evidence gathered during Ms. Botten’s arrest outside the Novotel, including a photograph and a record of her belongings at the time.
Ms. Botten was among a group of more than 200 protesters who assembled outside the Novotel on June 26, 2010, under the belief that a G20 leader was staying inside the hotel. Earlier in the weekend, Ms. Botten allegedly participated in Black Bloc riots by smashing store windows in the downtown core, but the group assembled outside the Novotel was peaceful, the court heard.
Nonetheless, police moved in to arrest the group for breach of the peace, kettling members to prevent them from leaving. Ms. Botten says an officer used the laser beam on his long gun to point at protesters in turn, saying “eenie, meenie, miny, mo, catch a protester by the toe.” The beam ultimately rested on her, she said, and she was shipped to the Eastern Avenue detention centre, where the deplorable conditions have been widely documented.
Police said they detained the Novotel protesters because it was believed they were harbouring Black Bloc members, but Judge Sachs pointed out there was no evidence of violence within the group, which by all appearances was engaged in a lawful protest.
“This is a misuse of the breach of peace powers… The manner in which the arrests were executed was also inexcusable,” Judge Sachs said, noting the incident with the laser beam had “the eerie overtones” of fascism at its worst.
Ms. Botten was released after the Novotel incident, but police later tracked her down in British Columbia and charged her with mischief after a G20 task force began probing the downtown riots.
Defence lawyer David Rose said he was pleased with the outcome, noting while Toronto police generally conduct themselves in a competent and professional manner, “something happened during the G20 and all that was thrown out the window.”
Ms. Botten’s trial commences in January.