Sam Nithiananthan and Jazzy Kieser had two options: Sign a paper agreeing to “not attend an illegal meeting or protest” and leave the police station shortly after, or wait for a bond hearing and fight the conditions in court.
For Nithiananthan and Kieser, both indicted for the protests that followed the recent city-ordered clearance of a camp at Lamport Stadium, the conditions Toronto police were asking them to agree to were unacceptable and unconstitutional: they could make them a crime. for them to protest. and it would prevent them from supporting people living in camps.
“There was no way in hell I was going to sign that thing,” said Nithiananthan, who especially objected to the “illegal” meeting condition. “Who can dictate what is illegal?”
Empowering police to release more people directly from the station or the scene of an alleged crime without waiting for a court hearing was an essential part of the 2019 reforms aimed at easing pressure on this country’s backward bail system. It’s the kind of exchange intended for cases exactly like Nithiananthan and Kieser – people first charged with relatively minor crimes and who no one, not even the police, believes should be in jail.
Below The criminal code, the conditions that the police can ask a defendant to accept are limited and are supposed to be the least restrictive possible. They must be reasonable, linked to the crime and necessary to ensure the safety of the victim and the public or to avoid a possible repeat offense. The list includes: no contact with an alleged victim, not going to a specific area, curfew and weapons ban. The police can also impose “any other specific conditions to ensure the safety of any victim or witness of the crime.”
The three conditions that Nithiananthan and Kieser objected to are not on the list: not attending an illegal gathering or protest; Do not break the peace, especially in a protest; Not assisting with 500 meters from the city by relocating a resident of a camp to a dwelling.
Instead, the couple chose to go to court. Later that day, they were released on one condition: they did not possess weapons.
The fact that Ontario police are asking people like Nithiananthan and Kieser to agree to release conditions that may be unnecessary, unreasonable and even unconstitutional ignores basic legal principles and sets up defendants to fail, according to defense attorneys, advocates and experts. in the judicial system.
They point out that most people will sign anything to get out of custody as soon as possible, and instead of saving time in court, as the reforms intended, those conditions are leading to more unnecessary bail hearings and more. future prosecutions.
Defense attorneys Sima Atri and Aliah El-Houni of the Community Justice Collective, representing Nithiananthan and Kieser, believe that the breadth of police conditions is intentional and serves to intimidate and prevent people from protesting.
They argue that the conditions would clearly violate their clients’ right to freedom of expression and freedom of assembly, they are so vague and broad that accepting them would mean that their clients would risk arrest in any protest.
“It really broadens the type of activity that can turn into criminal activity,” Atri said: a “breach of the peace” by violating a public order rule now could not only result in a fine, but a criminal charge for failure to comply. with a commitment and possibly a criminal record.
“Just create this open card where the police can act in their sole discretion to pick you up when they decide they don’t like what you’re doing,” El-Houni said.
He noted the recent arrest of Skyler Williams, a spokesperson for Six Nations protesters in an ongoing land dispute near Caledonia, Ontario, for being at the Lamport protest. He was charged with breaching a condition of not participating in an illegal protest, established by the Ontario Provincial Police in May. A similar condition of “not participating in any protest or demonstration of any kind” was imposed on a person accused of participating in the CN rail blockade last year.
The conditions are “criminalizing the exercise of a statutory right,” said defense attorney Ian McCuaig, who has seen similar wording in both police statements and those requested by Crown prosecutors in court.
The Star tried to verify if similar protest bans have been imposed on those arrested in recent anti-vaccination protests in Toronto, but those court documents have yet to be processed.
And while people can later request that conditions imposed by the police be modified or removed, many will not or know they can, McCuaig said.
While there has been much research into bail conditions imposed in court, much less is known about what kinds of conditions police are imposing without judicial or Crown oversight, said Safiyah Hussein, senior policy analyst at the Society. John Howard from Ontario. .
Anecdotally, attorneys report seeing some of the same issues that arise from routine bail conditions imposed by a court that are not adequately tailored to an individual’s circumstances.
Sometimes those conditions include prohibiting a person with an addiction from using substances, prohibiting a person from going to a specific area where they need to go to see a social worker or doctor, or a curfew that prevents them from going to work. .
Whether imposed by the police or the courts, these conditions carry equal weight. Either way, they can prepare an accused person for new charges and the possibility of a criminal record.
A recent review of youth bail conditions by the John Howard Society of Ontario found that a condition requiring a youth to “abide by the rules of the home” meant that the police called youth in foster care for refusing to wash dishes. or clean your room. And conditions that prohibit young people from associating with anyone with a criminal record or involvement in the judicial system ended up driving them away from support networks.
“We are seeing that many of these standard conditions often further punish people in marginalized positions and are ending up back in the judicial system with new charges,” Hussein said.
“What we have often seen is that the conditions of the bond end up being imposed as a punishment or modification of character when in reality they are supposed to be in line with legislative principles,” he said.
Meaghan Gray, a spokeswoman for the Toronto Police Service, declined to comment on specific cases, but said the investigating officer and the officer in charge typically discuss what conditions they deem appropriate.
“The objective of these conditions is to guarantee the safety of witnesses, victims and / or the general public. In almost all cases, such as not violating public order, not attending an illegal meeting, not using drugs, not carrying firearms, etc., these conditions are simply the application of the law, ”he said.
“If a defendant feels that the conditions imposed by the police are illegal or unconstitutional, they can choose to appear in court and a determination will be made.”
It’s an approach defense attorney Alison Craig describes as bizarre.
“If there is any doubt about the legality or constitutionality of a condition that they are imposing, then it should not be imposed. End of story, ”he said.
“The law is pretty clear that any disclosure is supposed to be as non-restrictive as possible,” he added. “You have to take into account the general philosophy of the bail law. It is not to facilitate the work of the police. ”
Defendants may also feel compelled to accept conditions offered by the police as a way to get out of custody as soon as possible, rather than waiting hours or even days in jail before challenging the conditions in court.
In Kieser’s case, he said officers “were very insistent on the fact that it was standard … and I could get out of there sooner if I accepted it.” In the meantime, they made bail court look like a waste of time and that it would be a long wait, he said.
Although Kieser said he would not have signed conditions preventing him from supporting his friends living in camps, he also faced a practical concern: he lives less than 500 meters from a park with a camp.
“Am I at risk of breaking bail just by being home when they are doing something terrible in my neighborhood?” Kieser said.
Nithiananthan said a big difference between her experience and that of many people arrested in similar circumstances is that she had legal advice and support from the community. He and Kieser also agreed to turn themselves in early Thursday morning, making it more likely, though not guaranteed, that they could get a bail hearing the same day and not have to spend a night in jail.
“I didn’t know what to expect from the police, but I knew people would be watching,” he said.
What does leave you feeling guilty is that by having to go to court, someone else may not have been able to be released that day.
“It’s knowing it was going to come out anyway, and we only lost hours,” he said.
After Atri and El-Houni spoke with the Crown, there was a brief bail hearing in the afternoon. With the consent of the Crown, Nithiananthan and Kieser were released on the condition of arms only.
The Crown did not ask the court to impose the other conditions that the police had requested.
Nithiananthan is charged with unlawful assembly, assault with a weapon, possession of a weapon and common annoyances, charges that the Crown claims involve “improvised or improvised weapons.” Kieser is charged with assaulting and obstructing a law enforcement officer, for allegedly interfering during the arrest of another person.
Someone could look at these two cases and say that the system worked because the conditions were not ultimately imposed, but, El-Houni said, it should be seen as the system failing.
“What really should have happened is that the police should have released them without those conditions in the first place,” he said.