Justice Served Cold

February 15, 2009

Justice Served Cold

Asaf Rashid, one of the four defendants, stands in front of the Nova Scotia Provincial Court. Photo: David Parker

HALIFAX - It was a cold winter's day nearing Christmas, and not much was stirring on the streets of Halifax. In front of the Provincial Court on Spring Garden Road, a group of people huddled together, entering the court for a long-awaited trial date. On December 22, 2008, four Haligonians took the stand and testified in front of a judge to a courtroom packed with supporters.

The defendants had been charged a year and a half earlier after hundreds took to the streets of downtown Halifax on June 15, 2007, to oppose a regional integration proposal known as Atlantica. Charges included carrying weapons, wearing masks with intent, unlawful assembly, and resisting arrest.

The Atlantica demonstrations numbered 400 protesters and included a militant tactic known as a black bloc that intended to shut down the conference.

Demonstrators were targeted by police and reported extreme police brutality, including being choked until unconscious, shocked with taser guns, and beaten by batons.

George Dalli was one of the defendants on trial. "I saw police hitting other people, pepper spraying, tasers were drawn: it was an intense and intimidating situation before the arrest. I told the officers 'I'm not resisting arrest, not trying to be violent.' I was rolled onto my stomach, hands behind my back. I was choked, fingers were jabbed into my neck, I said 'don't do this to me, I'm losing consciousness, don't do this to me', and I continued saying this until I lost consciousness."

The 21 individuals arrested that day spent the next three days in jail, the first 48 hours in lockdown.

Leading up to June 2007, the Maritime provinces of Canada and the American New England states saw growing popular resistance to the Atlantica project (also known as the Atlantic Gateway), from multiple sectors of the left, including labour unions, workers, environmentalists, NGOs such as the Council of Canadians, anti-capitalists, anarchists, anti-poverty organizations, families, and concerned citizens.

This was the first time anyone had served time or faced charges for an action against the Atlantica proposal, and marked a breaking point. For those braving the cold to gather in court in December 2008, The story was far from over.

Atlantica is a proposed free trade agreement that would bring goods from Asia into larger markets in the US, lowering environmental and labour standards and increasing the transportation and energy industries. The region comprised of the Atlantic provinces, the Gaspé Peninsula of Québec, Maine, Vermont, New Hampshire and upstate New York, has been identified as Altantica by the largest corporations operating in the area, such as Irving Oil and Emera Inc. Irving Oil controls regional oil and gas, and has many holdings in New Brunswick. Emera Inc. owns energy infrastructure in North East USA and the Atlantic provinces, and is the parent corporation of Nova Scotia Power.

The proponents of Atlantica hope to create a free trade zone that would harmonize regulations between Canada and the US. In particular, environmental standards, minimum wage, and trade unions are all considered barriers to increased trade according to some proponents of Atlantica.

Rashid fears that one result of Atlantica, might be lowered environmental standards for the creation of proposed Liquid Natural Gas (LNG) terminals. One terminal in St. John, New Brunswick is close to completion, and three more are proposed on the Passamaquoddy coast of Maine.

Other proposed projects include a second nuclear reactor in New Brunswick, and pipelines transmitting natural gas from New Brunswick to Maine and New York State, moving straight through properties, agricultural areas and wildlife habitats.

"Atlantica will lead to further environmental degradation by lowering environmental standards and increasing energy consumption, production and export in the region,”," says Aaron Doncaster, also arrested at the demonstrations in 2007. “We as citizens are subsidizing this destructive activity. Atlantica needs to be shut down."

Out of the 21 demonstrators arrested, most were let off with “diversion,” where in exchange for some restitution, the defendants do not retain a criminal record. However, four among them still must abide by restrictive conditions while they await their verdict.

"Right now, they can only associate with each other to prepare for the trial, and all of them are not allowed to participate in any protest," says Vaughn Barnett, the legal defense for the defendants. "That's what they've been putting up with for 1.5 years. [It's a] serious infringement of their freedom of expression. They had to agree to those conditions, they were coerced into it during their mistreatment during custody. They suffered brutal treatment by police, plus denial of their rights while in jail."

"[The] defendants shouldn't be punished by police and authorities. That's something that a judge should decide after a fair trial."

In court, Barnett presented his constitutional challenge, a defence strategy that has been front and centre in all of his defendants' cases from the Atlantica demonstration. His challenge argues that it would be unfair to make the defendants go to the trial proper, based on the way they were mistreated, which he considers extra-judicial punishment by police and jail authorities.

All four defendants had the opportunity, through Barnett's examination, to detail the extent of their mistreatment by police and jail authorities, from the time of their arrest, until their release from prison three days later.

Dalli recounted the three days in jail. For the first 24 hours he had only one power bar and one bottle of water given to him, the same as all the others. Despite jail policy being fully described in a handbook that prisoners are supposed to see, including how to successfully make a complaint to the jail authorities, none of the arrestees knew where the handbook was, nor that it existed, until the court date in December.

"We're not going to find it or ask for it if we don't know it exists," said Dalli.

In December , the defence presented evidence of mistreatment by police and prison authorities. On the next trial date in August 2009, the Crown will respond with his own evidence. Barnett assumes the Crown will be calling police and jail officials, and at that point the judge will decide whether Barnett’s constitutional challenge will succeed.

If it succeeds, the charges will be dropped, on the basis that it would be unfair to make the defendants go to the trial proper. If not, it might succeed partially, which could mean certain charges are dropped, or sentences are reduced.

The Judge might decide to continue with the trial and consider the constitutional breaches at the sentencing stage.

Rashid is unsure of what the future of the case holds . According to him, the Crown was unprepared for the constitutional challenge. However, the Judge did decide to postpone the proceedings until August, and didn't drop the restrictive conditions of the defendants. "It's hard to say where the Judge is leaning right now. He's not making it obvious."