The recent decision by the Ontario Government to increase police arrest powers for the G20 Summit is unconstitutional and a callous disregard for fairness and fundamental justice. At the request of Toronto Police Chief, Bill Blair, the Ontario Government passed legislation authorizing police to request identification documents of persons within a prescribed proximity to the G20 site and to arrest and detain those who fail to comply but faild to formally publish these amendments to the public.
It is a well established principle in our system of law that in order for a law to have legal effect those affected by it must have fair notice of its enactment. The simple rationale for this is that one can not comply with a law that one is not aware of. This is not to say that one's subjective lack of knowledge will afford one a defence. In our system the passing of a law takes legal effect once it is published in a recognized publication like the Ontario Gazette. Once the law is so published the community are deemed to have knowledge of it.
The recent statutory amendment increasing police arrest powers has yet to be published in this fashion. My search of e laws - an Ontario Government website dedicaed to publishing the laws and regulations of the province revealed that amendment was filed on June 14th, 2010 and came into effect on June 21st, 2010. Assuming these facts to be correct - there is a clear absence of fair notice of this very fundamental change to our law.
A few years ago I had the opportunity to raise this defence when I defended a man charged with importing khat. Khat is a substance which is popular in the Somali and Kenyan communities. It is a plant which is chewed and is said to be a stimulant. At one time this substance was legal to use and import into Canada. However, a week or so prior to my former client's arrest the law was changed but the published law was not yet available at the Brampton Public Library. Charges against my client were stayed following a Charter Application alleging a lack of fair notice and thus a violaiton of the Charter. While the Canada Gazette publication in my client's case was published but not yet in the shelf at the Brampton Public Library and therefore not accessible to the public, the subject amendment to the Public Works Act does not appear to have been published as yet.
It is very easy and tempting to attempt to justify this serious breach of fair notice and fundamental justice in the name of public safety. However, this type of thinking misses the point. Faced with two very important competing interests, namely, public safety and the individual's right to liberty the Constitution and the rule of law dictate that such a change in the law be subject to the scrutiny of debate in the legislature. The inherent dangers involved in this type of law making should be obvious. Where does it end ? Who decides on the question of "public safety" and what is the criteria ? Government lack of respect or attention to fundamental justice and fair notice is like a cancer. It spreads and destroys if not cured !
Note: This commentary is written for the sole purpose of encouraging public debate on an issue of public importance. Democracy works better when people are informed and they participate.