Among the many things we'll never know in the aftermath of the Toronto G20 is how a political defence would have affected the trial of those charged in "the main conspiracy" case.
That's because the case ended last month when six of those charged pled guilty to the lesser offence of counselling mischief (and two of them also to counselling obstruction of police), and 11 had their charges withdrawn.
I was the lawyer for Pat Cadorette, one of the 11. I also represented Jaggi Singh, who in April 2011 had his conspiracy charge withdrawn in exchange for pleading guilty to "counselling mischief" by suggesting the G20 security fence be torn down. Charges against two others of the 20 originally deemed by police and the Crown to be "the main conspiracy group" had been withdrawn earlier. Thus, none of the "conspirators" were actually convicted of conspiracy.
Conspiracy is a nasty charge under Canadian law. All prosecutors need to establish is that two or more people agreed to commit a criminal offence. It's a broader definition than is used in the U.S., where proof of an agreement to commit an offence is not sufficient; it must also be demonstrated that some step was taken in the furtherance of the conspiracy.
Still, it's my view that prosecutors would have had real difficulties establishing that the talk at G20 activist meetings attended by undercover officers provided sufficient evidence for a verdict of conspiracy.
On November 22, after the guilty pleas and the withdrawal of charges, the presiding judge complimented the prosecutors and the numerous defence counsel for reaching the resolution, thereby saving a huge amount of judicial resources.
He then looked around the courtroom and asked, "Anything else?" I rose and walked to the front of the court. Here's what I said: "With respect, it is Mr. Cadorette's position, with which I agree, that the real crimes committed on the G20 weekend were the conspiracies of some G20 leaders to continue wars, such as those against the people of Afghanistan and Iraq, and to continue the economic oppression of most of the world. It is Mr. Cadorette's view, and I agree with him, that he was acting to attempt to limit those crimes."
So far, so good. I have no regrets about having said any of that. However, I'm not proud of my subsequent comment and lack of explanation. After I had stated the above, the judge said something like, "The courtroom is not the place for political speeches, Mr. Rosenthal. However, I will excuse it this one time." I replied, "I'll take it" and then sat down.
I have been unhappy about my response ever since. I wish I had said the following: "Thank you, Your Honour, but I do honestly believe that what I said a minute ago should be regarded as having legal as well as political substance.
"Three major G20 nations asserted they were attacking Iraq to destroy Iraqi weapons of mass destruction. It soon became apparent there weren't any such weapons, but the invaders keep killing up to the present day. Some G20 leaders directed the invasion of Afghanistan, where thousands of people died, some of whom were fighting the invasion but many of whom were uninvolved civilians.
"In the past two decades, in all the G20 countries, there has been increased concentration of wealth, and the policies of G20 leaders have only increased this disparity. The Occupy movement, and the positive reaction to it, are indications of widespread opposition to these decisions.
"If the charges against Mr. Cadorette had proceeded to trial, we would have argued that his actions were attempts to limit those crimes. If he was convicted, we would have argued that his intent should be taken into account in mitigating his sentence.
"The fact that the charges against Mr. Cadorette were withdrawn does not mean that he has not been punished. He was jailed for 16 days before being released on bail, and his conditions included house arrest for 11 months (except for specified activities), no participation in protests and no cellphone use. Mr. Cadorette will receive no compensation for this punishment in spite of not being found guilty of any offence. It is only fitting that he be permitted to place his views of his actions on the record of this honourable Court. Thank you very much for your indulgence."
Peter Rosenthal is a lawyer with Roach, Schwartz & Associates and an adjunct professor of law and professor emeritus of mathematics at U of T. This article was first published in NOW Magazine.
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