As another climate strike date approaches on November 29, 2019. There will be people taking to the streets and there is always the possibility of disruptive actions to create more pressure.
It is notable that the climate justice movement’s unrelenting action appears to be creating a new normal. On November 18, 2019, the Crown dropped mischief charges against 20 people who were arrested as part of the Extinction Rebellion (XR) protests in Toronto, which non-violently, and temporarily, occupied and blocked the Bloor Viaduct bridge on October 7, 2019. XR is part of a global movement of using civil disobedience to push for action on climate change. This was great result for those who were arrested because it relieved them of costs in money, time and anxiety in dealing with the criminal justice system.
The Crown decided not to prosecute because it, “would not being in the public interest”. The decision means, in part, that non-violent civil disobedience to push for action on climate change has gained a level of legitimacy according to the justice system. But the decision was not made in a vacuum. That result was due, mainly, to the level of urgency of the issue and the normalization of the endless protests across the country, and globally, to ply pressure on governments and the extractive industry – and industry generally – for decisive action on the issue. The XR protesters also has solid representation as their defence lawyer, Mike Leitold, took the position that the prosecution was not in the public interest.
But what does it mean to be “not in the public interest”?
Prosecutors have a standard for deciding whether to prosecute that is broken down into two parts: (1) whether there is a reasonable prospect for conviction and (2) whether it is in the public interest. The first part deals with whether the prosecution has enough evidence to prosecute. The case of mischief would have been easy to prove in the case of an intentional disruption of the use of a highway. The criminal charge of mischief can be proven if someone, “renders property dangerous, useless, inoperative or ineffective”, or, “interrupts or interferes with the lawful use, enjoyment or operation of property.”
The whole decision to drop rested on the public interest issue. Prosecutors have discretion to decide whether to prosecute is in the public interest, especially if the people accused have no criminal record, the offence does not involve violence, those arrested were cooperative and there if not prosecuting would keep public confidence in the justice system. These factors all worked favourably for the XR protesters. Much of the public would probably lose confidence in a justice system that prosecutes ordinary people, including kids and seniors, for taking direct action for an issue that even mainstream politicians have agreed is critical for the future.