This is the story of a hard-handed decision by the University of Ottawa's Allan Rock administration to silence free expression by students, and the months long court struggle that ensued for one targetted student. Also see Joseph Hickey's essay "Stop (thinking) in the Name of the Law".
On December 7, 2009, the Ottawa Police came onto the University of Ottawa campus and arrested student Joseph Hickey for allegedly participating in painting the message "These Walls Belong to Students" on the inset postering walls on the exterior of the Morisset Library during a student-run event promoting Freedom of Expression on campus (photo above).
The postering walls have long been the scene of a struggle between students and administrators, with both sides displaying their messages at different times.
On February 2, 2010, after the painting above was removed, a Chalking Day event was held and the walls were filled up again with student messages. On February 3, 2010, the University reinstalled "Sports Services" posters over the student expression without removing it (photo below). The new posters are set on aluminum-backed posterboards and covered with an anti-graffiti coating. For more details see The Battle of the Walls page on Facebook.
Joseph Hickey was charged under the Criminal Code of Canada S.430(4) with Mishief Under $5000. At the Ontario Court of Justice, the student faced a series of intimidations and abuses of the legal system by the University of Ottawa, Crown attorneys John Semenoff, Derek Ishak, A. Zegouras, and Carl Lem, and Elizabeth Fry Society Coordinator Dorleen Turlejwski.
Hickey was initially pressured by the Crown to enter a "diversion" program that would have him pay expensive damage restitution costs unassociated with removal of the alleged painting. While Hickey was seeking full documentation (disclosure) regarding the claimed costs, the Crown removed the option to divert the criminal charge and instead began to pursue a conditional discharge which would have included placing the student on probation and barring him from free access to campus.
At this point, the Crown admitted that the previously claimed damage costs (of $1038.45) were at least twice the cost associated to the removal of the alleged painting. Hickey stated, on the record, that he would prefer to leave the option to divert the charge open until full disclosure had been made.
A trial date was set for February 2, 2011. In May 2010, Hickey began to be represented, pro bono, by lawyer Caroline L. Cyr of Crystal Cyr Barristers. In September 2010, the Crown recanted his pursuit of a conditional discharge and instead diverted Hickey's charge.
Throughout this time, the University refused to intervene to drop the charge of property damage for painting a political statement on a concrete wall that has always served to display messages and that was covered up by University posters soon after. This despite calls from student groups for the University to back down. A chronology and documentation of Hickey's court process follows:
- On January 12, 2010, Hickey stated the political nature of the charge before the Court. [Court transcript]
- On January 26, 2010, Hickey received additional disclosure elements from the Crown, including photographs. A note from the Crown indicated that there was also additional video evidence. [Court transcript]
- On February 1, 2010, Hickey wrote to the Crown requesting the video in addition to the photographic evidence he had received.
- On February 16, 2010, Hickey requested that the Crown confirm that his disclosure on the case was complete. [Court transcript]
- On March 2, 2010, on a lawyer's advice, Hickey wrote to the Crown requesting several additional elements of disclosure, including the documents that would verify the cost claimed as damage for the alleged incident. This included the University's request for a cost estimate, the cost estimate, the work order for graffiti removal, the invoice for the work done, and the University's proof of payment. [Letter]
- On March 16, 2010, the Crown submitted a letter to the defendant advising that he would look into the concerns over disclosure, including the cost of the work done to remove the alleged graffiti. However, the letter pressured the defendant that his last opportunity to accept diversion (including payment of the incorrect $1038.45 restitution cost) would be at the Judicial Pre-Trial (JPT) meeting scheduled for April 16. [Court transcript, Letter from the Crown]
- Also on March 16, 2010, Hickey went to speak to the Elizabeth Fry coordinator Dorleen Turlewjski about the diversion program, and asked under what circumstances the Crown could alter the restitution cost (e.g. upon the Crown's receiving a revised restitution cost). Ms. Turlewjski refused to answer and, without giving warning, called Court Security. Hickey left the office on his own accord before security arrived, then explained his reason for speaking to the coordinator to security. He was informed that Ms. Turlewjski, the E. Fry coordinator for the Ottawa branch of the Ontario Court of Justice, does not have a supervisor to whom he could direct his questions given the coordinator's refusal to answer.
- On March 24, 2010, Hickey submitted a letter to the Crown requesting all video from the freedom of expression event of December 7, 2009, this information being needed, for example, to establish the extent to which the work that the University claimed as damage costs was indeed related entirely and only to the damage Hickey was alleged to have made. Hickey also expressed his concerns about wrongful targetting by the University and Police with their allegations. [Letter]
- On April 16, 2010, Hickey was told by the Crown at the beginning of his JPT meeting before Justice Maisonneuve that the option to pursue diversion of the charge had been removed due to the fact that Ms. Turlewjski called security on March 16 when meeting with him. The Crown then provided Hickey with a copy of work orders and invoices for graffiti removal which showed a cost of $1038.45. Hickey explained that he had evidence, through an Access to Information request that the cost of $1038.45 was not associated with the alleged painting and he requested that the Crown obtain the correct information regarding the alleged cost. He also explained that the Crown had removed the option of diversion, even though the Crown's letter of March 16, 2010 had stated that he would have the opportunity to pursue diversion at this meeting. Hickey stated that he would prefer to leave the option to divert the charge open until the complete disclosure had been found. [Court transcript]
- On April 23, 2010, Hickey wrote a letter to the Crown stating "you have chosen to use an alleged call for security and an alleged need for security to characterize me in a negative light before the court and you appear to have used the alleged incident as a reason for increasing the penalties against me that you will seek at trial. Therefore, the security report from this incident is an essential element of the disclosure as evidence in the case against me."
- The letter also outlined Hickey's remaining unresolved requests for disclosure, as asked for at the April 16 JPT meeting. With regards to the cost for removal of the alleged painting, Hickey wrote: "I am concerned that I was pressured by the Crown to pay a restitution cost when you did not verify that the cost referred by the University was associated with the allegations in question, despite my requests that you do so. Given the simple due diligence that would have been required on your part, I could reasonably conclude that you mislead me." [Letter]
- On May 7, 2010, at a JPT meeting, the Crown reported that his claimed restitution cost had been changed to amount to half of what had originally been stated (half of $1038.45), and that the work orders given to Hickey on April 16 covered two paint removal jobs, of which Hickey was responsible for one. [Court transcript]
- At a May 10, 2010 continuation of the May 7 JPT meeting, Hickey stated that the Crown's statements regarding the need for security at the E. Fry office defamed him before the Court, and he therefore requested that the "Court order the Crown to either make the needed reparation on the record, or to provide me with the disclosures related to the alleged Elizabeth Fry incident."
- Also at the May 10, 2010 JPT meeting, Hickey explained that the Crown's new cost was still incorrect as per the evidence he had obtained through his own Access to Information request. Before the Court, the defendant said: "The dates and context of the work orders and invoices that the Crown provided to me on April 16, 2010 do not match the Crown's own alleged sequence of events that he related to the Court at our pre-trial meeting on May 7, 2010. The inconsistencies are baffling, both on the face of the evidence admitted by the Crown, and in light of the partial access to information records that I have received." Hickey also explained that the police report handed to him by the Crown as justification for the revised damage cost is "four sentences long, is incoherent, and pre-dates my request for correct documents." [Police report]
- Justice Maisonneuve refused to order the Crown to pursue the correct documentation or to provide the full video of the December 7, 2009 freedom of expression event, as requested by Hickey, or to provide disclosure regarding the alleged need for security at the Elizabeth Fry office. Instead she ordered that a full-day trial be set for February 2, 2011. [Court transcript]
- On June 22, 2010, Joseph Hickey's lawyer Caroline L. Cyr sent a letter to Crown Semenoff requesting that the Crown drop the charge as it was in the public's best interest to do so. [Letter]
- Hickey's charge was diverted by the Crown in September, 2010, and therefore did not go to trial.