Misconduct finding against senior G20 cop upheld; punishment increased
Supt. Mark Fenton was convicted on three counts under Police Services Act in connection with G20 'kettling'
The only senior police officer held accountable for the massive breach of civil rights that occurred during the turbulent G20 summit in Toronto seven years ago has lost his bid to overturn professional misconduct findings against him and instead will face stiffer punishment.
In a decision more than six months in the making, the Ontario Civilian Police Commission increased the sentence meted out to Supt. David (Mark) Fenton, who, among other things, ordered hundreds of people "kettled" in cold, torrential rain for several hours.
"There appears to be little or no relationship between the obvious seriousness of the misconduct and the penalty imposed," the panel found. "It is difficult for us to conceive how convictions for the mass arrests, found to be unlawful, of hundreds of individuals in contravention of their Charter rights are not at the more serious end of the spectrum of misconduct."
As a result, the commission effectively doubled Fenton's sentence — to the loss of 60 paid vacation days instead of a reprimand and loss of 30 days.
Amid violence from "black bloc" vandals, who sparked chaos on downtown streets on the weekend of June 26-27, 2010, Fenton's superiors ordered him to "take back the city." His response was to order mass roundups and indiscriminate arrests that included peaceful protesters and innocent passersby at the Novotel Hotel on The Esplanade on one day and at Queen Street West and Spadina Avenue the following day.
Two years ago, retired justice John Hamilton convicted Fenton under the Police Services Act on three counts — two related to unlawful arrests outside the hotel and at the downtown intersection, and the third for failing to monitor the welfare of people riot police boxed in for several hours in the rain.
On appeal, Fenton argued the convictions should be set aside. Hamilton, he argued, was wrong to find the mass arrests were unjustified. Fenton also argued he had solid grounds to order the detentions, and that it was unreasonable to have expected him to take into account the miserable weather.
The commission panel sided with Hamilton, saying he was "acutely aware" of the black bloc violence and vandalism that saw store windows smashed and four police vehicles torched. However, it was also clear Fenton wanted mass arrests of people even though they weren't breaking any laws, the panel found.
"The appellant's orders cannot be characterized as mere errors of judgment or carelessness," the commission said in its decision. "(Fenton) was responsible for the containment of a large group of citizens, the vast majority of whom had committed no crimes, in deplorable weather conditions and that in doing so he was guilty of discreditable conduct."
Fenton wanted punishment reduced
The appeal panel did part company with Hamilton on sentencing. Fenton had wanted the forfeited vacation days reduced to reprimands, while the public complainants in the case called for him to be fired, or at least demoted, for the severe breach of liberties he inflicted.
Among other things, the panel pointed out that Fenton had been essentially hung out to dry by his superiors at the G20, including by former police chief Bill Blair, and had enjoyed an otherwise unblemished 22-year career. However, it also noted that he had shown no remorse, and that his actions undermined public confidence in policing.
Considering the situation, the commission found a reprimand for the 200 arrests at the Novotel and 10 lost vacation days for the kettling of hundreds more at Queen and Spadina amounted to a slap on the wrist. Instead, it ordered him to forfeit 20 vacation days for each of those arrests. It also affirmed the punishment of 20 lost days for failing to monitor the weather conditions during the kettling at the intersection.
A lawyer for the complainants had no immediate comment but Fenton's lawyer Michael Lacy said on Friday he didn't agree with panel's ruling.
"We are carefully reviewing the decision to determine what, if any further review, will be taken," Lacy said.
Fenton, who has not served his sentence in light of the appeals process, remains with Toronto police.