.

THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD November 20, 2002

Brome Lake criminal charge raises disturbing questions


Last Friday, Marc Decelles pleaded not guilty to the charge of causing a disturbance during the recent Brome Lake town council meeting. The date of his trial will be determined on Jan. 10 when he must next appear in court.

Being that the charge of causing a disturbance is a summary conviction offence, there will be no preliminary inquiry and as for the trial, it will be heard before a judge of the provincial court, without a jury. During his brief appearance in court the prosecutor disclosed the results of the Brome Lake police investigation by handing over to Decelles a copy of the witness statements.

The charge stemmed from his having remitted to the council a sealed cardboard box containing Tersan 1991 Turf Fungicide, which he had found in the ditch alongside Domain Brome Road. So as to emphasize his environmental concern, he wore a pair of surgical gloves, a painting mask and working goggles, while handing over the box during the question period .

It was only after the initial investigation was completed and the charge was laid that the police learned of the council's practice of tape recording their council meetings and that the incident in question had been indeed recorded. The police have since taken custody of the tape. Seeing that prosecutors must always disclose any and all relevant information that may assist an accused it should only be a matter of time before Decelles receives a copy or a transcript. The tape could become particularly useful in the event of a dispute over who said what and when during the incident.

Legal meaning of "Disturbance"

Our criminal law system requires that before a person can be found guilty, the essential facts of each case must not only be proven beyond a reasonable doubt, they must correspond to the definition of criminal behavior set out in the specific article of the Criminal Code. With regards to the crime of causing a disturbance in or near a public place the meaning of the word "disturbance" is, of course, crucial. In 1992 the Supreme Court of Canada went to great lengths in interpreting the word. The case involved an accused who was charged with causing a disturbance after shouting obscenities at his neighbor across the street on two occasions. The court ruled that the offence requires proof of more than a " mere mental or emotional annoyance or disruption" and quashed the conviction.

On the basis of the high court decision the Crown will be required to prove that Decelles caused some "identifiable or external manifestation of disorder " (by impeding or molesting other persons) and in doing so disrupted the use of the community hall as a place to hold council meetings and specifically, question periods. Decelles's attorney will quite naturally attempt to establish through cross-examination that his client's intervention was brief and non-violent, that no one left the room both during and immediately after his intervention, that his client returned to his seat on his own volition and finally, that the question period resumed immediately after his intervention.

If sealed package is a smoking gun

Any argument to the effect that the contents of the cardboard box constituted a danger to the public even though the product was sealed, would require convincing proof by expert witnesses. On the other hand, if during the trial the councilors contend that that they were truly concerned that the box contained "hazardous" or "dangerous" materials they will have to explain why they didn't remove it from the hall or recommend the hall's evacuation and, finally, why they waited until after the meeting when everyone had left before calling the police.

It is hard to believe that Decelles's conduct warranted a complaint to the police seeing how the TBL council tolerated on other occasions loud and repeated interventions by angry citizens during hour-long question periods. While there can be little doubt that such conduct may have occasionally disrupted the flow of the question periods it was never the subject matter of a criminal complaint. Paradoxically, on the night of the incident, the question period lasted less than 15 minutes; it wouldn't be the first time that a citizen resorted to a municipal question period to make a political statement and to drum up some additional publicity. Such conduct is especially prevalent in our House of Commons and in the National Assembly.

Why not resort to expulsion order?

Criminal law is not always the best weapon in the arsenal of the law and certainly not the only one. When it comes to council meetings a far more effective and less radical method to maintain peace and order is the threat of an expulsion order. By virtue of article 332 of the Cities and Towns Act, the mayor or any person presiding in his place may order that any person disturbing a sitting of the council be removed from the place where the sitting is held.

It follows that a preliminary order addressed to a delinquent to vacate the hall is not only valid but constitutes a logical first step Had such an order been rendered on Nov. 4, assuming it would have been legally justified, it would have saved the police, the court and Marc Decelles a lot of time and trouble.