My Introduction to Law

I became interested in law the hard way — I got arrested.

It happened in 1968, when I was a young assistant professor of mathematics at the University of Toronto. The war that the United States was waging against Vietnam was at its height. There were frequent demonstrations against that war in front of the United States Consulate on University Avenue in Toronto.

I was one of the dozen or so organizers of one such demonstration, which took place on Saturday October 26, 1968.

Demonstrators gathered on the sidewalk in front of the Consulate. I was scheduled to be the first of four people who were to give speeches about what we characterized as U.S. imperialism against Vietnam.

On the sidewalk outside the Consulate there were several concrete two-foot-high planter boxes, each of which contained a small tree. I stood on one of the planter boxes, so that the demonstrators could see me and I could see them. I had a loudhailer, through which I got the crowd’s attention and announced that I would be the first of several speakers.

I began my speech by saying “We are here to protest American imperialism against Vietnam and to demand that U.S. troops be withdrawn from that country.”

Two Toronto police officers approached me. I later found out that one was an inspector and one was a sergeant. The inspector, who was the head of what was then known as “the riot squad”, told me that I should “get down from there.” When I asked why, he said there were two reasons: I might hurt myself, and I was blocking the sidewalk. I responded that I would be very careful and that the planter box itself blocked the sidewalk, whether I was standing on it or not. I then asked the demonstrators to make sure to leave a path on the sidewalk free so that no passersby would be blocked.

I again began to speak through the loudhailer. The Inspector then said “If you do not not step down, I will arrest you.” I said into the loudhailer “He says that he will arrest me if I don’t step down.” True to his word, the Inspector then reached up and pulled me down from the planter box.

The above happened very quickly. Upon reflection, I realized that I didn’t really expect to be arrested. I did not have time to think it through but, in retrospect, I would have assumed that there would be some further negotiation with the police. I had no intention of committing civil disobedience.

However, there was no further negotiation. A different officer handcuffed me and led me to a paddy wagon.

While I was being taken away, the second speaker started to speak through the loudhailer. He only got to say a few words before he was arrested, as was a third person.

At this point, several mounted police officers dispersed the demonstrators by riding horses into the crowd. From my position in the paddy wagon, I could only see a little of what was happening. But I heard a lot of yelling and commotion.

About ten other people soon joined me in the paddy wagon. It is hard to describe the mood of those who had been arrested. We were excited. Adrenalized. Determined to fight for our civil liberties. Some silly attempts at humour. Some singing. Some people wondered aloud if we would really be charged. What charges could we face? If we were convicted, could we be sent to jail?

A total of 27 people were arrested, filling two additional paddy wagons. We were placed in jail cells in a police station. A few hours later, all of us were released after signing a “promise to appear” in court.

In the days following the arrest, I thought a lot about possible consequences. I was charged with two criminal offences: “obstructing a peace officer in the execution of his duty” and “causing a disturbance by impeding other persons”. The other people who were arrested were each charged with one or both of those offences. Although they are “summary conviction offences” (i.e., less serious than “indictable offences”), a conviction for either of them would give the person a criminal record. Having a criminal record could cause problems in obtaining visas to visit other countries and in keeping or obtaining some jobs. (I had a position as a math professor at the University of Toronto. The possible effect of a conviction on that job is discussed below.)

I retained a young lawyer named Walter Fox (about my age at the time, 27). I met with him on several occasions to plan my trial. It seemed to us that I should be acquitted if we established that there was no disturbance whatsoever until the police created a huge one by making arrests and riding into the crowd on horses. Since virtually all of the demonstrators had observed my situation from the point at which I was getting their attention up until I was pulled off the planter box, there were many potential witnesses that I could call to testify on my behalf. Walter and I agreed that I would interview a number of people to determine which of them would be the most useful witnesses.

Over the next several months, I interviewed a large number of demonstrators and made a list of about twenty who I thought would be good witnesses. I also did some research into the relevant case law. I concluded that I had not committed either of the offences that I had been charged with.

I thought (and still think, more than fifty years later) that it was outrageous for the police to curtail the demonstration. The crowd was orderly. The war that the United States was conducting against Vietnam was horrific; it cost millions of lives, many of whom were civilians. Revelations from a number of sources showed that the rationales advanced by U.S. military and civilian spokespeople were completely false.

I wanted to use my trial to try to promote opposition to the War (in addition, hopefully, to my being acquitted). For this purpose, I told Walter that I would like our witnesses to include their reasons for attending the demonstration as part of their testimony. Walter said that those reasons were irrelevant and that the judge would be annoyed by our making any attempts to bring such evidence into the trial. I replied that, regardless, I wanted us to try.

My trial began on January 28, 1969. As my potential witnesses and other supporters arrived in court, I felt anxious but also felt determined to make the case that the War against Vietnam was horrible and that our demonstration was lawful.

The prosecutor called the Inspector as the first witness. The Inspector testified that there were about five hundred demonstrators in attendance. He said that he was about twenty-five feet from the planter box when demonstrators gathered on the sidewalk in response to my beginning to speak. He stated that the sidewalk was completely obstructed during the time it took for him and another officer to make their way through the crowd to advise me of the problem of pedestrian traffic.

As Walter cross-examined the Inspector, I frequently said to him (in what could be described as a “stage whisper”) “Walter, ask him this” or “Ask him that.” After I had done that about half a dozen times within the first hour of the trial, the judge admonished Walter: “Mr. Fox, who is the lawyer here, you or Mr. Rosenthal?”

Walter completed his cross-examination of the Inspector and then requested a brief adjournment.

(To understand this situation, it is necessary to know the following about the setting in courtrooms in the year 1969. In those days, the defendant invariably sat in a chair that was about seven feet behind the lectern at which lawyers stood while they questioned witnesses. In recent decades, it is common for defendants to be allowed to sit at the counsel table near the lectern if they wish to. This allows defendants to unobtrusively communicate with their lawyers by quietly whispering or writing notes. That was not possible in 1969; my “stage whispers” were heard by the judge and many of the spectators.)

In the hallway, Walter told me that I could not keep on interrupting. I said that I was sorry but I thought the questions I had suggested were important. He said that I have to wait for recesses before communicating with him. If there was something crucial, I could ask him to request a recess so that we could discuss it.

I said that I thought I should have the right to request that he ask specific questions that I thought of while he was cross examining witnesses.

He said that I have to refrain from interrupting while he is cross examining the next witness. I said that I would try to keep my suggestions to a minimum.

Then Walter said “You know, if you want, I can withdraw as your lawyer and you can represent yourself.” I immediately said “Yes.”

We returned to court. Walter said “Your Honour, Mr. Rosenthal has discharged me as his counsel and will represent himself for the rest of the trial.”

The judge responded, “Mr. Rosenthal, I must remind you that those who represent themselves have a fool for a client.”

I said something like “I will try to not play the fool.”

(I have run into Walter Fox about fifteen times during the many years between my trial and the present. Almost every time I have seen him, I have apologized for putting him in such a difficult position. Shortly after my trial concluded, when I was less adrenalized, I realized that I had been a really difficult client. Walter, if you are reading this, I apologize once again!)

So, I was now on my own! I could ask whatever questions I wanted to (although, of course, the judge could, and did, disallow some of the questions I asked).

The next witness called by the prosecutor was the Sergeant who had accompanied the Inspector while I was being told to step down from the planter box. He testified that the sidewalk was completely blocked for much of the time before I was arrested.

In my cross-examination of the Sergeant, I asked him a series of questions about where he was located at the time when I began to give my speech. I tried to get the Sergeant to agree that he was not in a position to see whether or not there was a path free of demonstrators on the part of the sidewalk next to the Consulate. The judge admonished me several times, saying “Mr. Rosenthal, the witness has already answered that question. You can’t keep on asking it again just because you don’t like his answer.” (In retrospect, I must admit that the judge was correct with respect to some, but not nearly all, of my questions.)

The only useful evidence obtained from my cross examination of the Sergeant was his acknowledgement that the demonstrators had been calm until my arrest.

The prosecutor did not call any other witnesses.

I then testified in my own defence.

I began my testimony by summarizing my views of the War against Vietnam. I said that it was absurd to accept the claims of the U.S. government that they were helping the Vietnamese to preserve a democratic way of life. The government of South Vietnam that the U.S. was supporting was autocratic. The rebels against that government, the Vietcong, were fighting a war of national liberation against the U.S. imperialists who had taken control of South Vietnam after the Vietcong had driven the French imperialists out. I gave some brief statistics about the civilian and military casualties.

I also described my actions on the day in question. I testified that, from my vantage point on the planter box, there seemed to be a corridor on the sidewalk that was free of demonstrators. I stated that the crowd was completely calm up to the time of my arrest.

The prosecutor’s cross-examination of me was brief and inconsequential.

Over the next two days, I called about ten demonstrators as defence witnesses. I asked each of them why they had attended the demonstration. They all used the opportunity to explain the basis for their opposition to the War, some very briefly and others a little more completely. The judge often interrupted to tell witnesses to restrict their testimony to what they saw at the Consulate. Walter’s prediction proved to be very accurate; the judge was clearly annoyed by this testimony.

There were only very minor differences between the police testimony on the one hand and the defence testimony on the other. The difference that I thought most crucial was whether the sidewalk had ever been completely obstructed by the demonstrators. Both police witnesses had said that there was no path open to passersby during the period from when I stood up on the planter box until I was placed under arrest. Many of my defence witnesses had testified that, from their various vantage points, there had been a path left open to pedestrians throughout the entire time from before I spoke until I was arrested.

After the presentation of evidence is completed, the defendant and the prosecutor each make submissions to the judge about the relationship between the evidence and the law, and argue whether or not there should be a conviction. Before my submissions began, the judge informed me I need not address the charge of obstructing police since he would dismiss that charge. He said, however, that I should speak to the charge of causing a disturbance.

The word “disturbance”, as used in Canada’s Criminal Code, means a breach of the peace; such can be caused by various acts. I was charged with causing a disturbance by the act of impeding other persons.

I referred to a precedent. In 1929, a leader of the Communist Party of Canada, Becky Buhay, had been charged with causing a disturbance as she made a speech to a crowd gathered outdoors in Toronto. At her trial, she was convicted on the basis that her conduct had disturbed some individuals. On appeal, her conviction was overturned; it was held that “causing a disturbance” required a finding that the accused caused a breach of the peace, not just that some people had been disturbed. There were no precedents that contradicted Regina v. Buhay.

I reminded the judge that both of the police witnesses had testified that the crowd was calm throughout the demonstration, up to and including the time of my arrest. Thus there was no disturbance, whether or not I had impeded other people. Moreover, I went through the evidence of a number of witnesses that established that there was always a path open for pedestrians who wanted to walk along the sidewalk. Thus there was no impeding of anyone.

I felt pretty sure that I would be acquitted.

The prosecutor responded to my submissions. He said, in part, that some of the witnesses referred to my using the words “American imperialism” and, while he had “no quarrel with those words, using words like that would possibly tend to create a breach of the peace, especially when the Court can take judicial notice that every person who was on University Avenue that day did not share one particular view; there were people who held different views and this could have tended to cause a possible breach of the peace.”

The prosecutor went on to say that “the police were disturbed because they had to come out” and “there was a disturbance caused in that sense.” He also said that “the very presence of a crowd at this spot would cause a disturbance.”

I thought that the prosecutor’s submissions were very weak. In particular, he did not deal appropriately with the precedent of the Buhay case. He did not even maintain that there had been a breach of the peace, only that the “presence of people who held different views could have tended to cause a possible breach of the peace.”

The judge then said there would be a recess for half an hour, after which he would render his verdict.

I felt pleased and confident as I talked with many supporters who were present.

My confidence did not last long.

The judge began his ruling by saying that the causing disturbance section of the Criminal Code “was passed to avoid just such situations”. He said that “It is a reasonable inference that people would detour from going down University Avenue during the considerable period of the demonstration.”

The judge went on to say “It was not just the momentary period that Doctor Rosenthal was on the platform; it included the time when the crowd gathered outside the American embassy up until [the attempt] to give a speech. It is a reasonable inference that people would detour from going down University Avenue on a Saturday afternoon and that those people would either go down some other street or cross the road or would change their destination entirely.”

The judge continued “Even assuming that there was a narrow corridor to pass through, I must assess whether it was, in fact, likely to and did impede persons wanting to use the street.” In his opinion, His Honour ruled, “the demonstration was of a size and nature to do so.”

The judge went on to say that “the organizing of such a demonstration, coupled with the amplified microphone and the refusal of the crowd to disperse, must be laid on Doctor Rosenthal’s doorstep and, under these circumstances, would constitute the impeding of pedestrians wanting to use the street.”

I found it unbelievable that the judge completely ignored the Buhay precedent.

Moreover, there had not been any evidence that the crowd was asked to disperse at any time before I was arrested.

The judge then repeated “The leaving or not of a narrow corridor to pass through appears to be of no moment.” I was dismayed by that finding; it meant that I had wasted a huge amount of time in my very extensive efforts to locate and present witnesses who, collectively, established that there was always a corridor left open.

The judge then asked, rhetorically, “Who but the hardy would pass through a corridor of demonstrating students? This, in my opinion, constitutes an effective, even if not complete, impeding of pedestrian traffic.”

The judge ruled that the acts that cause a disturbance “must be given a subjective not an objective test.” He said that those who had to alter their normal routes were disturbed and that, in his opinion, constitutes a breach of the Criminal Code. That finding was explicitly contrary to the ruling in R.v. Buhay.

Also, there had not been any evidence that anyone “had to alter their normal routes.” The judge just assumed that there had been people who were not “hardy” enough to “pass through a corridor of demonstrating students.”

The judge concluded his reasons by saying “Under the circumstances, and I must say regretfully, I must register a conviction. There will be the usual fine of $50 or 10 days, and you may have a month to pay, sir.”

It was my opinion then, and it remains my opinion today, that the judge’s reasons were absurd. If the judge was really regretful, why did he convict me? He twisted the facts and ignored the law. His ruling was so broad that it would make every demonstration at the U.S. Consulate illegal.

At the time, I found it hard to believe that there could be such an unjust ruling. (Unfortunately, however, I have seen a number of equally absurd judgments in the fifty years since then.)

I decided to appeal the finding of guilt.

You might be wondering whether my arrest violated fundamental freedoms such as freedom of expression and freedom of assembly.

Unfortunately, the Canadian Charter of Rights and Freedoms was not proclaimed until 1982, more than a decade after my trial. On the other hand, there was the Canadian Bill of Rights, which had been enacted in 1960.

The Canadian Bill of Rights was not a constitutional document; it was merely an act of Parliament. Moreover, it only applied to federal statutes, not to provincial ones. It was given very little weight by the courts. Nonetheless, at the hearing of my appeal, I argued that my conviction violated the Bill of Rights’ freedoms of assembly and of expression, in addition to being based on erroneous interpretations of “causing a disturbance by impeding other persons.”

The judge who heard my appeal did not explain the basis for his quashing of my conviction. He merely said “I’m going to grant your appeal. But you better stay up at the University teaching mathematics instead of causing problems on the streets.”

Therefore, I am not a criminal; I was (and remain) very glad.

I didn’t realize it at the time, but it seems that my position in the Mathematics Department at the University of Toronto might have been jeopardized if I had not won my appeal. A couple of years later, I was considered for tenure (i.e., a permanent position). I was informed that someone on the committee that was assessing my case for tenure asked “What about the fact that he was arrested? Should we take that into account?” I was told that someone else on the tenure committee responded “But he was found not guilty.” That apparently had ended the discussion of my arrest. I will never know if I would have lost my professorship if I had not won the appeal of my conviction.

The conducting of my trial and of my appeal had unexpected consequences. When I looked back on it, I realized that I had really enjoyed the contest. I thought of a trial as a peculiar kind of game that I liked to play. This led to my becoming a strange kind of paralegal and, years later, to my becoming a strange kind of lawyer.

But that’s another story.