When OCAP Used Humour to Fight for Justice
Note for readers: This article has been narrated on the Best Hang Podcast by Max Kerman of the band Arkells. He is a close family friend and has included a short introduction about our friendship.
The Ontario Coalition Against Poverty (better known as “OCAP”) describes itself as:
A direct-action based anti-poverty organization formed in 1990. We are based in Toronto but work on issues that affect people across the province and are in solidarity with similar movements across the country and around the world. In addition to mobilizing people in resistance to government and corporate policies responsible for widespread immiseration and destitution, we also fight alongside individuals navigating social assistance, public housing and other bureaucracies, doing direct action casework to ensure people aren’t denied basic entitlements.
OCAP works towards decolonization, in solidarity with and in defence of Indigenous struggles for sovereignty and self-determination. Simultaneously, we believe in justice for immigrants and support the call for welcoming refugees, regularization for undocumented migrants, and the granting of permanent residency upon arrival. We will happily set sail the banksters, corporate executives, and their pawn politicians on a boat in exchange.
We believe that poor and working class people can organize ourselves into a force that can put an end to the ruthless and reckless profiteering of the capitalist classes. Our fight is not limited to registering dissent; we fight to win.
You might conjecture that members of OCAP who practice what they preach would often get arrested for participating in militant demonstrations. Your conjecture would be correct.
Over the years, I represented a number of members and supporters of OCAP who were charged with various offences. The most serious such was John Clarke’s charge of inciting a riot at Queens Park on June 15, 2000. This article describes a case that is much less serious; it illustrates how OCAP has sometimes used humour to make political points.
On June 8, 1995, the Progressive Conservative Party, led by Mike Harris, was elected as a majority government in the Ontario Legislature. They had run on a program that they called “The Common Sense Revolution” but that many others labeled “A War on the Poor”. Among a number of other measures, they promised to cut social services, including welfare rates.
Unfortunately, as opposed to most political parties, the Harris government kept its campaign promises. In particular, the new Minister of Community and Social Services, David Tsubouchi, introduced legislation that cut welfare benefits by 21.6%. Virtually all members of the legislature who were not in the Progressive Conservative Party (and much of the public) were appalled by this measure. There was evidence that the existing rates of welfare were already so low that recipients could not afford healthy diets. As many pointed out, all people other than those who are very rich would find it difficult to have their income cut by 21.6%. For those scraping by on welfare, such a cut was disastrous.
Minister Tsubouchi tried to defend these cutbacks by arguing that welfare recipients could still obtain healthy diets as long as they were very careful about their spending. In particular, he said that people could look for dented cans of tuna fish in supermarkets and negotiate to pay a reduced price for such cans.
Minister Tsubouchi’s suggestion that looking for dented cans would help to survive the cutbacks was unbelievably stupid, flippant and disparaging. Tsubouchi had added a huge insult to the serious injury of cutting welfare.
Many people deplored the cutbacks to welfare rates. OCAP had an interesting way of illustrating the absurdity of Tsubouchi’s remarks; they took him at his word.
On a Saturday morning, about 50 members of OCAP went to a large and crowded supermarket. They had a lot of homemade coupons that were labeled “Dave’s Discount” and had Tsubouchi’s picture on them. They dispersed throughout the store looking for dented cans of food. They did not restrict their searches to tuna fish; they took the position that Tsubouchi’s pronouncement should apply to all dented cans of food, whatever the cans contained.
The OCAP members found dented cans and stood on lines to cashiers. When it was their turn to be served, they put a “discount coupon” together with a dented can on the counter. The exact dialogue varied from person to person but all of them were essentially the same.
OCAP person: How much are you going to charge me for this can of tuna fish?
Cashier: $1.29, as it says on the can.
OCAP person: But the can is dented.
Cashier: That doesn’t matter; the contents is not affected by the dent.
OCAP person: (picking up the “discount coupon” and showing it to the cashier): But this coupon entitles me to a discount on dented cans.
Cashier: That coupon is not valid in this store.
OCAP person: Do you know who David Tsubouchi is?
Cashier: I never heard of him.
OCAP person: He’s the Minister of Community and Social Services in the government of Ontario.
Cashier: So?
OCAP person: That’s his picture on the coupon.
Cashier: So?
OCAP person: He said that we would be able to get discounts on dented cans of food.
Cashier: Nobody told me that.
The supermarket was very crowded that morning. As many attempts at bargaining were in progress, the checkout lines were getting longer and longer. Sometimes the person in line behind a bargainer would ask what was going on. The OCAP people were not in a hurry. If someone asked them, they gave a detailed explanation, describing the cuts in welfare rates and explaining Tsubouchi’s assertion. If the questioner was friendly, OCAP people would give them a coupon. On the other hand, there were some people waiting on line who were annoyed by the delay. The OCAP people remained pleasant regardless of what was said to them, but they kept insisting that they should be able to get the discount promised by Tsubouchi.
Within about fifteen minutes, the checkout lines were at a standstill. The store manager told the OCAP people that the prices of canned goods are set in advance and could not be negotiated. The OCAP people protested “But the Minister of Community and Social Services of the Government of Ontario said that we would get discounts if we bought dented cans.” The manager reiterated his position a number of times. He then asked the OCAP people to leave the store. When they refused, the manager told them that he would call the police. Most of the OCAP people still refused to leave. The police arrived and charged many of them with trespassing, on the grounds that they had failed to leave the premises after the manager had directed them to.
“Trespassing to Property” is not a criminal offence; it is merely a provincial offence (like a violation of the Highway Traffic Act). The only punishment upon conviction is a fine; there is no possibility of imprisonment.
The people who were facing charges decided that they would use their trial to further their position that the welfare cuts were outrageous. They asked me to represent them.
From a prosecutor’s point of view, the case was very simple. It just had to be proven that each of the defendants was at the supermarket and failed to leave when the manager requested them to. Evidence about the welfare cuts would not be permitted because it was not relevant to any issue that had to be determined at trial.
My main task was to find a way to make the welfare cuts central to the trial. I suggested that we should try to do that by raising the defence of “officially induced error.” This defence is available to defendants who, reasonably and in good faith, rely on the erroneous advice of an official that, if correct, would have made the defendant’s conduct lawful.
A typical illustration of that defence is the following. A company was charged with driving a snowplow on a highway without a permit. Before they drove the snowplow, they had asked an official in the Ministry of Transportation whether they needed a permit. The official assured them that driving snowplows on a highway did not require a permit. In fact, however, that official was incorrect; a permit was required. At trial, the company was acquitted because of that officially induced error.
The accused members of OCAP agreed that our defence argument would be that the Minister of Community and Social Services (a high up official of the government) had instructed people on welfare to try to negotiate reduced prices for dented cans of food. The people charged with trespassing were simply relying on his advice.
You are probably thinking that this argument was a little thin. I agree; I was certain that it would fail at trial. On the other hand, I thought that it might provide a basis for tendering evidence about welfare and about the Minister’s advice that people should bargain for lower prices.
We needed evidence that the Minister had made his remarks. The most direct way of obtaining such evidence would be by calling the Minister as a witness. Moreover, it would be very powerful politically to have the Minister testify under oath.
I therefore got a subpoena issued requiring the Minister to give evidence at the trial.
Not surprisingly, a lawyer from the Ontario Ministry of Justice made a motion to a higher court to have the subpoena quashed. That motion was argued before Mr. Justice Ewaschuk. The Ontario lawyer said that the reason that I was trying to force Tsubouchi to testify was so that we could make political points. That was, of course, true. But I explained our defense of officially induced error and why we needed evidence of the Minister’s statement about dented cans.
There was much back and forth between Justice Ewaschuk, the Ontario lawyer and me. As the dialogue continued, it seemed to me that the subpoena would probably be quashed. I then proposed a compromise. I suggested that there could be an agreed statement of facts to be read into the record at trial that would include “The Minister of Community and Social Services, David Tsubouchi, has told people in Ontario who are having difficulty affording food that they should bargain for price reductions on dented cans of tuna fish.”
Justice Ewaschuk asked the Ontario lawyer if that compromise was okay with her. She replied “I do not have instructions to do that.” Then Justice Ewaschuk said “Okay, I will uphold the subpoena.”
The Ontario lawyer then asked if there could be a fifteen minute recess.
After the recess, the Ontario lawyer said that she had received instructions to accept the agreed statement of facts.
The rest of this story is anti-climatic.
When we appeared for trial several months later, the prosecutor withdrew the charges. I am sorry that I never got the opportunity to argue “officially induced error” and much sorrier that I never got to cross examine the Minister of Community and Social Services.
In the years since 1995, Ontario rates of welfare have still never fully recovered from the 21.6% cutback (if inflation is taken into account).
