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Peter Rosenthal fought for justice in a tough place—the courtroom

Rosenthal defended those who resisted exploitation and oppression with militant compassion

Human RightsSocial Movements

Peter Rosenthal in 1983. Photo from Medium.

An obituary announcing Peter Rosenthal’s death on May 25 describes him as “an esteemed mathematician, lawyer, and political activist with an unwavering passion for helping others.” I wouldn’t dispute those words but they understate Peter’s outrage at social injustices and his determination to challenge them.

As a “movement lawyer,” Peter played an indispensable role during the years when I was an organizer with the Ontario Coalition Against Poverty (OCAP). Others may be able to chart his wide ranging accomplishments and legal interventions. I simply wish to share my recollections of Peter’s vital role and wonderful qualities as I experienced them.

Peter became a lawyer because he faced a charge arising out of an anti-Vietnam War protest and chose to defend himself in court. The importance of honing the knowledge and skills necessary to struggle for justice in the camp of the enemy appealed to him as a socialist and the logical methodology involved in applying the law interested him as a mathematician. He continued down that path to the great benefit of many activists.

In the courtroom

I was first represented by Peter Rosenthal back in the days of the Mike Harris Tories and their assault on Ontario’s social programs. In 1995, David Tsubouchi, then Minister of Community and Social Services, sought to justify a brutal 21.6 percent cut to social assistance rates with a “welfare diet” that purported to show people could live adequately on the reduced income. He also made the preposterous claim that it was possible to negotiate cheaper grocery prices with store owners.

OCAP responded to this with an action at a major grocery store in a rich neighbourhood where we filled our carts, blocked the checkouts and demanded a discount. Arrests followed, of course, and Peter came forward as our legal representative. We were all immediately struck by how supportive of our action he was and by his determination to expose the injustices involved. His kindness and respect for others stood out immediately. We also quickly discovered how good he was at what he did.

After careful consideration, Peter advised us that a defence of “officially induced error” would be the best approach. We would argue that we were acting upon the bad advice of a minister of the Crown. In pursuit of this, we were able to subpoena Tsubouchi and forced him to send his lawyers to Superior Court in order to have it quashed. The audacity of this tactic made the case a major issue and, when we showed up for our trial, the prosecutor had become mysteriously sick and the charges were thrown out. We were thrilled but Peter was annoyed that the whole matter had been dismissed in this way.

The Tsubouchi fray involved only minor trespass charges but as the fight against Harris heated up things got more serious. When we marched on an abandoned building in Toronto, ready to open it up and demand it be turned into social housing, several OCAP members were charged with criminal offences, including “counselling to commit forcible entry.”

In court, Peter did an incredible job of putting the Harris government on trial. After massive amounts of preparation, a range of expert witnesses and people with experience of the impacts of homelessness were called as witnesses to advance the argument that we had acted out of necessity in the face of a social crisis. So powerful was this evidence that the judge, having convicted us, granted us absolute discharges. Peter actually wanted to appeal this on the grounds that no conviction was acceptable!

When OCAP ‘evicted’ Harris’s Finance Minister, James Flaherty, from his local office in Whitby, Ontario, in 2001, a number of us were arrested. Peter represented me at my bail hearing and, when they kept me in custody, prepared for a bail review in Superior Court, which he conducted with Howard Morton, another fine lawyer. I was released after a month and I remember during that period that Peter was far more worried about my situation than I was. He was concerned for my wellbeing and worked to free me with a relentless zeal that could only deepen my respect and admiration for him.

Jury trial

The most serious legal attack we faced during the Harris years was the jury trial that followed the so-called Queen’s Park Riot, of June 15, 2000. On that day, OCAP brought a large crowd of unhoused people and allies to the Ontario Legislature to demand that a delegation of people affected by the housing crisis be allowed to address the assembled MPPs. This was, of course, denied but the authorities chose to respond with a brutal clearing of the grounds by the police, which was vigorously resisted.

Many people faced criminal charges after this confrontation but three of us, Gaetan Heroux, Stefan Pilipa and myself, were deemed ringleaders by police and prosecutors and we faced a jury trial. Peter represented me in these proceedings. We were looking at the possibility of serious prison time but we were determined to mount a defence that, while legally effective, was also politically principled. Stodgy legal thinking was definitely off the table.

There were some serious strategic decisions to make as we proceeded and Peter took the notion of taking instructions from his clients very seriously. He would give his advice and back it up with strong arguments, but he always made it clear that the decisions were ours to make. As we put our case to the jury of a justifiably militant action that had been turned into a full blown confrontation by the police, it became increasingly clear that it was holding up.

The Crown suggested that our arguments constituted “a de facto admission of guilt,” but we had clearly convinced a portion of the jury: it was unable to reach a verdict and the case against us collapsed. As Peter was well aware, the antiquated public order charges laid against us threatened to deter and stymie those engaged in social action and he worked to defeat them with steely resolve.

Peter didn’t only defend OCAP activists facing charges arising from our struggles. He also represented people who were criminalized because they were poor. It was in this work that some of his finest qualities revealed themselves. He represented a homeless woman who had been put out of her makeshift shelter, as part of the clearing of Toronto’s “Tent City” in 2001. His brilliant mind and quick thinking scored a wonderful victory in court.

The woman was charged with punching a cop who came to evict her. The officer in question testified to this effect and a security guard corroborated the story. When the time came for the defence to put forward its case, Peter calmly stated that this wouldn’t be necessary since the prosecution hadn’t proven its case beyond a reasonable doubt. After an awkward silence, the dumbfounded judge asked Peter to elaborate and, as he might set out a mathematical equation, he patiently explained his reasoning.

The charge of assaulting a police officer, Peter noted, obviously rested on the need for that officer to have been acting in accordance with his duties at the time. If he were acting improperly and violating someone’s rights, the charge would be inappropriate. In this case, no evidence had been provided as to the identity of the owner of the property or of any instructions to the police to evict the accused. To the chagrin of the prosecutor and the police, the case was thrown out.

I’ll share one final example of Peter’s noble character. He came to court on short notice one day because an unhoused man named Danny had been arrested on a theft charge. Danny had a developmental disability that made him appear childlike to some people, though he had survived hardships that would have broken many others. Still, in this situation, he was scared and confused.

Peter asked the judge for an opportunity to take instructions from his client and he sat down with Danny to recommend a way of responding to the charges. What struck me most about this was that, for Peter, it was just as important to ensure Danny understood the options and made an informed decision on how to proceed as it would have been with anyone he represented. It was an example of what I always called his militant compassion.

Peter Rosenthal was a brilliant movement lawyer who put his considerable skills at the service of people on the receiving end of the injustices this society dishes out. He defended those who resisted exploitation and oppression. His political opinions and his moral values put him on their side and he deployed his formidable talents to their advantage in case after case. He was one of the most decent human beings I have ever had the honour to know. Along with many others whose lives he touched, I will cherish his memory and carry on the struggle in which he played such an essential and memorable part.

John Clarke is a writer and retired organizer for the Ontario Coalition Against Poverty (OCAP). Follow his tweets at @JohnOCAP and blog at johnclarkeblog.com.

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