Chalking on sidewalks is not a crime

It is time to offer the Ottawa police some simple and free legal advice: it is not a criminal offence to chalk a sidewalk.

It is not a crime to chalk a hopscotch diagram. It is not a crime to chalk art. It is not even a crime to chalk messages critical of the police.

Sure, it can be a criminal offence to make permanent markings on public property. But chalk is not permanent. It can also be a crime to interfere with lawful enjoyment of public spaces. Chalk does not do that.

It is definitely a criminal offence to spread hate speech, even in chalk. But not only are non-hateful messages written in temporary chalk legal, they are exactly the type of free expression that is guaranteed by the Canadian Charter of Rights and Freedoms.

It seems, however, that cop fragility runs high when they are confronted with chalk criticisms. There have been at least three incidents of threats of arrest and prolonged detentions of chalkers by the Ottawa police.

In June, an Ottawa woman was detained by the Ottawa police for writing “Black lives matters” in chalk on a public sidewalk. The message was not hate speech, and there was no interference with anyone’s use of the sidewalk. The police threatened to charge her with mischief because she did not have permission to write on the sidewalk.

The next day, Ottawa’s mayor Jim Watson tweeted that his permission is not needed to chalk on the sidewalk.

Then in July, Ottawa University professor Justin Piché wrote “Abolish Prisons” in chalk on the sidewalk outside the Ottawa police station. He was confronted and detained by police.

Once is a chance, two times is a pattern, three times is a pathology.

In September, the Ottawa police again detained two women who were writing in chalk on a public sidewalk. Their suspected crime? They chalked messages like, “Racism hurts everyone” and “End Police Brutality” and “Racism, see it stop it.”

These chalkers were not committing any crime. There was no reason to detain them. There was nothing to investigate. Instead, three police officers trampled the rights of citizens engaged in protect free speech activities. The only conclusion is that the police disagree with the proposition that racism does indeed hurt everybody or that there needs to be any law enforcement reforms.

It does not take a clairvoyant to read the collective minds of the Ottawa police. Its association president, Matt Skof, had made his members’ views crystal-clear.

In June, Skof, who is facing criminal charges for breach of trust, called a leading member of Ottawa’s Black community a sexist slur. And then last month, Skof attacked Ottawa’s first Black police chief, accusing Peter Sloly of having “failed the leadership test” and turning his back on the force over an op-ed Sloly wrote in the Ottawa Citizen in response to the force’s handling of a July traffic stop in which a Black motorist was pulled over by an officer who mistakenly charged that the rental car the man was driving had an expired licence plate sticker.

Skof has also remained silent in the face of racist conduct by his officers. In May, Skof not only failed to denounce a racist meme that was circulating in the force, but he attacked the disciplinary process when the officer responsible was punished. Skof also refused to denounce a racist video that compared the police chief to Hitler.

So, back to chalking. Maybe we should not be surprised that the Ottawa police are a bit touchy when the public discusses police oversight and racism.

The city might be a bit touchy, too. Within hours of the last chalking crime spree the city dispatched a water truck to was away the chalk. There is something tragically ironic about a white city worker washing away the message “racism, see it stop it.”

After the September chalk detentions mayor Jim Watson tweeted, “This Is not vandalism It’s chalk on a sidewalk! As long as it’s not promoting hatred (this was exact opposite) and if you don’t like it, just wait for a rainy day.”

The mayor is right, and the Ottawa police are doing a good job of showing why they must be defunded and reformed.

Not once, not twice, but thrice, multiple police officers detained and threatened to arrest people who were doing nothing wrong. The only inference is that the police acted the way they did because they did not like what was being written in chalk.

Perhaps police services have too much money and time on their hands. Perhaps it is a racist institution. Because, if officers act this way over chalk, how must they react when they deal with people who challenge their authority?

The mayor can’t control the police.

The chief of police can’t control the police.

The president of the police association is a sexist who refuses to call out racist behavior and denies the existence of any systemic bias in the force.

There is no reason to think that the Ottawa police are different than any other law enforcement organization in Canada. Data on disproportionate carding and arrests of visible minorities, media reports on violence experienced by radicalized individuals, and a general aversion to more robust police oversight paints a picture of a broken system across Canada.

There is only one solution to rot that runs this deep and was uncovered by mere chalk.

Tear it all down and build something better.

This opinion first appeared in Canadian Lawyer