Ontario Court Of Appeal Summaries (March 30 – April 2, 2015)

Figueiras v. Toronto (Police Services Board), 2015 ONCA 208

[Rouleau, van Rensburg and Pardu JJ.A.]

Counsel:

K. Ardal and M. Klippenstein, for the appellant

K. A. McGivney and D. Hornich, for the respondents

C. Mainville and S. Walker, for the intervener the Canadian Civil Liberties Association

Keywords:

Canadian Charter of Rights and Freedoms, Freedom of Expression, Common law Right to Liberty, Right to Pass and Repass, Common Law Police Powers, R v. Waterfield, Stop and Search, G20

Facts:

The day after riots erupted during the 2010 G20 summit in Toronto, the Applicant and his friends were on their way to an animal rights demonstration. Once they were one block north of the security fence surrounding the summit site, they were stopped by police officers, who told them that they would need to submit to a search of their bags if they were to proceed any further. The Applicant's friends submitted, but the Applicant refused. One of the officers grabbed the Applicant by the shirt and said, "You don't get a choice," then pushed him away and said, "Get moving."

These interactions were caught on video. The officers can be heard saying things like, "This ain't Canada right now" and "There's no civil rights here in this area." The video also shows numerous other persons passing through unimpeded.

The Applicant returned home, abandoning his plans to demonstrate.

The Applicant sought a declaration that the police officers violated his rights under the Canadian Charter of Rights and Freedoms (the "Charter"), specifically, under s. 2(b) (freedom of expression), s. 2(c) (freedom of assembly) and s. 7 (liberty). The Applicant also sought a declaration that one of the officers committed battery by grabbing and pushing him.

The officer who grabbed the Applicant deposed that he and his team would stop anyone who looked like a demonstrator and demand that they submit to a search to ensure that they did not have any weapons. On cross-examination, he agreed that they were not instructed to adopt this tactic. There was no evidence that any other officers were also adopting this initiative.

The parties agreed that the officers had no statutory authority to demand that the Applicant consent to a search of his bag as a precondition to walk down a public street in the direction of his choosing. Therefore, the question before the application judge was whether the officers' actions were authorized under the common law ancillary powers doctrine set out in R. v. Waterfield and resulting Canadian jurisprudence. If so, the parties agreed that the Applicant's Charter rights could not have been breached.

The application judge dismissed the application, holding that the officers' conduct was authorized under Waterfield. He analogized the exercise of these powers with the mandatory searches at courthouses or airports. The officers' conduct in singling out demonstrators only made the interventions minimally intrusive, rather than making them an abuse of authority. With regards to the alleged battery, the application judge held that it was de minimis and authorized under section 25 of the Criminal Code (the "Code"), which permits a peace officer in the course of duty to use "as much force as is necessary," provided that the officer acts on reasonable grounds and that the actions taken are authorized by law.

Having found the police conduct to be lawful, the application judge held that there could be no violation of the Applicant's Charter rights.

Issues:

(1) Did the application judge err in his application of the Waterfield test?

(2) Did the application judge err in concluding that the officer did not commit battery?

Holding:

Appeal allowed. Declarations granted that:

(i) the officers infringed the Applicant's freedom of expression under s. 2(b) of the Charter;

(ii) the officers infringed the Applicant's and common law right to liberty; and

(iii) the officer committed a battery on the Applicant.

Reasoning:

Given the agreement by counsel before the application judge, the Court followed the Waterfield analysis. It was not, however, immediately apparent that the conduct should not instead be analyzed under section 1 (and, in particular, the "prescribed by law" branch of the Oakes test) to analyze police infringement of Charter rights that do not contain internal limits, such as under ss. 2(b) (freedom of expression).

Before undertaking the Waterfield analysis, there were two threshold issues that needed to be addressed: (i) the police power at issue must be defined; and (ii) the liberty interests at stake must be identified.

Defining the Police Power

The power exercised by the officers in this case was not merely a power to control access to an area. Rather, it was a power to compel those entering an area to submit to a search, and to exclude those who refused. It was also a power that was being applied selectively, targeting only demonstrators. Therefore, the power exercised in this case was framed as follows:

"The power of individual police officers to target demonstrators, and, where no crime is being investigated or believed to be in progress, but with the intention of preventing crime, to require that they submit to a search if they wish to proceed on foot down a public street."

Identifying the Liberty Interests at Stake

Although the Applicant requested declaratory relief based on his ss. 2(b), 2(c) and 7 Charter rights, the bulk of the application judge's reasons focused on s. 9 (right not to be arbitrarily detained). The unusual situation presented in this case makes the task of identifying the Charter issues less straightforward than it appears from the application judge's reasons. In the Court's view, the police conduct in this case was a prima facie infringement of two liberties:

freedom of expression under ss. 2(b) of the Charter; and the common law right to travel unimpeded down a public highway. Freedom of Expression

The conduct at issue constituted a prima facie violation of the Application's freedom of expression. Firstly, demonstrating is a well-established expressive...