On the second day of the G20 Summit held in Toronto in June 2010, Mr. Paul Figueiras (“Mr. Figueiras”) and friends went downtown to demonstrate in support of animal rights. During the demonstration a team of five police officers stopped them and informed them that they would have to submit to a search of their bags if they wanted to proceed to the summit area. On the basis such a search would violate his civil rights Mr. Figueiras refused to consent to a search of his bag demanded by the officers. Friends of Mr. Figueiras recorded his interaction with the police. Sgt. Charlebois insisted: “There’s no civil rights here in this area…” Another officer told Mr. Figueiras “This ain’t Canada right now?” while another said “You’re in G20 land now.” During this interaction Sgt. Charlebois grabbed Mr. Figueiras shirt and pulled him toward him at which time he said, “You don’t get a choice.” Sgt. Charlebois then pushed Mr. Figueiras away and said, “Get moving.” Sgt. Charlebois then lifted up the sleeve of Mr. Figueiras’s shirt and noticed a phone number written arm. He assumed it was a lawyer’s phone number, which he contended was “a sign of the people…causing trouble.” At this point, Mr. Figueiras backed away and left with his friends.
Mr. Figueiras applied to the Superior of Court of Justice for a declaration that the Toronto Police Services Board and Sgt. Charlebois had violated his rights under ss. 2(b) (freedom of thought, belief, opinion and expression) 2(c) (freedom of peaceful assembly), and 7 (the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice of the Charter, and that these violations could not be justified under s. 1. He also sought a declaration that Sgt. Charlebois had committed the tort of battery by grabbing and pushing him.
Sgt. Charlebois decided on his own initiative and without instructions from his superiors that his team would “stop anyone who looked like a demonstrator and demand that they submit to a search of their belongings” if that person wished to enter the summit area. No other police team utilized this approach.
The parties to the application agreed that the officers had no statutory authority to demand Mr. Figueiras' consent to a search of his bag before crossing a public street. The issue heard by the applications judge was whether the officers’ actions were authorized under the common law ancillary powers doctrine. This doctrine holds that police powers are ancillary to police duties.
Application Judge Decision
The application judge found the conduct in question fell within the officer’s common law ancillary powers by applying the following two-part test in Waterfield:
- Does the police conduct in question fall within the general scope of any duty imposed on the officer by statute or common law?
- If so, in the circumstances of this case, did the execution of the police conduct in question involve a justifiable use of the powers associated with the engaged statutory or common law duty?
The parties agreed that the officers’ conduct met the first part of the test because they were furthering the recognized police duty to preserve the peace. It was the second stage of the test that was problematic. The application judge relied on the officers’ duty to preserve the peace and the power to cordon off areas in order to protect foreign dignitaries from harm as set out in Knowlton v R. Having found the police conduct to be lawful he concluded Mr. Figueiras rights had not been violated. Since “protecting the peace was a pressing and substantial objective, and conducting a minimally intrusive search was ration-ally connected to that objective” it was within a reasonable limit under section 1. Finally, Sgt. Charlebois was found not to have committed battery because the contact was minimal and as an officer exercising his powers he was immune from liability pursuant to s. 25(1) of the Criminal Code.”
Main Issues on Appeal
The central issue on appeal is whether the application judge erred in his application of the Waterfield test and in his conclusion that the police had the common law power to restrict Mr. Figueiras’s movements and right to protest. A second issue is whether the application judge erred by holding that Sgt. Charlebois had not committed battery.
Ontario Court of Appeal Decision
The Supreme Court of Canada (“SCC”) has modified the Water-field test to emphasize the importance of Charter-protected rights and continues to apply the Waterfield analysis to define the limits of common law police powers. The Ontario Court of Appeal (“ONCA”) framed the power exercised in this case 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.” The ONCA addressed two threshold issues. The first is to define the police power in question, which is not straightforward. A review of relevant case law demonstrates “this is not a general power; it is confined to proper circumstances, such as fires, floods, car crash sites, crime scenes, and the like.” The second threshold issue involved identifying the liberty interests at stake.
The ONCA found Mr. Figueira’s section 8 right to be free from unreasonable search was not triggered because there was no search carried out nor was his section 9 right not to be arbitrarily detained in question because he was free to walk away from the officers just not toward the summit area. Furthermore, Mr. Figueira’s freedom of expression under s. 2(b) was the primary issue since the police conduct stopped Mr. Figueira from demonstrating as he planned, and sufficiently intimidated him to deter him from demonstrating at all. The ONCA applied the three-step test adopted in Irwin Toy Limited. V Quebec (Attorney General)  1 S.C.R. 927, at p. 978 which requires that:
- The plaintiff is engaged in expressive activity;
- Nothing about the method or location of the activity removes it from the scope of protected expression; and
- The impugned government action has either the purpose or the effect of restricting freedom of expression.
The first and second step of the test was satisfied because demonstrating is a well-established expressive activity and demonstrating around the G20 site was lawful and a reasonably expected activity. The third step of the test required the court to consider two branches under which freedom of expression could be violated: ‘intent’ or ‘effects’.
Courts should first consider the intent or purpose of the government activity. The third step was satisfied because Sgt. Charlebois admitted during cross-examination that he intended to stop “anybody that looked like they were involved in the pro-tests [or] ... looked like they were there for the purpose of protesting” and demand that they either consent to a search or leave the area.
Both parties agree that the officers’ conduct passed the first step of the Waterfield test because their actions fell within the scope of the police duty to preserve the peace and prevent dam-age to property or harm to persons. In applying the second part of the test the application judge erred both in his analysis as to whether the officers’ actions were necessary to carry out their duty, and in his assessment of the rights with which the officers’ actions interfered.
First, the application judge improperly “equated “minimal impairment” with minimizing the number of people affected, but did not consider whether the impact on those targeted by the police could be minimized. Second, the lower court judge ac-corded no weight to the words the officers and focused only on their conduct.
The ONCA concluded the police power purportedly exercised in this case does not meet the Waterfield test. The police did not have the power to target apparent demonstrators and require that they submit to a search in order to continue down a public street. Accordingly, Toronto Police Service Board interference with Mr. Figueiras’s common law liberty and s. 2(b) Charter rights was not prescribed by law. Furthermore, s. 1 of the Charter has no application and cannot be used to justify the breaches. The ONCA also found Sgt. Charlesbois’ contact with Mr. Figueiras was battery. It was more than minimal; rather, it was “unnecessary manhandling” that offends the dignity of a person and serve[s] to intimidate that person.” Finally, Sgt. Charlebois could not rely on s. 25(1) of the Criminal Code which provides protection to police officers who use force while discharging their duties. This section makes clear it does not apply where an officer does not possess statutory or common law authority for his or her actions
The information provided in this Article is not intended to be professional advice, and should not be relied on by any reader in this context. For advice on any specific matter, you should contact legal counsel, or contact Rachael Paquette. Paquette & Associates Lawyers disclaims all responsibility for all consequences of any person acting on or refraining from acting in reliance on information contained herein.