Langenfeld v. Toronto Police Services Board

[Indexed as: Langenfeld v. Toronto Police Services Board]

Ontario Reports Court of Appeal for Ontario Doherty, Rouleau and D.M. Brown JJ.A. September 12, 2019

148 O.R. (3d) 471 | 2019 ONCA 716

Case Summary

Charter of Rights and Freedoms — Reasonable limits — Fundamental freedoms — Freedom of thought, belief, opinion and expression

Appeal by chief of police from decision finding security measures he implemented at police headquarters requiring all persons entering building to pass through security screening process violated s. 2(b) of Charter of persons wishing to attend public meetings in building and were not saved by s. 1 of Charter allowed — Screening prescribed by law and justified under s. 1 — Appellant's common law powers as occupier of police headquarters extended to taking steps necessary to fulfill his obligation under s. 3(1) of Occupiers' Liability Act — Security protocol was reasonable limit on respondent's right to freedom of expression — Canadian Charter of Rights and Freedoms, ss. 1, 2(b) — Occupiers' Liability Act, R.S.O. 1990, c. O.2, s. 3(1).

Facts

Appeal by the chief of police from a decision finding that security measures he had implemented at police headquarters requiring persons entering the building to pass through a security screening process violated s. 2(b) of the Canadian Charter of Rights and Freedoms of persons wishing to attend public meetings of the building and were not saved by s. 1 of the Charter.

The respondent, a Toronto resident, had regularly attended meetings of the Toronto Police Services Board for several years. Those meetings, which must be held in public, were held in an auditorium at police headquarters. Prior to June 2017, persons who wanted to attend the meetings were not required to pass through security. The respondent refused to pass through security at the entrance to police headquarters. He was consequently refused entry to the building and could not attend the meeting. He then sought an application seeking an injunction ordering the respondent to discontinue the screening process.

The application judge held that the security measures put in place by the appellant, as applied to persons wishing to attend public meetings of the Police Services Board, infringed s. 2(b) of the Charter. She further held that the process was not prescribed by law and could not therefore justify any infringement of s. 2(b) under s. 1 of the Charter.

Decision

Held: The appeal should be allowed.

The application judge correctly concluded that the screening procedures limited the respondent's s. 2(b) rights but erred in holding that the screening process was not prescribed by law and was not justified within the meaning of s. 1 of the Charter.

The respondent's attendance at a public meeting to listen and perhaps speak to the matters of public interest discussed there constituted expressive conduct. There was no reason to exclude that expressive activity from the protection of s. 2(b).

The precondition imposed on the respondent's exercise of his right to freedom of expression was not trivial or insubstantial. While the security search was not as intrusive as many searches, it remained a very real interference with personal privacy and personal security.

As the occupier, the appellant was statutorily required under s. 3(1) of the Occupiers' Liability Act to take such care, as in all of the circumstances was reasonable, to ensure that persons entering or using the property were reasonably safe while on the premises.

The application judge did not consider the appellant's common law powers as an occupier of Police Headquarters. The common law authority of an occupier in respect of the property must extend to taking the steps necessary to comply with the statutory duty imposed on the occupier by s. 3(1) of the Act.

In imposing a precondition to entry for safety purposes, the appellant was performing the duty imposed on him as an occupier under s. 3(1) of the Act. If reasonable measures to preserve safety included security screening of those entering the building, that measure, to be effective, must apply to all entrants, regardless of their purpose in seeking entry.

The institution of the security protocol was a reasonable measure, having regard to the duty to protect the safety of persons in police headquarters. It was an exercise of the appellant's common law powers as an occupier and was prescribed by law. The security protocol initiated by him was a reasonable limit on the respondent's right to freedom of expression that was demonstrably justified in a free and democratic society.

Judgment

I. Overview

[1] In June 2017, the appellant, Toronto Police Chief Mark Saunders ("Chief Saunders") instituted a new security protocol at Police Headquarters on College Street in Toronto. Anyone, with certain exceptions which are not relevant for present purposes, entering the building for any reason, was required to pass through security. The process consisted of wanding persons entering the building with a metal detector and visually examining the contents of any purses or bags in their possession. Security personnel examined the bags for dangerous items such as knives or other weapons. The security process put in place by Chief Saunders was very similar to security procedures used in courthouses, at large sporting events and other public venues.

[2] The respondent, Mr. Kristian Langenfeld ("Mr. Langenfeld"), a Toronto resident, has regularly attended meetings of the Toronto Police Services Board ("TPSB") for several years. Those meetings, which must be held in public, except in certain specified circumstances, are held in an auditorium on the second floor of Police Headquarters. Prior to June 2017, persons who wanted to attend the meetings were not required to pass through security.

[3] Mr. Langenfeld refused to pass through security at the entrance to Police Headquarters. He was consequently refused entry to the building and could not attend the meeting of the TPSB.

[4] Mr. Langenfeld brought an application seeking an injunction, ordering Chief Saunders to discontinue the screening process. Mr. Langenfeld alleged that Chief Saunders had no authority to institute the screening process. He further maintained that the process infringed his right of freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms and violated the TPSB's statutory obligation to hold its meetings in public. Mr. Langenfeld argued that Chief Saunders had no lawful authority to subject persons who wished to attend the public meetings of the TPSB to warrantless searches for which there were no reasonable and probable grounds.

[5] The application judge held that the security measures put in place by Chief Saunders, as applied to persons wishing to attend public meetings of the TPSB, infringed s. 2(b) of the Charter. She further held that the process was not prescribed by law and could not therefore justify any infringement of s. 2(b) under s. 1 of the Charter. She gave declaratory relief to that effect under s. 24(1) of the Charter.

[6] Chief Saunders appeals, arguing that the screening process did not limit Mr. Langenfeld's s. 2(b) right. Alternatively, he submits that if there is a limit on the s. 2(b) right, that limit is prescribed by law and is justified under s. 1 of the Charter.

[7] The TPSB supports the s. 1 argument advanced by Chief Saunders. The Attorney General for Ontario ("AG") intervenes pursuant to s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The AG supports Chief Saunders' submission that there is no infringement of s. 2(b) and, alternatively, that any limit on s. 2(b) is prescribed by law and justified under s. 1 of the Charter.

[8] For the reasons that follow, I would allow the appeal. I would hold that the application judge correctly concluded that the screening procedures do limit Mr. Langenfeld's s. 2(b) rights. I would further hold, however, that she erred in holding that the screening process is not prescribed by law and is not justified within the meaning of s. 1 of the Charter.

II. The Facts

[9] The security protocol put in place in June 2017 at the public entrance to Police Headquarters required members of the public to pass through a security process manned by special constables. Those constables were not authorized to seize items or conduct criminal investigations, but were authorized to screen persons entering Police Headquarters for weapons and other dangerous items. A written notice placed at the entrance to Police Headquarters advised persons that they would not be allowed to enter the building without going through security.

[10] The application judge described the process in these terms, at para. 17:

The search involves "wanding" a person's body with a metal detecting wand, and physically searching any bags the person has with them. The searches are conducted anonymously. Members of the public are not required to identify themselves. There is also an "amnesty box". The purpose of this box is that if a person has something with them that they are concerned will be a problem in the search, but the person still wants to enter the building, the person may remove the item from their person or their bag and place it in the amnesty box. The record is clear that if an individual puts something in the amnesty box prior to being searched, there will not be any consequences, although they will not be permitted to retrieve the item. The record is less clear as to what happens if an item of concern is found on an individual or in their bag during the search process. Although the court officers who conduct the screening do not have the authority to seize items or conduct investigations, the record discloses that at times they will request the assistance of police officers.

[11] Police Headquarters is a 12-storey building in downtown Toronto. Hundreds of people work there and many members of the public routinely attend there for a myriad of reasons, including attending public meetings of the TPSB in the second floor auditorium. Parts of the building are open to the public, and parts are not.

[12] The security protocol described above applies, with some minor exceptions, to all non-police personnel entering Police Headquarters. There are additional security protocols applicable to specific parts of Police Headquarters. However, once members of the public have entered through the main entrance, they have access to most parts of the first two floors of the building, including the auditorium on the second floor, without being subjected to any further security screening.

[13] The TPSB is responsible for the adequate and effective policing of the City of Toronto. The TPSB is statutorily required to conduct a minimum number of meetings per year. Subject to specific statutory exceptions, those meetings must be open to the public: Police Services Act, R.S.O. 1990, c. P.15, ss. 27, 31, 35.

[14] The TPSB has the statutory authority to make procedural rules by way of by-laws: Police Services Act, s. 37. One of those, TPSB by-law No. 161, provides that the public meetings of the TPSB shall take place at Police Headquarters: TPSB by-law No. 161, s. 11.2. Another part of the by-law sets out detailed procedures governing deputations made by members of the public at the meetings of the Board: TPSB by-law No. 161, s. 17.

[15] The security protocol was put in place by Chief Saunders and not by the TPSB. I do not understand any of the statutory powers of the TPSB to be challenged on this application. Specifically, the court is not asked to decide whether the TPSB could lawfully initiate a similar screening protocol at the entrance to the auditorium in which its meetings are held.

[16] The application focused exclusively on the impact of the security protocol at the entrance to the building on persons who wished to attend the public hearings of the TPSB. The application judge, at para. 9, specifically declined to consider whether the security protocols at the entrance engaged the constitutional rights of persons entering Police Headquarters for other purposes.

III. The Issues

A. Does the security protocol limit Mr. Langenfeld's right to freedom of expression?

[17] Section 2(b) of the Charter provides:

2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

[18] The application judge, at paras. 47-68, carefully and thoroughly analyzed the application of s. 2(b) in accordance with the controlling case law: see Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at pp. 967-71 S.C.R.; Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, 2005 SCC 62, at paras. 73-80; Canadian Broadcasting Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 19, 2011 SCC 2, at paras. 32-38; Figueiras v. Toronto (City) Police Services Board, (2015), 124 O.R. (3d) 641, 2015 ONCA 208, at paras. 68-77; Bracken v. Fort Erie (Town), (2017), 137 O.R. (3d) 161, 2017 ONCA 668, at paras. 25-34; Bracken v. Niagara Parks Police, (2018), 141 O.R. (3d) 168, 2018 ONCA 261, at paras. 33-53.

[19] Following the analytical path cut in the authorities cited above, the application judge posed three questions:

• Did Mr. Langenfeld's attendance at the TPSB public meeting constitute expressive conduct in that it intended to convey a meaning?

• If the activity had expressive content, was the activity excluded from s. 2(b) by virtue of the method used to convey the expression or the place at which it occurred?

• If the activity is expression, which is not excluded, does the security protocol, either by its purpose or in its effect, limit Mr. Langenfeld's s. 2(b) rights?

[20] The application judge concluded, at paras. 49-56, that Mr. Langenfeld's attendance at a public meeting of the TPSB to listen and perhaps speak to the matters of public interest discussed there constituted expressive conduct. She further held, paras. 57-59, that there was no reason to exclude that expressive activity from the protection of s. 2(b). The activity was not violent, did not threaten violence, and occurred in a part of the Police Headquarters building that typically permitted public access and uses which were not incompatible with the individual exercise of freedom of expression.

[21] I agree with the application judge's analysis of the first two questions posed in her three-part analysis of the s. 2(b) claim. I do not propose to say more about them. The arguments advanced on appeal by both Chief Saunders and the AG focus on the third inquiry described by the application judge -- did the security protocol, either by its purpose, or in its effect, limit Mr. Langenfeld's s. 2(b) rights?

[22] The application judge was satisfied that the security protocol was not put in place for the purpose of limiting freedom of expression: para. 62. While counsel for Mr. Langenfeld takes exception to that finding on appeal, I see no reason to disagree with it. The security protocol applied to all persons entering Police Headquarters, many of whom were not engaged in any kind of expressive activity. The protocol did not in any way target persons entering the building for the purposes of attending the public meeting of the TPSB, or pursuing some other expressive activity.

[23] In concluding that the security protocol had the effect of limiting Mr. Langenfeld's s. 2(b) rights, the application judge described the security protocol as imposing a precondition on Mr. Langenfeld's attendance at the TPSB meeting, itself an exercise of his right to freedom of expression. The application judge characterized the precondition as requiring Mr. Langenfeld to give up aspects of his personal privacy by submitting to a warrantless search, unsupported by any grounds, in exchange for exercising his right to express himself by attending the meeting. She described this precondition as a burden or limit on Mr. Langenfeld's exercise of his right to freedom of expression.

[24] In reaching her conclusion, the application judge relied on this court's reasons in Figueiras. She said, at para. 66:

The holding in Figueiras that imposing a search of one's person or belongings as a condition precedent to engaging in protected expression infringes the right to freedom of expression is applicable to this case.

[25] Figueiras, at para. 74, holds that a search of the person can have the effect of imposing a limit on the exercise of one's right to freedom of expression that will, subject to s. 1, infringe s. 2(b) of the Charter. Chief Saunders and the AG argue that the application judge erred in applying Figueiras to this case. They submit that Figueiras is distinguishable because, unlike this case, it involved the exercise of police powers on a public street, causing an interruption in the marchers' ongoing exercise of their right of freedom of expression. Counsel for Chief Saunders also points out that in Figueiras the court held that the police acted with the purpose of interrupting the marchers' exercise of their right of freedom of expression: Figueiras, at paras. 75-77.

[26] The distinctions drawn between this case and Figueiras by Chief Saunders and the AG all exist. However, they do not make the ratio of Figueiras inapplicable to this case. In deciding whether state conduct has the effect of limiting freedom of expression, it does not matter whether the state conduct is described as an exercise of police power, or an exercise of some other category of state power. Similarly, in deciding whether the conduct limits freedom of expression, I see no reason to distinguish between state conduct that interrupts ongoing freedom of expression and state conduct that interferes with the exercise of that right in some other way. Finally, as long as the place at which the expressive activity occurred is compatible with the exercise of freedom of expression, it is irrelevant for the purposes of determining whether the right has been limited by state conduct, that the place is a public street or a public part of a government building. Those kinds of distinctions may become important in the s. 1 analysis.

[27] Lastly, the fact that the police conduct in Figueiras was done for the purpose of limiting freedom of expression in no way diminishes from the court's finding that it also had the effect of limiting freedom of expression by imposing a precondition on the exercise of that expression. That precondition -- submission to a search -- was much like the precondition imposed here.

[28] Like the application judge, I think the holding in Figueiras had direct application to the s. 2(b) analysis in this case. The security protocol imposed a condition precedent to the exercise of Mr. Langenfeld's freedom of expression. To exercise that freedom, the security protocol required him to compromise his right to privacy and security of the person. The marchers in Figueiras were faced with a similar choice, either submit to the search and carry on with the expressive conduct, or refuse to be searched and stop the expressive conduct.

[29] I accept that not every precondition to the exercise of freedom of expression will necessarily limit the exercise of that right. Trivial or insubstantial preconditions to the exercise of freedom of expression, or for that matter the exercise of other fundamental freedoms, do not amount to prima facie infringements, so as to require s. 1 justification: see R. v. Jones, [1986] 2 S.C.R. 284, at p. 314 S.C.R.; Cunningham v. Canada, [1993] 2 S.C.R. 143, at p. 151 S.C.R.

[30] Some preconditions to the exercise of the rights contained in s. 2(b) may be so trivial and insubstantial as to not merit constitutional recognition. Other preconditions will be virtually prohibitive of the exercise of the right. It is a matter of degree. Given the fundamental importance of freedom of expression in our democracy, and the availability of the justificatory power of s. 1 of the Charter, I would set the bar at which preconditions of the exercise of s. 2(b) become limitations on the exercise of that right at a low mark. That approach gives s. 2(b) a broad and purposive meaning, and puts the onus on the government to justify preconditions to the exercise of that right: see Montréal (City), at para. 79. Clearly, the more minor the impediment, the easier it will be for the state to justify the limit on the right.

[31] In my view, a precondition to the exercise of one's right to freedom of expression can be described as trivial or insubstantial only if it has a truly minimal impact on the exercise of that right. For example, a requirement that persons wishing to attend a meeting of the TPSB enter through a designated entrance at Police Headquarters and assemble in a specified area at least 15 minutes before the scheduled commencement of the meeting would be the kind of logistical precondition that would not be viewed as a limit on s. 2(b).

[32] The precondition imposed on Mr. Langenfeld's exercise of his right to freedom of expression was not trivial or insubstantial. It required him to submit to a search of his person and personal belongings as a precondition to exercising his right to express himself by attending the meeting. While the security search was not as intrusive as many searches, it remained a very real interference with personal privacy and personal security. Simply because such searches have become common in today's world does not mean that their impact on personal privacy and security has become trivial or insignificant.

[33] In oral argument, counsel for Chief Saunders submitted that because the limitation on the right in s. 2(b) was the effect of, rather than the purpose of, the security protocol, Mr. Langenfeld was obliged to demonstrate that the security protocol imposed a "substantial interference" on his right to freedom of expression. Counsel relied primarily on Baier v. Alberta, [2007] 2 S.C.R. 673, 2007 SCC 31.

[34] In Baier, three teachers challenged provincial legislation which prohibited teachers from seeking election as school trustees anywhere in the province while employed by a school board. Teachers could run for election as trustees only by taking a leave of absence and resigning if elected.

[35] The majority in Baier accepted that seeking election as a trustee was expressive conduct within the meaning of s. 2(b) of the Charter: at para. 33. The court further characterized the teachers' claim as asserting a positive right to legislation which would permit teachers to seek election as school trustees, at least in certain circumstances: Baier, at paras. 35-36.

[36] The majority distinguished between a s. 2(b) claim alleging that legislation imposed a limit on freedom of expression and a claim that the legislature was obliged to enact legislation to facilitate or promote freedom of expression. In respect of the latter category, described as a positive rights claim, the court said, at para. 30:

In cases where a government defending a Charter challenge alleges, or the Charter claimant concedes, that a positive rights claim is being made under s. 2(b), a court must proceed in the following way. First it must consider whether the activity for which the claimant seeks s. 2(b) protection is a form of expression. If so, then second, the court must determine if the claimant claims a positive entitlement to government action, or simply the right to be free from government interference. If it is a positive rights claim, then third, the three Dunmore factors must be considered. As indicated above, these three factors are (1) that the claim is grounded in a fundamental freedom of expression rather than in access to a particular statutory regime; (2) that the claimant has demonstrated that exclusion from a statutory regime has the effect of a substantial interference with s. 2(b) freedom of expression, or has the purpose of infringing freedom of expression under s. 2(b); and (3) that the government is responsible for the inability to exercise the fundamental freedom. If the claimant cannot satisfy these criteria then the s. 2(b) claim will fail.

(Emphasis added)

[37] As the above passage makes clear, the "substantial interference" criterion applies only in respect of a positive rights claim. It has no application if the freedom of expression claim asserts a right to be free from government interference with one's right to freedom of expression.

[38] Mr. Langenfeld makes no positive rights claim. He does not argue that Chief Saunders is obliged to provide him with the opportunity to attend the meetings of the TPSB. Indeed, he has that right under the Police Services Act. Mr. Langenfeld argues that the security protocol interferes with, or limits, his right to freedom of expression. The "substantial interference" criterion from Baier has no application here.

[39] I would add that any attempt to incorporate the "substantial interference" requirement into s. 2(b) claims based on alleged government interference with freedom of expression would have negative consequences. If one were to hold that the effect of government action would be said to limit freedom of expression only if it caused "substantial interference" with that right, a broad range of potential government action that interfered with freedom of expression, but not substantially, would be placed beyond Charter review. The government would not be called to justify that interference with freedom of expression under s. 1 of the Charter.

[40] In addition to the arguments outlined above, Chief Saunders and the AG made four additional submissions in support of the claim that the security protocol did not limit Mr. Langenfeld's right to freedom of expression. First, Chief Saunders submitted that the application judge wrongly concluded that the security protocol violated Mr. Langenfeld's right to be free from unreasonable search under s. 8 of the Charter, and that the s. 8 breach constituted a breach of s. 2(b). Chief Saunders contends that Mr. Langenfeld did not allege a breach of s. 8 in his application and that, in any event, compliance or non-compliance with s. 8 was not determinative of the s. 2(b) claim.

[41] The application judge did describe the security protocol and its impact on Mr. Langenfeld in terms that one normally associates with a s. 8 claim. She was, however, aware that no s. 8 claim had been made: paras. 67-69. As I read her reasons, she focused on the impact of the security protocol on Mr. Langenfeld's exercise of his right to attend the public meeting of the TPSB. She found that to exercise that right, he had to sacrifice his personal privacy and security of the person by submitting to a screening process that was not based either on a warrant or on reasonable and probable grounds. While it is fair to say that the application judge's reasons suggest she viewed the screening process as an unconstitutional search, I think it is equally clear that she based her finding of a breach of s. 2(b) on her determination that the security protocol imposed a limit on Mr. Langenfeld's ability to express himself by attending the meeting of the TPSB.

[42] Counsel for Chief Saunders also submitted that preconditions to the exercise of freedom of expression can only be said to limit that right if they affect the "expressive content" of the activity: see Canadian Broadcasting Corp., at paras. 50-52. Counsel contends that "expressive content" is limited only if the precondition to the exercise of the right relates to the content, time, manner or place of expression.

[43] I do not agree that a precondition to the exercise of the s. 2(b) right can be said to limit that right only if it applies to the content, time, manner or place of the expression. A precondition that effectively dissuades individuals from engaging in expressive activity in which they would otherwise have engaged is surely as much a limit on freedom of expression as is one that limits the content, time, place or manner of expression. Once again, Figueiras is instructive. The marchers were told they could not continue to engage in their expressive activity, that is, marching down a public street, unless they first submitted to a search. That precondition did not impose a limit on freedom of expression tied to content, time, place or manner of expression. Instead, it placed a condition precedent on the continued exercise of the right that required individuals to submit to a search. Nonetheless, this court held that the search requirement did limit the freedom of expression of the marchers. Similarly, Mr. Langenfeld could not express himself by attending the meeting of the TPSB without first yielding other personal rights and submitting to the security protocol and the personal intrusions that protocol involved.

[44] The final two submissions made by Chief Saunders and the AG can be considered together. Both parties argue that the availability to Mr. Langenfeld of other ways of participating in the meeting of the TPSB effectively eliminated any limitation on his s. 2(b) right that might otherwise be imposed by the security protocol. Mr. Langenfeld did have options. He could make submissions in writing and he could watch the TPSB proceedings on YouTube.

[45] The availability of other means of expressing one's self, other than actual attendance at the meeting, is irrelevant to whether limitations on attendance at the meeting constitute a limit on freedom of expression. Attending the meeting in person is one means of expression. Written deputations are another. A limit on the former does not disappear because the latter exists. The availability of alternative ways of watching the proceedings of the TPSB, or of making representations to that body, are relevant only at the s. 1 stage of the analysis.

[46] The other argument put forward by Chief Saunders and the AG is also properly considered at the s. 1 stage of the analysis. According to this argument, the screening process, by enhancing the overall safety of the building in which the TPSB meetings occur, facilitates the ability of persons to attend and freely participate in those meetings. Chief Saunders and the AG submit that the screening protocol results in a net gain for the right to freedom of expression when that right is considered from the collective vantage point of all persons who wish to attend the meetings.

[47] Mr. Langenfeld's right to freedom of expression is a personal right. If his exercise of that right is limited by the security protocol, that limitation is not erased by a determination that, from a collective point of view, the right to freedom of expression is encouraged. Those kinds of calculations must be made in the context of a s. 1 analysis.

[48] Like the application judge, I would hold that the security protocol is a prima facie infringement of s. 2(b) of the Charter. Its ultimate constitutionality depends on the s. 1 analysis.

B. Is the limit on section 2(b) justified under section 1 of the Charter?

[49] Section 1 reads:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[50] The application judge correctly observed that the s. 1 analysis begins with the identification of the source of the limitation on the constitutional right. That limitation must be "prescribed by law". Only limitations "prescribed by law" can potentially justify limits on Charter rights. Those limits are constitutionally acceptable only if "reasonable" and "demonstrably justified". As Professor Hogg observes in Constitutional Law of Canada, 5th ed. (Toronto: Carswell, 2016) (looseleaf revision 2018-1), at para. 38.8(b):

The requirements of reasonableness and demonstrable justification are cumulative, not alternative. Although both must be satisfied, there does not seem to be much point in treating each separately. Indeed, the requirement of reasonableness may be redundant, because a limit that is demonstrably justified must surely be reasonable. The courts have not attempted to distinguish between the two requirements, but have assumed that the language of reasonableness and demonstrable justification articulates a single standard to be applied to all laws limiting Charter rights.

(i) Is the security protocol prescribed by law?

(a) The application judge's analysis

[51] Chief Saunders submitted that as the Chief of Police he was responsible, under the Occupiers' Liability Act, R.S.O. 1990, c. O.2 ("OLA"), and the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, for the safety and wellbeing of persons working in, or attending at, Police Headquarters. He argued that to perform the obligations placed on him under those statutes, he had the lawful authority at common law to take reasonable steps to ensure the safety of persons working in or attending at Police Headquarters. Those steps could include imposing preconditions to entry into the building. Chief Saunders submitted that the security protocol fell within the range of reasonable safety measures and was therefore prescribed by law.

[52] The application judge accepted that private occupiers could, at common law, impose preconditions to entry in response to their obligation under the OLA to protect the safety of persons on the property: para. 112. She also accepted that government actors who were occupiers had the same power, at least in respect of property to which members of the public did not have a right of access: paras. 113-114. The application judge found, however, that Chief Saunders' common law powers qua occupier did not extend to the imposition of warrantless searches performed without reasonable grounds on persons who were seeking entry to Police Headquarters for the purposes of attending a public meeting of the TPSB: paras. 115, 145.

[53] In concluding that Chief Saunders' powers did not extend to the imposition of the screening process on persons wishing to enter Police Headquarters to attend a TPSB meeting, the application judge relied primarily on the repeal of the Public Works Protection Act, R.S.O. 1990, c. P.55 ("PWPA"). That Act had given police officers and "guards", appointed for the purposes of administering the PWPA, the power to require anyone entering a "public work" to identify themselves by name and address, and to state their purpose for entering the "public work". The Act further authorized the search of any person seeking entry and the search of any vehicle under the control of that person. Anyone who refused to comply with any of these requirements could be arrested without warrant and charged with an offence: PWPA, ss. 3, 5. The phrase "public work" was broadly defined to include "any provincial and any municipal public building": PWPA, s. 1. The definition would include Police Headquarters.

[54] The PWPA was repealed in 2015 and replaced with legislation that granted powers to search persons entering only certain government facilities, namely, courthouses and power-generating plants. As the detailed references to the legislative history found in the reasons of the application judge make plain, the PWPA was repealed largely because the broad powers granted by s. 3 of the PWPA were viewed as inappropriate and unnecessary when applied to all the buildings encompassed by the phrase "public work". A report authored by former Chief Justice Roy McMurtry had also identified the problems associated with the exercise of the broad police powers in the PWPA during the G20 Summit in Toronto in the summer of 2010.

[55] There is no doubt that s. 3 of the PWPA authorized the kind of screening process that Chief Saunders instituted at Police Headquarters. In fact, it authorized a significantly more intrusive search process which also included the power to arrest and charge persons who did not comply with the process. The application judge reasoned that since the PWPA had been repealed and replaced by legislation which did not apply to Police Headquarters, the legislature had intended that the search powers available to Chief Saunders under the PWPA should no longer be applicable to buildings like Police Headquarters. She said, at para. 143:

In this case, given the legislative history, in particular, the repeal of the Public Works Protection Act which contained express provisions for searches upon entering provincial or municipal buildings, the legislative debates around the repeal of the Public Works Protection Act and its replacement with much narrower legislation, I am not persuaded as a matter of statutory interpretation, that either the Occupiers' Liability Act or the Occupational Health and Safety Act give the Chief of Police legal authority to conduct searches of individuals who wish to attend TPSB public meetings. Thus, I find that the limit on freedom of expression imposed by the Chief of Police in making individuals submit to a warrantless search, in the absence of reasonable and probable grounds, as a condition precedent to attending a TPSB meeting is not prescribed by law.

(b) My analysis

[56] My analysis focuses on Chief Saunders' common law powers as an occupier of Police Headquarters, and the duties imposed on Chief Saunders as an occupier by the OLA. I will proceed in three steps. First, I will consider whether, apart from the repeal of the PWPA, Chief Saunders' common law powers as an occupier authorized him to impose the security protocol as a precondition to Mr. Langenfeld entering Police Headquarters. Second, I will consider whether Chief Saunders' common law powers qua occupier can be said to be "prescribed by law". Third, I will examine the effect, if any, of the repeal of the PWPA on Chief Saunders' common law powers as the occupier of Police Headquarters.

[57] Chief Saunders was the occupier of Police Headquarters with responsibility for, and control over, the conditions of the building and any activities in the building: Police Services Act, s. 31(4), s. 41(1); OLA, ss. 1(b), 3(1), 10(1). As the occupier, Chief Saunders was statutorily required under s. 3(1) of the OLA to take such care, as in all of the circumstances was reasonable, to ensure that persons entering or using the property were "reasonably safe while on the premises".

[58] The OLA does not contain provisions that authorize the occupier to take steps necessary to comply with the duty imposed on the occupier by that Act. Occupiers of property, however, have powers at common law. Those powers extend to excluding persons from the property, removing persons from the property, and imposing terms and conditions on persons while they are on the property: Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, at pp. 244-45 S.C.R., per McLachlin J.; Weisfeld v. Canada, [1994] F.C.J. No. 999, 116 D.L.R. (4th) 232 (C.A.), at para. 56; Bracken v. Fort Erie (Town), at paras. 69-73.

[59] The common law authority of an occupier in respect of the property must extend to taking the steps necessary to comply with the statutory duty imposed on the occupier by s. 3(1) of the OLA. It cannot be that the occupier has a duty to take reasonable steps to protect persons on the property, but no power to take those steps. Those steps may include the imposition of preconditions to entry, such as a security screening, if the precondition is reasonable and connected to maintaining the safety of persons on the property: see Nakochee v. Linklater, [1993] O.J. No. 979, 40 A.C.W.S. (3d) 56 (Gen. Div.), at para. 18.

[60] The application judge did not consider the common law powers of Chief Saunders as an occupier of Police Headquarters. She restricted her consideration to the relevant statutory provisions. As explained above, those provisions address the duties rather than the powers of occupiers. The application judge, at para. 112, did allude to the common law powers of occupiers of private property and acknowledged that those powers could extend to searches prior to entries. In my view, an occupier of public property, who is also subject to the duties of the OLA, has the same powers.

[61] Chief Saunders' common law authority to control access to Police Headquarters to ensure the safety of persons in the building flows not from any police power, but from his status as an occupier. In imposing a precondition to entry for safety purposes, Chief Saunders is performing the duty imposed on him as an occupier under s. 3(1) of the OLA. That same obligation and the same common law power applies to all occupiers who are subject to the OLA. Chief Saunders' status as a government actor is irrelevant to the nature and scope of his common law powers as an occupier of Police Headquarters. His status as a government actor, however, becomes constitutionally significant if, in the exercise of those common law powers, he limits the constitutional rights of persons seeking entry to Police Headquarters.

[62] The application judge further held, at paras. 143-145, that any power Chief Saunders had as an occupier to impose preconditions to entry did not extend to preconditions that had the effect of limiting the freedom of expression of persons seeking entry to Police Headquarters. With respect, this analysis confuses the requirement that state conduct be "prescribed by law" with the further requirement that the state conduct, even if "prescribed by law", impose only reasonable and demonstrably justifiable limits on constitutional rights. In deciding whether state action is "prescribed by law" for the purposes of s. 1, one does not take into account the impact of that action on a claimed Charter right.

[63] As set out above, Chief Saunders' common law powers as an occupier extend to taking steps necessary to fulfil his obligation under s. 3(1) of the OLA. If reasonable measures to preserve safety include security screening of those entering the building, that measure, to be effective, must apply to all entrants, regardless of their purpose in seeking entry. The purpose for entering the building, while irrelevant to the scope of Chief Saunders' common law power to protect the safety of persons who are in the building becomes important when deciding whether, in exercising those common law powers, Chief Saunders has limited the constitutional rights of persons seeking entry to Police Headquarters.

[64] My conclusion that Chief Saunders' common law powers as an occupier can extend to requiring persons to pass through security screening before entering the building does not necessarily mean that that common law power is "prescribed by law". Common law powers can provide the basis for the finding that state action is "prescribed by law": R. v. Swain, [1991] 1 S.C.R. 933, at p. 968 S.C.R.; Greater Vancouver Transportation Authority v. Canadian Federation of Students -- British Columbia Component, [2009] 2 S.C.R. 295, 2009 SCC 31, at para. 52; Bracken v. Fort Erie (Town), at para. 65. However, not every common law power will necessarily meet that requirement. In Bracken v. Fort Erie (Town), at para. 65, a case involving the exercise of an occupier's common law powers, Miller J.A. explained:

Section 1 establishes that limits to Charter rights must be reasonable and must be "prescribed by law". In the context of government action, such as expelling a person from government owned property and issuing a trespass notice, this means that the action must be grounded in law. That is, the action must have been an exercise of a sufficiently defined legal power, guided by legal norms. A "law" need not be a statute to satisfy the "prescribed by law" requirement. "Law" in this context includes regulations and the common law, and it is sufficient that "the limit simply result by necessary implication from either the terms or the operating requirements of the law".

(Citations omitted)

[65] To constitute a limit "prescribed by law", the scope of the common law authority relied upon must not be so vague as to make it difficult, if not impossible, to know what can or cannot be done under that authority: Greater Vancouver, at paras. 52-55.

[66] The common law powers of an occupier, at least as they apply in the context of an occupier's performing of the duties imposed by s. 3(1) of the OLA, are the antithesis of an arbitrary power. The powers must be exercised reasonably, having regard to the specific circumstances and any measures taken must be motivated by legitimate concerns about the safety of persons in the building.

[67] Nor, in my view, does the manner in which Chief Saunders exercised that authority in this case raise any vagueness concerns. Chief Saunders exercised his authority in a transparent manner which gave anyone seeking access to Police Headquarters advance notice of the screening process and its application to all members of the public seeking to enter the building. Nothing in the affidavits or cross-examinations filed on the application suggest any uncertainty as to what the security protocol required.

[68] I am satisfied that, if the institution of the security protocol was a reasonable measure, having regard to Chief Saunders' duty to protect the safety of persons in Police Headquarters, it was an exercise of his common law powers as an occupier and was prescribed by law.

[69] The question of the reasonableness of the screening process arises, not only in considering the scope of Chief Saunders' common law powers as an occupier, but also in respect of the determination of whether the resulting limit on Mr. Langenfeld's s. 2(b) rights is justified under s. 1. I will address the reasonableness of the screening process in the course of the rest of my s. 1 analysis. For present purposes, it is sufficient to indicate that this record provides cogent evidence that the imposition of the screening protocol was a reasonable measure taken in furtherance of Chief Saunders' obligation to take such measures to protect the safety of persons in Police Headquarters.

[70] I come now to the effect of the repeal of the PWPA on the scope of Chief Saunders' common law powers as an occupier of Police Headquarters. With respect to the application judge's contrary conclusion, I think the repeal had no effect on the scope of that power.

[71] The PWPA never purported to address the common law powers of occupiers. Instead, the legislation granted sweeping search and arrest powers to the authorities in respect of persons entering any place that fell within the broad definition of the phrase "public work". Those broad powers existed without regard to any specific circumstances or any specific concerns about safety within the building. The legislation was animated by public security concerns in the broadest sense and reflected the wartime temper of the times in which the PWPA was enacted.

[72] The repeal of the PWPA removed the broad police powers granted by that Act, as applied to all buildings that constituted "public works". Nothing in the language of the repealing statute, either expressly or by implication, supports the contention that, in addition to removing the extraordinary police powers granted by the PWPA, the legislature, by repealing that Act, also intended to circumscribe the common law powers available to occupiers of property that had formerly fallen under the definition of "public work" in the PWPA. It does not follow, either as a matter of statutory interpretation or logic, that the legislature, by eliminating certain specified extraordinary police powers, intended also to preclude occupiers of buildings that happened to constitute public works from taking steps that all other occupiers could take in order to fulfil their statutory obligation under s. 3(1) of the OLA.

[73] I do not accept the submission that, because the security protocol implemented by Chief Saunders would have been justified under the very broad powers of the PWPA before it was repealed, it follows that after repeal there is no authority for the implementation of the security protocol. That reasoning assumes that the PWPA and only the PWPA authorized an occupier to implement a measure such as the security protocol. That is not the case. As outlined above, the common law powers of the occupier, apart entirely from the extraordinary powers under the PWPA, could, in some circumstances, justify a precondition to entry, such as the security protocol, to protect the safety of persons in the building.

[74] In summary, I would hold that the security protocol was an exercise of Chief Saunders' common law powers as an occupier of Police Headquarters. The protocol was prescribed by law and the repeal of the PWPA did not affect the scope of Chief Saunders' common law powers as an occupier.

(ii) Is the security protocol a reasonable limit on Mr. Langenfeld's right to freedom of expression?

[75] The application judge, having determined that Chief Saunders had no legal authority to introduce the security protocol, did not go on and decide whether the protocol constituted a reasonable limit on Mr. Langenfeld's right to freedom of expression. The record assembled by the parties permits this court to complete the s. 1 analysis.

[76] Professor Hogg, in Constitutional Law of Canada, at para. 38.8, identifies the four criteria that must be satisfied before a claim limiting a constitutional right will pass s. 1 scrutiny. They are:

• the objective of the law must be sufficiently important to justify limiting a Charter right [a pressing goal];

• the law must be rationally connected to the objective of the law [a rational connection];

• the law must impair the constitutional right no more than is necessary to accomplish the objective [minimum impairment]; and

• the law must not have a disproportionately severe effect on the constitutional rights of the persons affected by it [proportionality].

[77] The first criterion addresses the objective of the law that limits the right. The other three criteria examine the means used to achieve the objective and, broadly speaking, balance the societal interest served by the law against the limits imposed by the law on the individual's constitutional rights. That balance requires the state to show that the limit is "reasonable" and "demonstrably justified in a free and democratic society": R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 138-39 S.C.R.

(a) Pressing Goal

[78] The security protocol was implemented to protect the safety of members of the public who attend at Police Headquarters and the safety of persons working in the building. Sadly, this court can take judicial notice that, in today's world, places like Police Headquarters in Toronto are attractive targets for terrorists and other criminal extremists. The harm caused by those individuals can be catastrophic. The record on the application also refers to many recent incidents at Police Headquarters, including a credible bomb threat, that give credence to public safety concerns in the building.

[79] Protecting the physical safety of persons using or working in Police Headquarters is an important objective. Similarly protecting the safety of persons attending meetings of the TPSB so they can take part in those meetings and express their views on matters of public importance, is a matter of public importance. Protecting the public and the police employees in the building promotes the values of a free and democratic society. Their safety is a pressing and substantial objective: Hogg, at para. 38.9(b).

(b) The rational connection

[80] The rational connection between the screening protocol and the safety of persons in Police Headquarters is self-evident: see RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at paras. 155-156. There was also evidence that since its implementation, the screening process had been effective in keeping at least some dangerous individuals and items out of the building.

(c) Minimum impairment

[81] The minimal impairment requirement, often the determining factor in the s. 1 analysis, is also established on this record. The screening process is tailored to its objective. It does not prevent, or even meaningfully delay, anyone from entering the building and exercising their right to freedom of expression by attending the meetings of the TPSB. It does not require individuals to identify themselves or provide any information to the authorities. The process is limited to a non-intrusive investigation for potentially dangerous objects. While the process negatively impacts on personal privacy, the impact is relatively minor. There is nothing in the manner in which the protocol is implemented that could be described as discriminatory, belittling, or aimed at discouraging persons from entering Police Headquarters for whatever purpose they may have. The security protocol is no more than persons could reasonably expect to encounter when entering a building like Police Headquarters in a city like Toronto in 2019.

[82] Nor, in my view, does the minimum impairment requirement dictate that the security protocol be tailored so as to not apply to persons seeking entry to the building for the purpose of attending the meeting of the TPSB. The safety risk to which the protocol responds is in no way connected to the purpose for entry. A security protocol at the entrance of a building which allows persons to declare themselves immune from the protocol by specifying a certain purpose for entering the building, surely, has little, if any, value as a safety measure: see R. v. Campanella, (2005), 75 O.R. (3d) 342, at para. 19.

[83] Also, from a practical perspective, a security protocol at the entrance that exempted persons from the protocol so they could attend the TPSB meeting would, in all likelihood, impose even more restrictions on the rights of those persons than does the security protocol. Presumably, persons who avoided the security protocol by declaring an intention to attend the meeting on the second floor would have to be detained for the purpose of being escorted to the meeting. They would also be required to remain in the meeting room throughout, and would once again be detained while being escorted out of the building after the meeting. Those individuals would also be required to declare to the authorities the reason for attending at Police Headquarters, something they are not required to do under the present protocol.

[84] In my view, a security protocol tailored to exempt individuals purporting to enter Police Headquarters to go to a meeting of the TPSB would not provide effective security for the building and would in all likelihood impose more significant limit on the rights of persons attending those meetings than does the existing security protocol.

[85] The ability to view the TPSB proceedings on YouTube and to make deputations in writing also mitigates the limit on freedom of expression imposed by the screening protocol to some extent.

(d) Proportionality

[86] Proportionality, the fourth criterion in the s. 1 analysis, looks to the severity of the limitation of the constitutional right on one hand, and the importance of the objective of the law that limits the right on the other hand. The proportionality inquiry assumes that there will be situations in which the impugned law meets the first three criteria, but fails the fourth because of its disproportionately severe effect on the constitutional rights of those affected by it. I would think this would be a relatively rare situation: see Hogg, at para. 38.12.

[87] In my view, the protection of the safety of all persons entering Police Headquarters or working in Police Headquarters is an important objective. The protection of persons wishing to attend the meetings of the TPSB, a form of freedom of expression, also promotes the value underlying freedom of expression. Balanced against that important objective is a relatively minor limit of Mr. Langenfeld's s. 2(b) right.

[88] I would hold that Chief Saunders has met his onus of demonstrating that the security protocol initiated by him is a reasonable limit on Mr. Langenfeld's right to freedom of expression that is demonstrably justified in a free and democratic society.

IV. Conclusion

[89] I would allow the appeal, set aside the order below and substitute an order dismissing the application brought by Mr. Langenfeld.

[90] I would make no order as to costs.

Appeal allowed.

End of Document