COURT OF APPEAL FOR ONTARIO DATE: 20200416 DOCKET: C65779

Brown, Huscroft and Trotter JJ.A.

BETWEEN

Luke Stewart Appellant (Plaintiff)

and

The Toronto Police Services Board Respondent (Defendant)

Counsel: Davin Charney and Christopher Rapson, for the appellant Kevin McGivney and Jonathan Thoburn, for the respondent Winston Gee and Sarah Whitmore, for the intervenor Canadian Civil Liberties Association

Heard: December 17, 2019

On appeal from the judgment of Justice Bernadette Dietrich of the Superior Court of Justice, dated July 13, 2018, with reasons reported at 2018 ONSC 2785.

Brown J.A.:

I. Overview

[1] This appeal, like that in Figueiras v. Toronto (Police Services Board), 2015 ONCA 208, 124 O.R. (3d) 641, concerns the interaction during the June 2010 Toronto G20 summit between members of the Toronto Police Services (“TPS”) and protestors who were demonstrating on public property. Prior to 2010, the protests accompanying G20 summits had presented significant policing challenges, with large peaceful protests intertwined with protestors who were intent on violence and the destruction of property.

[2] In Figueiras, this court held that the police did not have the power, under the common law ancillary powers doctrine, to target apparent demonstrators and require that they submit to a search of their bags and backpacks in order to continue down a public street toward a protest.

[3] This appeal raises the issue of whether the police, acting as agents of the City of Toronto (the “City”) under the Trespass to Property Act, R.S.O. 1990, c. T.21 (the “TPA”), had the power to require persons trying to enter a public park to join a protest to submit to a search of their bags and backpacks as a condition of entry into the park, Allan Gardens, which was serving as an assembly point for protestors before they departed on a march along Toronto’s public streets.

[4] The appellant, Mr. Luke Stewart, alleges that the police acted tortiously and breached certain of his rights under the Canadian Charter of Rights and Freedoms when they imposed such a condition of entry and subsequently detained him and searched his backpack when he tried to enter the park without submitting to a bag search.

[5] The trial judge held that the police had the power to impose such a condition of entry, both under the common law police ancillary powers doctrine and as agents of the City in respect of the TPA. As a result, she dismissed Mr. Stewart’s action for damages and declaratory relief.

[6] Although the trial judge held that the police had the power to impose the condition of entry under the ancillary powers doctrine, she did not have the benefit of the decision of the Supreme Court of Canada in Fleming v. Ontario, 2019 SCC 45, 437 D.L.R. (4th) 220. That decision reviewed in detail the requirement in the ancillary powers doctrine that the police action be reasonably necessary for the fulfillment of the police duty at issue: at para. 47.

[7] On this appeal, the TPS took the position that in light of the decision in Fleming, it was not relying on the ancillary powers doctrine as a source of legal authority for the imposition of the condition of entry into Allan Gardens. Instead, the TPS relies on a combination of the common law powers of a property occupier and powers under the TPA that it contends the City delegated to it.

[8] For the reasons set out below, I would allow Mr. Stewart’s appeal. I conclude that in these circumstances the police did not have the power, as agents of the City for purposes of administering the TPA, to require Mr. Stewart to submit to a bag search as a condition of entering Allan Gardens to join the protest. I would award Mr. Stewart damages in the amount of $500 pursuant to s. 24(1) of the Charter.

II. The Evidence Regarding the Police Conduct at Issue

The June 2010 Toronto G20 summit

[9] In June 2010, Toronto hosted the G20 summit, an international forum attended by the leaders of the 20 largest economies in the world. Various groups organized a week-long series of public events, protests, and demonstrations that were held in parallel with the official G20 meetings. Prior to the event, police forces in Toronto and the surrounding Greater Toronto Area received specialized training on how to control large crowds and demonstrations.

Police preparation for the June 25 protest rally at Allan Gardens

[10] A public rally was scheduled to be held on Friday, June 25, 2010 at around 2:30 p.m. in Allan Gardens, a public municipal park located in downtown Toronto. A protest parade through some Toronto streets would follow the rally.

[11] On the day before the rally, steps were taken to remove furniture from the park, including benches, tables, and other items that could compromise safety in a large crowd.

[12] At trial, four members of the TPS testified about the events at Allan Gardens on June 25. Three of the officers were directly involved in the encounter with Mr. Stewart that afternoon: Sergeant Nancy McLean and two members of her platoon, Constables David Hinchcliffe and Christopher Hoeller. The fourth officer, Staff Sergeant Grant Burningham, was in charge of police operations at Allan Gardens that day.

[13] The officers’ day started with a parade, or briefing, conducted by S/Sgt. Burningham for the members of various the police forces assigned to patrol Allan Gardens. The trial judge summarized the information the officers received before and at that parade, at paras. 12-14 of her reasons:

Each of the police officers who testified confirmed that he or she was aware of events relating to the G20 that had taken place in other cities and other countries in which the G20 had been held in the past. They appreciated that a high level of violence and destruction of property was common at G20 events. The evidence was uncontroverted that the G20 was a unique event in Toronto. It brought with it unprecedented peacekeeping and security challenges over the course of the weekend of June 26-27, 2010. It was also made clear that the Toronto police had never undertaken a security challenge of this magnitude.

On the morning of Friday, June 25, 2010, the police had a parading session. Individual officers were briefed and given certain intelligence that had been gathered. At this session, police officers were provided with copies of a magazine entitled “The Peak – G20 Special Issue”, which was entered into evidence. Earlier in the week, the police had discovered a copy of The Peak in a car they had stopped. Among other articles in the magazine was an article on “Advanced Street Fighting”, which included information on “Breaking Police Lines”, “Security Fencing”, and “Throwing Projectiles”. Sgt. Burningham testified that the police officers were cautioned that some of the expected protesters may have studied the magazine and readied themselves to use the recommended tactics against the police.

The police officers who testified stated that they had been told to expect protesters arriving by bus from Kitchener and from Montreal. They also testified that they were advised to be prepared for the use of “Black Bloc” tactics by some of these protesters. The evidence before the court is that “Black Bloc” refers to groups of protesters who wear black clothing, scarves, sunglasses, ski masks or other face-concealing items to conceal their identity, making it difficult to distinguish between participants. Photos taken on June 25, 2010 and entered into evidence show that there were indeed protesters in Allan Gardens on that day utilizing Black Bloc tactics. Mr. Stewart and the police officers who testified each confirmed the presence of Black Bloc protesters.

[14] Upon their arrival at Allan Gardens, the officers were first tasked with inspecting the park to locate sticks and other items that could be used as weapons at the demonstration that might have been cached in the park the night before. S/Sgt. Burningham directed the approximately 80 officers under his command to then place themselves in clusters around the perimeter of Allan Gardens. He told them to initiate contact with anyone trying to bring a knapsack or other container into the park that could contain weapons or items that could injure members of the public or police officers. The officers were to ask anyone with a knapsack or container to allow the police to inspect it and to make entry into Allan Gardens conditional upon a person agreeing to a search of the knapsack or container.

[15] Cst. Hoeller testified that if a person was not carrying anything in which they could conceal items, access to the park was granted right away without a search or any discussion.

[16] S/Sgt. Burningham described the perimeter formed by the police as “very porous” as there were not enough officers to create a complete ring around Allan Gardens. He placed groups of officers at “all points of the compass” about every hundred yards. The officers, mostly members of bike patrols, set themselves up in groups of three or four at the paths that serve as entrances into the park. As a person tried to enter Allan Gardens, an officer would initiate contact with those carrying a backpack or other container and ask them to submit their bags to a search.

[17] One witness, Mr. Murray Douglas Bush, described the police formation for most of the time as involving “clumps or groupings of three or four or five police officers.” Another, Lisa Walter, a reporter who filmed most of the encounter between Mr. Stewart and the police, characterized the police presence as “clusters of officers stationed every few metres around the park” with the police approaching and stopping anyone who was entering the park with bags or large objects like sticks.

[18] The trial judge summarized the evidence regarding why the police wanted to search the bags of those entering Allan Gardens at para. 17 of her reasons:

With the objective of interdicting weapons and would-be weapons, the police asked individuals entering Allan Gardens to allow their bags and belongings to be screened as a condition of entry. The evidence shows that the bags and belongings screened included knapsacks, purses, strollers, and wheelchairs. The screening function involved a search to the extent that members of the police looked into the bags and belongings. The police officers testified that they were instructed to look for weapons, things that could be used as weapons at a protest (e.g., flagpoles, sticks) and items that could be used to defeat police tactics such as goggles, bandanas and vinegar. Sgt. McLean testified that a bandana soaked in vinegar and used by a protester to cover his or her face would allow the protester to defeat the effects of tear gas. When prohibited items were found, they were taken by the police. Constable Hoeller testified that some would-be entrants to Allan Gardens elected not to consent to a search and left the park. An inference can be drawn that they may have had weapons or other prohibited items concealed in their bags, but the police perimeter served as a deterrent to bringing those items into Allan Gardens.

The police interaction with Mr. Stewart

[19] At paras. 19-24 of her reasons, the trial judge comprehensively summarized the evidence regarding Mr. Stewart’s encounter with the police at Allan Gardens:

Mr. Stewart’s evidence is that when he approached Allan Gardens at the northwest corner, he observed that police officers were looking into the bags of people seeking to enter. He decided to enter at a more [easterly] point in an effort to avoid this search. When he attempted to enter Allan Gardens, Mr. Stewart was confronted by three police officers, including Constable Hinchcliffe and Constable Hoeller, each of whom testified that they had asked Mr. Stewart to let them look at the contents of his backpack as a condition of entry to the park. Mr. Stewart objected. He wanted freedom of access to Allan Gardens and was adamant that the police had no right to interfere with his freedom of assembly. He refused to consent to any police officer looking into his backpack.

The exchange between the police officers and Mr. Stewart was recorded on video by a reporter, Lisa [Walter], who testified in this action. The video evidence was reviewed by the court several times. The video shows that during Mr. Stewart’s interaction with the police, the officers remain calm throughout. The police attempt to answer Mr. Stewart’s questions of them. He specifically asks for the authority on which they were relying to search his backpack. When told by Constable Hinchcliffe that the police derive their authority from the Trespass to Property Act, Mr. Stewart is dismissive of this response and continues to shout at the police and attract a crowd, including the press. Mr. Stewart’s persistent refusal to co-operate leads the police officers to call upon Sgt. McLean in a bid to de-escalate the situation and to allow Mr. Stewart to speak to a more senior officer. Mr. Stewart is not persuaded by anything that Sgt. McLean tells him. He proclaims to the police officers present that in order to search his backpack they are going to have to detain him. He then forces his way past the police officers, into the park, causing them to react.

Under cross-examination, Mr. Stewart agreed that he was, prior to breaching the perimeter, free to leave Allan Gardens. If, however, he wished to enter the park, his backpack would need to be inspected. Upon breaching the perimeter by pushing past the police, Mr. Stewart had breached the condition of entry and become a trespasser. Police officers stopped him so that they could remove his backpack and inspect it for weapons, would-be weapons and items that could be used to defeat police tactics. The video shows that the entire incident involving stopping Mr. Stewart and inspecting his backpack lasted less than three minutes. During this time, Mr. Stewart was momentarily restrained, under his protest, long enough to allow the officers to remove his backpack from his back and examine its contents. At this point, Mr. Stewart was being denied further entry into Allan Gardens until the condition of entry was enforced.

The police took Mr. Stewart’s swimming goggles from his backpack. The officers involved testified that they did so out of a concern that the goggles could be used to defeat police tactics, such as the use of tear gas. Mr. Stewart objected vociferously to the officers taking his goggles, proclaiming that, having done so, he would not be able to protect himself from the “chemical weapons” that he said the police would use on him. The officers testified that the goggles were not taken with any intention to keep them.

The video shows Sgt. McLean asking Mr. Stewart for his name so that a receipt could be prepared and his goggles returned to him at a later time. Mr. Stewart refused to give his name and made his way into Allan Gardens. He testified that he had no further involvement with the police that day and he was free to meet his friends in the park and to participate in the demonstrations and the march.

Lisa [Walter], who shot the video, testified that, with the exception of very little time at the beginning of Mr. Stewart’s encounter with the police, the video captures the entire interaction between him and the police. The video demonstrates that each police officer who dealt with Mr. Stewart was calm and polite, but firm. They repeatedly told him that a search of his backpack was a condition of entry to Allan Gardens on that day. The video also shows that, in carrying out their duties, the police officers acted in accordance with the instructions they were given. First, they formed a perimeter around the park and then they asked for permission to look into the bags and belongings of all persons entering the park, including Mr. Stewart.

[20] Cst. Hinchcliffe testified that Mr. Stewart was asked to submit to an inspection only because he was carrying a backpack; he was not profiled for any other reason.

[21] Sgt. McLean testified that until the point when Mr. Stewart tried to enter the park without submitting to a bag search, he was free to go, but not into the park. According to Sgt. McLean, Mr. Stewart became a trespasser when he tried to walk past the police into the park. Cst. Hinchcliffe testified that the police detained Mr. Stewart at that time pursuant to the TPA because he had refused to comply with the condition imposed by the police prohibiting entry to the park unless a person allowed a bag search. Cst. Hoeller stated that Mr. Stewart was “under arrest in my mind.” Both Csts. Hinchcliffe and Hoeller testified that when Mr. Stewart was detained, the police had the authority to search his backpack at that point under the common law power to conduct a search incident to an arrest.

[22] At some point after the interaction between Mr. Stewart and the police, S/Sgt. Burningham directed the officers in Allan Gardens to “disregard searches for the time being, unless it’s painfully evident.” He testified that given the size of the crowd, the police could not stop everybody coming into the park: “[P]eople were blowing by [the officers]. They weren’t talking to them. When they, when they did stop and talk to people, they were surrounded by groups of people.” S/Sgt. Burningham ultimately decided to “back off” the searches due to safety concerns.

The police understanding of their authority to condition entry to the park on a bag search

[23] The police witnesses identified the TPA as the source of their authority to restrict entry to Allan Gardens to those who allowed a bag search. The officers stated they knew that each year the City provided the TPS with a letter authorizing the police to act as agents of the City for purposes of the TPA.

[24] The letter that covered the period of the G20 was one dated March 16, 2010 – about three months before the G20 summit – from the City’s General Manager, Parks, Forestry and Recreation to the TPS Chief of Police (the “City TPA Letter”). It stated:

Re: Trespass to Property Act for all Parks and Community Centres

I would like to advise that, with respect to the Trespass to Property Act, the Toronto Police Services is authorized to act as agents of the City of Toronto for purposes of administering the Act and to take appropriate action, including removing people in contravention of the Act. The authority being extended to your Department is intended to be directed only against trespassers.

It is understood that this authority may be revoked at any time upon written notice being received by the appropriate police inspector or other designated police contact at the relevant division.

[25] Sgt. McLean, who was in direct command of the officers who interacted with Mr. Stewart, explained her understanding of the police’s authority to search the bags of those wishing to enter Allan Gardens:

Our concerns on that day ultimately was for the safety, the safety of the public, the safety of the people attending, the safety of the officers, and based on the information we had received, it was reasonable for us to request a search of bags, knapsacks, whatever someone may have in their possession that they would be able to conceal things … So … pursuant to the Trespass to Property Act, as a result, we’re there as the agents for the city, we’re there to provide a safe environment for the demonstrators, and as a result we were con… –screening and conducting searches.

[26] Cst. Hinchcliffe testified about his understanding of the authority to condition entry to the park upon a bag search:

I know that at the park, I’m an agent acting for the Trespass to Property Act, and I have to ensure everyone’s safety in that park. I have to ensure that acts or illegal things don’t take place in the park, and it’s my job not only to enforce but a large part of my job, even more so than the enforcement pieces, is actually to prevent things from happening or potentially happening where we believe the likelihood is great

On the conditions that were set out, the Trespass to Property Act, because we’re responsible to keep everybody safe.

III. The Claim and Defence

Mr. Stewart’s claim

[27] In his Amended Statement of Claim, Mr. Stewart advances two types of claims against the TPS.

[28] First, he asserts tort claims against the officers with whom he interacted as well as against their superiors. As against the officers, he claims they unlawfully detained him, searched his backpack without his consent, and unlawfully seized his swimming goggles, thereby committing assault and battery, false imprisonment, false arrest, negligence, misfeasance in public office, and trespass against his property. As against the officers’ superiors, Mr. Stewart alleges that their plan to form a perimeter around Allan Gardens and restrict entry only to those who consented to bag searches was unlawful, they knew the plan was unlawful, and acted with malice and in bad faith. For those actions of the officers’ superiors, Mr. Stewart seeks damages for misfeasance in public office and negligence.

[29] Mr. Stewart’s second group of claims are Charter-based, arising from the same conduct upon which the tort claims rest. He pleads that: (i) the officers prevented him from attending the protest, thereby interfering with his right to freedom of expression contrary to s. 2(b) of the Charter; (ii) arbitrarily detained him contrary to ss. 7 and 9 of the Charter; and (iii) violated s. 8 of the Charter by unlawfully searching his backpack and seizing his swimming googles.

[30] In his Amended Statement of Claim, Mr. Stewart sought damages of $100,000. In his factum, he submitted that $50,000 would be an appropriate award. At the hearing of his appeal, Mr. Stewart further reduced his damages claim to $20,000. In addition, Mr. Stewart seeks declaratory relief, which I will describe in the remedies section of these reasons.

The TPS defence

[31] In its Amended Statement of Defence, the TPS denies that its officers engaged in any tortious conduct or violated Mr. Stewart’s Charter rights. TPS pleads that on June 25, 2010 its members were engaged in the lawful performance of their duties in Allan Gardens, including acting as authorized agents of the City for the purposes of the TPA. TPS officers were engaged in fulfilling their statutory and common law duties, including preserving the peace and protecting the safety and property of persons. The examination of backpacks was “necessary to protect the safety of those persons within the park in the circumstances as they existed on that day.”

IV. The Trial Judge’s Reasons

[32] The trial judge dismissed Mr. Stewart’s action. She held that the police had the authority to establish a perimeter around Allan Gardens and to impose a bag search condition of entry on two bases: (i) the TPA; and (ii) the common law police ancillary power to take reasonable measures to maintain the safety of the public and the protection of property: at para. 26. Later in these reasons, I will consider in more detail the trial judge’s analysis of the TPA as a source of authority to impose the condition of entry.

[33] The trial judge found that the police have a common law duty and authority to take reasonable measures in maintaining the safety of the public and the protection of property: at para. 43. In the unique circumstances of the G20 and “its well-known history of chaos, property damage, personal injury and even death”, the police were permitted to impose a limited search or inspection for weapons, items that could be improvised into weapons and items useful in defeating police tactics, where an individual declined to consent to the search and insisted on entering the park in defiance of police authority: at para. 45.

[34] The trial judge held that when Mr. Stewart breached the condition of entry and attempted to enter Allan Gardens without allowing a search of his backpack, the police then had reasonable and probable grounds to believe that he was a trespasser who might be attempting to bring weapons into the park: at para. 37. When the police physically restrained Mr. Stewart from entering the park, they acted in a way that was reasonably necessary for carrying out their duty. Mr. Stewart was “momentarily detained” so the police could “satisfy themselves that he was not bringing weapons, would-be weapons or items used to defeat police tactics into the park, which could pose a danger to the public or to the police”: at paras. 38 and 42.

[35] In her reasons, the trial judge focused on Mr. Stewart’s Charter claims. She concluded that the TPS did not violate Mr. Stewart’s rights under ss. 2, 8 or 9 of the Charter. Alternatively, she held that “any such infringement, limited to the interdiction of weapons, would-be weapons and items useful in defeating police tactics, was reasonable and demonstrably justifiable in the context of the G20”: at para. 56.

[36] The trial judge held that the police did not violate Mr. Stewart’s s. 2(b) freedom of expression. As the TPS now concedes that finding was in error, there is no need to review in detail the trial judge’s reasoning on that issue.

[37] The trial judge also held that the police did not violate Mr. Stewart’s s. 8 Charter right. She reasoned, at para. 84:

By breaching the condition of entry and attempting to force his way past the police and into the park, Mr. Stewart committed a trespass and placed himself in investigative detention. The police may investigatively detain someone for trespassing contrary to the Trespass to Property Act: R. v. Amofi, 2011 ONCA 368 and R. v. Peterkin, 2013 ONSC 165. The search for weapons and would-be weapons was done incident to the investigative detention and in the interest of safety for all users of the park and the police on June 25, 2010.

[38] The trial judge continued by holding that s. 9 of the Charter was not engaged because Mr. Stewart was not arbitrarily detained but subject to an investigative detention for a period of less than three minutes: at para. 80.

[39] Finally, the trial judge held that in the context of the G20 and Mr. Stewart’s attempt to rush through the police perimeter, an inspection of Mr. Stewart’s backpack was a reasonable exercise of police common law powers in pursuit of their duty to ensure the safety of the public in the face of a perceived threat: at para. 85. Finally, by forcing his way into the park knowing of the condition of entry, Mr. Stewart “implicitly consented to the search, knowing it was a condition of entry”: at para. 86.

[40] The trial judge dismissed Mr. Stewart’s action and ordered him to pay costs of $25,000 to the TPS.

V. The Issues on Appeal and Positions of the Parties

[41] The overarching issue on this appeal is whether the TPS acted lawfully in imposing, as a condition of entry into Allan Gardens on June 25, 2010, the requirement that a person submit to a search of any bag, backpack, or other thing in which weapons could be concealed. For the sake of brevity, I shall hereafter refer to that police-imposed condition as the “Condition of Entry”.

A. Two issues that are no longer in dispute or in play on the appeal

[42] The issues on this appeal are narrower than those placed before the trial judge.

(1) Mr. Stewart’s claim that the police infringed his Charter s. 2(b) freedom of expression

[43] Before the trial judge, the TPS took the position that the police-imposed Condition of Entry did not infringe Mr. Stewart’s freedom of expression guaranteed by s. 2(b) of the Charter. The trial judge accepted that submission.

[44] Before this court, the TPS acknowledged that in its effect the Condition of Entry infringed Mr. Stewart’s s. 2(b) freedom of expression. That was an appropriate concession for the TPS to make.

[45] The trial judge clearly erred in finding that the Condition of Entry did not infringe Mr. Stewart’s freedom of expression. Mr. Stewart met the criteria in Irwin Toy Ltd. v. Quebec (Attorney-General), [1989] 1 S.C.R. 927, at pp. 978-979, 58 D.L.R. (4th) 577 (S.C.C.) at 613-614, as modified in Montreal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at paras. 56-62, 74 and 82, to establish an infringement of his freedom of expression, namely that his activity involved expressive conduct, the method or location of his expressive conduct did not remove its s. 2(b) protection, and the purpose or effect of the government action was to restrict his freedom of expression.

[46] First, Mr. Stewart sought to enter Allan Gardens in order to participate in a public protest – quintessential expressive activity.

[47] Second, Mr. Stewart’s expressive conduct in seeking to enter Allan Gardens did not run afoul of either internal limitation placed by the jurisprudence on the scope of the s. 2(b) freedom of expression: Bracken v. Fort Erie (Town), 2017 ONCA 668, 137 O.R. (3d) 161, at paras. 28-33.

[48] Mr. Stewart was not engaged in acts of physical violence or threats of violence: Bracken, at paras. 28-31. At the time Mr. Stewart approached the park, the protest was a peaceful one. Indeed, it remained peaceful throughout the time the protestors stayed in the park before departing on their street march.

[49] Nor was Allan Gardens a location that was incompatible with expression: see the jurisprudence summarized in Bracken, at paras. 32-33. To the contrary, our civil liberties tradition recognizes that public parks, such as Allan Gardens, are civic spaces naturally compatible with the public expression of views, whether the content of those views support or dissent from the popular sentiments of the day: Montréal (City), at para. 61; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, per McLachlin J., at p. 230.

[50] Third, the Condition of Entry required Mr. Stewart to submit to a search of his personal belongings as a precondition to exercising his right to express himself by attending the protest in the park, thereby having the effect of placing a limit on his freedom of expression: Figueiras, at para. 77; Langenfeld v. Toronto Police Services Board, 2019 ONCA 716, 148 O.R. (3d) 471, at paras. 28-32, leave to appeal refused, 2020 CarswellOnt 4590. As stated by this court in Langenfeld, at para. 43: “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.”

[51] Finally, it is clear that the type of expression in which Mr. Stewart sought to engage promoted the recognized purposes of constitutionally protected expression: enabling democratic discourse, facilitating truth-seeking, and contributing to personal fulfillment: Montréal (City), at para. 83; Bracken, at para. 34.

[52] Accordingly, the police conduct clearly infringed Mr. Stewart’s freedom of expression protected by s. 2(b) of the Charter. With respect, the trial judge erred in finding otherwise.

(2) The common law police ancillary powers doctrine

[53] The trial judge held that the police had the authority under the common law police ancillary powers doctrine to impose a bag search condition of entry on those who wished to enter Allan Gardens to join the protest.

[54] On appeal, the TPS, in its written and oral submissions, no longer relies on the ancillary powers doctrine as authority for the police-imposed Condition of Entry. Again, that was an appropriate concession for the TPS to make.

[55] First, the Condition of Entry the police imposed did not fall within the limited category of cases involving a common law police power to control access to an area, such as establishing a perimeter around: a police officer who is executing an arrest; a police officer who is questioning a suspect or a witness; a crime scene to preserve evidence; a hazardous area to preserve public safety; or a potential target of violent crime in order to ensure the target’s protection: Figueiras, at para. 59.

[56] Second, the concession by TPS acknowledges the impact of the most recent articulation of the scope of the common law police ancillary powers doctrine by the Supreme Court in Fleming. In that case, the Supreme Court re-iterated, at para. 55, that the ancillary powers doctrine is designed to balance intrusions on an individual’s liberty with the ability of the police to do what is reasonably necessary in order to perform their duties. Those general duties include preserving the peace, preventing crime, and protecting life and property: Fleming, at para. 69. Fleming cautions that “courts should tread lightly when considering proposed common law police powers”: at para. 41.

[57] A key element of the second step of the ancillary powers doctrine analysis – whether the police action involves a justifiable exercise of police powers associated with a statutory or common law duty – is “the necessity of the interference with individual liberty for the performance of the duty”: at paras. 46-47. The analysis must proceed with “rigour” and the bar to establish a police power is high where the power asserted is preventative in nature and has an impact on law-abiding individuals: at para. 76.

[58] As a result, for an intrusion on liberty to be justified, the common law rule is that it must be “reasonably necessary”. As stated in Fleming at para. 98: “If the police can reasonably attain the same result by taking an action that intrudes less on liberty, a more intrusive measure will not be reasonably necessary no matter how effective it may be. An intrusion upon liberty should be a measure of last resort, not a first option.” Further, police powers that involve interference with liberty will not be justified if they are ineffective at preventing breaches of the peace: Fleming, at para. 99.

[59] In the present case, the police imposed the Condition of Entry as a preventative measure to preserve the peace. While proactive, preventative policing measures can fall within the ancillary powers doctrine, where they intrude upon individual liberty courts “must be very cautious about authorizing them merely because an unlawful or disruptive act could occur in the future”: Fleming, at para. 83. Two aspects of the factual record in particular support the TPS’ concession that the conditions were not present on June 25, 2010 to justify the imposition of the Condition of Entry under the police ancillary powers doctrine. First, when Mr. Stewart sought to enter Allan Gardens, the protest was a lawful, peaceful one. Second, shortly after the police interaction with Mr. Stewart, the Condition of Entry was cancelled because it proved ineffective given the number of people trying to enter the park. In those circumstances, the police did not have the authority under the common law police ancillary powers doctrine to impose a bag search condition of entry on those who wished to enter Allan Gardens to join the protest. With respect, the trial judge erred in finding otherwise.

B. The Remaining Issues on Appeal

[60] Three issues therefore remain for consideration and determination on this appeal.

First Issue: The Legal Authority for the Police Conduct

[61] There is no dispute that: (i) the police-imposed Condition of Entry infringed Mr. Stewart’s freedom of expression guaranteed by s. 2(b) of the Charter; (ii) he was detained briefly; (iii) his bag was searched; and (iv) his swimming goggles were seized. To survive Charter scrutiny, those actions by the police must find some authority or justification in the law: (i) the infringement of Mr. Stewart’s s. 2(b) freedom of expression can be justified by demonstrating that the Condition of Entry was a reasonable limit “prescribed by law”: Charter, s. 1; (ii) for his detention to be non-arbitrary and compliant with s. 9, it must be authorized by a law that is itself non-arbitrary: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 533, at para. 56; and (iii) for the search of his backpack and the seizure of his swimming goggles to be reasonable and compliant with s. 8, they must be authorized by law: R. v. Collins (1987), 38 D.L.R. (4th) 508 (S.C.C.) at 521.

[62] Accordingly, the first issue on this appeal concerns the legal authority of the police to impose the Condition of Entry into Allan Gardens.

[63] The TPS submits that the City TPA Letter delegated two powers to the police: (i) the City’s enforcement powers under the TPA; and (ii) the City’s common law power as the owner/occupier of Allan Gardens to impose conditions of entry to the park. Vested with those delegated powers, the TPS submits that it had the lawful authority to impose the Condition of Entry in the unique circumstances of the G20 protest at Allan Gardens on June 25, 2010. Because the Condition of Entry was lawful, Mr. Stewart’s refusal to submit to a bag search, as well as his effort to walk unsearched into the park, breached the lawful Condition of Entry, thereby making him a trespasser. The police were then authorized to arrest or detain Mr. Stewart pursuant to the warrantless arrest power contained in s. 9 of the TPA and to conduct a search of his bag incident to that arrest.

[64] By contrast, Mr. Stewart argues that the City TPA Letter did not delegate to the police any power to impose the Condition of Entry. If this court agrees that no such power was delegated, then Mr. Stewart submits that the police demand to search his backpack, his subsequent brief detention, the actual search of his backpack, and the seizure of his swimming goggles were all performed without lawful authority and the analysis should stop at that point.

Second Issue: The Charter Analysis in the Event Legal Authority Existed for the Police Conduct

[65] If, however, this court finds that the City TPA Letter provided the police with the lawful authority to impose the Condition of Entry, then that restriction on his freedom of expression, his detention, the bag search, and the seizure of the swimming goggles, must still pass scrutiny under the various tests contained in the Charter and its jurisprudence.

Third Issue: The Appropriate Remedy for Any Violations of Mr. Stewart’s Charter Rights

[66] If the TPS conduct violated Mr. Stewart’s Charter rights and freedoms, then the final issue is the appropriate remedy to grant Mr. Stewart for the violation of his Charter rights and freedoms.

[67] I shall deal with these three issues in that order.

VI. First Issue: The Legal Authority for the Police Conduct

A. Overview

[68] As mentioned, the TPS takes the position that its members, acting as agents of the City under the City TPA Letter, were authorized by the common law powers the City possessed as an occupier and the powers under the TPA to impose and enforce the Condition of Entry. Mr. Stewart argues that the police officers lacked any such authority.

[69] To determine this issue, I will: first examine the duties and powers, statutory and common law, of the City as the owner and occupier of Allan Gardens; then consider the powers available to the City under the TPA; and, finally, ascertain the scope of the powers delegated by the City to the TPS and its officers by the City TPA Letter.

B. The City’s Duties and Powers as the Owner and Occupier of Public Parks

[70] According to the TPS, the placement of officers in clusters around the perimeter of Allan Gardens on June 25, 2010 and the imposition of the Condition of Entry were done in order to ensure the safety of the public attending the public park for a protest. I therefore will examine the relationship between the duties of a property owner/occupier and its powers in the context of conduct that seeks to ensure the safety of those who enter onto its property.

The Duty of an Occupier

[71] The provisions of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “OLA”) were enacted to replace many of the common law rules “for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons”: s. 2. The intention of the OLA was to replace, refine, and harmonize the common law duty of care owed by occupiers of premises to visitors on those premises: Waldick v. Malcolm, [1991] 2 S.C.R. 456, at p. 475, 83 D.L.R. (4th) 114 (S.C.C.), at p. 127. The OLA promotes and, where circumstances warrant, requires positive action on the part of occupiers to make their premises reasonably safe: Waldick, at p. 477.

[72] To that end, s. 3(1) of the OLA imposes a basic duty on the occupier of premises “to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons, are reasonably safe while on the premises.” While the duty is framed quite generally and does not change with the circumstances, the factors relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation: Waldick, at p. 472.

[73] The provisions of the OLA impose duties and obligations on occupiers; they do not grant occupiers any powers. Nevertheless, the jurisprudence recognizes that in order to discharge their duties of care under the OLA, occupiers of premises must have the powers necessary to ensure that persons are reasonably safe while on the occupier’s premises. In Langenfeld, at paras. 58-59, this court observed that while the OLA does not contain provisions that empower the occupier to take the steps necessary to comply with the duties imposed by the Act, occupiers of property have powers at common law. Those common law powers have long included the ability of an owner/occupier to limit access to its property, as described in the next section.

A Property Owner’s Common Law Powers

[74] As recognized by the case law, the common law powers of property owners/occupiers include the powers to exclude persons from the property, remove persons from the property, and impose terms and conditions on persons while they are on the property: Commonwealth, at pp. 244-45; Weisfeld v. Canada (1994), 116 D.L.R. (4th) 232 (F.C.A.), at p. 251; Bracken, at paras. 69-73.

[75] One case has recognized a common law power of an occupier to require those entering its property to submit to a bag search. In Nakochee v. Linklater, 1993 CarswellOnt 5678 (Ont. Ct. J. (Gen. Div.)), the court concluded that a policy formulated by the Band Council of a reserve to authorize baggage searches of those entering the remote reserve by airplane was an exercise of the Band Council’s right and responsibility on behalf of the Band as occupier of the reserve lands. The court stated, at para. 19:

An owner or occupier of land has a common law right to impose conditions precedent to entry upon the land. This right is premised, upon the occupier's obligation to ensure the safety of all who are upon the land. Such conditions must be reasonable under the circumstances, and may include a search, provided that it is conducted reasonably, in good faith and with a minimum of intrusion. It would also seem that the person entering upon the land must have prior knowledge of the search as a precondition to entry, and must have the option of not entering upon the land in order to avoid the search.

[76] Two points need to be made regarding the exercise of such common law powers of exclusion or restriction by the owner or occupier of government property.

[77] First, while the common law entitles the Crown to withdraw permission from an invitee to be present on its property, the exercise of that power is “subject always to the Charter”: Commonwealth, at p. 245.

[78] Second, in Langenfeld this court held that the common law powers of an occupier, at least as they apply in the context of an occupier performing the duties imposed by s. 3(1) of the OLA, are the antithesis of an arbitrary power and are sufficiently precise to be a limit “prescribed by law” for purposes of Charter s. 1. 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 on the property: Langenfeld, at para. 66.

Powers under The City of Toronto Act, 2006

[79] Although the City enjoys the common law powers of an owner/occupier in respect of City-owned property, it is also subject to a statutory regime that governs how it can deal with its property.

[80] The City owns Allan Gardens and is authorized to pass by-laws respecting such a public asset: City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, s. 8(2)4. By-laws may regulate or prohibit in respect of a matter: s. 8(3). Pursuant to its by-law making power the City enacted the City of Toronto Municipal Code, which contains, in Chapter 608, a by-law respecting “Parks” (the “Parks By-law”): City of Toronto, Toronto Municipal Code, By-law No. 608, Parks, (30 September 2004); Batty v. Toronto (City), 2011 ONSC 6862, 108 O.R. (3d) 571, at para. 58.

[81] For the most part, the Parks By-law, as it read at the time of the G20 summit in 2010, regulated the activities persons could carry on in City parks. However, it imposed a few restrictions regarding entry into parks. Specifically, the Parks By-law stated that:

• while in a park, no person shall enter into areas posted to prohibit or restrict admission of the public: §608-2;
• no person shall use, enter or gather in a park between the hours of 12:01 a.m. and 5:30 a.m. unless authorized by permit: §608-9.B;
• no person shall hold an organized gathering for more than 25 persons unless authorized by permit: §608-11.A; and
• the Commissioner of Parks was authorized to close off for such temporary period as the Commissioner deemed appropriate a park or any part of it “to relieve or prevent overcrowding or traffic congestion, or in the interests of public safety, or as may otherwise be authorized by Council: §608-51.

[82] The Parks By-law did not contain a provision imposing a restriction on entry remotely similar to the Condition of Entry imposed by the TPS officers on June 25, 2010 at Allan Gardens.

[83] The Parks By-law authorized a provincial offences officer, which includes a police officer, to enforce its provisions: §608-53.C; Provincial Offences Act, R.S.O. 1990, c. P.33, s. 1(1). A police officer who believed that a person was contravening or had contravened the Parks By-law could ask the person to leave the park: §608-53.B(3). If the person failed to do so, “the permission and licence of the person to remain in that park is revoked”: §608-53.D.

[84] However, in this case the TPS does not take the position that in imposing the Condition of Entry its officers were acting to enforce the provisions of the Parks By-law. The officers agreed that they were not provided with any information at the parade about City By-laws. Sgt. McLean testified that she was not aware of Mr. Stewart breaching any City by-law on June 25, 2010. Cst. Hinchcliffe did not recall any specific direction from the City to police officers regarding Allan Gardens during the G20. Nor was any direction given by the Commissioner of Parks, pursuant to Parks By-law §608-51, to close Allan Gardens for a temporary period.

C. Powers Created by The Trespass to Property Act

[85] Central to the TPS’ position that its officers’ imposition of the Condition of Entry was lawful is its view of the relationship between the TPA and the common law powers of the owner/occupier of property, which it succinctly summarized at para. 60 of its factum:

As authorized agent of the City, for the purposes of administering the TPA, and therefore in the position of the City as occupier, the TPS was entitled by the occupiers’ common law power to impose a “precondition to entry, such as a security screening, if the precondition is reasonable and connected to maintaining the safety of persons on the property.”

[86] As I will explain, this position misconceives the relationship amongst the common law powers of an occupier to restrict entry to its property, the TPA, and the City TPA Letter.

[87] The product of a 1980 reform of long-standing petty trespass legislation, the TPA was intended by the government to provide a “relatively quick, cheap and intelligible remedy” for trespass: Ontario, Ministry of the Attorney General, Discussion Paper on Occupiers’ Liability and Trespass to Property, (May 1979), at p. 13. In R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 32, the Supreme Court described the key remedies made available to occupiers by the TPA:

[T]he Trespass to Property Act, 1980, S.O. 1980, c. 15, provides owners or agents of the owners with a number of options. Under the current law, s. 2 makes trespass a provincial offence subject to a fine of up to $2,000. Occupiers may direct persons to leave a property (s. 2(1)(b)), and give notice that further activity or entry onto the property is prohibited either absolutely (s. 3) or within limits (s. 4). More intrusively, as already discussed, occupiers or their agents (and police officers) are empowered to arrest without warrant if on reasonable grounds they believe the individual is trespassing (s. 9). The inconvenience and indignity of being arrested may sometimes be seen as more of a punishment than the amount of the fine ultimately levied. It is equally, on that account, more of a deterrent.

[88] Although the TPA provides owners/occupiers with a suite of enforcement powers against those who should not be on a property or carrying on a particular activity on the property, it does not confer on an owner/occupier or its agent any legal power to create restrictions on access to its property. Those powers find their source either in the common law powers of owners/occupiers or, in some cases, statutes respecting a specific owner/occupier or class of owner/occupier. What the TPA does provide is a set of statutory remedies to which an owner/occupier, such as the City, can resort in order to enforce its common law or statutory powers to restrict access. However, the TPA is not, in itself, a source for the power of an owner/occupier to establish restrictions on or conditions for access to a property.

[89] This point was made clearly in Bracken. In that case, the Town of Fort Erie issued a notice under the TPA to Mr. Bracken to stop his protests outside of the Town Hall. The Town took the position that it had the authority to issue the trespass notice under s. 229 of the Municipal Act, 2001, S.O. 2001, c. 25, which gave its Chief Administrative Officer the authority for “exercising general control and management of the affairs of the municipality”, and the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 25(2)(h), which requires an employer to “take every precaution reasonable in the circumstances for the protection of a worker”: Bracken, at para. 68. This court did not accept those statutory provisions as sources of authority for the trespass notice: at para. 69.

[90] This court then went on to consider, and reject, the TPA as a discrete source of a power to restrict entry onto municipal property, stating at paras. 70-72:

Neither does the authority to exclude others from property come from the Trespass to Property Act, R.S.O. 1990, c. T.21, which does not set out the preconditions for its use. The authority to invoke the Act must come from other legal sources, such as the right to exclude others that is inherent in the status of an occupier in the common law of property. That is, the Act does not create any substantive property rights, but functions as an enforcement mechanism for rights that come from other sources: see Batty v. Toronto (City), 2011 ONSC 6862, 108 O.R. (3d) 571, at paras. 81-82; R. v. S.A., 2014 ABCA 191, 312 C.C.C. (3d) 383, at para. 277-278.

In Commonwealth, McLachlin J. noted that under the common law, “the Crown as property owner is entitled to withdraw permission from an invitee to be present on its property, subject always to the Charter.” At common law, an occupier of a property has the power to expel others, and has the power to invoke the remedies supplied by the Trespass to Property Act. In my view, the authority to revoke Mr. Bracken’s licence to be present on the premises and issue the trespass notice, and thus the “law” that is the source of the limit on Mr. Bracken’s rights, is the common law.

The Trespass to Property Act has also long been used by government as a mechanism to exercise this common law power to exclude persons from public property: see, for example, Batty; Smiley v. Ottawa (City), 2012 ONCJ 479, 100 M.P.L.R. (4th) 306; R. v. Semple, 2004 ONCJ 55, 119 C.R.R. (2d) 295; Gammie v. Town of South Bruce Peninsula, 2014 ONSC 6209, 322 C.R.R. (2d) 22. Unlike other municipalities, the Town has no by-law regulating its use of trespass notices, or even a trespass policy. I observe that the risk of arbitrary action is higher in the absence of a well-crafted by-law, and there are greater opportunities for uncertainty as to what sorts of actions will be permitted. [Emphasis added.]

D. Application to the Facts of this Case

[91] The TPS contends that the trial judge properly concluded that a combination of the City TPA Letter, the City’s duty as an occupier under the OLA, the City’s common law powers as an occupier, and the provisions of the TPA provided the officers with the authority to impose the Condition of Entry into Allan Gardens on June 25, 2010. TPS put the argument in the following terms at para. 58 of its factum:

The common law as it applies to occupiers allows an occupier, or an agent of occupier, to place a condition on entry upon premises. The TPA creates a mechanism to enforce that condition. As per the [City TPA] Letter, the General Manager of City Parks designated the TPS as agents of the City for purposes of enforcing the TPA in the [Allan Gardens] Park. The Trial Judge found that pursuant to the [City TPA] Letter, “the police were given the authority to act as agent of the City of Toronto for the purposes of administering the Trespass to Property Act and thus had all the authority of an occupier on June 25, 2010”. [Emphasis in original.]

[92] To repeat, the City TPA Letter stated:

Re: Trespass to Property Act for all Parks and Community Centres

I would like to advise that, with respect to the Trespass to Property Act, the Toronto Police Services is authorized to act as agents of the City of Toronto for purposes of administering the Act and to take appropriate action, including removing people in contravention of the Act. The authority being extended to your Department is intended to be directed only against trespassers.

It is understood that this authority may be revoked at any time upon written notice being received by the appropriate police inspector or other designated police contact at the relevant division. [Emphasis Added]

[93] The City provided this letter to the TPS as part of its normal course of operations; it was not issued to deal specifically with events anticipated to accompany the G20 summit.

[94] In finding that the TPS had the authority to impose the Condition of Entry into Allan Gardens on June 25, 2010, the trial judge reasoned as follows, at paras. 27-31:

• The City, as the owner and occupier of Allan Gardens, has an affirmative duty under the OLA to ensure the safety of the park for all users.
• The OLA and TPA share the same definition of the term “occupier” as including “(a) a person who is in physical possession of premises, or (b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises”: OLA, s. 1; TPA, s. 1(1).
• The TPA provides owners or agents of owners with a number of “options”, including directing a person to leave a property.
• The City TPA Letter gave the police the authority to act as agent of the City “for the purpose of administering the TPA and thus had all the authority of an occupier on June 25, 2010” (emphasis added): at para. 30.
• Subsection 3(1) of the TPA “allows the occupier to place a prohibition on a person’s entry to the premises by notice and the TPA provides that any person breaching such a prohibition is considered a trespasser”: at para. 31.
• Consequently, the police “had the authority to place a prohibition on a person’s entry into Allan Gardens on June 25, 2010 and the police exercised this authority by asking all persons entering the park on that day to allow the police to inspect their bags and belongings”: at para. 31.

[95] Assessing the trial judge’s reasoning first requires determining the appropriate approach to take for interpreting the City TPA Letter. The jurisprudence consistently takes a rigorous approach when interpreting the sources of legal authority relied upon by government to encroach upon the liberty of the subject. For example, statutes that encroach on the liberty of the subject are to be construed, where ambiguous, in favour of upholding such liberty: Asante-Mensah, at para. 41. More recently, in Fleming, at para. 5, the Supreme Court emphasized that “[t]he courts of this country, as custodians of the common law, must act cautiously when asked to use it to authorize actions that interfere with individual liberty.” A similar rigour should inform the interpretation of the scope of powers delegated by the City TPA Letter.

[96] Here, the trial judge properly interpreted the City TPA Letter as authorizing the TPS to act as the City’s agents to administer the TPA; the City TPA Letter clearly states that the TPS was “authorized to act as agents of the City of Toronto for purposes of administering the Act and to take appropriate action including removing people in contravention of the Act.” However, the trial judge erred in holding that: (i) as such agents the TPS officers had the authority under s. 3(1) of the TPA “to place a prohibition on a person’s entry to the premises by notice”; and (ii) the shared definition of “occupier” in the OLA and TPA somehow vested in the TPS all the common law powers of the City as owner/occupier to restrict access to its parks.

[97] The trial judge misconstrued the powers granted by the TPA to occupiers, or their agents, in two respects.

[98] First, the trial judge erred in her interpretation of TPA s. 3(1). Subsection 3(1) of the TPA states: “Entry on premises may be prohibited by notice to that effect…” [1] As held in Bracken, the enforcement powers contained in the TPA do not set out the preconditions for their use: at para. 70. Instead, the authority to impose a restriction of entry to premises must come from some legal source other than the TPA, such as a statutory or common law power to exclude or restrict access to property: at para. 70. Subsection 3(1) of the TPA merely provides the means by which to enforce a prohibition or restriction on entry sourced elsewhere, and TPA s. 5(1) describes the forms of notice, oral or written, that may be given to enforce such a prohibition or restriction.

[99] Second, the fact that the OLA and TPA share a common definition of “occupier” does not operate to somehow transfer an owner/occupier’s common law powers to restrict access to property into the TPA. The OLA does not vest in an occupier the statutory power to prohibit or restrict entry to premises. The OLA imposes duties on occupiers; it does not create powers for occupiers. As Langenfeld states at para. 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 the property, however, have powers at common law.”

[100] Moreover, the shared definition of “occupier” in the OLA and TPA does not assist in answering the key question: Did the City TPA Letter delegate to the police the City’s common law or statutory (by-law) powers to create and impose restrictions on entry to public parks?

[101] The City TPA Letter did not grant the TPS any of the City’s common law or statutory powers to impose conditions of entry into parks. No such language of delegation appears in the text of the letter. Instead, by its terms, the letter delegated remedial powers possessed by the City under the TPA to enforce prohibitions or restrictions on entry already adopted or imposed by the City in the exercise of its statutory or common law powers to prohibit or limit access to the parks it owns or occupies. The letter did not give the TPS the authority to fix what conduct amounted to an act of trespass in the City parks; the authority to do so remained with the City and was not delegated by the letter.

[102] At the time, the City had not enacted a bag search condition of entry for any of its parks, either through exercising its statutory power to enact by-laws regarding its parks or through exercising its common law power as owner/occupier to restrict access to parks.

[103] In terms of the City’s statutory authority to impose prohibitions or restrictions on entry to parks, the Parks By-law did not establish a restriction on entry of the kind imposed by the TPS officers in their Condition of Entry. This is a key distinction between the facts in the present case and those in Batty. In Batty, the City used its enforcement powers under the Parks By-law to issue a trespass notice under the TPA to protestors camped out in a City park. The notice called upon the protestors to refrain from conduct that breached two provisions of the Parks By-law: Batty, at paras. 59 and 81-82.

[104] Further, the enforcement section of the Parks By-law contemplates that police officers will enforce restrictions created by the City elsewhere in the Parks By-law, not create new restrictions. The Parks By-law authorizes police officers to: (i) inform a person about the provisions of the Parks By-law and request compliance with them; and (ii) order a person to stop contravening the Parks By-law or leave the park: §608-53.A and §608-53.B. Where a person fails to comply with such orders, the Parks By-law states that “the permission and licence of the person to remain in that park is revoked”: §608-53.D. In other words, at that point the person becomes a trespasser and a police officer may enforce the Parks By-law using the remedies set out in the TPA.

[105] In terms of the City’s common law power to impose prohibitions or restrictions on entry to parks, as conceded by the TPS in oral argument, at the time of the G20 in June 2010, the City had not created or imposed a restriction on entry to its parks of the kind imposed on June 25, 2010 by TPS officers at Allan Gardens.

[106] Further, there was no evidence from the TPS officers that prior to or on June 25, 2010, the City had asked the TPS to enforce a restriction on entry created by the City exercising its common law powers or purported to delegate to the officers the City’s common law powers to do so.

[107] Moreover, the City of Toronto Act, 2006 addresses in some detail the circumstances in which the City can delegate its powers under ss. 7 and 8 of that Act. [2] Although the scope of those restrictions on delegation did not receive extensive argument on this appeal, suffice it to say that the delegation of a legislative power to an individual who is an agent of the City requires the approval of City Council and must be limited to powers of a minor nature: ss. 21(1) and (4). [3] No such approval by City Council was given in the present case. The creation and imposition of the Condition of Entry was done at the direction of S/Sgt. Burningham, who thought, incorrectly, that the City TPA Letter enabled him to do so.

E. Conclusion

[108] At the time Mr. Stewart tried to enter Allan Gardens on June 25, 2010, the City had not enacted a bag search condition of entry to that park, either in the exercise of its statutory power to enact by-laws regarding its parks or in the exercise of any common law power as owner/occupier to restrict access to parks. Further, the City TPA Letter did not delegate to TPS officers the authority to create and impose such a Condition of Entry; it delegated only the authority to administer the TPA by enforcing existing prohibitions or restrictions on entry.

[109] Given that the City’s authorization of the TPS “to act as agents of the City of Toronto for purposes of administering the TPA and to take appropriate action, including removing people in contravention of the TPA” did not vest in the TPS the authority to create and impose the Condition of Entry on those seeking to enter Allan Gardens on June 25, 2010, the Condition of Entry imposed by the police that day lacked any legal foundation. Lacking a source in a legal rule, the police-imposed Condition of Entry was unlawful: see the cases cited in Figueiras, at para. 41; Kosoian v. Société de transport de Montréal, 2019 SCC 59, 440 D.L.R. (4th) 78, at paras. 6 and 38.

[110] The trial judge therefore erred when she concluded that the combination of the OLA, the TPA, and the City TPA Letter authorized the police “to place a prohibition on a person’s entry into Allan Gardens on June 25, 2010”: at para. 31.

VII. Second Issue: Was the Police Interference with Mr. Stewart’s Charter Rights Justified?

The infringement of Mr. Stewart’s freedom of expression

[111] The TPS concedes that its officers’ imposition of the Condition of Entry infringed Mr. Stewart’s freedom of expression guaranteed by s. 2(b) of the Charter. Because I have concluded that the police did not have the authority to impose and enforce the Condition of Entry, it follows that their interference with Mr. Stewart’s s. 2(b) Charter freedom was not prescribed by law. As a result, the infringement of Mr. Stewart’s s. 2(b) freedom cannot be justified under s. 1 of the Charter.

The detention of Mr. Stewart and the search of his backpack

[112] Nor did the police detention of Mr. Stewart, their search of his backpack, or the seizure of his swimming goggles comply with ss. 8 and 9 of the Charter.

[113] The TPS contend that s. 9 of the TPA authorized the officers to detain Mr. Stewart once he tried to enter Allan Gardens contrary to the Condition of Entry. Subsection 9(1) of the TPA states:

9(1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.

[114] Subsection 2(1) of the TPA states, in part, that:

Every person who is not acting under a right or authority conferred by law and who, (a) without the express permission of the occupier, the proof of which rests on the defendant, (i) enters on premises when entry is prohibited under this Act … is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

[115] While the police officers certainly believed subjectively that they had reasonable and probable grounds to arrest or detain Mr. Stewart when he tried to enter the park without making his backpack available for a search, those grounds cannot be justified from an objective point of view: R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-251. No objective grounds existed to believe that Mr. Stewart was a trespasser because no lawful basis existed for the Condition of Entry that the police were purporting to enforce. Accordingly, the arrest power in s. 9 of the TPA was not available to the police in the circumstances.

[116] Nor was this a case where the TPS officers were investigating the commission of an offence under the TPA that might provide the legal basis for an investigative detention and search incident to investigative detention: R. v. Amofa, 2011 ONCA 368, 282 O.A.C. 114, at paras. 15-17; R. v. Peterkin, 2015 ONCA 8, 328 O.A.C. 321, at para. 56. The evidence of the police officers was clear that the imposition of the Condition of Entry was not related to the investigation of any specific offence.

[117] I conclude that the police arbitrarily detained Mr. Stewart when he attempted to cross the police line into the park without submitting to a search of his backpack, thereby violating his right under s. 9 of the Charter.

[118] Finally, the police sought to justify their search of Mr. Stewart’s backpack and seizure of his swimming goggles as a search incident to an arrest. However, because the police detention or arrest of Mr. Stewart was not lawful, the search of his backpack and seizure of the swimming goggles cannot be justified: R. v. Stillman (1997), 144 D.L.R. (4th) 193, at p. 210; Kosoian, at para. 100. Consequently, the police violated Mr. Stewart’s right under s. 8 of the Charter to be secure against unreasonable search or seizure.

Summary

[119] Mr. Stewart has established that by restricting his entry to Allan Gardens under the Condition of Entry, detaining him, searching his backpack, and seizing his swimming goggles, the police violated his rights guaranteed by ss. 2(b), 8, and 9 of the Charter. The City, as the owner/occupier of parks, including Allan Gardens, had not enacted a by-law that authorized the imposition of bag searches as a condition of entry into its parks, nor had it utilized the process under the City of Toronto Act, 2006 to appropriately delegate to another decision-maker, such as the police, the power to impose such a condition of entry. Consequently, the trial judge erred in dismissing Mr. Stewart’s action: at paras. 93-94. Accordingly, I would set aside para. 1 of her Judgment dated July 13, 2018.

VIII. Third Issue: Remedy

A. Overview

[120] In his Amended Statement of Claim, Mr. Stewart advances causes of action seeking damages resulting from the tortious conduct of the police, as well as damages under s. 24(1) of the Charter. His notice of appeal also asks for judgment based on his tort claims: trespass to his property, assault, battery, false imprisonment and false arrest. However, on appeal Mr. Stewart did not advance or develop his claims sounding in tort. Instead, he focused his argument on his claim for Charter damages, submitting that an award of Charter damages would overlap with any tort damages: Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at paras. 22 and 36. Given Mr. Stewart’s position, I see no need to deal with his claims in tort. As a result, I will limit my consideration of his damages claim to that under s. 24(1) of the Charter. In addition to an award of damages, Mr. Stewart seeks declarations that the conduct of the police was unlawful.

B. The General Principles Regarding Charter Damages

[121] In Ward, the Supreme Court, at para. 4, set out the four-step framework for considering claims for damages for the breach of Charter rights:

1. Proof of a Charter breach: Establishing whether a Charter right has been breached;

2. Functional justification of damages: Showing why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation for the personal loss caused by a breach, vindication of the Charter right, and/or deterrence of future breaches;

3. Countervailing factors: Considering any demonstration by the state that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust; [4] and

4. Quantum: Assessing the quantum of damages.

[122] As Mr. Stewart has established breaches of his Charter rights, the damages analysis must first consider whether awarding damages to Mr. Stewart would be a just and appropriate remedy having regard to whether damages would fulfill one or more of the related functions: (i) compensation, which focuses on the claimant’s personal loss, whether physical, psychological, pecuniary or involving intangible interests; (ii) vindication, which focuses on the harm the infringement causes society and emphasizes the importance and gravity of the breach; and (iii) deterring state agents from committing future Charter breaches: Ward, at paras. 27-29 and 31.

[123] Even if a claimant establishes that Charter damages are functionally justified, the state may establish that other considerations render s. 24(1) damages inappropriate or unjust. Such countervailing considerations include the existence of alternative remedies and concerns for good governance: Ward, at para. 33.

[124] The quantum of damages awarded must be “appropriate and just”: Ward, at para. 46. Any claim for compensatory damages must be supported by evidence of the loss suffered: at para. 48. Absent exceptional circumstances, non-pecuniary compensation is fixed at a fairly modest conventional rate, subject to variation for the degree of suffering in the particular case: at para. 50. When considering quantum in respect of the objectives of vindication and deterrence, making the appropriate determinations is an exercise “in rationality and proportionality”, taking into account the seriousness of the breach, its impact on the claimant, and the seriousness of the state misconduct: at paras. 51-52.

C. The Position of the Parties Regarding Charter Damages

[125] Mr. Stewart submits that he is entitled to compensatory damages because: (i) his schooling was delayed; (ii) his reputation was negatively impacted as were his relationships with family and friends; and (iii) he feared for his safety as a result of abusive and threatening comments left on the YouTube page to which Ms. Walter posted her video of the incident.

[126] Mr. Stewart also submits that a damage award should contain a deterrence component. Although the police may have been motivated by public safety, Mr. Stewart argues that their actions at Allan Gardens were flawed, carried out without any real planning or forethought, and were overly broad, impacting a great number of peaceful protestors like him.

[127] TPS argues that Mr. Stewart has put forward no evidence to substantiate his claim of delayed schooling or damage to his reputation. Mr. Stewart was not prejudiced by Ms. Walter’s video. Instead, he embraced it by including a link to the video in an online article he wrote five days after the incident and playing the video at the press conference that announced the launch of his lawsuit. Finally, given the trial judge’s finding that the officers did not act maliciously or exhibit bad faith in their execution of the search, the objectives of deterrence and vindication could be achieved without the need for a substantial damages award.

D. Analysis

[128] As the trial judge did not making any finding regarding the amount of damages, I must conduct a damages assessment. I conclude that Mr. Stewart is entitled to an award of damages, but one that is quite modest in amount. My reasoning is as follows.

Compensatory Function

[129] Mr. Stewart adduced little evidence to demonstrate that the conduct of the police caused him personal loss, whether physical, psychological, pecuniary or affecting his intangible interests.

[130] In examination-in-chief, Mr. Stewart stated that he was not claiming that he was physically hurt by the altercation or had been diagnosed with any psychological injury. The Walter video shows that the police used minimal force to detain Mr. Stewart. After the police released Mr. Stewart, he gave a media interview, continued into the park, joined the protest, and then participated in the subsequent street demonstration.

[131] Mr. Stewart testified that he found the police conduct “highly troubling” and he suffered distress. He explained that his distress arose because “I feel like I’ve been illegally searched and indeed my swimming goggles have been illegally taken from me”, all of which “seemed entirely unfair and unjust.”

[132] Mr. Stewart stated that the incident affected his reputation, especially because it had been videotaped, with the video posted on the internet by Ms. Walter. The incident led to some disagreements with family and friends, including some “tough conversations”. Some friends told him that what he did was wrong; he should have listened to the police. He formed the impression that some family members did not take him seriously because he was a protestor. As well, some of the comments posted on YouTube concerning the video of the incident were highly critical of Mr. Stewart. At the same time, some comments were quite supportive.

[133] I see no harm caused to Mr. Stewart by those “tough conversations” or YouTube comments. In his factum, Mr. Stewart describes himself as “an activist and an academic with an interest in social justice.” Tough conversations and strong comments inevitably accompany such activities.

[134] More significantly, while pointing to the posted Walter video as a source of concern about his reputation, Mr. Stewart made use of it for his own purposes. He acknowledged that in a June 30, 2010 article that he posted to the Toronto Media Co-op website, he included a link to the Walter video. In addition, he played the video at the press conference he held when he started his lawsuit.

[135] Although Mr. Stewart testified that the incident caused him to finish his PhD eight months later than he had planned or intended, his evidence strongly suggests that he chose to put initiating this lawsuit ahead of his studies. Moreover, Mr. Stewart did not file any documentary evidence about his studies and expected date of completion of studies at the University of Waterloo.

[136] Further, although Mr. Stewart testified that he was concerned about what future employers might think when they saw the video of the incident, he did not file any evidence that the incident or the video had prejudiced any employment opportunities. His first job after graduating was teaching at the University of Nice from 2014 to 2015. He was then unemployed for a period of time, although he did not explain the reason for his lack of employment. Thereafter, he found a teaching position at the University of Lyon in France where he was employed at the time of the trial. Mr. Stewart did not lead any evidence that the incident caused a delay in his employment or his unemployment after 2015.

[137] In summary, Mr. Stewart has not established any personal loss. As a result, there is no basis for awarding compensatory damages.

Vindication and Deterrence Functions and Countervailing Factors

[138] Mr. Stewart submits that although the police may have been motivated by public safety, their actions at Allan Gardens were flawed, carried out without any real planning or forethought, and were overly broad, impacting a great number of peaceful protestors like him. This supports an award related to the vindication or deterrence functions of Charter damages.

[139] I accept this submission in principle. The freedom to engage in the peaceful public expression of political views is central to our conception of a free and democratic society. Freedom of expression requires zealous protection. The police infringed Mr. Stewart’s freedom of expression without lawful justification and violated his rights to be free from unreasonable search and seizure, as well as from arbitrary detention. It does not follow, however, that a large award of damages is required. As I will explain, in all of the circumstances of this case, a modest award of damages would be just and appropriate to affirm the constitutional value of freedom of expression, together with s. 8 and 9 Charter rights, and serve the deterrence function of Charter damages.

The Quantum of Damages

[140] An award of damages under Charter s. 24(1) must be appropriate and just, fair to both the claimant and the state: Ward, at para. 53.

[141] Mr. Stewart has not made out a case for compensatory damages as he has not demonstrated that he suffered personal loss. His interaction with the TPS officers lasted approximately 10 minutes, including a three-minute detention, and, after being released, Mr. Stewart gave a media interview and continued on his way to the protest. His injury was not serious.

[142] Although he has established a case for damages to functionally serve the vindication and deterrence objectives of Charter damages, there are several factors that work to limit the quantum of such damages.

[143] By 2010, G20 summits inevitably had attracted violent protests, as conceded by Mr. Stewart. The TPS knew that and tried to put in place at Allan Gardens a system that balanced the right of individuals to protest with the safety of all who participated in the protest or who might feel the effects of the protest. In this case, the system they chose was to impose the Condition of Entry. Although the condition proved ineffective, as numbers ultimately overwhelmed the ability to the police to deal with those entering the park, and while the condition was based on an incorrect understanding by the police of the legal effect of the City TPA Letter, I agree with the trial judge’s finding that on June 25, 2010 the police acted in good faith to protect the safety of all users of Allan Gardens: at para. 91.

[144] The Condition of Entry was not designed to turn protestors away from Allan Gardens, but to ensure that those who entered were not carrying objects that could be used as weapons or used to defeat police crowd control tactics. Indeed, once searched, Mr. Stewart continued into the park and joined the protest.

[145] As well, on June 25, 2010, the police acted in a calm and professional manner at Allan Gardens. The Walter video fully supported the following two findings made by the trial judge: “The video demonstrates that each police officer who dealt with Mr. Stewart was calm and polite, but firm”; and, “The police were trying to de-escalate the situation while Mr. Stewart was trying to escalate the situation”: at paras. 24 and 48.

[146] The good faith and professionalism of the TPS officers go a long way to reducing the appropriate quantum of damages linked to the vindication and deterrence functions of Charter damages.

[147] Moreover, the facts of this case differ considerably from those in Ward and Fleming by an order of magnitude. In Ward, the plaintiff was mistakenly identified and arrested, wrongfully strip-searched, his car impounded, and he was held for several hours. In Fleming, the plaintiff was not only precluded from attending a peaceful protest, he was also arrested, thrown to the ground – causing him serious injury – handcuffed, held in a police van, moved to a jail cell, and released after two and a half hours. In both cases, awards of $5,000 in Charter damages were made and upheld on appeal.

[148] By contrast, in the present case Mr. Stewart’s interaction with the police lasted only a few minutes, he was restrained but suffered no physical injury, and he was then allowed to proceed to the protest. His person was not searched. His knapsack was, and the police seized a pair of swimming goggles, which Mr. Stewart could have recovered had he given the police his name for a property receipt as requested.

[149] Considering all the factors, I conclude that the vindication and deterrence functions of Charter damages can be served by a modest award of damages. I would award Mr. Stewart damages in the amount of $500.

The Claim for a Declaration

[150] In his factum, Mr. Stewart sought two declarations: (i) that S/Sgt. Burningham did not have the lawful authority “to direct subordinate officers to surround Allan Gardens on June 25, 2010 and search people as a condition of entry and to seize items found pursuant to these searches”; and (ii) “the conduct of police officers under the command of S/Sgt. Burningham acted contrary to the law including ss. 2, 8, and 9 of the Charter when they surrounded Allan Gardens on June 25, 2010 and searched people as a condition of entry and seized items found pursuant to these searches”.

[151] Both declarations ask the court to go beyond the legal characterization of the officers’ conduct as it affected Mr. Stewart’s Charter rights to grant a remedy in favour of a larger, indeterminate class of persons.

[152] I see no need to grant such broad declarations. Mr. Stewart brought this action in his personal capacity seeking damages for the conduct of the police towards him. In the course of assessing his Charter claims, I have held that the police did not have a lawful basis to impose the Condition of Entry, found violations of Mr. Stewart’s Charter rights, and awarded him Charter damages. That is sufficient to dispose of Mr. Stewart’s personal claim. No broader declarations are required.

IX. Disposition and Costs

[153] For the reasons set out above, I would allow the appeal, set aside para. 1 of the trial judge’s Judgment, allow Mr. Stewart’s claim, and grant him Charter damages in the amount of $500.

[154] It follows that I also would set aside the award of costs made by the trial judge against Mr. Stewart in para. 2 of the Judgment.

[155] As to the costs of the appeal, Mr. Stewart seeks partial indemnity costs of $48,000. The TPS submits costs in the amount of $17,500 would be fair. Having reviewed Mr. Stewart’s bill of costs, I conclude that an award of costs for the appeal in the amount of $20,000, inclusive of disbursements and applicable taxes, would be just and reasonable and would order the TPS to pay such costs to Mr. Stewart.

[156] The parties could not agree on the disposition of the costs below in the event the appeal was allowed. They may make written submissions on that issue. Mr. Stewart may file cost submissions of up to 10 pages in length on or before May 15, 2020. The TPS may file responding submissions of similar length by June 12, 2020. Mr. Stewart may file reply submissions of up to 5 pages in length by June 24, 2020.

Released: “DB” APR 16 2020 “David Brown J.A.” “I agree. Grant Huscroft J.A.” “I agree. Gary Trotter J.A.”

[1]: Section 3(1) of the TPA states: 3(1) Entry on premises may be prohibited by notice to that effect and entry is prohibited without any notice on premises, (a) that is a garden, field or other land that is under cultivation, including a lawn, orchard, vineyard and premises on which trees have been planted and have not attained an average height of more than two metres and woodlots on land used primarily for agricultural purposes; or (b) that is enclosed in a manner that indicates the occupier’s intention to keep persons off the premises or to keep animals on the premises.

[2]: Section 7 states: “The City has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act.” Subsection 8(2) contains the City’s general by-law making power.

[3]: Subsection 20(1) states: “Without limiting sections 7 and 8, those sections authorize the City to delegate its powers and duties under this or any other Act to a person or body subject to the restrictions set out in this Part.” Subsections 21(1) and (4) state: (1) Sections 7 and 8 do not authorize the City to delegate legislative and quasi-judicial powers under any Act except those listed in subsection (2) and the legislative and quasi-judicial powers under the listed Acts may be delegated only to, (a) one or more members of city council or a council committee; (b) a body having at least two members of whom at least 50 per cent are, (i) members of city council, (ii) individuals appointed by city council, (iii) a combination of individuals described in subclauses (i) and (ii); or (c) an individual who is an officer, employee or agent of the City. (4) No delegation of a legislative power shall be made to an individual described in clause (1)(c) unless, in the opinion of city council, the power being delegated is of a minor nature and, in determining whether or not a power is of a minor nature, city council, in addition to any other factors council wishes to consider, shall have regard to the number of people, the size of geographic area and the time period affected by an exercise of the power. [Emphasis added.]

[4]: The Supreme Court commented further on the third step of the Ward analysis in Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214, at para. 38, stating: “[I]f a declaration of a Charter breach would adequately achieve the objectives that would otherwise be served by a damages award, then granting damages as well as a declaration would be superfluous, and therefore inappropriate and unjust in the circumstances”.