ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Paul Figueiras

Applicant

• and -

Toronto Police Services Board, Regional Municipality of York Police Services Board, and Mark Charlebois

Respondents

Murray Klippenstein & Silas Polkinghorne,
for the Applicant

Kevin McGivney & Damian Hornich,
for the Respondents

HEARD: April 2, 2104

REASONS FOR JUDGMENT

Introduction

1Paul Figueiras applies for declarations that the respondents violated his rights to liberty, freedom of expression, and peaceful assembly protected under subsections 2(b) and (c) and section 7 of the Canadian Charter of Rights and Freedoms. Mr. Figueiras also seeks a declaration that the respondent Detective Mark Charlebois committed the tort of battery against him.

2During the afternoon of Sunday, June 27, 2010, Mr. Figueiras and a group of friends were walking southbound along University Avenue in downtown Toronto. When they reached the corner of King Street West, they were stopped by a group of police officers who said that if Mr. Figueiras and his friends wished to continue walking south, they first had to allow the police to search the bags and knapsacks that they were carrying. Mr. Figueiras did not agree to let the police search his knapsack. He viewed the request to be a violation of his civil rights. Since Mr. Figueiras would not submit to a search of his knapsack, the police would not allow him to walk further in the direction that he wished to go. He says, “Eventually, I had no choice but to return the way that I came, which was northbound on University Avenue.”

3Stated with no context, it is hard to understand what the police were doing. Why would police officers require people in downtown Toronto to submit to searches of their bags as a condition of walking along a public street toward the lakeshore on a Sunday afternoon in the summer? But context is everything. Sunday, June 27, 2010 was the second day of the G20 summit held in downtown Toronto. The leaders of the western world were meeting in Toronto that weekend. On the first day of the summit, Saturday, June 26, 2010, a large number of protesters committed acts of violence, rioting, looting, and destruction of public and private property on nearby streets in the financial core of the city.

4On Sunday June 27, 2010, police were re-deployed to seek to protect the public, the dignitaries participating in the summit, people engaged in lawful protests, local residents, and property owners from threatened repeat occurrences of unlawful misbehaviour. The issue in this proceeding is whether the respondents violated the constitutionally protected rights and freedoms of the applicant by taking extraordinary measures that afternoon. For the reasons that follow, I find that they did not. To the contrary, in my view, the respondents are to be commended for their efforts to protect our country, our city, its residents and their property from the acts of a lawless minority with relatively little imposition on others.

The Evidence

The Evidence

5The incident that forms the basis of the allegations in this proceeding was recorded on two separate digital recordings that I have viewed. The events are described by Mr. Figueiras in his affidavit as follows:

2. At approximately 3:00 p.m. on Sunday, June 27, 2010, I was walking southbound with a group of friends on the east sidewalk of University Avenue in the City of Toronto, as part of a small political protest. As we approached the intersection at King Street West, we were stopped by a group of police officers from the York Regional Police Service. The officers demanded that if we wish to proceed any further, we must turn over our bags to the officers to be searched.

3. While my friends each turned over their bags, as requested, I declined to turn over my bag and stated that I did not consent to a search. I had nothing to hide, but it seemed to me that it was a violation of my civil rights to demand that I turn over my property to be searched. Detective Mark Charlebois of the York Regional Police Service then grabbed me and pulled me in towards him and, with his face very close to mine, told me that I did not have a choice in the matter. He then pushed me away and advised me that I had to go back the way I had come.

4. I had not done anything unlawful, and I felt upset about being grabbed by the officer, so I decided to calmly and peacefully assert my right to proceed or to stay in the area without submitting to a search that had no apparent justification. I asked the officers why I was not permitted to proceed or stay in the area unless I turned over my property to be searched. In response to my questions and my polite assertion of my civil rights, the police officers (including a Toronto police officer who joined the group of York Region officers) advised me:

a. “This is our area”;

b. I was “not smart enough to listen when [I was] told to do something”;

c. “This ain’t Canada right now”;

d. “We’re in G20 land”; and

e. “There is no civil rights here in this area”.

5. Because I declined to consent to what would have been (in my opinion) an unlawful search, these officers did not allow me to proceed down the sidewalk in the direction I wished to go (which, I believe, was my legal right), nor did they allow me to stay in that area. Eventually I had no choice but to return the way that I came, which was northbound on University Avenue.

6The intersection of University Avenue and King Street West was one block north of the perimeter fence enclosing the G20 summit site. It was also the first main intersection west of the location of violent incidents that occurred the prior day. At paragraph 25 of his affidavit, Mr. Figueiras says,

It was my view that the freedom to walk down an ordinary downtown street without being searched by the police was an important and fundamental right, and so I decided to peacefully and politely assert that right, rather than simply obey the officer’s (in my opinion, unlawful) demand.

7What he ignores, of course, is that the corner of University Avenue and King Street West was no “ordinary downtown street” that day. Mr. Figueiras confirms (in para. 30 of his affidavit) that an officer explained to him that because the officers were not sure what was in his bag, before he would be allowed closer to the G20 site,

… for the public’s safety, his safety, my safety and the rest of my group’s safety, he could not let me go through, unless I let the officers search my bag.

8Upon first being asked to submit to a search or to leave, Mr. Figueiras said that he would leave (see paras. 23 and 25 of his affidavit). As matters advanced, however, Mr. Figueiras decided to stand his ground and have a verbal confrontation with the police. The police were deployed to deal with others and not just Mr. Figueiras that afternoon. While his conduct was peaceful, having observed the digital recordings, he could also be described as having been smug and perhaps provocative.

9As the story unfolded, Detective Charlebois eventually noticed handwriting on Mr. Figueiras’s upper arm partially covered by the short sleeve of his T-shirt. Detective Charlebois lifted the T-shirt to reveal a telephone number written on Mr. Figueiras’s arm. Mr. Figueiras confirmed it was his lawyer’s number. The officers had learned previously that some of the protesters who had engaged in unlawful acts had their lawyers’ telephone numbers written on them in preparation for being arrested. Mr. Figueiras includes the lifting of his sleeve among his allegations of the tort of battery.

10Detective Charlebois records the events as follows:

13. On Sunday June 27, there was heightened vigilance given the vandalism and violence that occurred in the downtown core the previous day in close proximity to the security fence. Concern also existed that because the Summit meetings themselves had not been disrupted on June 26, renewed efforts would be made to do so the following day.

14. During the afternoon of June 27, the applicant, Mr. Figueiras, approached my patrol at the intersection of King Street and University Avenue. Mr. Figueiras was dressed in black clothing including a black shirt, black and dark, aviator-style sunglasses. Mr. Figueiras and other members of this group were carrying backpacks or other bags that obviously contained items within.

15. I have reviewed the video attached to Mr. Figueiras’s affidavit. During my interaction with him my intention was to be proactive and exercise vigilance in my assessment of individuals approaching the vicinity of the security fence. My intention was not to prevent Mr. Figueiras from participating in peaceful protests during the Summit or from expressing his views.

11Under cross-examination, Detective Charlebois testified that everyone who looked like she or he was involved in or potentially involved in demonstrations or protests was requested to show that she or he did not have any weapons concealed in their bags.

12The requests were not necessarily politely made at all times. There is no denying the words used by the police officers as quoted in paragraph 4 of Mr. Figueiras’s affidavit above. Those and others plainly audible on the video recording were not appropriate words. They do not represent either a correct statement of law or the proper description of the role of the police that day. However, viewed in context, it is clear that Detective Charlebois was not willing to have a debate with Mr. Figueiras about the finer points of constitutional law and simply wished him to move on. In any event, the issues in this proceeding do not turn on the words used by the officers but upon their conduct.

Section 7 or Section 9

Section 7 or Section 9

13Mr. Klippenstein and Mr. Polkinghorne, counsel for Mr. Figueiras, made a deliberate decision to argue this case based on an alleged breach of Mr. Figueiras’s right to liberty under section 7 of the Charter. They plainly and repeatedly declined to argue the case based upon the principles established under section 9 of the Charter dealing with the right to be secure from arbitrary detention. They argued that Mr. Figueiras was not detained in fact. Rather, he was sent on his way in a direction that he did not wish to go and therefore, they say, there was no arbitrary detention but a restriction on his liberty – his right to do as he pleased and especially to go where he pleased on public streets. They relied upon, among other cases, R. v. Mann, 2004 SCC 52 and the statement by Iacobucci J. at para. 15 that:

Absent a law to the contrary, individuals are free to do as they please. By contrast, the police (and more broadly, the state) may act only to the extent that they are empowered to do so by law. The vibrancy of a democracy is apparent by how wisely it navigates through those critical junctures where state action intersects with, and threatens to impinge upon, liberty interests.

14Mr. McGivney, for the respondents, argued that the case must be determined under section 9 of the Charter. Dehghani v. Canada (M.E.I.), 1993 128 (SCC), [1993] 1 S.C.R. 1053, 1076. He notes that Mann, supra, was a section 9 case. The Supreme Court of Canada did not mention section 7 in Mann. More recently, in R. v. Grant, 2009 SCC 32, at para. 54, the Chief Justice and Charron J. writing together for the majority of the Supreme Court of Canada, reiterated the nature of the liberty interests at stake as follows:

54The s. 9 guarantee against arbitrary detention is a manifestation of the general principle, enunciated in s. 7, that a person’s liberty is not to be curtailed except in accordance with the principles of fundamental justice. As this Court has stated: “This guarantee expresses one of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law” (Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 88). Section 9 serves to protect individual liberty against unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9 (Mann, at para. 20), unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9.

55Earlier suggestions that an unlawful detention was not necessarily arbitrary (see R. v. Duguay 1985 112 (ON CA), (1985), 18 C.C.C. (3d) 289 (Ont. C.A.)) have been overtaken by Mann, in which this Court confirmed the existence of a common law police power of investigative detention ...

15Although pleaded as a section 7 issue, the liberty interests asserted by Mr. Figueiras are the interests described in Grant, supra. His activities were curtailed physically and psychologically (e.g. see para. 23 of Mr. Figueiras’s factum). It seems to me that the only liberty interest at play in this application is Mr. Figueiras’s right to move about freely without arbitrary detention. Having said that however, as discussed with counsel during the argument, the choice between sections 7 and 9 does not matter to the outcome of this case. Counsel on both sides agrees that if the actions of Detective Charlebois were authorized by his common law ancillary police powers, then there would be no breach of either section of the Charter. There would either be no “arbitrary” detention in breach of section 9 or, alternatively, any deprivation of liberty under section 7 would be made “in accordance with the principles of fundamental justice” and, hence, there would be no breach of section 7 of the Charter. (For s. 9, see: Mann, supra, at para. 55. For s. 7, see: R. v. Clayton, 2007 SCC 32, at para. 19 and R. v. Cunningham, 2007 ONCJ 164 at para. 57.) In light of my determination below that Detective Charlebois did act in accordance with his common law ancillary police powers, I do not need to determine this issue.

Common Law Ancillary Police Powers

Common Law Ancillary Police Powers

16Police officers in Ontario are empowered and, indeed, obliged by section 42 of the Police Services Act to act to preserve the peace and to prevent crime. The powers of police officers are not limited to the powers specifically enumerated in the statute. They are supplemented by the common law. In Clayton, supra, Abella J. described the applicability of common law ancillary police powers in assessing the lawfulness of a detention under s.9 of the Charter as follows:

18. The Crown conceded that the initial stopping of Clayton and Farmer resulted in their detention within the meaning of s. 9 of the Charter. The Crown also acknowledged that the subsequent police examination of the interior of the car and its occupants constituted a search for the purposes of s. 8. Those provisions of the Charter state:

19. Everyone has the right to be secure against unreasonable search or seizure.

20. Everyone has the right not to be arbitrarily detained or imprisoned.

21. If the police conduct in detaining and searching Clayton and Farmer amounted to a lawful exercise of their common law powers, there was no violation of their Charter rights. If, on the other hand, the conduct fell outside the scope of these powers, it represented an infringement of the right under the Charter not to be arbitrarily detained or subjected to an unreasonable search or seizure.

22. The following passages from Mann are instructive:

A detention for investigative purposes is, like any other detention, subject to Charter scrutiny. Section 9 of the Charter, for example, provides that everyone has the right “not to be arbitrarily detained”. It is well recognized that a lawful detention is not “arbitrary” within the meaning of that provision. Consequently, an investigative detention that is carried out in accordance with the common law power recognized in this case will not infringe the detainee’s rights under s. 9 of the Charter.

The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. [Emphasis added; paras. 20 and 40.]

Thus, a detention which is found to be lawful at common law is, necessarily, not arbitrary under s. 9 of the Charter. A search done incidentally to that lawful detention will, similarly, not be found to infringe s. 8 if the search is carried out in a reasonable manner and there are reasonable grounds to believe that police or public safety issues exist.

21. The statement that a detention which is lawful is not arbitrary should not be understood as exempting the authorizing law, whether it is common law or statutory, from Charter scrutiny...

17The respondents rely on two cases in particular to support the argument that common law ancillary police powers authorize the police to limit peoples’ entitlement to enter secured areas and to insist on searching people who wish to be allowed into such areas. First they cite the decision of the Supreme Court of Canada in R. v. Knowlton, 1973 148 (SCC), [1974] S.C.R. 443, to establish the entitlement of police under their common law ancillary police powers to cordon off a security zone to protect foreign dignitaries...

18Similarly, in upholding the constitutionality of the law authorizing searches of all who wish to enter courthouses in Ontario, in R. v. Campanella, 2005 ONCA 10880, Rosenberg J.A. (as he then was) writing for the Court of Appeal held:

Regrettably, in this day and age, people expect that they will be subject to some kind of security screening when entering prominent public buildings such as courthouses or the legislature...

19In Clayton, supra, Abella J. endorsed the two pronged Waterfield test to determine if common law ancillary police powers apply...

20In Clayton, supra, a post-Charter case, at paras. 31 and 32, the Supreme Court of Canada reiterated that the justification for a detention is to be based on the “totality of the circumstances”...

21The applicant also relies upon the decision of the Court of Appeal in Brown, supra...

22There is no question of the police duty to protect foreign dignitaries from harm...

23The fact that Mr. Figueiras was outside on a city street does, indeed, distinguish this case from many precedents...

24In my view, Detective Charlebois would have been well within his authority to require every person who proposed to pass south of his checkpoint to open his or her bags...

25The Supreme Court of Canada has instructed police officers to tailor their activities to the minimum intrusions reasonably necessary in the circumstances...

26On June 27, 2010 there was a clear need for security in the financial core of downtown Toronto and especially near and around the G20 summit...

27Therefore, there was no breach of either section 7 or section 9 of the Charter.

Other Issues

Other Issues

28The applicant weakly asserted that his rights under subsections 2(b) and (c) of the Charter were also violated by the respondents...

29In light of the grounds that I have relied upon, I have not found it necessary to consider whether Detective Charlebois had a reasonable suspicion concerning the applicant sufficient to detain him...

30Had I found a breach of section 9 of the Charter (or section 7 if it can apply separately) I would have upheld the police conduct under section 1 of the Charter in any event...

31I also find that Detective Charlebois did not commit the tort of battery. The touching was de minimis at worst and the Detective is protected by subsection 25(1) of the Criminal Code of Canada in any event.

32Detective Charlebois and his colleagues on the police forces of the two other respondents showed admirable restraint in their dealing with the applicant...

33In my view, the police intrusion in this case was measured, reasonable, warranted and amounted to a typical and minimal inconvenience...

Costs

34The parties have agreed that costs of $5,000 inclusive of disbursements and HST should follow the event. This strikes me as a very reasonable outcome and quantum.

35I want to thank counsel for excellent facta and submissions.

Disposition

36The application is dismissed with costs of $5,000, all-inclusive, to be paid by the applicant to the respondents jointly and severally.

F.L. Myers, J.