Stewart v. The Toronto Police Services Board; Canadian Civil Liberties Association, Intervenor
Case Summary
Charter of Rights and Freedoms — Arbitrary detention or imprisonment — Plaintiff briefly detained and having his backpack searched for weapons when he broke through police perimeter line at public park during G20 summit — Plaintiff free to enter park and take part in protest march after his backpack was searched — Police acting lawfully and reasonably in setting up perimeter line and searching bags as condition of entry into park in light of high level of violence at previous G20 summits — Police not violating plaintiff's rights under s. 9 of Charter — Canadian Charter of Rights and Freedoms, s. 9.
Charter of Rights and Freedoms — Freedom of expression — Protests — Plaintiff briefly detained and having his backpack searched for weapons when he broke through police perimeter line at public park during G20 summit — Plaintiff free to enter park and take part in protest march after his backpack was searched — Police acting lawfully and reasonably in setting up perimeter line and searching bags as condition of entry into park in light of high level of violence at previous G20 summits — Police not violating plaintiff's freedom of expression.
Charter of Rights and Freedoms — Freedom of peaceful assembly — Plaintiff briefly detained and having his backpack searched for weapons when he broke through police perimeter line at public park during G20 summit — Plaintiff free to enter park and take part in protest march after his backpack was searched — Police acting lawfully and reasonably in setting up perimeter line and searching bags as condition of entry into park in light of high level of violence at previous G20 summits — Police not violating plaintiff's freedom of peaceful assembly or freedom of expression.
Charter of Rights and Freedoms — Search and seizure — Plaintiff briefly detained and having his backpack searched for weapons when he broke through police perimeter line at public park during G20 summit — Plaintiff free to enter park and take part in protest march after his backpack was searched — Police acting lawfully and reasonably in setting up perimeter line and searching bags as condition of entry into park in light of high level of violence at previous G20 summits — Police not violating plaintiff's rights under s. 8 of Charter — Canadian Charter of Rights and Freedoms, s. 8.
During the 2010 G20 summit in Toronto, the plaintiff attempted to enter a public park to attend a protest demonstration and take part in a march. Because of heightened security concerns, the police had formed a perimeter line at the edge of the park and were searching backpacks and bags for weapons as a condition of entry. The plaintiff challenged the police authority to impose a condition of entry, refused to consent to a search of his backpack, and broke through the police line. He was detained for several minutes while a police officer inspected his backpack and removed his swimming goggles, which he intended to wear to protect himself against tear gas. He was then free to enter the park and join the demonstrators, which he did. The plaintiff sued the police for violations of his rights under ss. 2, 8 and 9 of the Canadian Charter of Rights and Freedoms.
Held, the action should be dismissed.
In light of the high level of violence at previous G20 summits, the police acted lawfully and reasonably in setting up a perimeter around the park and requiring that bags be searched for weapons as a condition of entry. They had the authority to do so pursuant to the Trespass to Property Act, R.S.O. 1990, c. T.21. They also acted within their ancillary common law powers in furtherance of their duty to maintain the safety of the public and the protection of property. They had compelling intelligence that certain persons entering the park that day had violent demonstrations or mayhem in mind. They did not attempt to either identify persons or question anyone about his or her purpose. The police did not violate the plaintiff's freedom of expression or freedom of peaceful assembly. The police actions did not have a significant impact on the plaintiff.
The plaintiff was not arbitrarily detained contrary to s. 9 of the Charter. He was subject to a very brief investigative detention that resulted from his own action in rushing the perimeter. Nor were his rights under s. 8 of the Charter violated. When he defied their authority and rushed the perimeter, it was reasonable for the police to have a heightened concern about the contents of his backpack. In the context of the G20 summit generally and the plaintiff's conduct specifically, an inspection of the plaintiff's backpack was a reasonable exercise of the police officers' common law powers. The seizure of the plaintiff's swimming goggles was lawful and reasonable, as he admitted that he intended to use them to deflect police tactics if necessary. The officers offered to give him a receipt for the goggles so that they could be returned to him later, but he refused to identify himself.
If the police did violate any of the plaintiff's Charter rights, the violation was reasonable and justified in a free and democratic society in the unique circumstances of the G20 protest demonstrations.
Batty v. Toronto (City) (2011), 108 O.R. (3d) 571, [2011] O.J. No. 5158, 2011 ONSC 6862, 248 C.R.R. (2d) 175, 12 R.P.R. (5th) 26, 90 M.P.L.R. (4th) 250, 342 D.L.R. (4th) 129, 209 A.C.W.S. (3d) 542 (S.C.J.), consd
Other cases referred to
Bracken v. Fort Erie (Town) (2017), 137 O.R. (3d) 161, [2017] O.J. No. 4655, 2017 ONCA 668, 67 M.P.L.R. (5th) 1, 42 C.C.L.T. (4th) 311, 393 C.R.R. (2d) 292, 282 A.C.W.S. (3d) 752; Brown v. Durham (Regional Municipality) Police Force (1998), 43 O.R. (3d) 223, [1998] O.J. No. 5274, 167 D.L.R. (4th) 672, 116 O.A.C. 126, 131 C.C.C. (3d) 1, 21 C.R. (5th) 1, 59 C.R.R. (2d) 5, 39 M.V.R. (3d) 133, 84 A.C.W.S. (3d) 675, 40 W.C.B. (2d) 386 (C.A.); Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, [1991] S.C.J. No. 3, 77 D.L.R. (4th) 385, 120 N.R. 241, J.E. 91-184, 4 C.R.R. (2d) 60, 25 A.C.W.S. (3d) 40; Figueiras v. Toronto (City) Police Services Board (2015), 124 O.R. (3d) 641, [2015] O.J. No. 1515, 2015 ONCA 208, 331 O.A.C. 367, 331 C.R.R. (2d) 289, 18 C.C.L.T. (4th) 1, 320 C.C.C. (3d) 437, 383 D.L.R. (4th) 512, 252 A.C.W.S. (3d) 61; Fleming v. Ontario (2018), 140 O.R. (3d) 684, [2018] O.J. No. 841, 2018 ONCA 160, 420 D.L.R. (4th) 728, 45 C.C.L.T. (4th) 244, 290 A.C.W.S. (3d) 199 [Leave to appeal to S.C.C. filed [2018] S.C.C.A. No. 116]; Gammie v. South Bruce Peninsula (Town), [2014] O.J. No. 5157, 2014 ONSC 6209, 31 M.P.L.R. (5th) 31, 322 C.R.R. (2d) 22, 247 A.C.W.S. (3d) 211 (S.C.J.); Hunter v. Southam Inc., [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, 11 D.L.R. (4th) 641, 55 N.R. 241, [1984] 6 W.W.R. 577, J.E. 84-770, 33 Alta. L.R. (2d) 193, 55 A.R. 291, 27 B.L.R. 297, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1, 41 C.R. (3d) 97, 9 C.R.R. 355, 84 D.T.C. 6467; Irwin Toy Ltd. v. Québec (Attorney General), [1989] 1 S.C.R. 927, [1989] S.C.J. No. 36, 58 D.L.R. (4th) 577, 94 N.R. 167, J.E. 89-772, 24 Q.A.C. 2, 25 C.P.R. (3d) 417, 39 C.R.R. 193, 15 A.C.W.S. (3d) 121; Montreal (City) v. 2952-1366 Quebec Inc., [2005] 3 S.C.R. 141, [2005] S.C.J. No. 63, 2005 SCC 62, 258 D.L.R. (4th) 595, 340 N.R. 305, J.E. 2005-2012, 32 Admin. L.R. (4th) 159, 201 C.C.C. (3d) 161, 18 C.E.L.R. (3d) 1, 36 C.R. (6th) 78, 134 C.R.R. (2d) 196, 15 M.P.L.R. (4th) 1, EYB 2005-97111, 143 A.C.W.S. (3d) 465, 67 W.C.B. (2d) 397; R. v. Amofa, [2011] O.J. No. 2095, 2011 ONCA 368, 235 C.R.R. (2d) 1, 282 O.A.C. 114, 85 C.R. (6th) 265; R. v. Asante-Mensah, [2003] 2 S.C.R. 3, [2003] S.C.J. No. 38, 2003 SCC 38, 227 D.L.R. (4th) 75, 306 N.R. 289, J.E. 2003-1330, 175 O.A.C. 317, 174 C.C.C. (3d) 481, 11 C.R. (6th) 1, [2004] G.S.T.C. 104, 39 M.V.R. (4th) 155, 57 W.C.B. (2d) 522; R. v. Behrens, [2001] O.J. No. 245 (C.J.); R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, EYB 2009-161617, J.E. 2009-1379, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 391 N.R. 1, 253 O.A.C. 124; R. v. MacDonald, [2014] 1 S.C.R. 37, [2014] S.C.J. No. 3, 2014 SCC 3, 453 N.R. 1, 298 C.R.R. (2d) 190, 341 N.S.R. (2d) 353, 2014EXP-206, J.E. 2014-109, EYB 2014-231703, 366 D.L.R. (4th) 381, 7 C.R. (7th) 229, 303 C.C.C. (3d) 113, 111 W.C.B. (2d) 47; R. v. Mann, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 2004 SCC 52, 241 D.L.R. (4th) 214, 324 N.R. 215, [2004] 11 W.W.R. 601, J.E. 2004-1495, 187 Man. R. (2d) 1, 185 C.C.C. (3d) 308, 21 C.R. (6th) 1, 122 C.R.R. (2d) 189, REJB 2004-68801, 62 W.C.B. (2d) 516; R. v. Oakes, [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 19 C.R.R. 308, 16 W.C.B. 73; R. v. Peterkin, [2013] O.J. No. 195, 2013 ONSC 165, 275 C.R.R. (2d) 179, 295 C.C.C. (3d) 87, 105 W.C.B. (2d) 524 (S.C.J.); R. v. Semple, [2004] O.J. No. 2137, 2004 ONCJ 55, 119 C.R.R. (2d) 295, 62 W.C.B. (2d) 10; R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.)
Statutes referred to
- Canadian Charter of Rights and Freedoms, ss. 1, 2, (b), 8, 9
- Occupiers' Liability Act, R.S.O. 1990, c. O.2, s. 1
- Trespass to Property Act, R.S.O. 1990, c. T.21, ss. 1(1), 3(1), 5(1)(a)
ACTION for damages for Charter violations.
Counsel: Davin Charney and Christopher Rapson, for plaintiff. Kevin McGivney and Jonathan Thoburn, for defendant. Vitali Berditchevski, Alex Smith and Gabriel Edelson, for intervenor.
DIETRICH J.: —
Overview
[1] In June of 2010, it was Canada's turn to host the G20 and it was decided that the City of Toronto would be the host city. The G20, as is widely known, is an international forum attended by the leaders of the 20 largest economies in the world.
[2] Prior meetings of the G20 leaders around the world, as is also widely known, have attracted an assembly of protesters representing various interest groups. Some more than others have been determined to undertake disruptive activities in order to garner media attention.
[3] The plaintiff, Luke Stewart, then a Ph.D. candidate in history at the University of Waterloo, came to Toronto during the week of the G20 to participate in demonstrations. On Friday, June 25, 2010, he intended to participate in an assembly at Allan Gardens, a public park in Toronto, knowing that a protest march was to commence from that park following demonstrations.
[4] Upon his arrival at Allan Gardens, Mr. Stewart was met by members of the Toronto Police Services. The police, in anticipation of the gathering of protesters at Allan Gardens that day, had determined to form a perimeter line at the edge of the park and to impose, as a condition of entry on all entrants, an inspection of backpacks, bags and belongings for weapons, would-be weapons and items that could be used to defeat police tactics. As long as the condition was being imposed, it was communicated to all entrants to the park.
[5] Mr. Stewart challenged the police authority to impose a condition of entry and refused to consent to an inspection of his backpack. After a brief stand-off, he suddenly defied police authority and broke through the police line. He was immediately stopped by the police for a brief period of time while a police officer inspected his backpack and removed his swimming goggles. He was then free to enter the park and join the assembly of demonstrators, which he did.
[6] Mr. Stewart alleges that the police did not have any legitimate authority to act as they did at Allan Gardens on that day. He also alleges that his freedoms and rights protected by the Canadian Charter of Rights and Freedoms, namely, his freedom of expression and peaceful assembly, his right to not be arbitrarily detained or imprisoned and his right to be secure against unreasonable search or seizure, were infringed through the conduct of the police. Mr. Stewart seeks damages for these alleged breaches of his Charter rights by the police.
[7] The tension in this case arises with regard to the freedom of peaceful assembly under the Charter and the legitimacy of the condition of entry to the park. It is well-settled law that Charter rights do not exist in isolation but, rather, must be weighed, considered and balanced along with other competing rights in our dynamic civil Canadian society. On Charter rights, Iacobucci J. states the following in R. v. Mann, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 2004 SCC 52, at para. 16:
Charter rights do not exist in a vacuum; they are animated at virtually every stage of police action. Given their mandate to investigate crime and keep the peace, police officers must be empowered to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing.
[8] Mr. Stewart could have respected the police perimeter and either given his consent to an inspection of his backpack prior to entering the park or declined to consent and left the park. However, he believed that his right of peaceful assembly was absolute and thus prevailed over the condition of entry imposed by the police. He chose to physically challenge the police perimeter and defy police authority by rushing past the police and into the park. The alleged Charter breaches relating to freedom from arbitrary detention or arrest and freedom from unreasonable search and seizure arise as a consequence of Mr. Stewart's entry into the park, without permitting an inspection of his backpack, and the reaction of the police to his entry.
[9] The police have a general duty to promote public safety and to preserve public and private property. In carrying out this duty, they must, nonetheless, be mindful of the Charter right of peaceful assembly for all. The interaction of the police and Mr. Stewart at the perimeter requires a careful analysis of the police action, Mr. Stewart's reaction to it, and the proper balancing of police authority and public safety on one hand and individual rights on the other.
Issues
[10] The following issues are to be determined in this matter:
(1) Did the police act lawfully in establishing a perimeter around Allan Gardens and imposing an inspection of bags and belongings (to prevent weapons, would-be weapons and items used to defeat police tactics from being brought into the park) as a condition of entry?
(2) Did the conduct of the police result in a breach of Mr. Stewart's Charter rights?
Factual Background
Instructions to the police officers
[11] The evidence shows that prior to the G20, the police took specialized training relating to the G20. This training included online training in the way of modules, which police officers were required to complete and on which they were tested. The first module was entitled "TPS G20 Project Mission" and the second covered "Crowd-Use of Force", "Investigative Detention", "Weapon Searches" and "Radio Basics". The officers also attended training on the use of gas masks, with which none of the officers who testified had any prior experience.
[12] 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.
[13] 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.
[14] 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.
[15] Following the parading session, the police made their way to Allan Gardens, the assembly point for protesters and demonstrators. Allan Gardens is a large public park bounded by Carlton Street to the north, Sherbourne Street to the east, Gerrard Street to the south and Jarvis Street to the west. In addition to considerable wide-open space, there is a horticultural building, a dog park and a children's playground at Allan Gardens. As a public park, it has unrestricted access under normal circumstances.
[16] In anticipation of an assembly of protesters, the evidence is that steps had been taken to remove from the park furniture, including benches, tables and other items that could compromise safety in a large crowd. Approximately 80 police officers were detailed to Allan Gardens. They were first tasked with inspecting the park to locate sticks and other items that could be used as weapons that may have been cached in the park the night before for use at the demonstrations. On arrival at Allan Gardens on June 25, 2010, following the search of the park, the police established a perimeter around the park as they were directed to do. The evidence of each of the officers who testified is consistent on the direction they were given to form the perimeter. Sgt. Burningham testified that it was his job to manage the staff of 80 officers in this effort. His teams of officers had been detailed to form the perimeter around Allan Gardens to ensure the safety of all users of the park that day. Sgt. Burningham was also tasked with the job of liaising with organizers of the march, which was intended to be a "snake" march. A snake march is one that proceeds randomly through city streets and parks making it much more difficult to patrol.
[17] 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.
[18] Sgt. Burningham testified that he instructed the teams of officers under his command that all persons entering the park with bags or other belongings must be asked to allow the police to inspect such bags and belongings.
Mr. Stewart's encounter with the police
[19] 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 southerly 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.
[20] The exchange between the police officers and Mr. Stewart was recorded on video by a reporter, Lisa Walters, 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, R.S.O. 1990, c. T.21, 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.
[21] 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.
[22] 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.
[23] 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.
[24] Lisa Walters, 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.
[25] Ultimately, the police were forced to disband the perimeter as the incoming crowd had swelled and breached it at several points. They abandoned their efforts to ask entrants to permit an inspection of their bags and belongings as they began to focus on other more pressing security issues.
Issue 1: Did the Police Act Lawfully in Establishing a Perimeter around Allan Gardens and Imposing an Inspection of Bags and Belongings (to Prevent Weapons, Would-be Weapons and Items Used to Defeat Police Tactics from Being Brought into the Park) as a Condition of Entry?
[26] I find that the police had the authority pursuant to the Trespass to Property Act to establish the perimeter around Allan Gardens and to impose the condition of entry as they did on June 25, 2010. I find further that the police acted within their ancillary common law powers in making the decision to form the perimeter and to impose and enforce the condition of entry. At common law, the police have the authority, as well as a duty, to take reasonable measures to maintain the safety of the public and the protection of property. The police acted lawfully with a view to balancing the rights of those who wished to gather in Allan Gardens for demonstrations that had the potential to turn violent with the interests of those who wished to enjoy the park free from harm and the threat of violence.
Statutory authority
[27] In setting up the perimeter around Allan Gardens and imposing, as a condition of entry, an inspection of each entrant's bags and belongings, the police relied on their authority as agents appointed by the City of Toronto to administer the Trespass to Property Act. The City of Toronto, as owner and occupier of Allan Gardens, has an affirmative duty to ensure the safety of the park for all users pursuant to the Occupiers' Liability Act, R.S.O. 1990, c. O.2. The definition of "occupier" found in the Trespass to Property Act is essentially identical to the definition of "occupier" found in the Occupiers' Liability Act. By definition, under these statutes, an "occupier" includes 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": s. 1(1) of the Trespass to Property Act and s. 1 of the Occupiers' Liability Act.
[28] In the case of R. v. Asante-Mensah, [2003] 2 S.C.R. 3, [2003] S.C.J. No. 38, 2003 SCC 38, the court noted, at para. 32:
[T]he Trespass to Property Act, 1980, S.O. 1980, c. 15 provides owners or agents of the owners with a number of options . . . Occupiers may direct persons to leave a property . . . and give notice that further activity or entry onto the property is prohibited either absolutely . . . or within limits. . . . 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.
(Emphasis added)
[29] The evidence before the court is that Brenda Patterson, general manager, parks, forestry and recreation, on behalf of the City of Toronto, had sent a letter to the then chief of police, William Blair, on March 16, 2010, regarding "Trespass to Property Act for all Parks and Community Centres". Officer Blair was the chief of police at the time of the G20. The letter reads as follows:
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.
[30] Based on this evidence, I find that 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.
[31] Section 3(1) of the Trespass to Property Act allows the occupier to place a prohibition on a person's entry to the premises by notice and the Act provides that any person breaching such a prohibition is considered a trespasser. Under s. 5(1)(a) of the Trespass to Property Act, such notice may be given orally. Accordingly, I find that 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. Anyone not willing to undergo such an inspection was free to leave Allan Gardens.
[32] Mr. Stewart submits that the officers involved in preventing him from unrestricted access to the park were not in fact exercising their powers under the Trespass to Property Act, but were simply relying on this statute after the fact to justify conducting themselves as they did without proper legal authority. In the cross-examination of the police officers involved, each was asked why his or her notes from June 25, 2010 did not make any reference to the Trespass to Property Act if that was the authority they were relying on to patrol Allan Gardens as they did.
[33] Each of these police officers testified that he or she was familiar with their authority under this Act. Each of them also testified that he or she was familiar with the book of authorization letters given to the Toronto Police Services by various entities including the City of Toronto and certain schools, and that he or she knew that these letters authorized the police to act as agent for the author of the letter. I accept the testimony of each of the officers that he or she was aware of the authority he or she derived from the Trespass to Property Act and, in acting as agents of the City of Toronto, they had the safety of the public and the police top of mind.
[34] Mr. Stewart also submits that the letter from the City of Toronto was insufficient authority for the police to take the action they took in Allan Gardens on June 25, 2010. He argues that in order for the police to have relied on this letter as their authority, the letter would have had to set out the specific tasks to be undertaken and the means for undertaking those tasks.
[35] The defendant submits that the letter placed no limit on the agency and authorized the police to administer the Trespass to Property Act and take all appropriate action including removing people from the park. It further submits that limiting the power would not be practical. The police would need discretion to deal with persons who contravene the Trespass to Property Act without having to return to the City of Toronto for specific guidance on any particular situation.
[36] I agree that a practical approach is appropriate in these circumstances. A similar approach was taken in Batty v. Toronto (City) (2011), 108 O.R. (3d) 571, [2011] O.J. No. 5158, 2011 ONSC 6862 ("Batty"), a case that involved protesters wishing to unilaterally occupy an inner city park in Toronto indefinitely. In Batty, Brown J. (as the then was) held, at para. 120:
. . . it strikes me as going beyond the bounds of constitutional reasonableness to require, as a matter of general principle, that a municipality should have to turn its mind to and craft detailed exemption policies for every possible contingency. There is a reason why at a certain level in the legislative pecking order the only practical course of action is to delegate authority so that discretion can be applied to the multitude of scenarios which inevitably present themselves when applications for such things as permits are made. The way to police such delegated power is by imposing general requirements on the proper exercise of discretion, not a constitutional obligation to draft policies to cover every possible contingency.
[37] When Mr. Stewart breached the condition of entry and deliberately entered Allan Gardens in contravention of the notice and in defiance of police authority, the police had reasonable and probable grounds to believe he was a trespasser and that he may be attempting to bring weapons or would-be weapons into the park. He was then stopped so his backpack could be inspected.
[38] The court heard lengthy submissions on whether Mr. Stewart was, at this point, arrested, as the defendant argues, or detained, as Mr. Stewart argues. While it is clear that the police had the statutory authority to arrest Mr. Stewart under the Trespass to Property Act, I find that they did not. The actions of Mr. Stewart, including trespass and obstruction of a police officer in the execution of his duty, could have led to charges and an arrest, but there was no arrest. Mr. Stewart was never required to identify himself, read his rights or taken into police custody. Sgt. McLean testified that Mr. Stewart was never under arrest. Until the time that Mr. Stewart precipitated police reaction by breaching the condition of entry and forcing his way into the park, he was free at all times to simply refuse the inspection, leave Allan Gardens and go about his day.
[39] The evidence shows that the police officers were dealing with a crowd of over 1,000 people wishing to participate in the demonstrations at Allan Gardens and the march that day. The officers who engaged with Mr. Stewart testified that despite the fact that Mr. Stewart had breached the condition of entry and was behaving in a belligerent manner toward them, they were attempting to deal with his offences in a way that would still allow him to enter the park and participate in the demonstrations and the march. The video itself corroborates this fact.
Police authority at common law
[40] The plaintiff submits that he was detained. The video shows that Mr. Stewart is persistent in his refrain to the police that if they wish to search his bag they will need to detain him. Eventually, once the police accept that no further discussion with Mr. Stewart will persuade him to consent to an inspection of his backpack and he is not prepared to leave the park, they are forced to take action. Based on the evidence before the court, I do not find that the conduct of the police relating to Mr. Stewart rose to the level of a full detention. Mr. Stewart testified that he was fully aware that if he did not wish to have his bag searched, he was free to leave the park. Instead, he chose to breach the condition of entry, told the police that they would have to "detain" him in order to search his backpack and then rushed the police to get past them.
[41] At this point, the police could have arrested Mr. Stewart for trespass and they could have relied on search powers incident to arrest. They could also have charged Mr. Stewart with obstructing a police officer in the execution of his duty. They did not. Instead, they stopped his further progression into the park until they had an opportunity to inspect his bag for weapons, would-be weapons and items that could be used to defeat police tactics. For a very brief time one of the officers had his hand on Mr. Stewart's chest to prevent further entry into the park and another officer held Mr. Stewart's hands while Mr. Stewart's backpack was removed from his back. Following the removal of the backpack, the video shows that two of the officers each held one of Mr. Stewart's wrists and Sgt. McLean had her hand on his arm for a few seconds. The officers released any form of restraint mid-way through the search of his backpack. It is not clear from the video when Mr. Stewart was completely free of restraint, but the entire physical engagement with the police spanned less than three minutes.
[42] I find that the detention of Mr. Stewart was in the nature of a limited investigative detention initiated by Mr. Stewart's defiance. Based on Mr. Stewart's breach of the condition of entry, the officers knew that he had committed an offence. Mr. Stewart was never in police custody, he was not required to identify himself and he was not read his rights. He 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.
[43] A brief examination of police authority at common law is instructive. It is trite to state 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. I accept the evidence of the police officers who testified that they were well acquainted with the history of violence at G20 events that led to significant property damage and even death. They had prepared themselves well to promote and enforce public safety in that context. Having already detected and seized items that could be improvised as weapons prior to their interaction with Mr. Stewart, the police were aware that any person entering Allan Gardens that day could be carrying an object that could be used to cause harm to persons or property or be used to defeat police tactics. Under these circumstances, I find that the police, in serving and protecting the public at large, were duty-bound to take reasonable steps to ensure the safety of all persons in Allan Gardens that day, whose number exceeded 1,000.
[44] Examples of the common law police power to control access to an area include establishing a security perimeter for the protection of the public. This is not a general power. It must be confined to proper circumstances such as fires, floods, car crash sites, crime scenes and the like. The question then arises about the circumstances of a mass assembly of protesters gathering in a public park to hear speeches, participate in demonstrations and thereafter snake march through the streets of Toronto in the context of the G20. Can the police in these specific and unique circumstances establish a security perimeter, impose a condition of entry requiring persons to submit to an inspection of their personal belongings for weapons, would-be weapons and items used to defeat police tactics should such persons refuse to consent to the search?
[45] I find that it is in the unique circumstances of the G20 and its well-known history of chaos, property damage, personal injury and even death that the police action to attempt to interdict weapons and would-be weapons was lawful, reasonable and appropriate. These unique circumstances both required and permitted the police 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.
[46] In R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), it was important to consider what a police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person's liberty or property. Here, the police were carrying out their peacekeeping duty and attempting to maintain the safety of the public and protect property. The question then becomes whether their conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
[47] I find that the establishment of a security perimeter for large or mass gatherings (in this case, in excess of 1,000 people), where there is a reasonable expectation of unlawful conduct, was appropriate and reasonable. Further, enforcement of the condition of entry, being the inspection of belongings, for weapons, would-be weapons and items that could defeat police tactics, against those persons who refused to consent to the inspection and refused to leave the park, was also appropriate and reasonable in the circumstances.
[48] Once Mr. Stewart had defied the condition of entry and forced his way into the park, the police took action that was reasonably necessary for the carrying out of their duty in light of all of the circumstances. Their objective was to protect the safety of the public on a day on which it was reasonable to conclude that protests in the park could turn violent. The police officers who interacted with Mr. Stewart testified that they wanted him to be able to meet his friends in the park and to participate in the demonstrations and the march. An arrest and police custody would not likely have led to this end. While some might consider this evidence to be self-serving, it is fully corroborated by the video. The police were trying to de-escalate the situation while Mr. Stewart was trying to escalate the situation.
[49] The degree of interference with his liberty was not significant. The entire interaction lasted less than ten minutes and the investigative detention lasted less than three minutes. Mr. Stewart was not arrested, personally searched, taken into police custody or charged with a criminal offence, and he was not required to identify himself. In balancing Mr. Stewart's right to exercise his freedom of expression in the park that day, and the rights of all persons in the park to be afforded the freedom of peaceful, non-violent assembly, the police undertook a perfunctory inspection of Mr. Stewart's backpack and removed his swimming goggles. He was then free to remain in the park and participate in the demonstrations and the march, which he did, without any further interaction with the police. In this case, the degree of interference is not a circumstance that should diminish in any way the original effort of the police to ensure public safety and protect property.
[50] When considering the extent of police interference with an individual's liberty, the court must have regard to the cumulative impact on all of the individual's liberty interests. The overall impact of the police conduct on all of the claimant's civil liberties must be considered in the balancing exercise: Figueiras v. Toronto (City) Police Services Board (2015), 124 O.R. (3d) 641, [2015] O.J. No. 1515, 2015 ONCA 208, a para. 119. Given the atmosphere and circumstances of the G20, and the reasonable apprehension of violence, the police were attempting to maintain the safety of the public and the protection of property. In balancing that interest with Mr. Stewart's rights, they chose a means to address his defiance that would ultimately allow him to exercise his freedom of expression and peaceful assembly in the park that day. He would not be arrested, or detained for any length of time, and the search was limited to a perfunctory inspection of his backpack. Neither his person nor his personal computer was searched. He was not charged with any offence or taken into police custody.
[51] I do not suggest that common law police powers extend to a search of the bags and belongings of individuals who wish to enter a park and who refuse to consent to a search of their bags and belongings under normal circumstances. However, in the exigent circumstances of the G20 demonstrations and the snake march, which are known to turn violent and are unpredictable, it was reasonable for the police to rely on their common law powers to limit Mr. Stewart's access to Allan Gardens on June 25, 2010 until he complied with the condition of entry. Unlike in the Figueiras case, where Mr. Figueiras, while walking down a city street, was targeted as a protester and searched, Mr. Stewart was in no way targeted and he, himself, was not searched. The police were not applying the inspection of bags at Allan Gardens selectively. All users of the park on that day were asked to permit the police to inspect their bags and belongings in compliance with the condition of entry. When Mr. Stewart breached the condition of entry and did not agree to leave the park, the police were required to take some action. Having committed a trespass and obstructed a police officer in the execution of his duty, in the context of the G20, Mr. Stewart could expect that he would no longer enjoy the same right of privacy.
[52] Once Mr. Stewart chose not to simply leave the park, having declined to permit an inspection of his backpack, the police had two effective means of handling the situation. They could have arrested him, searched him and his belongings, removed him from the park and taken him into custody. This would most likely have meant that Mr. Stewart would have been deprived of the opportunity to join his friends and to exercise his freedom of expression through the G20 demonstrations and the march. This action would have also deprived him of his liberty for a considerable period of time. Alternatively, they could rely on their common law powers to conduct a brief investigative detention and perform a perfunctory search of his backpack for weapons or would-be weapons to enforce compliance with the condition of entry to the park on that day, which Mr. Stewart had refused. Mr. Stewart would then have been free to participate in the demonstrations and the march. The police choose the latter as the more effective means, with minimal interference with his liberty.
Issue 2: Did the Conduct of the Police Result in a Breach of Mr. Stewart's Charter Rights?
[53] Mr. Stewart and the intervenor submit that even if the police had authority to act under the Trespass to Property Act, as agent, or pursuant to their common law authority, their actions are nonetheless subject to the Charter. I agree.
[54] Mr. Stewart submits that as a consequence of the police conduct, his freedom and rights protected by ss. 2, 8 and 9 of the Charter were infringed.
[55] The relevant sections of the Charter state as follows:
Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.
Everyone has the right to be secure against unreasonable search or seizure.
Everyone has the right not to be arbitrarily detained or imprisoned.
[56] For the reasons that follow, I find that Mr. Stewart's freedoms pursuant to s. 2 of the Charter, and his rights pursuant to ss. 8 and 9 of the Charter, were not infringed. Had I come to a different conclusion, that any one or more of Mr. Stewart's said freedoms or rights was infringed, I would have found that any such infringement, limited to the interdiction of weapons, would-be weapons and items useful in defeating police tactics, was reasonable and demonstrably justified in the context of the G20.
Section 2 of the Charter -- Freedom of expression; freedom of peaceful assembly
[57] The freedom of assembly is generally considered to be a necessary and integral part of the freedom of expression in situations where political demonstrations are on public property: R. v. Behrens, [2001] O.J. No. 245 (C.J.). To determine whether there has been a violation of the right of freedom of expression, the Supreme Court of Canada outlined the analysis to be undertaken in the case of Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, [1989] S.C.J. No. 36 ("Irwin"), which was summarized in Batty. The analysis requires the court to pose and answer three questions:
(1) Does the applicant's conduct or statement have expressive content?
(2) If so, does the method or location of this expression remove that protection?
(3) If the expression is protected by s. 2(b), does the government action or legislation infringe that protection, either on purpose or effect?
[58] Regarding expressive content, which includes peaceful assembly in this case, the Ontario Court of Appeal has held that the right to protest lies at the very core of the guarantee of freedom of expression: Figueiras, at para. 69. The Supreme Court of Canada wrote: "One aspect of free expression is the right to express oneself in certain public spaces. Thus, the public square and the speakers corner have by tradition become places of protected expression": Montreal (City) v. 2952-1366 Quebec Inc., [2005] 3 S.C.R. 141, [2005] S.C.J. No. 63, 2005 SCC 62, at para. 61. As for the method of expression, the Supreme Court of Canada has clearly indicated that violence or threats of violence are not protected forms of expression under s. 2(b) of the Charter: Irwin, at para. 42.
[59] In the case at bar, the police officers testified that the condition of entry was created for the purposes of ensuring the safety of all persons present at Allan Gardens on June 25, 2010 and that there was no attempt to deny or restrict the content of any non-violent expression.
[60] The uncontroverted evidence is that the police had compelling intelligence that certain persons entering Allan Gardens on June 25, 2010 had violent demonstrations or mayhem in mind for that day. There was no attempt by police to either identify persons or question anyone about their purpose.
[61] In carrying out their duty, the police used a minimally intrusive means of controlling entry to Allan Gardens. I find that their chosen process against the background of the G20 did not result in a breach of Mr. Stewart's freedom of expression or peaceful assembly. On the contrary, I find that the actions of the police were aimed at and intended to preserve the freedom of peaceful assembly for all users of the park on that day, including Mr. Stewart, and not to diminish it. Provided that Mr. Stewart complied with the condition of entry, he was free to enter Allan Gardens and free to express himself without the use of violence or threats of violence. Mr. Stewart was not asked to articulate how he wished to express himself at the demonstrations in Allan Gardens that day and the police did not deny him the right to participate in those demonstrations and the march that followed. The condition of entry imposed pursuant to the Trespass to Property Act, in fact, was aimed at promoting the very civic right of the public to peaceful assembly for all users of the park that day, including Mr. Stewart.
[62] Had I concluded this point differently, I would have found that if Mr. Stewart's freedoms protected by s. 2 of the Charter were infringed, the conduct of the police was reasonable and demonstrably justified in a free and democratic society in the context of the G20.
[63] The freedoms and rights that Mr. Stewart argues were breached by the police are not absolute freedoms and rights and, as noted, they do not exist in a vacuum. Section 1 of the Charter specifically provides that "[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
[64] In determining whether the infringement of a Charter right can be justified, the analysis set out in R. v. Oakes, [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7 ("Oakes"), at paras. 69 and 70, often referred to as the Oakes test, is applicable.
[65] Notice of the condition of entry authorized by the Trespass to Property Act is a limit prescribed by law. In R. v. Semple, [2004] O.J. No. 2137, 2004 ONCJ 55 ("Semple"), at para. 53, the court found that the Trespass to Property Act authorized the notice of prohibition and was therefore a limit prescribed by law. In Batty, the court confirmed that limits contained in the municipal by-laws satisfied the "prescribed by law" requirement. In that case, a by-law was used to invoke enforcement mechanisms of the Trespass to Property Act.
[66] The courts have also held that the term "prescribed by law" can be grounded in the common law. In Bracken v. Fort Erie (Town) (2017), 137 O.R. (3d) 161, [2017] O.J. No. 4655, 2017 ONCA 668 ("Bracken"), at para. 65, the Ontario Court of Appeal held that a "law" need not be a statute to satisfy the "prescribed by law" requirement. "Law" in this context includes regulations and the common law . . .".
[67] The Oakes test requires that measures which limit a Charter right must have, at a minimum, an objective that relates to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important: Oakes, at para. 73. This part of the Oakes test was satisfied in Semple on the clear understanding that it has been repeatedly held that a government that is also a property holder has the right to restrict the use of government property for valid purposes: para. 56.
[68] In the Batty case, protesters argued that their Charter rights were infringed when they were required to decamp from a public park. In that case, Brown J. held, at para. 13: "The Charter does not remove the need to apply common sense and balance to the way we deal with each other in our civic relationships. The Charter does not remove common sense from the process of trying to figure out how to balance the competing rights which now characterize our contemporary Canadian polity. On the contrary, the Charter speaks of 'reasonable limits' on guaranteed freedoms, thereby signalling that common sense still must play a role -- indeed a very important role -- in that balancing exercise." In that case, Brown J. applied the Oakes test and found that the objective of the city to balance fairly the different uses of public parks carried sufficient importance and stated, at para. 91, that "[w]ithout some balancing of what people can and cannot do in parks, chaos would reign".
[69] As clearly indicated by the Supreme Court of Canada in Irwin, at para. 42, violence or threats of violence are not protected forms of expression under s. 2(b) of the Charter.
[70] In Bracken, the Court of Appeal made the following comments, at para. 75:
I observe that where a government issues a trespass notice relying on the common law power to expel persons from property, it is exercising a power that is subject to implied limits. It cannot be issued capriciously; that is, it cannot be issued, in the circumstances of a public protest in the town square, without a valid public purpose. What constitutes a valid public purpose need not be fully canvassed here, but it would include, for example: the prevention of unlawful activity, securing the safety of persons, preventing the appropriation of public space for exclusive private use, and preventing the obstructing of the operation of government and the provision of government services. These implied limits are echoed in the proportionality analysis.
(Emphasis added)
[71] In the case of Fleming v. Ontario (2018), 140 O.R. (3d) 684, [2018] O.J. No. 841, 2018 ONCA 160, leave to appeal to S.C.C. filed [2018] S.C.C.A. No. 116 ("Fleming"), Nordheimer J.A. stated, at para. 41, that every person has constitutionally protected Charter rights, but the "public as a whole has a right to peace and security".
[72] For the limit to be proportional, first, the measure limiting the Charter freedom must be rationally connected to the intended objectives. Prohibition notices under the Trespass to Property Act have been found by courts to be rationally connected to the objective of maintaining a safe public space: Semple, at para. 12; and Gammie v. South Bruce Peninsula (Town), [2014] O.J. No. 5157, 2014 ONSC 6209 (S.C.J.), at para. 95.
[73] I reject the suggestion by the intervenor that the condition of entry was not rationally connected to the objective of peacekeeping in the park because it would do nothing to stop individuals from improvising weapons from objects available in the park such as tree branches, unearthed rocks or loose bricks. This suggestion is simply unrealistic. The evidence shows that the police had taken action to remove park benches, other furniture and any item that could be used as a weapon as a safety precaution prior to June 25, 2010. Sgt. McLean testified that police had searched the park again on the morning of June 25, 2010 with a view to removing any items that may have been hidden in the park for later use as weapons. To suggest that this effort ought to have extended to the removal of trees, rocks and loose bricks from buildings before a simple search of entrants' bags and belongings could be considered rational is extraordinary.
[74] In the present case, entry to Allan Gardens was not banned. The notice of the condition of entry was not only reasonable, but also minimally impairing. The condition was a screening of bags and belongings only and not an absolute ban on entry. Any inconvenience caused by the screening to an individual entrant was brief. The period during which the condition was in place was relatively short and the notice did not attach to any other park in the city on that day, only Allan Gardens, where G20 demonstrations were being held. The evidence shows that shortly after Mr. Stewart's backpack was searched, the police stopped searching bags and applied their resources to other more pressing safety concerns.
[75] The impact of the notice and the search of his backpack on Mr. Stewart was not significant. Following the perfunctory search of his backpack he was free to participate in the demonstrations in Allan Gardens and the march that would follow. There is no evidence of any further involvement between Mr. Stewart and the police later that day save Mr. Stewart's ability to avail himself of other safety precautions provided by the police, including traffic management to allow the protest march to proceed from Allan Gardens through the streets of Toronto.
[76] Under the circumstances of the G20, and in the interests of public safety on June 25, 2010, Mr. Stewart would be expected to yield his individual right to the prevailing right of the public to be protected and kept safe from the threat of violence. Events leading up to and during the G20 required "a careful balancing of competing interests": the state's interest in effective policing, including keeping the peace and crime prevention; and the "liberty interests of citizens . . . affected by the power the police exercise": Figueiras, at para. 48.
[77] In Fleming, Nordheimer J.A. cites Brown v. Durham (Regional Municipality) Police Force (1998), 43 O.R. (3d) 223, [1998] O.J. No. 5274 (C.A.)), at para. 62, on the balancing of interests between an individual's rights and public safety:
The infinite variety of situations in which the police and individuals interact and the need to carefully balance important but competing interests in each of those situations make it difficult, if not impossible, to provide pre-formulated bright-line rules which appropriately maintain the balance between police powers and individual liberties.
[78] In the same case, Nordheimer J.A. also relies on R. v. MacDonald, [2014] 1 S.C.R. 37, [2014] S.C.J. No. 3, 2014 SCC 3, where LeBel J. noted, at para. 36, that "for the infringement to be justified, the police action must be reasonably necessary for the carrying out of the particular duty in light of all of the circumstances" [emphasis in original]; and, at para. 39, where LeBel J. stated: "No one can reasonably dispute that the duty to protect life and safety is of the utmost importance to the public good and that, in some circumstances, some interference with individual liberty is necessary to carry out that duty."
Section 9 of the Charter -- Right not to be arbitrarily detained or imprisoned
[79] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned.
[80] Based on the evidence, I find that s. 9 of the Charter (freedom from arbitrary detention or imprisonment) is not engaged. Mr. Stewart was not arbitrarily detained. He was for a period of less than three minutes the subject of an investigative detention. As noted, this detention was precipitated by Mr. Stewart's own insistence that he be detained if the police were going to search his backpack. The investigative detention occurred as a consequence of Mr. Stewart's refusal to comply with the condition of entry, his refusal to leave the park and his action in rushing the perimeter established by the police to gain entry to the park.
[81] Prior to breaching the perimeter, Mr. Stewart had ample opportunity to avoid detention as he was advised by the police. He could either comply with the condition of entry or leave Allan Gardens without any detention, arrest or further engagement with the police. A detention does not occur where a person is free to walk away from the police, even where the police foreclose the possibility of walking away in the direction originally intended: Figueiras, at para. 65; and R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, at paras. 20-21. What Mr. Stewart was not entitled to do was to defy the police, acting lawfully and force his way into Allan Gardens without allowing them to inspect his backpack.
[82] I find that there was nothing arbitrary in the actions taken by the police in dealing with Mr. Stewart at Allan Gardens that day. In the case of Figueiras, the court found that the police exceeded their authority when they targeted demonstrators walking down a public street and required that they submit to a search. By contrast, in the case at bar, no single individual or group of individuals was targeted. While the police were enforcing the condition of entry, all entrants to the park, with bags and belongings in which items could be concealed, were asked to reveal the contents of their bags and belongings. The police were not ordered to only search the bags and belongings of persons who matched a certain profile or met a certain description. The objective of the police was to provide a safe environment for all users of the park that day, including Mr. Stewart.
Section 8 of the Charter -- Security against unreasonable search or seizure
[83] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure.
[84] Based on the evidence before the court, I find that s. 8 of the Charter (freedom from unreasonable search or seizure) was not violated. 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. Amofa, [2011] O.J. No. 2095, 2011 ONCA 368 and R. v. Peterkin, [2013] O.J. No. 195, 2013 ONSC 165 (S.C.J.). 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.
[85] Section 8 does not guarantee the right to be free from all search and seizure, but the right to be free from "unreasonable" search and seizure: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, at p. 161 S.C.R. When Mr. Stewart defied their authority, breached the lawful condition of entry by refusing to leave and rushing the police perimeter to enter the park, it was reasonable for the police to have a heightened concern about the contents of Mr. Stewart's backpack. Mr. Stewart's unlawful conduct did not give the police time to pause and consider their options. In the context of the G20 generally and Mr. Stewart's conduct specifically, an inspection of Mr. Stewart's backpack was a reasonable exercise of their common law powers. The intelligence that the police had gathered with regard to the potential for violence and unrest in Allan Gardens on June 25, 2010 justifies this exercise of police power. Under the circumstances of that day, given the duty of the police to ensure the safety of the public in the face of perceived threat, I find that the inspection of Mr. Stewart's backpack for weapons, would-be weapons and items useful in defeating police tactics was reasonable. There was no inspection of Mr. Stewart's person or the personal computer in his backpack.
[86] Further, as the video shows, Mr. Stewart was fully apprised by the police of the condition of entry. He knew that he had to consent to an inspection of his backpack in order to gain entry to the park. By forcing his way into the park, without complying with the condition, he implicitly consented to the search, knowing it was a condition of entry.
[87] I find that the seizure of Mr. Stewart's swimming goggles was lawful and not unreasonable in the circumstances. He admitted that he intended to use them to deflect police tactics if necessary. The police had no intention of permanently depriving Mr. Stewart of his goggles. The seizure was intended to interdict items that could be used to defeat police tactics on that day. He could have chosen to have his goggles returned to him, but he declined.
[88] Had I concluded otherwise regarding the search, I would have found that the inspection of Mr. Stewart's backpack was demonstrably justified in a free and democratic society in the context of the G20. The search measure was not arbitrary or unfair. It arose pursuant to the common law powers available to the police to undertake an investigative detention, and the search incident thereto, and their power to impose and enforce a limited search or inspection for weapons, would-be weapons and items used to defeat police tactics as a condition of entry to the park in an effort to protect public safety in Allan Gardens on June 25, 2010. While the condition of entry was being imposed, every person entering the park with bags or belongings that could conceal weapons was asked to permit an inspection. The importance of public safety in Allan Gardens that day justified the search of the bags and belongings of any individual who breached the condition of entry and refused to leave the park. I find this action was a reasonable and appropriate measure to promote safety under the circumstances at that time. Subjecting all entrants to the same screening was an effective way to diminish the risk of weapons and would-be weapons being brought into the park on that day.
[89] The search of Mr. Stewart's backpack took less than three minutes and was not invasive. Neither his person nor the laptop computer in his backpack was searched. A law is said to be minimally impairing when it infringes on a Charter right no more than is necessary to accomplish the law's objective: Oakes, at para. 74. The imposition of the condition of entry on everyone entering the premises with bags and belongings was effective in achieving the paramount objective of public safety. Enforcing the condition in the case of a person who refused to comply, refused to leave the park, and who rushed the perimeter to gain entry to the park was a reasonable and rational exercise of police powers.
[90] Had I concluded otherwise regarding the seizing of Mr. Stewart's goggles, I would have found that the seizure of the goggles is a trifling matter and not sufficiently material to require a Charter analysis.
Conclusion
[91] Having considered all of the evidence, I find that the police engaged in a rational, reasonable and good faith effort to promote peaceful assembly and to protect the safety of all users of Allan Gardens on June 25, 2010, including Mr. Stewart. The imposition of the condition of entry to Allan Gardens and the enforcement of that condition in the face of Mr. Stewart's militant refusal to comply and unlawful entry into the park did not result in a breach of Mr. Stewart's freedoms and rights under the Charter as he alleges. Had I concluded otherwise, I would have found any such breach to be reasonable and demonstrably justified in a free and democratic society in the unique circumstances of the G20 protest demonstrations.
[92] I find that the police had a positive duty to act to preserve public safety during the G20. In the execution of their duty to preserve the peace and to prevent harm to persons and damage to property, their conduct in dealing with Mr. Stewart was professional and lawful. It bears repeating that the Charter rights of any individual citizen do not exist in a vacuum but rather must be weighed, considered and balanced along with other competing rights in our dynamic civil Canadian society. The comments of McLachlin J. in Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, [1991] S.C.J. No. 3, at para. 268, relating to a limit on the use of state-owned property for public expression, are apposite:
The Charter recognizes that the exercise of constitutional rights inevitably raises conflicts. Sometimes the conflict is with another right. Sometimes the conflict is with another interest, usually public. As a result, rights cannot be viewed as absolute. Sometimes a right must yield to another, conflicting right; sometimes a right must give way to an overriding objective of public importance.
Damages
[93] The police had the legal authority to take the actions they took on June 25, 2010 involving Mr. Stewart. Mr. Stewart's Charter rights were not infringed as a consequence of those actions; and if they were, the actions of the police were minimally impairing, reasonable and justified in the circumstances of the G20. Accordingly, Mr. Stewart is not entitled to any damages award or other remedy.
Disposition and Costs
[94] The action is dismissed. On costs, my current inclination would be not to award costs. This case involves a matter of public interest and may contribute to an understanding the application of the Charter to our dynamic Canadian society. Should counsel wish to persuade me otherwise, the defendant may submit its costs outline and written submissions on costs (not exceeding four pages in length) within 14 days of the release of these reasons. The plaintiff may respond with written submissions (not exceeding four pages in length) within 14 days of having received the defendant's submissions. The defendant may have five days to submit a reply, if any.
Action dismissed.