COURT FILE NO.: CV-17-584207

DATE: 20180618

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KRISTIAN ROLF LANGENFELD

Applicant

– and –

TORONTO POLICE SERVICES BOARD and TORONTO POLICE CHIEF MARK SAUNDERS

Respondent

Self-Represented

Mr. Fred Fisher and Ms. Lauren Elliott for the Respondent, Toronto Police Services Board

Ms. Marianne Wright and Ms. Sie-Wing Khow for the Respondent, Chief of Police, Mark Saunders

HEARD: February 20, 2018

Justice J. Copeland

REASONS FOR DECISION

Introduction

[1] The applicant, Mr. Kristian Langenfeld, has an interest in and a history of attending meetings of the Toronto Police Services Board (the “TPSB”), and its committees. He brings an application to challenge the constitutionality of a practice instituted in June 2017 by the Chief of Police of the Toronto Police Service, Mark Saunders (“the Chief of Police”), to require all individuals who wish to enter the police headquarters building at 40 College Street (“police headquarters”) to submit to a search. The search involves the individual being “wanded” with a metal detecting wand, and having any bags manually searched.

[2] The applicant argues that these searches violate the right to freedom of expression, protected by s. 2(b) of the Canadian Charter of Rights and Freedoms (“the Charter”), to the extent they are applied as a condition precedent to attending the meetings of the TPSB, which are required under the Police Services Act, R.S.O. 1990, c. P.15, (with limited exceptions) to be public. I should make clear that the searches are not targeted at individuals attending TPSB meetings. Rather, they are applied (with limited exceptions that are not at issue) to all members of the public who want to enter police headquarters.

[3] The applicant further argues that the limitation on the right to freedom of expression imposed by the searches is not justified under s. 1 of the Charter for two reasons. First, he argues that the Chief of Police does not have the legal authority to impose these searches on individuals who wish to attend public TPSB meetings. Second, he argues that on the record before the court, the searches are not a reasonable limit and not minimally intrusive.

[4] Although not expressly stated his application materials, it is clear that that applicant seeks a remedy under s. 24(1) of the Charter, as he frames the relief he seeks as an “injunction”. Further, he is challenging government action, not legislation, which also speaks to a remedy under s. 24(1) of the Charter. The Applicant has served a Notice of Constitutional Question on the provincial and federal Attorneys General, as required by s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Neither Attorney General participated in this application.

[5] The Chief of Police argues that the searches do not infringe the applicant’s freedom of expression protected by s. 2(b) of the Charter. He further argues that if there is an infringement of the applicant’s freedom of expression, it is justified under s. 1 of the Charter.

[6] The Chief of Police argues that he has the authority under both the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, and the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, to require any individual entering police headquarters to submit to a search for security purposes. The Chief of Police argues that the searches are required by the changing security landscape. He argues that the searches are reasonable and minimally intrusive in that they involve wanding with a metal detecting wand, and a search of any bags. He argues that the searches are similar in nature to searches imposed at courthouses, and at public events held at large private venues, such as sporting events and concerts.

[7] The TPSB only made submissions on a jurisdictional issue about whether the substance of the application was a matter for judicial review before the Divisional Court. I address that issue below.

[8] The primary issues I must consider in deciding this application are as follows:

1. Whether the relief sought by the applicant should be sought before the Divisional Court, rather than before a single judge of the Superior Court?

2. Whether the searches infringe s. 2(b) of the Charter, to the extent that they are a condition precedent to being allowed to attend public TPSB meetings?

3. Whether the Chief of Police has legal authority to impose the searches – in other words, are the searches “prescribed by law”?

4. If the Chief of Police has the legal authority to impose the searches, are the searches justified in order to achieve a pressing and substantial objective, and reasonable, minimally intrusive and proportionate?

[9] At the outset, I highlight two issues that are not before the court. The first is the discretion of the TPSB to decide where to hold its meetings. As will become clear in these reasons, in my view, the constitutional issues in relation to the searches arise out of the fact that the TPSB has a practice of holding its regular meetings at police headquarters. The ability to attend TPSB meetings engages freedom of expression concerns because they are government meetings required by statute to be open to the public. On the record before the court, I make no finding as to whether public access to police headquarters for other purposes, such as access to the offices of the Toronto Police Service or the Ontario Association of Chiefs of Police, who also occupy police headquarters, engages freedom of expression. These issues are not before me. However, while the fact that the TPSB has chosen to hold its public meetings at the police headquarters building is the factual context against which I must consider the legal issues before the court, no party is asking the court to make any order or direction regarding the location for TPSB meetings.

[10] A second issue which is not before the court is the question of whether having security searches at the entrance to major public buildings is a good policy. Reasonable people may differ as to the merits of this type of policy decision, particularly in the developing security climate around the world, including in Canada. Reasonable people may differ as to where we should strike the balance between safety and security, and having an open society. The issues I must consider focus on whether the searches infringe freedom of expression, whether the Chief of Police has the legal authority to impose these searches in the context of the right of individuals to attend the public meetings of the TPSB, and if so whether the searches are imposed in a manner that is reasonable and minimally intrusive of constitutional rights.

Factual Background

[11] The affidavits filed by the applicant on this application set out in some detail his interest in and attendance at TPSB meetings since 2013. I will not detail his attendance TPSB meetings, as the legal issues raised in this application are general, and impact any individual who wishes to attend a public TPSB meeting. However, I observe that the applicant’s past attendances at TPSB meetings and his continuing interest in attending them is sufficient to give him standing to bring this application.

[12] The applicant has chosen not to submit to the searches under the new practice in place since June 2017. Because he will not submit to being searched, he has not been able to attend the public meetings of the TPSB or its committees since the searches were implemented, except for one meeting in September 2017, when a member of the TPSB vouched for him and he was permitted to enter without being searched.

[13] The basic facts concerning the searches at issue are uncontested, making this proceeding appropriate to be considered by way of an application under rule 14.05(3)(g.1) and (h) of the Rules of Civil Procedure.

[14] Before June 2017, no searches were imposed on members of the public attending at police headquarters.

[15] In June 2017, the Chief of Police instituted a practice requiring all members of the public (non-service personnel) entering police headquarters to submit to a search. If members of the public refuse to submit to a search, they will not be permitted to enter the building. Written notices have been placed at the public entrance to the building stating that people entering the building are subject to security screening.

[16] The court officers who conduct the searches are special constables, similar to the officers who conduct searches at the entrances to courthouse in the City of Toronto. According to an affidavit filed on behalf of the Chief of Police, the only task assigned to the court officers conducting the searches is to ensure that people and belongings entering police headquarters are screened for weapons and dangerous items.

[17] The search involves “wanding” a person’s body with a metal detecting wand, and physically searching any bags the person has with them. The searches are conducted anonymously. Members of the public are not required to identify themselves. There is also an “amnesty box”. The purpose of this box is that if a person has something with them that they are concerned will be a problem in the search, but the person still wants to enter the building, the person may remove the item from their person or their bag and place it in the amnesty box. The record is clear that if an individual puts something in the amnesty box prior to being searched, there will not be any consequences, although they will not be permitted to retrieve the item. The record is less clear as to what happens if an item of concern is found on an individual or in their bag during the search process. Although the court officers who conduct the screening do not have the authority to seize items or conduct investigations, the record discloses that at times they will request the assistance of police officers. I flag this issue simply to note that although the officers doing the screening do not have the authority to seize items or investigate, I am not persuaded that there is no possibility that an investigation, detention, arrest or criminal charges may flow from these searches.

[18] As I have noted, this practice of searches for all members of the public entering the police headquarters building was put in place in June 2017. Prior to that time, individuals who wished to attend public TPSB meetings held at police headquarters were not subject to any type of search to enter the building or attend the meeting.

[19] I will not go into detail about the evidence that the Chief of Police argues justifies the new search practices. However, at this stage I will note that Chief of Police filed affidavit evidence supporting his position that changes in the security landscape in society made it necessary to subject all people entering police headquarters to a search. There is also evidence in relation to other locations, such as courthouses and large venues for sports or concerts, where members of the public are subjected to screening processes similar to that imposed at police headquarters in June 2017.

Legislative context

(i) [Police Services Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p15/latest/rso-1990-c-p15.html)

[20] The Police Services Act, R.S.O. 1990, c. P.15, governs policing in Ontario. Several provisions of the Act address the roles of a Chief of Police of a municipality and the police services board, respectively, as well as the policy-making powers of a police services board, and the conduct of meetings of police services boards.

[21] Section 27 of the Police Services Act provides that every municipality that has a police service shall have a police services board, and provides for the composition of the board. The TPSB is the City of Toronto’s police services board.

[22] Section 31 sets out the responsibilities of police services boards. Section 31 creates a general duty on police services boards to provide for adequate and effective policing of a municipality, as well as a number of specific enumerated duties.

[23] Section 35 provides for meetings of police services boards. Meetings are required to be held at least four times per year. Section 35(3) provides that: “Meetings and hearings conducted by the board shall be open to the public, subject to subsection (4), and notice of them shall be published in the manner that the board determines.”

[24] Section 35(4) creates a limited exception to the rule of public meetings as follows:

(4) The board may exclude the public from all or part of a meeting or hearing if it is of the opinion that,

(a) matters involving public security may be disclosed and, having regarding to the circumstances, the desirability of avoiding their disclosure in the public interest outweighs the desirability of adhering to the principle that proceedings be open to the public; or

(b) intimate financial or personal matters or other matters may be disclosed of such a nature, having regard to the circumstances, that the desirability of avoiding their disclosure in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that proceedings be open to the public.

[25] Section 37 provides the board with authority to make its own rules of procedure: “A board shall establish its own rules and procedures in performing its duties under this Act and, except when conducting a hearing under subsection 65(9), the Statutory Powers Procedure Act does not apply to the board.”

(ii) TPSB By-law 161

[26] The TPSB has adopted by-law number 161, A By-law to Govern the Proceedings of the Toronto Police Services Board and its Committees, under its authority to establish its own rules and procedures under s. 37 of the Police Services Act. By-law number 161 contains a number of provisions which have relevance to TPSB meetings, the relationship between the TPSB and the Chief of Police, and the TPSB’s powers in relation to policy making.

[27] Section 11 of by-law 161 provides for the regular meetings of the TPSB, which are to be held at least four times each year, or more frequently at the direction of the TPSB. Section 11.2 provides that the TPSB will hold its regular meetings at police headquarters, or at such other time and place as may be determined by the TPSB. The record before the court establishes that the TPSB’s current practice is to hold its regular meetings at police headquarters, once a month.

[28] Section 13 of by-law 161 addresses public and confidential meetings. Section 13.1 of the by-law provides as follows: “Meetings of the Board will be open to the public except as authorized by subsection 35(4) of the Act or as may be legally permitted or required.” I note that the application brought by Mr. Langenfeld only concerns public meetings. For this reason, I do not address the provisions of the by-law regarding meetings which are permitted to be confidential under s. 35(4) of the Police Services Act.

[29] Section 4.5(a) of by-law 161 provides that the TPSB cannot waive the rule set out in s. 13 regarding its meetings being open to the public.

[30] Without going into great detail, I note that s. 17 of the by-law contains provisions regulating public deputations (i.e., submissions) at TPSB meetings. In general terms, these provisions provide for notice requirements, time limits on public submissions, limit speakers to prevent speaking on extraneous topics, or speaking disrespectfully or using offensive language, and make clear the authority of the Chair of the meeting to regulate debate. Section 18 of the by-law addresses the behavior of members of the public who attend TPSB meetings, including that they may not address the board without permission, may not bring signs or placards, interfere with board deliberations, or engage in improper conduct (which is defined to mean, essentially, obstructing a meeting).

[31] Against this backdrop, the issue before the court is whether generally worded provisions of the Occupiers’ Liability Act and the Occupational Health and Safety Act give the Chief of Police the authority to search individuals who wish to attend meetings of the TPSB, within a practice imposed by the Chief of Police to search all people who enter police headquarters pursuant to an objective of making police headquarters safe for employees and other members of the public who enter the building,

Jurisdictional issue

[32] In its written and oral submissions, the TPSB raised the issue of whether the relief sought by the applicant was in the nature of judicial review, and for that reason was within the jurisdiction of the Divisional Court, rather than a single judge of the Superior Court, pursuant to the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

[33] It became clear during oral submissions on the application that, to a large extent, the TPSB was raising this jurisdictional argument out of an abundance of caution. Because Mr. Langenfeld was representing himself, although the substance of his concern about the searches prior to entry to public TPSB meetings was quite clear, the finer points of the legal basis of his claim were less clear than they may have been had he been represented by counsel. I do not say this as a criticism of Mr. Langenfeld. I say it only to explain why the TPSB raised the jurisdictional issue, even though it was not clear that the arguments relied on by Mr. Langenfeld actually raise this jurisdictional concern.

[34] The jurisdictional concern raised by the TPSB hinges on construing Mr. Langenfeld’s submissions in a particular way. Indeed, the TPSB conceded that the Charter issues raised by Mr. Langenfeld are within the jurisdiction of a single judge of the Superior Court. The jurisdictional concern of the TPSB only arises to the extent that Mr. Langenfeld’s argument in relation to the Chief of Police is understood as an argument that the Chief of Police is exceeding his statutory powers and usurping the TPSB’s statutory powers in imposing the searches. It further requires understanding Mr. Langenfeld’s submissions as seeking to require the TPSB to exercise its policy-making authority to make a policy addressing searches of individuals prior to attending TPSB public meetings.

[35] During the oral argument of the application, in response to this jurisdictional argument made by the TPSB, Mr. Langenfeld clarified two points that relate to the jurisdictional issue. First, Mr. Langenfeld is not arguing that the Chief of Police created a policy, and thus challenging that policy (which might engage the issue of whether the Chief of Police was exercising a statutory power of decision). Rather, Mr. Langenfeld argued that he is challenging actions of the Chief of Police in requiring individuals entering police headquarters to submit to a search. In particular, it is Mr. Langenfeld’s position that the searches are unconstitutional, and that the Chief of Police has no legal authority to implement the practice of the searches at issue.

[36] Second, Mr. Langenfeld submitted that although the TPSB has not to date exercised its policy-making authority to create a policy to address the issue of security searches prior to entry into TPSB meetings, he was not arguing that the TPSB is required as a matter of law to exercise that statutory authority. Rather, his submission was that if the TPSB decides in the future to exercise that authority, it should be required to do so in a transparent manner and in consultation with the public.

[37] As a result of these clarifications by Mr. Langenfeld, I find that the jurisdictional issue raised by the TPSB does not arise, and I find that I have jurisdiction as a single judge of the Superior Court to decide this application.

[38] On the first point of clarification, Mr. Langenfeld is not challenging a policy created by the Chief of Police, or the exercise of anything that would fall within the definition of a “statutory power of decision” under the Judicial Review Procedure Act. Rather, he is challenging the actions of the Chief of Police in requiring (via the staff posted at the front door) that individuals who wish to attend public TPSB meetings must submit to a search as a condition precedent to attending a meeting. This is an issue of the constitutionality of government action, but action that does not involve the purported exercise or non-exercise of a “statutory power of decision” as defined in the JRPA. The issue is thus properly within the jurisdiction of a single judge of the Superior Court: Halpern v. Toronto (City) Clerk, [2000] O.J. No. 3213 at paras. 10-14 (SCJ); Di Cienzo v. Ontario (Attorney General), 2017 ONSC 1351.

[39] On the second point, it is clear that Mr. Langenfeld is not seeking a remedy in the nature of mandamus to compel the TPSB to create a policy about perimeter searches prior to entry into the building. He takes no position on whether or not the TPSB should create a policy addressing this issue. To that extent his argument and the relief he seeks is not in the nature of judicial review, and is properly heard by a single judge of the Superior Court.

[40] However, there is one aspect of the relief sought by Mr. Langenfeld which would properly be within the jurisdiction of the Divisional Court under the JRPA. That is the issue of Mr. Langenfeld’s argument that if the TPSB chooses in the future to make a policy addressing security searches prior to entry to the police headquarters building, it should be required to do so transparently, and in consultation with the public. If I felt that this issue properly arose on the record before the court, I would be of the view that it was a matter for the Divisional Court, because it seeks a remedy in the nature of mandamus, directing the TPSB on the manner in which to exercise its policy-making function.

[41] However, I find that this issue is not properly raised on the record before me. At this stage, the issue is speculative and premature to be brought before a court for decision. In essence, I find that it is not “ripe” for decision, to use the language of the mootness and ripeness case law: Lorne Sossin, “Mootness, Ripeness and the Evolution of Justiciability” in Annual Review of Civil Litigation, 2012 (Carswell: Toronto, 2012). For this reason, I find that it is not necessary to refer this issue to the Divisional Court.

[42] To date, the TPSB has not made a policy addressing security searches for people attending TPSB meetings. The TPSB may or may not decide to create such a policy in the future. Thus, considering this issue depends on future events which may or may not occur. Reviewing a policy by the TPSB about security searches for people attending TPSB meetings would likely give rise to the jurisdictional issue the TPSB has raised and be a matter for the Divisional Court. However, because the matter depends on future events, I find that it is not appropriate for me to rule on the manner in which the TPSB would have to develop a policy on security searches for people attending meetings, if it decides in the future to develop such a policy.

Do the searches infringe the right to freedom of expression under [s. 2(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[43] As noted above, the TPSB did not make submissions on the s. 2(b) or the s. 1 issues. The Chief of Police argues that the screening process does not infringe s. 2(b). The Chief of Police argues that the act of attending a meeting does not have expressive content. The Chief of Police argues that because there is an option to watch televised TPSB meetings, and make submissions remotely, the searches as a precondition to attending in person do not infringe s. 2(b). Further the Chief of Police argues that if the applicant’s freedom of expression was infringed, the infringement did not result from government action, but from the applicant’s choice not to submit to a search.

[44] I reject each of these arguments. I find that the searches as a condition precedent to attending a public TPSB meeting infringe the applicant’s freedom of expression.

[45] The Supreme Court has repeatedly recognized that in some respects government property, or public property, is similar to property held by private parties, and in some respects it is different: Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Montreal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141 at paras. 60-81; CBC v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19.

[46] Based on this recognition that government property in some situations is similar to private property, but in some situations implicates different values, the Supreme Court has established an analysis for freedom of expression claims that considers the nature and uses of the government property as party of the s. 2(b) analysis.

[47] The analysis to assess if government action (or legislation) constitutes an infringement of freedom of expression is well established:

1. Does the activity in question have expressive content, thereby bringing it, prima facie within the scope of s. 2(b) protection?

2. Is the activity excluded from protection as a result of either the location or method of expression?

3. If the activity is protected, does an infringement of the protected right result from either the purpose or the effect of government action? (Montreal (City) v. 2952-1366 Québec Inc., at paras. 60-81; CBC v. Canada (Attorney General), at paras. 33-38; Irwin Toy Ltd. v. Québec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927 at pp. 967-971)

[48] I find that the applicant has satisfied his onus under each branch of the test.

[49] On the first branch, I find that attendance at the TPSB’s public meetings, which are public meetings of an institution of government, has expressive content.

[50] As I have outlined above, s. 35 of the Police Services Act requires, subject to limited exceptions, that meetings of police services boards be conducted in public. Like other aspects of the municipal governance, this statutory requirement of openness fosters the objective of public confidence in decision making through transparency and accessibility to the public: London (City) v. RSJ Holdings Inc., 2007 SCC 29, [2007] 2 S.C.R. 588. This rationale of fostering public confidence in the decision making of an institution of government through transparency and accessibility is similar to the rationale for the open courts principle (it differs only in that the open courts principle has a further basis of ensuring that litigants are treated fairly): Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326.

[51] The right of individuals to attend court proceedings has been held to be protected by s. 2(b) of the Charter: Edmonton Journal; CBC v. Canada (2011). The reasoning for finding that attendance at court proceedings is protected expression rests primarily on two pillars. The first pillar is that public confidence in the courts, an important institution of democratic government, is fostered by transparency and accessibility. The second pillar is that freedom of expression protects listeners as well as speakers, particularly in the context of members of the public receiving information about the activities of public institutions.

[52] I find that the same reasoning applies to the right to attend public meetings of government bodies, such as police services boards. The Police Services Act makes public meetings the default for police services boards in order to foster public confidence in the decisions of the boards, by way of transparency and accessibility. Police services boards perform an important democratic function. Thus, I find that the right of members of the public to attend public meetings of police services boards is protected by s. 2(b) of the Charter.

[53] I note that I find that attendance at public police services board meetings is an activity protected by s. 2(b) of the Charter whether or not the person attending intends to speak at the public meeting. That is, the right to attend and be informed of the activities of a government body at a public meeting has expressive content. Further, the right to make submissions to the government body, if it is a body that receives submissions, as the TPSB clearly does according to its by-laws, also engages freedom of expression.

[54] I accept that the right to attend meetings of government bodies is not unlimited. In the present case, the Police Services Act is clear that in limited circumstances a police services board has the authority to close meetings to the public. The Police Services Act is also clear that a police services board has the authority to make policies and procedures governing the conduct of its meetings. But I find that, at a minimum, where the law provides that a meeting of a government body is open to the public, the right of an individual to attend the meeting and listen to the deliberations, and if the procedures of the government body permit public participation, to make submissions, is protected by the s. 2(b) right of freedom of expression.

[55] The applicant clearly set out in his affidavits filed on the application his history of attending meetings of the TPSB and its committees, and of making submissions at some meetings. Thus, I find that his activity of activity of attending a public meeting of the TPSB has expressive content.

[56] With respect, it is formalistic, and not a fair characterization of the applicant’s actions to characterize what he was doing as simply attending at the premises of the police headquarters. Clearly he was intending to attend public meetings of the TPSB, and was only dissuaded from doing so by the prospect of a search as a pre-condition to entering.

[57] On the second branch of the s. 2(b) analysis, I find that nothing in the location or method of the applicant’s expression removes it from the protection of freedom of expression.

[58] In this case, the applicant sought to attend a meeting of the TPSB that was required by statute to be a public meeting. It is a public meeting of a government body. This is classically a place for expressive activity, in particular, the expressive activity of attending the public meeting, hearing the deliberations of the government body, and of speaking, if it is the type of meeting where the public is permitted to participate. Indeed, it involves political speech which is at the core of the right protected by s. 2(b) of the Charter. TPSB by-law 161 makes clear that submissions from the public are permitted at TPSB meetings, if done in accordance with the procedures set out in the by-law. In light of the fact that the TPSB holds its public meetings in police headquarters, I find that historic and actual function of the location is consistent with it being a place for expressive conduct, in particular the expressive conduct of attending a public meeting of an institution of government.

[59] Nor do I find that other aspects of the place suggest that expression within it would undermine the values of free expression. I accept that the evidence before the court shows that the police headquarters building is used for a variety of purposes, some of which are for practical purposes not public, and akin to use as an office building. But the claim put forward by the applicant is not a claim to have free run of the building. He seeks to attend the meetings of the TPSB, which are generally held in an auditorium on the second floor. These meetings are public, and are consistent with a place for expressive activity.

[60] The Chief of Police submits that attending the TPSB meetings in person does not have expressive content because there is an available alternative means of attending, which is to watch the meeting on the TPSB website or on the Toronto Police Service YouTube channel, and make a submission remotely.

[61] I reject the argument that the availability of attending the meeting remotely removes the expressive content of attending the meeting in person. The fact that there is another method of participating in the meeting does not remove the expressive content of attending in person. The availability of alternate means of expression is certainly a relevant factor under s. 1 of the Charter, but the availability of alternate means does not remove the preferred means (attendance at the meeting in person) from the realm of expression protected by s. 2(b) of the Charter. Further, I accept the applicant’s argument that making a submission remotely is not as effective as attending a meeting in person to make a submission because, if a submission is made remotely, he would lose the ability to ask follow up questions.

[62] On the third branch of the s. 2(b) analysis, I find that the searches implemented by the Chief of Police have the effect of infringing freedom of expression. I accept that limiting political expression was not the Chief of Police’s purpose. However the effect of the searches is to limit expression by making public access to TPSB meetings contingent on submitting to a warrantless search. Imposing a condition precedent to attending a public meeting such as undergoing a search has the effect of limiting the right to freedom of expression. In this case, the individual is required to make a choice to give up their right to privacy, in particular the right be free from a warrantless search, conducted without reasonable and probable grounds or even reasonable suspicion, or give up his or her right to freedom of expression to attend the meeting.

[63] I find that the reasoning of the Ontario Court of Appeal in Figueiras v. Toronto (Police Services Board), 2015 ONCA 208, 124 O.R. (3d) 641, supports the applicant’s argument that the searches put in place by the Chief of Police, which have the effect of imposing a requirement to be searched as a condition precedent to attend a public meeting of the TPSB, infringe the applicant’s s. 2(b) right to freedom of expression.

[64] In Figueiras, the appellant had challenged the constitutionality of the police purporting to act under common law police powers to require demonstrators walking down a public street to submit to a search of their belongings if they wished to proceed. The Charter challenge in Figueiras was brought under ss. 2(b), 2(c) and 7. I will only consider the case as it relates to s. 2(b) of the Charter.

[65] In Figueiras, the Court of Appeal held that the police search in the above circumstances infringed the appellant’s s. 2(b) right to freedom of expression: Figueiras, at paras. 67-78. In part, that holding was based on particular factual findings about the officers’ intent that are not applicable to the present case: Figueiras, at paras. 75-76. However, the Court of Appeal also considered the effects of a search in these circumstances. In particular, Rouleau J.A., writing for the court, made the following comment about the effects of the asserted search at para. 77:

In any case, stopping protesters and requiring that they submit to a search as a condition to being able to carry on their protest as they walk down a public street has the effect of restricting freedom of expression. This conduct thus constitutes a prima facie infringement of Mr. Figueiras’ freedom of expression under both branches of the Irwin Toy test. As I will explain later in my reasons, where the search imposed is not authorized by statute or under the common law, a violation will be made out.

[66] I appreciate that the s. 2(b) interest at stake in Figueiras is not identical to the interest in this case. In Figueiras, the s. 2(b) right concerned the right to engage in political speech – a demonstration – on a public street. In this case, the s. 2(b) interest at stake is the right to attend a public meeting of a government body, but one that is held on government owned property, not on a public street. I find that this difference of location may well give rise to a different contextual balancing at the s. 1 justification stage. But I find that the different location in this case does not remove the applicant’s right to attend a public meeting of a government body from the protection of s. 2(b). Attending such a meeting is protected expression, close to the core of the right – it is political speech. The holding in Figueiras that imposing a search of one’s person or belongings as a condition precedent to engaging in protected expression infringes the right to freedom of expression is applicable to this case.

[67] A requirement to undergo a warrantless search, conducted in the absence of reasonable and probable grounds or reasonable suspicion, as a condition precedent to attending a public meeting of government is an infringement of the right to freedom of expression. I am not suggesting that such searches can never be justified on grounds of public safety and security, if there is lawful authority to conduct them, but I am satisfied that the case law is clear that such searches infringe freedom of expression.

[68] Thus, I find that the practice of security searches prior to entry into police headquarters as applied to members of the public who wish to attend the public meetings of the TPSB infringes the s. 2(b) Charter right of freedom of expression.

[69] Before moving on to the issue of whether the searches are justified under s. 1 of the Charter, I want to briefly address the issue of whether there could be a freestanding s. 8 claim. Mr. Langenfeld brought his Charter claim only under s. 2(b) of the Charter, as a freedom of expression claim based on the right to attend a public government meeting. In oral submissions he advised the court that he did not bring a freestanding claim under s. 8 for unreasonable search and seizure, because he was of the view that since he had chosen not to submit to a search, he was prevented from raising a s. 8 claim. I will not rule on a freestanding s. 8 claim because the application was not argued on that basis, but I have doubts as to whether Mr. Langenfeld is correct that he cannot bring a s. 8 claim because he chose not to submit to a search.

[70] As the matter was not argued as a freestanding s. 8 claim, I do not rule on this issue. But my not ruling on s. 8 should not be taken as a holding that there could not be a s. 8 claim in these circumstances where a person chooses not to submit to the search. It is really a question of standing. To my mind, there is an argument to be made that an individual who wants to attend a public meeting of a government body, who is faced with the choice of submitting to a search, or not attending the meeting, and chooses not to be searched and not to attend the meeting, has standing to challenge the government action of carrying out searches as a pre-condition to attending the meeting as an unreasonable search and seizure under s. 8 of the Charter.

Are the searches a reasonable limit on rights under [s. 1](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[71] The test for justification set out by the Supreme Court of Canada in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, is well-established. It focuses on whether the state objective put forward to limit constitutional rights is sufficiently important to justify a limit on rights, and if so, whether the limit is a reasonable, minimally intrusive and proportionate restraint on constitutional rights.

[72] However, there is another step that must be taken before a court gets to the assessment of the reasonableness of a limit on rights as part of the justification inquiry, which is whether the limit is “prescribed by law”, as required by s. 1 of the Charter. The requirement that limits on rights be prescribed by law is an aspect of the rule of law. It ensures that a state actor seeking to limit rights in fact has the authority to impose the limitation on rights that it seeks to impose. It also serves the function of giving citizens notice of legal requirements: Greater Vancouver Transportation Authority at paras. 50-51.

[73] The Chief of Police relies on Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038 to argue that the Occupiers’ Liability Act and the Occupational Health and Safety Act give him a discretion as to how to carry out his obligations under each piece of legislation. Pursuant to Slaight, the Chief of Police argues that the generally stated duties in the Occupiers’ Liability Act and the Occupational Health and Safety Act, give him authority to impose searches, and to limit Charter rights in doing so.

[74] Issues relating to whether a limit on rights is prescribed by law have arisen in various contexts. One example is whether a law is too vague to be prescribed by law because its vagueness has the effect of denying citizens the right to know what the law is in advance. Vagueness is an issue which can be considered either under s. 1 or under s. 7 of the Charter: R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606 at pp. 621-632. Another example of whether a law is prescribed by law is whether the form of the law is sufficient for it to be “prescribed by law” – whether legislation, a regulation, or a policy, and in the latter group, which levels of policies are sufficient to constitute limits prescribed by law: Greater Vancouver Transportation Authority at paras. 50-73.

[75] Neither of these first two types of prescribed by law problem that arises in this case. Rather, this cases raises a third type of prescribed by law issue, which is whether, where legislation does not expressly confer to the power to limit constitutional rights, when can a power to limit rights be inferred from the legislative context (or from a common law rule)?

[76] In the words of Justice LeDain in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613 at p. 645: a limit will be prescribed by law where the power to impose the limit is “expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements. The limit may also result from the application of a common law rule.” The issue of when the power to limit constitutional rights can be implicit in a legislative grant of authority has been considered by the Supreme Court of Canada in a variety of contexts. Slaight Communications at pp. 1074-1081 referred to by counsel for the Chief of Police is one example. Others include: Greater Vancouver Transportation Authority at para. 52; R. v. Therens at p. 645; R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3 at paragraphs 34-53.

[77] Cases where a power to limit constitutional rights is claimed to be incidental or implicit in a statute or regulation, rather than express, are fundamentally problems of statutory interpretation. The court must consider whether a general authority, which does not expressly provide a power to limit constitutional rights or an express power to carry out specific acts (in this case searches), should be interpreted as conferring that authority. In this case, the question is whether the two pieces of legislation that the Chief of Police relies on as authority to conduct the searches, the Occupiers’ Liability Act and the Occupational Health and Safety Act, provide authority to the Chief of Police (or his designates) to conduct searches of individuals who wish to attend a public meeting of the TPSB?

[78] This question must be answered using ordinary tools of statutory interpretation, including, and of particular importance in this case, the legislative history.

[79] Neither the Occupiers’ Liability Act, nor the Occupational Health and Safety Act expressly provides for the right of the Chief of Police to conduct searches of people entering police headquarters. The argument of the Chief of Police is that both statutes allow such searches as incidental to the duties they impose: in the case of the Occupiers’ Liability Act, the duty to ensure that the premises are safe for those who enter; and in the case of the Occupational Health and Safety Act, the duty to ensure a safe workplace for employees. In particular, the Chief of Police relies on s. 3 of the Occupiers’ Liability Act, which imposes a duty on an 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 property brought on the premises by those persons are reasonably safe while on the premises.” The Chief of Police relies on ss. 32.0.1 to 32.0.8 of the Occupational Health and Safety Act, which impose duties on an “employer” to prepare and implement policies and programs with respect to workplace violence and harassment.[^1]

[80] The applicant clearly set out in his written and oral submissions his reliance on the fact of the repeal of the Public Works Protection Act, R.S.O. 1990, c. P.55, as supporting his argument that the Chief of Police does not have legal authority to impose the searches prior to entry into the police headquarters building. As I will explain, prior to the repeal of the Public Works Protection Act, that statute provided authority for the type of search the Chief of Police has put in place at police headquarters. The applicant argues that the repeal of the Public Works Protection Act in the wake of what the legislature perceived to be its abuse during the G20 Summit in Toronto in the summer of 2010, is evidence of a legislative intent to remove the legal authority to conduct the type of searches the Chief now seeks to impose, at least in the context of public spaces that engage freedom of expression values. On this basis, the applicant argues that the Chief of Police does not have the legal authority to impose the searches, and that the limit on freedom of expression is not prescribed by law.

[81] As I have noted, the TPSB only made written and oral submissions on the jurisdictional issue of whether the application was properly heard as a judicial review by the Divisional Court. The TPSB did not address the issue of the legal authority of the Chief of Police to impose the searches.

[82] Nor did the Chief of Police address the issue of the impact of the repeal of the Public Works Protection Act on the legal authority of the Chief of Police to impose the searches either in its initial written submission or its oral submissions, despite the issue clearly being raised in the applicant’s written argument, and oral argument. Rather, the Chief of Police relied on the Occupiers Liability Act, and the Occupational Health and Safety Act. As I will explain below, subsequent to oral argument of the application, I requested additional submissions on the legislative history relating to the repeal of the Public Works Protection Act.

(i) Are the searches prescribed by law?

[83] The question of whether the searches carried out at the direction of the Chief of Police are prescribed by law as they relate to people seeking to attend public TPSB meetings is complex, and intimately related to the legislative history of the Public Works Protection Act.

[84] Until its repeal in 2015, the Public Works Protection Act provided clear authority which would have permitted and governed the type of search at issue in this case. However, the Public Works Protection Act was repealed by the legislature in 2015 as a result of perceived abuses of the legislation during the G20 Summit in the summer of 2010. When the Public Works Protection Act was repealed, it was replaced by much narrower legislation that does not apply to the situation in this application (I outline that legislative history in more detail below). Before the Public Works Protection Act was repealed, the provincial government retained former Chief Justice McMurtry to conduct a review of the Act. That review was considered by the legislature in its decision to repeal the Act, and replace it with the new narrower legislation, and is referred to in the legislative debates. Chief Justice McMurtry’s report considered various other sources of legal authority to conduct searches, including common law police powers, and other possible statutory authority. Thus, former Chief Justice McMurtry’s report, and the legislative debates are of assistance in assessing the legislative intention in repealing the Public Works Protection Act.

[85] It is important to be very clear about what the Chief of Police does and does not argue in this application as the legal authority for the searches. The Chief of Police does not rely on common law police powers as set out by the Supreme Court of Canada in cases such as R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, building on the English authority of R. v. Waterfield, [1963] 3 All E.R. 659. Nor does the Chief of Police does not rely on the Trespass to Property Act, R.S.O. 1990, c. T.21. Rather, the Chief of Police argues that the legal authority to conduct searches that include individuals seeking to attend TPSB meetings held in the police headquarters building is found in the Occupiers’ Liability Act, and the Occupational Health and Safety Act.

The [Public Works Protection Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p55/latest/rso-1990-c-p55.html) and its repeal

(a) The Old and new legislation

[86] Until its repeal became effective in June 2015, the Public Works Protection Act, R.S.O. 1990, c. P.55, provided clear legal authority for the type of search the Chief of Police sought to impose at police headquarters. The relevant portions of the Act, for the purposes of this application, provided as follows:

“public work” was defined to include: “any provincial and any municipal public building”

Section 3 of the Act provided as follows:

A guard or peace officer,

(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and address, to identify himself or herself and to state the purpose for which he or she desires to enter the public work, in writing or otherwise;

(b) may search, without warrant, any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger; and

(c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering.

[87] I note that a “guard” meant a person appointed under the Act, and could be appointed by the Solicitor General, the Commissioner of the OPP, any inspector of the OPP, the head or deputy head of a municipal counsel or the chief of police of a municipality, or the chair or head of a board or commission or other body having charge of a public work (definition of “guard”, and s. 2 of Act).

[88] The headquarters of the Toronto Police Service is undoubtedly a “municipal building”. Section 3(b) of the Public Works Protection Act provided the legal authority to search individuals prior to entry into the building. If the individuals that the Chief of Police wanted to conduct the searches were not already peace officers, the Chief of Police had the authority under s. 2(d) to appoint them as “guards” under the Act.

[89] The Public Works Protection Act was repealed, effective June 2015, by An Act to Repeal the Public Works Protection Act, Amend the Police Services Act with Respect to Court Security and Enact the Security for Courts, Electricity Generating Facilities and Nuclear Facilities Act, S.O., 2014, c. 15. At the same time as the Public Works Protection Act was repealed, it was replaced with much narrower, more targeted legislation, which amended the Police Services Act provisions in relation to security and searches at courthouses, and enacted a new statute, the Security for Courts, Electricity Generating Facilities and Nuclear Facilities Act, 2014, S.O. 2014, c. 15 to provide for security for electrical generating facilities and nuclear facilities.

[90] In relation to the power to conduct searches, this new legislation in many ways replicated the provisions of the Public Works Protection Act, but only did so for three types of facilities: courthouses, electricity generating facilities, and nuclear facilities. In relation to courthouses, ss. 138 to 142 were added to the Police Services Act to supplement s. 137. In relation to electricity generating facilities and nuclear facilities, search powers were enacted in the new Security for Courts and Electricity Generating Facilities and Nuclear Facilities Act.

[91] Notably, the new legislation does not have the general application to “any provincial and any municipal public building” which had existed under the Public Works Protection Act.

(b) The Legislative debates in relation to the repeal of the [Public Works Protection Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p55/latest/rso-1990-c-p55.html)

[92] As I have noted, in his written and oral submissions, the applicant very clearly relied on the legislative history of the repeal of the Public Works Protection Act and its replacement with narrower new legislation. However, neither the applicant, nor any other party made submissions on the legislative debates in relation to the repeal of the Public Works Protection Act.

[93] Legislative debates are a source that courts may properly consider in engaging in statutory interpretation: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at paras. 34-35. For this reason, subsequent to the hearing of the application, while I had the decision under reserve, I offered the parties an opportunity to make submissions in relation to the legislative debates, including former Chief Justice McMurtry’s report, which was referred to in the legislative debates. The legislative debates and the report are available online at the following links (current as of June 2018):

https://www.ola.org/en/legislative-business/bills/parliament-40/session-1/bill-34/debates; https://www.ola.org/en/legislative-business/bills/parliament-40/session-2/bill-51/debates; https://www.ola.org/en/legislative-business/house-documents/parliament-41/session-1/2014-11-25/hansard#P1043_225666; https://www.ola.org/en/legislative-business/house-documents/parliament-41/session-1/2014-11-27/hansard#P1327_362884; https://www.ola.org/en/legislative-business/house-documents/parliament-41/session-1/2014-12-01/hansard#P933_221752; https://www.ola.org/en/legislative-business/house-documents/parliament-41/session-1/2014-12-10/hansard#P1400_288297; https://www.mcscs.jus.gov.on.ca/english/publications/PWPA_review.html

[94] Mr. Langenfeld and the Chief of Police made additional submissions in response to my offering an opportunity to make additional written submissions. The TPSB did not make any submissions in relation to the legislative debates or Chief Justice McMurtry’s report.

[95] In his additional submission, Mr. Langenfeld highlighted a number of passages of the legislative debates and committee submissions, as well as in Chief Justice McMurtry’s report. In general terms, Mr. Langenfeld’s submission is that the legislative intent in repealing the Public Works Protection Act and replacing it with narrower legislative authority for searches was to limit the situations in which searches could be imposed in relation to public property in order to strike a better balance with rights protected by the Charter. He further submits that the actions of the Chief of Police exceed the limitations created by the legislature when it repealed the Public Works Protection Act and replaced it with more tailored legislation.

[96] The Chief of Police made a number of submissions in his additional submission. The Chief of Police argues that the repeal of the Public Works Protection Act and its replacement with narrower legislation was primarily to address the concerns about the overbreadth and vaguess of the Act which resulted from its power to designate by regulation “any other building, place or work” as a “public work” (s. 1(c) of definition of “public work”), and the law’s broad application to “any approach to” a “public work” (ss. 3(a) and 5(1)). The Chief of Police argues that there was no discussion in the legislative debates about measures for security at places such as the legislature, or places of public gathering such as the Rogers Centre. The Chief of Police submits that he has the authority to impose searches prior to entry into police headquarters because the provincial legislature does so, and according to the Chief of Police’s submission, there is no legislation explicitly granting authority to search in relation to the provincial legislature. The Chief of Police argues that “if screenings are deemed impermissible at 40 College Street, the effect will be that all security screening measures, including the collection of personal information, required to make a security assessment will be called into question at legislative and other government buildings.” The Chief of Police also argues that the legislative history of the repeal of the Public Works Protection Act is irrelevant, because in his submission the searches prior to entry into police headquarters are consent searches, and therefore are not warrantless searches.

[97] I will review some significant portions of Chief Justice McMurtry’s report, and the legislative debates in considering these submissions and the issue of legislative intent.

[98] Following the G20 Summit held in the summer of 2010, the provincial government retained former Chief Justice Roy McMurtry to conduct a review of the Public Works Protection Act and, if appropriate, to make recommendations for legislative change. In carrying out his review, former Chief Justice McMurtry considered the historical and current uses of the Public Works Protection Act, public policy considerations with respect to the breadth of the Act, in particular concerns about balancing police powers and civil liberties, and other legal authority that could apply in a variety of circumstances to address security concerns, including common law police powers, powers under Police Services Acts, and other legislation.

[99] I consider Chief Justice McMurtry’s report as context in assessing the legislative intent in repealing the Public Works Protection Act and replacing it with narrower, targeted legislation. The report was commissioned by the provincial government as part of its consideration of whether to change the law, and, as I will discuss further below, was considered by the legislature in the debates surrounding the repeal of the Public Works Protection Act.

[100] I highlight a number of key aspects of Chief Justice McMurtry’s report. Chief Justice McMurtry noted concerns about the breadth of the definition of “public work” in the Act (at p. 18).

[101] In considering whether the powers under the Public Works Protection Act were necessary to protect public works, secure intergovernmental conferences, or for any other purpose, Chief Justice McMurtry considered common law police powers, powers under the Criminal Code, the Trespass to Property Act, and the Foreign Missions and International Organizations Act. I note that in considering the Trespass to Property Act, although Chief Justice McMurtry accepted that it can be used by government as a property owner to keep out unwanted people, as applied to “public” places, its use may raise Charter issues (pp. 23-31). I note as well that while Chief Justice McMurtry’s report addresses various possible statutory sources for legal authority to remove unwanted people from government property, there is no discussion of either the Occupiers’ Liability Act, nor the Occupational Health and Safety Act.

[102] A submission was made to Chief Justice McMurtry by the Ministry of Community Safety and Correctional Services that suggested that there was a lack of specific statutory authorization for policing authorities to take measures to carry out their mission. Chief Justice McMurtry rejected this position. In general terms he concluded that common law police powers were sufficient for police to respond to a serious accident or other emergency, or to regulate public events such as a parade. He also noted the police power to conduct warrantless searches in specific situations, such as exigent circumstances. However, he made the following comments about the prospect of routine searches by police (at pp. 31-35):

The police clearly have common law and statutory authority to conduct warrantless searches in specific situations (“in exigent circumstances”). However, when warrantless searches must be carried out on a regular, routine, basis, the police are acting more like full time security guards, and there should be specific statutory authority provided to give such powers. [emphasis added]

[103] I note that Chief Justice McMurtry makes a similar comment at p. 47 of the report, in recommending specific new legislation to address courthouse searches, rather than the broad approach of the Public Works Protection Act: “When warrantless searches are being done on a routine basis, it is advisable to have specific legislation providing peace officers with such power.”

[104] Chief Justice McMurtry also considered the impact of the Public Works Protection Act on various constitutional guarantees as part of his consideration of whether to recommend legislative change (at pp. 36-44). Of particular relevance to this application are concerns he notes in relation to s. 2(b) and s. 8 of the Charter. The section 2(b) context he considered was protesting in the public streets at an intergovernmental conference, which is not the same as the context before the court in this application. However, as I have explained, I am satisfied that there are s. 2(b) concerns in this case arising from the fact that the TPSB, an institution of government, is holding meetings required by statute to be public, in police headquarters.

[105] Ultimately, Chief Justice McMurtry concluded that the Public Works Protection Act should be repealed after the province had considered potential legislative gaps. I reproduce the following comments from pp. 44-45 and 55, which encapsulate his recommendations (the full recommendations are found at pp. 44 to 55 of the report):

Given the public policy considerations I have raised regarding the PWPA and Charter concerns that could arise, I recommend that the PWPA be repealed after the Province has considered potential policy and security gaps as a result of its repeal.

It appears from my consultations with stakeholder groups that, if the PWPA is repealed, there are two areas which may require legislation to provide specific peace officer powers. These two areas are court security and protection of nuclear power facilities and other power generating infrastructures.

The late Justice Jackson, of the United States Supreme Court, stated that every emergency power, once conferred, “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” The need to protect the public must be balanced with the requirement to preserve fundamental rights and freedoms.

Yet, at the same time, “Canadians are entitled to demand the best public order policing possible from their government.” There is no question that we live in a different world post 9/11. We live in difficult times with constant threats both domestically and from abroad. The police clearly need to be given adequate powers to carry out their duties. The police use their expertise on a daily basis to assess the powers they require. In instances when they take action that exceeds their powers, their actions are examined by various mandated bodies. This process, I believe, results in the proper balance between police powers and individual rights and freedoms. Therefore, any legislation that purports to grant special police powers must be specific and direct and developed in consultation with stakeholders and tested through debate in our transparent democratic system.

[106] As I read Chief Justice McMurtry’s recommendations, he found that the Public Works Protection Act was overly broad and posed a risk to civil liberties, including freedom of expression, security of the person, and the right to be free from unreasonable search and seizure. He found that existing legal authority, including common law police powers was sufficient to deal with police investigations, a serious accident or other emergency, as well as to regulate public events like parades. However, he found that if there was a desire for legal authority to conduct routine warrantless searches, there must be specific legislative authority to do so.

[107] I turn then to the legislative debates. An Act to Repeal the Public Works Protection Act, Amend the Police Services Act with Respect to Court Security and Enact the Security for Courts, Electricity Generating Facilities and Nuclear Facilities Act was before the legislature in several legislative sessions, as three different bills, Bill 34, Bill 51, and Bill 35. Thus, the legislative debates are from 2012, 2013 and 2014.

[108] A review of the legislative debates discloses concerns similar to those outlined by Chief Justice McMurtry in his review of the Public Works Protection Act, in particular, a concern that the Public Works Protection Act was overly broad, and that more targeted legislation would strike a more appropriate balance with civil liberties, and an intention that once the new legislation was enacted, any future change in the law to make it apply to additional public property would require legislation and public debate.

[109] I will not reproduce all of the legislative debates, but I reproduce some representative extracts [emphasis added]:

Bill 34

Madeleine Meilleur, Minister of Community Safety and Correctional Services, at the First Reading on February 22 2012: “The Public Works Protection Act previously allowed the province to designate any installation as a public work. Concerns were raised about whether the PWPA, which became law in 1939, is too broad and outdated. That legislation was passed at the outset of World War II, in an atmosphere of fear of sabotage of the province’s power plants, dams, bridges and other critical public infrastructure.

In response, the government asked the Honourable Roy McMurtry, a former Ontario Chief Justice, to review the legislation. In his report, Mr. McMurtry recommended its repeal and replacement. Mr. Speaker, we are moving ahead on the recommendations of Mr. Justice McMurtry. . . .

The McMurtry report recommended that the PWPA be repealed and that Ontario consider potential policy and security gaps as a result of its repeal. In response to Mr. McMurtry’s report, the government conducted extensive consultations to determine what measures would be needed to ensure security, should the PWPA be repealed.

These consultations sought input and advice from representatives of nuclear operators and regulators, electricity producers, justice partners and municipalities. We also consulted with civil liberty advocates to be sure that the appropriate balance was struck between security and civil liberty.

The bill we are introducing today has broad consensus among all of those stakeholders. I would like to thank both the Ombudsman and Mr. McMurtry for their work on this important issue.

The proposed legislation would do the following three things: repeal the Public Works Protection Act, set out a legislative amendment to the Police Services Act to address court security, and set out stand-alone legislation respecting security at prescribed electricity generating and nuclear facilities. . . .

In terms of other facilities, we’ve narrowed the list of public works to electricity generating and nuclear facilities. The legislation will apply to “prescribed electricity generating facilities” and “prescribed nuclear facilities.”

Unlike the PWPA, this act covers very limited categories of infrastructure. Prescribing any additional categories of infrastructure would require amendments to the act, as opposed to regulation. The process for changing an act is very transparent and open, and the content of any proposed amendments would be subject to public debate. . . .

Finally, Mr. Speaker, I would like to add that Ontario has long been a province in which human rights and civil liberties have been valued and celebrated. Our government recognizes that we have a responsibility to ensure that our courts and critical infrastructure are protected; however, we must always balance the need for security with a respect for civil liberties like the freedom of assembly and the principles of an open and transparent justice system. I believe that this legislation does indeed strike that necessary balance.”

Madeleine Meilleur, Minister of Community Safety and Correctional Services, at the Second Reading on February 28, 2012: “Madam Speaker, it’s important to note that adding other categories of infrastructure other than nuclear and electricity generating facilities would require amendments to the act and could not be achieved simply by a regulation. The process for changing an act is very transparent and open, and the content of any proposed amendments is subject to public debate, and that’s key for us.”

Soo Wong, Parliamentary Assistant to the Minister of Community Safety and Correctional Services, at the Second Reading on February 28, 2012: “The replacement legislation is focused on what we know to be the current uses of the PWPA for security at courthouses, nuclear facilities and large electricity generating facilities. Owners of other public works and the police have sufficient authority to address security needs at these facilities under other legislation, including the Trespass to Property Act.

It is one of the motivations behind our decision to make the addition of any new category of infrastructure possible only through legislative amendments. Changing an act is, by its nature, a transparent and open process. The content of any proposed amendment is subject to debates in the House and in committees. Public input would be sought. Once again, Madam Speaker, the process will be open and transparent, and that’s essential for us in helping to maintain the trust of Ontarians and for them to know that their safety and the respect of their charter rights is paramount for our government.”

Phil McNeely, MPP, March 5, 2012: If other infrastructure is identified in the future that should be included in the act, it would require a legislative amendment, consistent with Justice McMurtry’s recommendations and with what we have heard from civil liberties groups.

Because the list of infrastructure is quite limited and the content of any proposed amendments is subject to public debate, we are working to ensure transparency in the use and scope of this act.

David Zimmer, MPP, March 5, 2012: Just in conclusion, the old act was vague, it was overly comprehensive, it lacked definition, and, really, nobody knew what should be protected, how it should be protected and who it could be protected from.

The new act is limited, it’s very precise, it’s very defined, and it speaks to protecting two facilities: the court system—the courts—and the electricity-producing stations. So that’s where the new act applies….

Most importantly of all – or one of the most important things – is that if there’s going to be any inclusions into those two sites, the courthouses or the electrical facilities, that request has to come back and be dealt with by way of an amendment by this Legislature so we all get to debate the inclusion.

Paul Miller, MPP, March 5, 2012: The new legislation narrowing the list of public works to only electricity-generating and nuclear facilities also causes me concern. This act covers very limited categories of infrastructure, and, like many other bills we’ve seen, cannot be clarified and amended through the regulations process. The bill would require amending legislation, not regulation. Although I do prefer that significant changes to any legislation be available for public comment, I also worry about the time that this process could take when the bill addresses perceived immediate danger.

Tessa J. Armstrong, MPP, March 5, 2012: The other part I like about that one is that, unlike the PWPA, this act covers very limited categories of infrastructure, and prescribing the additional categories of infrastructure would require amendments to the act. It would require legislation, not regulation, and therefore has to be made public and debated. So I like the part in this one where, in regards to electricity and nuclear facilities, there must be consent and public debate.

Bill 51

Madeleine Meilleur, Minister of Community Safety and Correctional Services, April 10, 2013: It is important to note that this act covers very limited categories of infrastructure. Adding additional categories of infrastructure will require amendments to the act, not just a new regulation. It would, therefore, be open to debate in the House. The process for changing an act is very transparent and open, and the content of any proposed amendments would be subject to public debate.

Madeleine Meilleur, Minister of Community Safety and Correctional Services, Second Reading of Bill 51, April 24, 2013: Also, our government asked Justice McMurtry to review the scope and appropriateness of the PWPA and to provide recommendations. The report recommended that the PWPA be repealed after Ontario had considered potential policy and security gaps as a result of its repeal.

In response to Mr. McMurtry’s report, the government committed to consult publicly on replacement legislation that would repeal the PWPA. Clearly, there was a need for us to act and, as a result, we introduced the Security for Courts, Electricity Generating Facilities and Nuclear Facilities Act. In his review of the PWPA, Monsieur McMurtry found the definition of “public works” to be too broad.

One of the things we needed to define more clearly, following the report, was what should be included in the proposed legislation. The replacement legislation is more focused and builds on the current uses of the PWPA for security at courthouses, nuclear facilities and large electricity generating facilities. The Ombudsman’s report also helped guide how we would replace the PWPA. . . .

It’s important to note, as Justice McMurtry did, that other laws exist to help keep our critical infrastructure secure. The Criminal Code gives the police powers to deal with breaches of the peace and riots. Common law gives the police important powers to preserve the peace and protect life and property. The Ontario Trespass to Property Act is also a potential source of police powers to arrest without warrant those who are unlawfully on certain premises or who were recently unlawfully on those premises. In addition, our Emergency Management and Civil Protection Act allows an emergency order to be put in place to restrict travel and movement to and from specific areas in the event of a declared provincial emergency. Finally, regulations under the Police Services Act mandate police services to put in place procedures consistent with plans to deal with acts of terrorism. . . .

Monsieur Speaker, I’d like to repeat that adding other categories of infrastructure other than nuclear and electricity generating facilities would require amendments to the act. No other categories of infrastructure could be added simply through regulation. The process for changing an act is very transparent and open, and the content of any proposed amendments is subject to public debate, and that’s key for us.

Soo Wong, Parliamentary Assistant to the Minister of Community Safety and Correctional Services, Second Reading of Bill 51, April 24, 2013: A lot has changed since 1939. For example, the Criminal Code of Canada, modern federal anti-terrorism legislation and the provincial emergency legislation give our police services the tools to prevent, investigate and manage the fallout of terrorism. In other words, we would not create any legal gaps for ourselves by repealing the PWPA and replacing it with the legislation we have proposed for facilities that have made use of the current act. . . .

The replacement legislation is focused on what we know to be current uses of the PWPA: security at courthouses, nuclear facilities and large electricity generating facilities. Owners of other public works and the police have sufficient authority to address security needs at these facilities under other legislation, including the Trespass to Property Act. It is one of the motivations behind our decision to make the addition of any new category of infrastructure possible only through a legislative amendment.

Bill 35

Yasir Naqvi, Minister of Community Safety and Correctional Services, November 25, 2014: The proposed legislation also limits the types of essential public infrastructure it covers to prescribed electricity generating and nuclear facilities. Adding other categories of infrastructure would require amendments to the act, not just a new regulation. It would therefore be open to debate in this very House. The process for changing an act is very transparent and open, and the content of any proposed amendments would be subject to public debate.

Lisa Gretzky, MPP, December 1, 2014: But before I get ahead of myself, I will say a few words on the infrastructure components of this bill. This bill provides some important clarification on what categories of infrastructure will be governed by this bill when compared to the outdated Public Works Protection Act, which gave sweeping powers to the government and could manifest in a number of applications.

If enacted, this bill would ensure that if the government wanted to extend the application of this legislation to facilities that are not currently specified, an amendment to the act would be required rather than simply a regulatory change. This is important because an amendment to the act requires it to be debated publicly and passed in this chamber—a welcome measure, I’m sure.

Bas Balkissoon, MPP, December 10, 2014: It is also important to note that the proposed legislation also limits the types of essential public infrastructure that it covers to prescribed electricity generating and nuclear facilities. Adding other categories of infrastructure would require amendments to the act, not just a new regulation. It would therefore be open to debate in this House. The process for changing an act is very transparent and open, and the content of any proposed amendments would be subject to public debate.

[110] I note that in addition the concerns I have outlined at paragraph 108 above, the legislative debates make reference to the existence of other legal authority available to cover some situations to which the Security for Courts, Electricity Generating Facilities and Nuclear Facilities Act would not apply. However, I read these legislative references to other legal authority, in particular common law police powers, and the Trespass to Property Act as being limited either to situations where police can establish that they fall within common law police powers, or the power (subject to the Charter) to exclude unwanted persons from government property. I do not read any of the legislative debates as supporting that the legislators understood that another law would provide authority for routine warrantless searches of individuals entering government property other than the three types of properties covered by the new legislation (courthouses, electricity generating facilities, and nuclear generating facilities).

(c) The [Occupiers’ Liability Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-o2/latest/rso-1990-c-o2.html) and the [Occupational Health and Safety Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-o1/latest/rso-1990-c-o1.html)

[111] Against this backdrop of legislative history, I then turn to the two statutes the Chief of Police submits give him authority to impose warrantless searches on individuals entering the police headquarters building, including individuals who wish to attend the public meetings of the TPSB.

[112] The first is the Occupiers’ Liability Act. It has been held that at common law, and under the Occupiers’ Liability Act, private property owners or occupiers have the legal authority to impose a condition on an individual of submitting to a search as a condition precedent to entering onto a property: R. v. Roy (1985), 1985 CanLII 3529 (ON SC), 25 C.C.C. (3d) 473 Ont. S.C.); Nakochee v. Linklater, [1993] O.J. No. 979 (Gen. Div.). However, all of the decided cases are in the context of property that does not raise the freedom of expression concerns of meetings of a government body that are required by statute to be public.

[113] I accept that some government properties may in function be similar to private property, in particular, government office buildings to which the general public is not given a right of access. The police headquarters building has aspects of non-public use in its use as an office building by the Toronto Police Service and the Ontario Association of Chiefs of Police. Mr. Langenfeld’s application only has to do with individuals who are attending police headquarters to attend public meetings of the TPSB. Thus, it is not necessary for me to decide the legal authority of the Chief of Police to impose searches as a condition precedent to entering for individuals who are attending the building for purposes other than attending public TPSB meetings, or to decide the authority of the Chief of Police to impose a search prior to entry if the TPSB was not holding its public meetings in the building.

[114] For the purposes of argument, I accept that the Occupiers’ Liability Act may give the Chief of Police authority to impose searches prior to entering the building on individuals attending police headquarters for purposes other than attending public TPSB meetings. Put differently, for purposes not involving public meetings of the TPSB, I am prepared to assume that the legislature intended that government office buildings that are not in general open to the public at large can be analogized to private buildings, and the Chief of Police as one of the occupiers of the police headquarters building may exercise the same power as a private occupier of property to impose conditions precedent before individuals are allowed to enter. I note that unlike a private landowner, as a government official, the Chief of Police would be subject to the Charter in his actions.

[115] However, I find that the legislature did not intend for the Occupiers’ Liability Act to give a government occupier of property (here the Chief of Police) the authority to impose warrantless searches, without reasonable and probable grounds or reasonable suspicion, as a condition precedent to entering a public meeting of a government body (here the TPSB). I base this conclusion on four factors: (i) the legislative history of the repeal of the Public Works Protection Act, a statute which prior to its repeal, specifically included the power the Chief now seeks to exercise; (ii) the decision by the legislature to replace the Public Works Protection Act with the very narrowly targeted legislation of the Security for Courts, Electronic Generating Facilities and Nuclear Facilities Act; (iii) the concerns in the McMurtry Report in relation to freedom of expression, which were considered by the provincial legislature in its decision to repeal the Public Works Protection Act; and (iv) the comments of various legislators in the debates leading up to the repeal, in particular the comments about the need for specific legislation by the legislature to create a power to search at other public locations.

[116] I have set out the legislative history with respect to each of these issues above.

[117] Prior to the repeal of the Public Works Protection Act, there was an express power in the Act allowing for peace officers or individuals appointed as guards under the Act to conduct warrantless searches prior to entry to, inter alia, any municipal building. Police headquarters would have been covered by this authority. When the Public Works Protection Act was repealed in 2015, that authority to conduct searches prior to entry to municipal buildings was repealed. The Court of Appeal held in R. v. Campanella (2005), 2005 CanLII 10880 (ON CA), 75 O.R. (3d) 342 (Ont. C.A.) and Figueiras that it was these provisions of the Public Works Protection Act that constituted the authority for searches prior to entry into courthouses (now contained in the Police Services Act).

[118] In enacting new legislation, the Security for Courts, Electronic Generating Facilities and Nuclear Facilities Act, the legislature made a decision to allow warrantless searches, without reasonable and probable grounds or reasonable suspicion, prior to entry only at courthouses, electrical generating facilities, and nuclear facilities. The legislative debates make clear that this was a considered decision of the legislature. In light of the legislature having repealed the Public Works Protection Act, legislation that permitted warrantless searches in the absence of reasonable and probable grounds more broadly, at locations including “any provincial and any municipal public building”, I find that the Chief of Police has not met his burden to demonstrate that the legislature intended that such searches could be carried out under the Occupiers’ Liability Act or the Occupational Health and Safety Act. I find that the searches are not prescribed by law.

[119] Had the legislature been of the view that the Occupiers’ Liability Act or the Occupational Health and Safety Act provided authority to impose searches prior to entry, there would have been no need for new legislation to allow searches at courthouses, electrical generating facilities and nuclear facilities. Courthouses, electrical generating facilities, and nuclear generating facilities are all “occupied” by the different institutions that use them. In the case of courthouses, the court is the occupier (and perhaps also the provincial Ministry of the Attorney General, to the extent that the Ministry has some responsibility for court operations, and many courthouses have offices for Crown counsel employed by the Ministry). Electrical generating facilities are occupied by the agencies that are responsible for these services. If the Occupiers’ Liability Act provided legal authority for such occupiers to perform warrantless searches in the absence of reasonable and probable grounds searches prior to entry, it would not have been necessary to enact search provisions in relation to courthouses, electrical generating facilities and nuclear facilities when the Public Works Protection Act was repealed. I note that none of the authorities relied on by the Chief of Police with respect to the Occupiers’ Liability Act support the proposition that it gives state actors the right to conduct searches.

[120] This conclusion is supported by the holdings of the Ontario Court of Appeal in Figueiras, and Campanella. In both of those decisions the Court of Appeal held that the authority to search members of the public prior to entry into courthouses existed as a result of the Public Works Protection Act (then in force), and s. 137 of the Police Services Act (now all contained in ss. 137-142 of the Police Services Act): Figueiras at paras. 58, 109; Campanella at para. 9. Thus, in the context of perimeter security for courthouses, the legislature has seen fit to provide express legislative authority to allow for searches prior to entry. I note that although the roles of the courts and of police services boards are different, courts have also been held to be places where the public has a right of access which is protected by s. 2(b) of the Charter.[^2]

[121] The same analysis can be applied to the Occupational Health and Safety Act. Courthouses, electrical generating facilities and nuclear generating facilities all have employees who work in them, and all involve employers who have obligations under the Occupational Health and Safety Act. If the Occupational Health and Safety Act provided authority to conduct warrantless searches in the absence of reasonable and probable grounds prior to entry, it would not have been necessary to enact search provisions in relation to courthouses, electrical generating facilities and nuclear facilities when the Public Works Protection Act was repealed.

[122] Further, the legislative debates, and former Chief Justice McMurtry’s report, which was commissioned by the government, and expressly referred to in the legislative debates, are clear that the legislative intent that motivated the changes in the law was driven by concerns that the warrantless search powers, which did not require reasonable and probable grounds, under the Public Works Protection Act had been used in a way that stifled freedom of expression. The legislative debates are equally clear that for this reason, the legislature chose to limit legal authority to search prior to entry into public buildings. I underline that the freedom of expression concerns that were part of the legislative intent are not present for all government buildings.

[123] I have considered that legislative debates, and former Chief Justice McMurtry’s report do contain some discussion about other sources of legal authority to protect government buildings. In particular, they consider common law police powers, and the Trespass to Property Act. It is clear from the legislative debates (and Chief Justice McMurtry’s report) that there was not an intention in repealing and replacing the Public Works Protection Act to limit the possibility of conducting searches under common law police powers. As I have noted, in this case no party seeks to rely on common law police powers to justify the searches, and I make no ruling with respect to common law police powers.

[124] With respect to the Trespass to Property Act it was considered in the McMurtry Report, and as I read the legislative debates, as a source of authority to ban individuals from entering government property in some circumstances, not as a source of authority to conduct warrantless searches. In any event, as I have noted, no party seeks to rely on the Trespass to Property Act as the legal authority for the searches in this case.

[125] For these reasons, I find that the Occupiers’ Liability Act does not provide statutory authority to impose the searches the Chief of Police sought to impose, in particular where the searches have the effect of imposing a warrantless search, in the absence of reasonable and probable grounds, as a condition precedent to attending a public meeting of a government body.

[126] For the same reasons, I find that the Occupational Health and Safety Act does not give the Chief of Police the authority to require that individuals who wish to attend TPSB public meetings submit to a warrantless search, in the absence of reasonable and probable grounds, as a condition precedent to attending a meeting. I note than none of the authorities relied on by the Chief of Police with respect to the Occupational Health and Safety Act support the proposition that it gives state actors the right to conduct searches. This is sufficient to dispose of the argument of the Chief of Police that the searches are authorized by the Occupational Health and Safety Act. However, I highlight one further concern that I have regarding reliance on the Occupational Health Act Safety Act.

[127] The reach of the Occupiers’ Liability Act, because it relates to occupation of particular premises or property, and steps an occupier may take in his or her duty to keep the premises safe for people who enter, is necessarily limited in scope to particular places. The same is not true of the Occupational Health and Safety Act, to the extent that the employees at issue may work in a variety of locations. Police officers and staff of the Toronto Police Service do not do their work only at police headquarters and other divisions; they also work out in the community. The submission put forward by the Chief of Police that he is entitled to impose searches on individuals as a matter of protecting employees of the Toronto Police Service is potentially very wide-reaching. In my view the potential breadth of application of the Occupational Health and Safety Act that the Chief of Police seeks to rely on should also signal caution in the court.

[128] Before concluding my prescribed by law analysis, I will specifically address several of the submissions made by the Chief of Police in his supplementary submission regarding the legislative history of the repeal of the Public Works Protection Act.

[129] The Chief of Police submits that the repeal of the Public Works Protection Act and its replacement with narrower legislation was primarily to address the concern about the power to designate by regulation “any other building, place or work” as a “public work” (s. 1(c) of definition of “public work”), and the law’s broad application to “any approach to” a “public work” (ss. 3(a) and 5(1)).

[130] I find that this submission conflates the concerns that led the legislature to engage in a review the Public Works Protection Act with its intent in repealing the Act and replacing it with more targeted legislation after the review had been completed.

[131] I accept that the primary concerns that led the legislature to engage in a review of the Public Works Protection Act were twofold. The first concern was the fact that under the definition of “public work” in s. 1 of the Act, “any building, place or work” could be designated by regulation as a “public work”. The legislature was concerned that this regulatory power was used inappropriately during the G20 to designate a large portion of downtown Toronto as a public work during the G20 summit (see McMurtry Report at pp. 1, 2, 5, 9-17, as well as the legislative debates). The second concern that led to the review was the application of portions of the Act to “an approach to” a public work (ss. 3(a) and 5(1)). It is clear from both Chief Justice McMurtry’s report and the legislative debates that the concerns that led to the review of the Public Works Protection Act were driven by a concern that both of these aspects of the Act led a vague and potentially overly broad application of the Act.

[132] However, having conducted the review and considered what action to take, the legislative action taken shows a broader intent to reform the law. Had the legislative intent in repealing the Public Works Protection Act and replacing it with narrower legislation been only to address the issues with respect to the power to designate “any building, place or work” a “public work” by regulation, and the vague application of “an approach” to a public work, the changes to the law could have been much narrower. The legislature could simply have repealed subsection (c) of the definition of “public work” in s. 1 of the Act, and removed the references to “an approach” to a “public work in ss. 3(a) and 5(1) of the Act.

[133] Instead, the legislature repealed the Act, and enacted new legislation that only applied to three types of premises, courthouses, electricity generating facilities, and nuclear facilities. The legislature did not enact any similar legislation for “any provincial and any municipal building”, as had previously existed under the Public Works Protection Act. In addition, the legislative debates are clear that the legislature was concerned that expansions on the types of search powers in the new legislation should be enacted by the legislature to the extent that they engage concerns for Charter rights. Thus, I find that the content of the new legislation, when compared to the Public Works Protection Act speaks to a legislative intention, at least for government buildings that engage Charter concerns, to limit the authority to impose searches prior to entry.

[134] The Chief of Police argues that he may impose searches prior to entry into police headquarters because the provincial legislature does so, and according to the Chief of Police’s submission, there is no legislation explicitly granting authority to search in relation to the provincial legislature.

[135] I do not accept this submission. The Chief of Police’s comparison with the provincial legislature is misplaced. To the extent Parliament or a provincial legislature chooses to impose security searches prior to entry, this is governed by parliamentary privilege, and is not reviewable by the courts once found to be within the scope of the privilege: Behrens; Canada (House of Commons) v. Vaid at para. 29; Zundel v. Boudria.

[136] The Chief of Police argues that “if screenings are deemed impermissible at 40 College Street, the effect will be that all security screening measures, including the collection of personal information, required to make a security assessment will be called into question at legislative and other government buildings.”

[137] I do not accept this submission. As I have outlined, the legislature engages different considerations, as it is governed by parliamentary privilege. With respect to other government buildings, I have clearly stated in my reasons that the conclusions I reach are limited to the context the freedom of expression concerns engaged in this case due to the fact that the TPSB holds its meetings, which are required by statute to be public, in police headquarters. The case law with respect to government property is clear that in some contexts government property is akin to private property, and in some contexts it is not. I make no ruling today as to government property that does not have the characteristic of hosting meetings of a government body that are required by statute to be public.

[138] Lastly, I do not accept the Chief of Police’s argument that the screening imposed on entry to police headquarters is a consent search. I note that as I have explained above, the Charter infringement I have found is a violation of s. 2(b), not s. 8, because the case was not argued under s. 8. However, as the Chief of Police has raised the issue of consent searches in argument, I will address it.

[139] There can be no question that a requirement to be wanded by a metal detector and have one’s bags searches for the purpose of looking for weapons or dangerous items is a search. I do not accept that, to the extent freedom of expression concerns are engaged, a person who submits to a search in the circumstances at issue in this case can be said to be doing so voluntarily, as is required for an informed consent search. A voluntary consent to a search must be informed, and free from coercion: R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 7 O.R. (3d) 337 (Ont. C.A.). In the circumstances of an individual who wishes to attend a public meeting of the TPSB, the choice offered in relation to the search is, either give up one constitutional right (the s. 8 the right to be free from unreasonable search and seizure) or give up another constitutional right (the s. 2(b) the right to attend a public meeting of an institution of government). A decision to submit to a search in these circumstances is not a voluntary consent search.

[140] I want to be clear that I am not suggesting that either of these rights (s. 2(b) and s. 8) is absolute, or that they cannot be balanced in a s. 1 justification analysis. However, I reject the argument that the searches in this case are “consent” searches as defined in Wills.

[141] I note as well that the parallel the Chief of Police draws to searches at privately owned premises such as the Rogers Centre is misplaced. Private property does not engage Charter concerns. As I have explained, while some government property may be akin to private property, government property where meetings of government required by statute to be public are held engages Charter concerns that are different than private property.

[142] I accept that as a matter of constitutional law, for a limit on rights to be “prescribed by law” it is not required that there be an express statutory provision creating the limit on rights. As I have noted above at paragraphs 76-77, in a variety of contexts, the Supreme Court of Canada has found the authority of government actors to take actions that limit constitutional rights can in some cases be found in either common law or statutory grants of discretion, where the common law powers or legislation does not expressly state a power to limit a constitutional right. In each case, the question of whether a particular legislative provision (or common law power) provides the authority to limit constitutional rights is a question of statutory interpretation (or in the case of common law powers, interpretation of the scope of the common law power).

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

[144] I wish to underline that my conclusion as to the legal authority to conduct the searches relates only to the two statutes that the Chief of Police argued were the source of his authority to conduct these searches, the Occupiers’ Liability Act, and the Occupational Health and Safety Act. I have not considered whether common law police powers could be used to conduct similar searches (if carried out by police officers), as this was not argued by the Chief of Police. Nor have I considered whether the TPSB, rather than the Chief of Police, has authority to make a policy providing for perimeter searches of individuals who wish to attend TPSB meetings under s. 37 or s. 31, of the Police Services Act. This latter issue is speculative and hypothetical at this point, because the TPSB has not sought to use its policy-making authority to create such a policy.

[145] I also wish to make clear that my conclusion about lack of statutory authority to conduct these searches under the Occupiers’ Liability Act and the Occupational Health and Safety Act relates only to the application of the searches to individuals who wish to attend public TPSB meetings. Mr. Langenfeld’s application was limited to the issue of the s. 2(b) Charter rights of individuals to attend TPSB meetings, which by statute are public government meetings, and as such engage freedom of expression. I make no finding with respect to the legal authority of the Chief of Police to conduct searches of individuals attending police headquarters for other purposes which do not engage freedom of expression. As I have noted, on the record before the court, the police headquarters building is used by the Toronto Police Service and the Ontario Association of Chiefs of Police essentially as a regular office building. These uses, unlike the public meetings of the TPSB, may not engage freedom of expression concerns. Thus, I make no ruling on the legal authority of the Chief of Police to impose the screening searches on individuals who are attending police headquarters for reasons other than attending TPSB public meetings, or at times when TPSB public meetings are not taking place (since the meetings are normally held only once a month).

[146] I appreciate that this distinction may to create logistical issues for the Chief of Police, given that my ruling is limited to individuals who enter the police headquarters building to attend TPSB meetings, and may raises issues of the need to determine the purpose for which particular individuals are entering the building. Those logistical issues flow from the limits on the legal authority of the Chief of Police to impose searches as a result of the repeal of the Public Works Protection Act.

[147] As I indicated at the outset of these reasons, where the TPSB decides to hold its meetings is a matter in the TPSB’s discretion. According to its current practice, meetings are usually held at police headquarters. However, by-law 161 allows them to be held at police headquarters, or at another location as directed by the TPSB. I observe that the freedom of expression concerns and issues of statutory interpretation that lead me to conclude that the Chief of Police does not have legal authority to impose the searches under either the Occupiers’ Liability Act or Occupiers Liability Act arise out of the fact that these meetings, which engage the s. 2(b) right of freedom of expression, are being held in police headquarters. Further, as I have indicated, because it was not argued, I have not considered whether common law police powers could create some authority for searches prior to entry. Lastly, because the TPSB has to date not enacted any policy in relation to the issue of searches prior to attending meetings, I have not considered whether the TPSB could create a policy under either s. 37 or s. 31 of the Police Services Act giving legal authority to the Chief of Police to conduct the types of searches he had sought to impose. Finally, it is, of course, open for the legislature to consider the issue and provide authority for the types of searches the Chief of Police sought to impose.

(ii) Pressing and substantial objective and reasonable, minimally intrusive limit on rights

[148] In light of my conclusion that as a matter of statutory interpretation, neither the Occupiers’ Liability Act nor the Occupational Health and Safety Act give the Chief of Police the authority to conduct warrantless searches, in the absence of reasonable and probable grounds, of individuals who wish to attend public meetings of the TPSB, it is not, strictly speaking, necessary for me to consider whether the searches are justified by a pressing and substantial objective, or whether they are a reasonable and minimally intrusive limit on the right of freedom of expression of those who wish to attend TPSB meetings.

[149] For this reason, I will make some general comments only about the question of whether perimeter searches prior to entering police headquarters could constitute a reasonable limit on the right to freedom of expression, assuming for the sake of argument, that there was some legal authority established to conduct the searches.

[150] The record put forward by the Chief of Police establishes that the types of searches he sought to put in place at police headquarters are increasingly common at venues where members of the public gather, such as sporting events, or venues where music concerts are held. The searches are also similar to the perimeter security conducted at courthouses under the authority of ss. 137-142 of the Police Services Act, and formerly under the Public Works Protection Act. The record further contains opinions from individuals with experience in policing and security that the security landscape of today is not the same as 20 years ago, or even a few years ago. Because I have found that the legislature did not give the Chief of Police authority to impose searches as a condition precedent to attending the public meetings of the TPSB, I make no finding of fact as to whether the evidence filed on behalf of the Chief of Police is capable of proving that the need for security is a pressing and substantial objective which could justify the searches.

[151] Similarly, I make no finding as to whether the searches are reasonable and minimally intrusive. However, I agree that on the record before the court, the types of searches which the Chief of Police implemented at police headquarters are very similar to the types of perimeter searches conducted at Ontario courthouses, and increasingly at large venues where sporting or concert events are held. The use of similar types of searches at these types of venues would certainly be a relevant factor in assessing if the types of searches the Chief of Police sought to impose were minimally intrusive, if legal authority to conduct the searches was established.

[152] Further, Ontario Court of Appeal recognized in Campanella that perimeter searches of this nature could be justified as reasonable limits on Charter rights (assuming the party seeking to conduct the searches is able to point to some legal authority to conduct the searches). The Court of Appeal has recognized the need in some circumstances for government authorities to take steps to protect the public in places where large numbers of people attend: Campanella at paras. 17-26; Figueiras at para. 110. Further, the Court of Appeal recognized that this type of perimeter search, which is applied to all individuals who enter a building, rather than targetted only to some people, is largely free of concerns about differential application that can affect other types of targeted searches: Campanella at para. 19; Figueiras at paras. 108-112.

[153] All of this is to say that I do not make any finding on whether, if legal authority to conduct the type of searches the Chief of Police sought to impose were established, such searches would be found to be minimally intrusive under s. 1 of the Charter.

Remedy

[154] Mr. Langenfeld seeks injunctive relief. The specific remedy sought by Mr. Langenfeld is an injunction:

1. Directing Chief Mark Saunders and the Toronto Police to cease and desist in the practice of warrantless searches of members of the public entering Toronto Police property, until such time as the TPSB develops a policy governing such searches; and

2. Directing the TPSB to ensure that members of the public are permitted, in accordance with published TPSB by-law, reasonable and unfettered access, to exercise their Charter right of free expression, to address TPSB members at a public meeting before any policy regarding warrantless searches is approved.

[155] Canadian jurisprudence with respect to constitutional remedies in relation to public authorities prefers declaratory relief over injunctive relief: K. Roach, Constitutional Remedies in Canada, 2^nd ed., Thomson Reuters Canada Limited, 2017, §12.10-12:120, 12.680-12.690. Declaratory relief is generally considered preferable to injunctive relief because it is more flexible, sensitive to the different roles of different branches government, and because in Canada our experience is that public authorities will follow declarations made by the courts.

[156] In this case, there is no basis on the record for me to conclude that the Chief of Police will not follow a declaration issued by this court. For this reason, the remedy I grant is by way of declaration and not injunction.

[157] Mr. Langenfeld’s application is granted in part. I make the following declaration:

1. The practice implemented by the Chief of Police in June 2017 of searches prior to entry to police headquarters in the absence of a warrant or reasonable and probable grounds, as it applies to individuals wishing to attend public TPSB meetings, infringes s. 2(b) of the Canadian Charter of Rights and Freedoms.

2. The infringement of s. 2(b) of the Charter resulting from the searches is not justified under s. 1 of the Charter because the infringement is not prescribed by law. The Chief of Police does not have the legal authority under either the Occupiers’ Liability Act or the Occupational Health and Safety Act to impose searches on individuals who wish to attend public meetings of the TPSB as a condition precedent to the individuals attending the meetings.

[158] I make no specific order in relation to the TPSB. It was the Chief of Police, not the TPSB that instituted the practice of searches at issue in this application. And as I have outlined above at paragraphs 39-42, as the TPSB has not to date taken any action of its own under its policy-making authority to create a policy with respect to security searches before individuals are permitted to enter TPSB meetings, I find no basis on the record for the court to make any order regarding whether or how the TPSB should exercise that authority if it chooses to do so. It is premature on the record before me for the court to make any order regarding the TPSB.

[159] I have considered whether it is appropriate to suspend these declarations to give the Chief of Police time to comply. I find that it is not appropriate. The Courts have suspended declarations of invalidity in relation to legislation under s. 52 of the Constitution Act, 1982 in some cases to allow a legislature time to amend legislation to bring it into conformity with the Charter: K. Roach, Constitutional Remedies in Canada, 2^nd ed., supra at § 14.1530-14.1960. I am not aware of any case where a suspended declaration has been granted as a remedy under s. 24(1) of the Charter, where government action, as opposed to legislation, has been found to violate the Charter.

[160] Further, in this case I have found that there is no legal authority for the searches the Chief of Police has imposed. In the absence of any legal authority for the searches the Chief of Police sought to impose, I find that it would not be “appropriate and just” to suspend the declarations. In this respect, I agree with the analysis of the Manitoba Court of Appeal in R. v. Gillespie (1999), 1999 CanLII 4707 (MB CA), 142 Man. R. (2d) 96 at para. 41.

Conclusion

[161] I did not hear submissions regarding costs during the hearing of the application. If the parties are unable to come to agreement regarding costs, I will receive submissions in writing, on the following schedule: Mr. Langenfeld may file his cost outline and written submission within 30 days of this decision. Counsel for the respondents may each file their cost outline and submissions within 20 days after Mr. Langenfeld files his cost submission. All costs submissions are limited to a costs outline, and three pages of submissions.

Justice J. Copeland

Released: June 18, 2018

COURT FILE NO.: CV-17-584207

DATE: 20180618

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KRISTIAN ROLF LANGENFELD

Applicant

– and –

TORONTO POLICE SERVICES BOARD and TORONTO POLICE CHIEF MARK SAUNDERS

Respondents

REASONS FOR DECISION

Justice J. Copeland

Released: June 18, 2018

[^1]: I note that although the Occupational Health and Safety Act imposes the duties on the “employer”, the TPSB has by policy directed the Chief of Police to carry out its obligations as the employer under the Occupational Health and Safety Act.

[^2]: I note that other places where security measures similar to those the Chief of Police seeks to impose may be in place do not necessarily raise the same issues with the power to impose searches being prescribed by law. As noted in Figueiras at para. 58, security searches at airports are provided for by the Aeronautics Act, R.S.C. 1985, c. A-2. Further, to the extent Parliament or a provincial legislature chooses to impose security searches prior to entry, this is governed by parliamentary privilege: R. v. Behrens, 2004 ONCJ 327 at paras 141-268; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667 at para. 29; Zundel v. Boudria, (1999), 1999 CanLII 2190 (ON CA), 46 O.R. (3d) 410 (C.A.).