Figueiras v Toronto (Police Services Board) 2015 ONCA 208 (30 March 2015)
The Ontario Court of Appeal in Canada has unanimously held that Toronto Police breached the appellant’s rights to freedom of expression and liberty during the 2010 G20 summit when preventing him from entering a certain part of the city after he did not consent to a search of his belongings. The Court found that such conduct was not authorised as a common law police power.
On 27 June 2010, the second day of the G20 summit in Toronto, Paul Figueiras (the appellant) and four friends were stopped by police officers on their way to an animal rights demonstration. They were informed that if they wanted to continue walking in that direction they would need to be searched.
The police officers, including Sergeant Charlebois were acting on instructions to patrol the street in the wake of violent demonstrations which had occurred the previous day. They also had decided that they would stop anyone who looked like a demonstrator and require that they be searched if they wished to proceed.
When the appellant refused to consent to the search, Sergeant Charlebois grabbed the appellant’s shoulder and then pushed him away, telling him to “get moving”. When the appellant protested that the search was a violation of his civil liberties, the officer told him “this ain’t Canada right now” and “there’s no civil rights here in this area”.
The appellant applied to the Superior Court of Justice for a declaration that the police officers had violated his rights to freedom of expression, peaceful assembly and liberty under the Canadian Charter of Rights and Responsibilities ("Charter"). He also sought a declaration that Sergeant Charlebois had committed the tort of battery when he had grabbed and pushed him.
Both the appellant and the officers agreed that the officers did not have any statutory authority to demand to search the appellant’s bag as a condition of walking on a public street, and that their conduct could only be authorised by law as a common law police power.
At first instance, the judge dismissed the application, holding that the police officers’ conduct was authorised as an ancillary police power under the applicable test in R v Waterfield  All ER 659. The judge also found that the alleged battery was de minimis and nevertheless justified under section 25 of the Criminal Code RSC 1985 c. C-46, which permits police officers to use “as much force as necessary” in the course of law enforcement duties where officers act on reasonable grounds and their actions are authorised by law.
The appellant appealed both aspects of the decision to the Court of Appeal.
The Court of Appeal overturned the Superior Court of Justice decision, holding that the officers' conduct was not authorised as a common law police power. The Court unanimously held that the respondents had violated the appellant’s Charter right to freedom of expression and the common law right to liberty (namely to travel unimpeded on a public highway), and made a declaration to that effect. The Court also declared that the Sergeant Charlebois had committed the tort of battery.
Freedom of expression
The Court found that the three step test for violation of the right to freedom of expression under the Charter, first adopted by the Supreme Court in Irwin Toy Ltd v Quebec (Attorney General)  1 SCR 927, had been met as the appellant had been engaged in expressive activity, namely protesting about animal rights; nothing about the method or location of the expressive activity removed it from the scope of "protected expression" under the Charter; and the conduct of the police officers had both the purpose and the effect of restricting the appellant's freedom of expression, as he was not able to demonstrate as intended.
Common law right to liberty
The Court held that the trial judge had incorrectly applied the test in Waterfield, which provides that where an officer prima facie interferes with a person's liberty or property the Court must apply a two part test to determine whether the conduct falls within the scope of the common law police powers.
The Court considered that there had been a prima facie interference with the appellant's liberty. Under the Waterfield test the Court was then required to determine:
- Whether the conduct in question falls within the general scope of any duty imposed on the officer by statute or common law; and
- If so, in the circumstances of the case, whether the execution of the police conduct in question involved a justifiable use of the powers associated with the engaged duty.
Only the second component of the test was in issue in this case, as the parties agreed that the officers' actions fell within the scope of the police duty to preserve the peace. The Court held that the police conduct of restricting the movement of persons who did not submit to a search was not justified, as the conduct taken by the officers was "not reasonably necessary, and had little, if any impact in reducing threats to the public safety". The Court noted that the officers only stopped some individuals, that persons who moved into the area via a different route would not have been stopped, and that violent protesters on the previous day had improvised weapons during the demonstration and had not brought them to the protest sites.
The Court found that the elements of the tort of battery had been made out, as Sergeant Charlebois' contact with the appellant was more than de minimis touching.
It found further that Sergeant Charlebois could not rely on section 25 of the Criminal Code to justify his conduct, as there had been no statutory or common law authority for his actions. The Court held that as the officer did not have any authority to stop the appellant and require that he submit to a search, he could not rely on section 25 as a defence.
This decision is a timely examination of common law police powers, and is interesting in light of the recent Victorian Supreme Court decision in DPP v Kaba  VSC 52. The Court in that case upheld a Magistrates' decision that police officers both exceeded their common law powers and breached human rights under the Victorian Charter of Human Rights and Responsibilities by subjecting the respondent to coercive questioning about his name and address.
The full decision can be found online here: http://www.ontariocourts.ca/decisions/2015/2015ONCA0208.htm
Elizabeth Cole is a Graduate at DLA Piper.