Institution of protocol was exercise of chief’s common law powers as occupier

Constitutional Law - Charter of Rights and Freedoms - Nature of Rights and Freedoms

Police chief instituted security protocol requiring all individuals seeking entry to police headquarters building to submit to search involving metal-detecting wand and visual examination of their bags. As applicant refused to pass through security, he could not attend public meeting of Police Services Board held in headquarters . Applicant’s application for relief was granted in part, with issuance of declaration that protocol infringed s. 2(b) of Canadian Charter of Rights and Freedoms and could not be justified under s. 1 of Charter. Police chief and Board appealed. Appeal allowed. Application judge correctly concluded that protocol limited applicant’s right to freedom of expression as, while it was not put in place for that purpose, it imposed condition precedent to exercise of applicant’s freedom of expression that was not trivial and insubstantial. Preconditions for exercise of s. 2(b) of Charter were limitations on exercise of that right unless they had truly minimal impact, and they did not have to limit content, time, place or manner of expression. Protocol involved search that constituted very real interference with personal privacy and personal security . Application judge erred in finding, in s.1 analysis, that chief did not have authority to impose screening protocol. Institution of protocol was exercise of chief’s common law powers as occupier, undertaken in transparent manner, and was prescribed by law. Repeal of Public Works Protection Act, removing broad and extraordinary police powers, had no effect on scope of common law powers. Protecting physical safety of persons in headquarters building was important objective, self-evidently rationally connected to screening protocol . Protocol was tailored to its objective, had minor impact on personal privacy, and could not be further tailored so as to not apply to persons seeking entry to attend meeting, as safety risk was not connected to persons’ declared purpose for entry. Security protocol was reasonable limit on applicant’s freedom of expression demonstrably justified in free and democratic society.

Langenfeld v. Toronto Police Services Board (2019), 2019 CarswellOnt 14511, 2019 ONCA 716, Doherty J.A., Paul Rouleau J.A., and D.M. Brown J.A. (Ont. C.A.); reversed (2018), 2018 CarswellOnt 9661, 2018 ONSC 3447, J. Copeland J. (Ont. S.C.J.).

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