Ontario Civil

Constitutional Law

Police conduct during G20 summit was prima facie constituted infringement of rights

During G20 summit in Toronto, appellant and friends went downtown to demonstrate. They were stopped by police officers who told them they would have to submit to search of their bags. Appellant refused, eventually abandoning plans. Previous day, demonstrators had engaged in looting, violence and vandalism. Police arrested large groups of protesters en masse. Appellant applied for declaration that police officers violated his rights to freedom of expression, peaceful assembly and liberty and declaration that officer committed tort of battery by grabbing and pushing him. Sergeant adopted strategy of stopping people and requiring them to submit to weapons search on his own initiative. Other teams deployed to patrol streets did not implement this strategy. Other persons passed by without being stopped. Application judge held that officers’ conduct authorized under test for ancillary police powers and  that alleged battery was de minimis at worst and was justified under s. 25 of Criminal Code (Can.), which permits peace officer to use “as much force as is necessary” in course of law enforcement duties.  Appellant’s appeal allowed. Power exercised was power of individual officers to target demonstrators and, with intention of preventing crime, to require demonstrators submit to search if they wished to proceed down public street. Police conduct was prima facie infringement of freedom of expression under Canadian Charter of Rights and Freedoms and common law right to travel unimpeded down public highway. Demonstrating is well-established expressive activity. Demonstrating around G20 site lawful and reasonably expected. Civil liberty to move unimpeded on public highways is part of long common law tradition. Police stop clearly resulted in infringement of appellant’s common law liberty. Test for ancillary police powers requires determination of whether police conduct falls within general scope of any duty imposed on officer by statute or common law and, if so, whether execution of conduct in question involved justifiable use of powers associated with engaged duty. Parties agreed officers’ conduct fell within scope of police duty to preserve peace and prevent damage. Application judge failed to adequately assess whether police power exercised and resulting interference with appellant’s liberty was necessary for performance of the duty. Even assuming officers faced “imminent” risk of repeat of previous day’s lawlessness, power they exercised was not effective nor rationally connected to purpose. Protestors turned away could easily have reached downtown core by another route and no evidence previous violence was initiated by demonstrators. Those engaged in violence acquired improvised weapons at scene rather than carrying them to scene in backpacks. Basis for targeting would-be demonstrators did not rise to level of reasonable suspicion.  Contact by officer was much more than “touching”. It was kind of unnecessary manhandling that would offend dignity of person and serve to intimidate that person. Elements of tort of battery were met. Section 25 of Code not applicable as officer did not possess statutory or common law authority for his actions.

Figueiras v. Toronto Police Services Board (Mar. 30, 2015, Ont. C.A., Paul Rouleau J.A., K. van Rensburg J.A., and G. Pardu J.A., File No. CA C58771) Decision at 239 A.C.W.S. (3d) 631 was reversed.  252 A.C.W.S. (3d) 61.

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