Focus On

CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Reasonable limits on Charter rights - Prescribed by law

Friday, October 18, 2019 @ 8:53 AM  


Lexis Advance® Quicklaw®
Appeal by the Chief of Police from a decision finding that security measures he implemented at Police Headquarters requiring persons entering the building to pass through a security screening process violated s. 2(b) of the Charter of persons wishing to attend public meetings of the building and were not saved by s. 1 of the Charter. The respondent, a Toronto resident, regularly attended meetings of the Toronto Police Services Board for several years. Those meetings, which must be held in public, were held in an auditorium of Police Headquarters. Prior to June 2017, persons who wanted to attend the meetings were not required to pass through security. The respondent refused to pass through security at the entrance to Police Headquarters. He was consequently refused entry to the building and could not attend the meeting. He then sought an application seeking an injunction ordering the respondent to discontinue the screening process. The application judge held that the security measures put in place by the appellant, as applied to persons wishing to attend public meetings of the Police Services Board, infringed s. 2(b) of the Charter. She further held that the process was not prescribed by law and could not therefore justify any infringement of s. 2(b) under s. 1 of the Charter.

HELD: Appeal allowed. The application judge correctly concluded that the screening procedures limited the respondent’s s. 2(b) rights but erred in holding that the screening process was not prescribed by law and was not justified within the meaning of s. 1 of the Charter. The respondent’s attendance at a public meeting to listen and perhaps speak to the matters of public interest discussed there constituted expressive conduct. There was no reason to exclude that expressive activity from the protection of s. 2(b). The precondition imposed on the respondent’s exercise of his right to freedom of expression was not trivial or insubstantial. While the security search was not as intrusive as many searches, it remained a very real interference with personal privacy and personal security. As the occupier, the appellant was statutorily required under s. 3(1) of the Occupiers’ Liability Act to take such care, as in all the circumstances was reasonable, to ensure that persons entering or using the property were reasonably safe while on the premises. The application judge did not consider the appellant’s common law powers as an occupier of Police Headquarters. The common law authority of an occupier in respect of the property must extend to taking the steps necessary to comply with the statutory duty imposed on the occupier by s. 3(1) of the Act. In imposing a precondition to entry for safety purposes, the appellant was performing the duty imposed on him as an occupier under s. 3(1) of the Act. If reasonable measures to preserve safety included security screening of those entering the building, that measure, to be effective, must apply to all entrants, regardless of their purpose in seeking entry. The institution of the security protocol was a reasonable measure, having regard to the duty to protect the safety of persons in Police Headquarters. It was an exercise of the appellant’s common law powers as an occupier and was prescribed by law. The security protocol initiated by him was a reasonable limit on the respondent’s right to freedom of expression that was demonstrably justified in a free and democratic society.

Langenfeld v. Toronto (City) Police Services Board, [2019] O.J. No. 4619, Ontario Court of Appeal, D.H. Doherty, P.S. Rouleau and D.M. Brown JJ.A., September 12, 2019. Digest No. TLD-October142019011