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REGULATED OCCUPATIONS - Police officers - Common law duties and powers

Friday, May 29, 2020 @ 9:18 AM  

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Appeal by the plaintiff from a trial judgment dismissing his action for damages and declaratory relief for Charter breaches. Police imposed, as a condition of entry into a City park, the requirement that a person submit to a search of any bags. The park was serving as an assembly point for G20 summit protesters before they departed on a march along Toronto’s public streets. The appellant was detained, and his backpack was searched by police when he entered the park to join the protest. The appellant argued police acted tortiously and breached his rights under ss. 2(b), 7, 8, and 9 of the Canadian Charter of Rights and Freedoms (Charter) when they imposed such a condition of entry and subsequently detained him and searched his backpack when he tried to enter the park without submitting to a bag search. The trial judge held that the police had the power to impose such a condition of entry, both under the common law police ancillary powers doctrine and as agents of the City in respect of the Trespass to Property Act (TPA). The trial judge concluded that a combination of the City TPA Letter indicating police were authorized to act as agents of the City to administer the Act and to take appropriate action including removing people in contravention of the Act, the City’s duty as an occupier under the Occupiers’ Liability Act, the City’s common law powers as an occupier, and the provisions of the TPA provided the officers with the authority to impose the Condition of Entry into the park.

HELD: Appeal allowed. The appellant was awarded $500 in Charter damages. Police did not have the power, as agents of the City for purposes of administering the TPA, to require the appellant to submit to a bag search as a condition of entering the park to join the protest. The trial judge erred in finding that the Condition of Entry did not infringe the appellant’s freedom of expression. His activity involved expressive conduct, the method or location of his expressive conduct did not remove its s. 2(b) protection, and the purpose or effect of the government action was to restrict his freedom of expression. Police did not have the authority under the common law police ancillary powers doctrine to impose the bag search condition. The conditions were not present to justify the imposition of the Condition of Entry under the police ancillary powers doctrine. The Condition of Entry imposed by the police lacked any legal foundation and was thus unlawful. The trial judge misconstrued the powers granted by the TPA to occupiers, or their agents. The City TPA Letter did not delegate to the police the City’s common law or statutory powers to create and impose restrictions on entry to public parks. The letter delegated only the authority to administer the TPA by enforcing existing prohibitions or restrictions on entry. Police thus violated the appellant’s rights under ss. 2(b), 8, and 9 of the Charter. Police arbitrarily detained him when he attempted to cross the police line into the park without submitting to a search of his backpack. Police sought to justify their search of the appellant’s backpack as a search incident to an arrest. However, because the detention or arrest was not lawful, the search of his backpack and seizure could not be justified. The appellant adduced little evidence to demonstrate that the conduct of the police caused him personal loss and was thus not entitled to compensatory damages. A modest award of damages was just and appropriate to affirm the constitutional value of ss. 2(b), 8 and 9 and serve the deterrence function of Charter damages.

Stewart v. Toronto (City) Police Services Board, [2020] O.J. No. 1608, Ontario Court of Appeal, D.M. Brown, G. Huscroft and G.T. Trotter JJ.A., April 16, 2020. Digest No. TLD-May252020009