Indexed As: Figueiras v. York (Regional Municipality) et al. Ontario Court of Appeal Rouleau, van Rensburg and Pardu, JJ.A. March 30, 2015.

Transcription

1 Paul Figueiras (applicant/appellant) v. Toronto Police Services Board, Regional Municipality of York Police Services Board, and Mark Charlebois (respondents/respondents) (C58771; 2015 ONCA 208) Indexed As: Figueiras v. York (Regional Municipality) et al. Ontario Court of Appeal Rouleau, van Rensburg and Pardu, JJ.A. March 30, Summary: During the 2010 G20 summit in Toronto, the applicant and his friends went downtown to demonstrate in support of animal rights. While walking down the street, they were stopped by police officers, who told them if they wanted to proceed any further, they would have to submit to a search of their bags. The applicant refused. The police would not let him proceed. The applicant maintained his refusal to submit to a search and eventually abandoned his plans to demonstrate and returned home. The applicant applied for a declaration that police officers violated his rights to freedom of expression, peaceful assembly and liberty contrary to ss. 2(b), 2(c) and 7 of the Charter. He also claimed that one of the officers had committed the tort of battery by grabbing and pushing him. The Ontario Superior Court, in a decision reported 2014 ONSC 2142, dismissed the application. The applications judge held that the officer's conduct was authorized under the common law ancillary powers doctrine. The judge also held that the alleged battery was de minimis at worst and in any event was justified under s. 25 of the Criminal Code. The applicant appealed. The Ontario Court of Appeal allowed the appeal. The police conduct in this case was a prima facie infringement of two liberties: the freedom of expression under the Charter and the common law right to travel unimpeded down a public highway. The police conduct could not be justified under the ancillary common law police powers (i.e., under the Waterfield test). Since the court concluded that the police did not have the power to target apparent demonstrators and require that they submit to a search in order to continue down a public street, it followed that the interference with the applicant's common law liberty and s. 2(b) Charter rights was not prescribed by law. As a result, s. 1 of the Charter had no application and could not be used to justify the breaches. The court issued a declaration accordingly. The court also declared that the officer committed the tort of battery. Civil Rights - Topic 792 Liberty - Particular rights - Common law right to liberty (incl. right to travel unimpeded down a public highway) - [See second Civil Rights - Topic 1803]. Civil Rights - Topic 1803 Freedom of speech or expression - General principles - Freedom of expression - Scope of - The Ontario Court of Appeal stated that "The test for a violation of s. 2(b) [of the Charter] is the three-step test first adopted by the Supreme Court in Irwin Toy Ltd. v. Quebec (Attorney General), [1989]..., and restated in Montréal (City) v Québec Inc., 2005 SCC (1) The plaintiff is engaged in expressive activity; (2) Nothing about the

2 method or location of the expressive activity removes it from the scope of protected expression; and (3) The impugned government action has either the purpose or the effect of restricting freedom of expression" - See paragraph 68. Civil Rights - Topic 1803 Freedom of speech or expression - General principles - Freedom of expression - Scope of - During the 2010 G20 summit in Toronto, the applicant and his friends went downtown to demonstrate in support of animal rights - While walking down a public street, they were stopped by police officers, who told them if they wanted to proceed any further, they would have to submit to a search of their bags - The applicant refused - The police would not let him proceed - The applicant maintained his refusal to submit to a search and eventually abandoned his plans to demonstrate and returned home - He alleged that the police officers violated his rights - The Ontario Court of Appeal held that the police conduct in this case was a prima facie infringement of two liberties: the freedom of expression under the Charter and the common law right to travel unimpeded down a public highway - The police conduct could not be justified under the ancillary common law police powers (i.e., under the Waterfield test) - Since the court concluded that the police did not have the power to target apparent demonstrators and require that they submit to a search in order to continue down a public street, it followed that the interference with the applicant's common law liberty and s. 2(b) Charter rights was not prescribed by law - As a result, s. 1 of the Charter had no application and could not be used to justify the breaches - See paragraphs 55 to 139. Civil Rights - Topic Freedom of speech or expression - Limitations on - Protesting - [See second Civil Rights - Topic 1803]. Civil Rights - Topic 1863 Freedom of speech or expression - Denial of - [See second Civil Rights - Topic 1803]. Civil Rights - Topic 8348 Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See second Civil Rights - Topic 1803]. Police - Topic 2204 Duties - General duties - Common law duties - [See second Civil Rights - Topic 1803]. Police - Topic 3024 Powers - Common law - Scope of - The Ontario Court of Appeal discussed common law police powers (i.e., the ancillary powers doctrine), including the Waterfield test - See paragraphs 41 to 54. Police - Topic 3024 Powers - Common law - Scope of - [See second Civil Rights - Topic 1803]. Police - Topic 3263

3 Powers - Crowd control - Demonstrations - [See second Civil Rights - Topic 1803]. Police - Topic 5143 Actions against police - For assault and battery - What constitutes - During the 2010 G20 summit in Toronto, the applicant and his friends went downtown to demonstrate in support of animal rights - While walking down a public street, they were stopped by police officers, who told them if they wanted to proceed any further, they would have to submit to a search of their bags - The applicant refused - A police officer grabbed and pushed the applicant, who eventually walked away - The Ontario Court of Appeal held that the officer's conduct constituted battery - This was the kind of unnecessary manhandling that would offend the dignity of a person and serve to intimidate - The officer could not rely on s. 25(1) of the Criminal Code to justify his conduct, as he did not possess statutory or common law authority for this actions - See paragraphs 140 to 152. Police - Topic 5149 Actions against police - For assault and battery - Defences - Justification of force - [See Police - Topic 5143]. Torts - Topic 3191 Trespass - Assault and battery - Battery - What constitutes - [See Police - Topic 5143]. Cases Noticed: R. v. Waterfield, [1963] 2 All E.R. 659 (C.C.A.), refd to. [para. 4]. R. v. Peterkin (M.) (2015), 328 O.A.C. 321; 2015 ONCA 8, refd to. [para. 28]. R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 28]. R. v. MacDonald (E.), [2014] 1 S.C.R. 37; 453 N.R. 1; 341 N.S.R.(2d) 353; 1081 A.P.R. 353; 2014 SCC 3, refd to. [para. 28]. R. v. Clayton (W.) et al., [2007] 2 S.C.R. 725; 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [para. 31]. Brown et al. v. Durham Regional Police Force (1998), 116 O.A.C. 126; 28; 43 O.R.(3d) 223 (C.A.), refd to. [para. 31]. R. v. Knowlton, [1974] S.C.R. 443, refd to. [para. 32]. Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 41]. Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 41]. R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 41]. R. v. Simpson (R.) (1993), 12 O.R.(3d) 182 (C.A.), refd to. [para. 43]. R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 51]. R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 51]. R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 52]. R. v. Lindsay (D.K.) (1999), 142 Man.R.(2d) 96; 212 W.A.C. 96 (C.A.), refd to. [para. 57].

4 R. v. Campanella (J.) (2005), 196 O.A.C. 188; 75 O.R.(3d) 342 (C.A.), refd to. [para. 58]. R. v. Lindsay (D.K.) (2004), 187 Man.R.(2d) 236; 330 W.A.C. 236; 2004 MBCA 147, refd to. [para. 58]. R. v. Wutzke (T.G.), [2005] A.R. Uned. 356; 2005 ABPC 89, refd to. [para. 59]. R. v. Dubien, [2000] Q.J. No. 250, refd to. [para. 59]. R. v. Edwards (O.E.) (2004), 352 A.R. 141; 2004 ABPC 14, refd to. [para. 59]. R. v. Rousseau, [1982] C.S. 461, refd to. [para. 59], R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 65]. Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 68]. Montreal (City) v Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 68]. Ontario Teachers' Federation et al. v. Ontario (Attorney General) (2000), 132 O.A.C. 218; 49 O.R.(3d) 257 (C.A.), refd to. [para. 69]. Canadian Broadcasting Corp. et al. v. Canada (Attorney General) et al., [2011] 1 S.C.R. 19; 411 N.R. 23; 2011 SCC 2, refd to. [para. 71]. R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 72]. British Columbia Teachers' Federation v. British Columbia Public School Employers' Association et al. (2009), 265 B.C.A.C. 237; 446 W.A.C. 237; 306 D.L.R.(4th) 144; 2009 BCCA 39, leave to appeal refused (2009), 400 N.R. 388; 286 B.C.A.C. 320; 484 W.A.C. 320, refd to. [para. 78]. Vancouver (City) v. Burchill, [1932] S.C.R. 620, refd to. [para. 80]. Director of Public Prosecutions v. Jones et al., [1999] 2 A.C. 240; 237 N.R. 18; [1999] UKHL 5, refd to. [para. 80]. Hydro-Electric Power Commission v. Grey (County) (1924), 55 O.R. 339 (C.A.), refd to. [para. 80]. R. v. S.A. (2014), 575 A.R. 230; 612 W.A.C. 230; 2014 ABCA 191, leave to appeal refused [2014] S.C.C.A. No. 373, refd to. [para. 82]. R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127 (S.C.C.), refd to. [para. 95]. R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 96]. R. v. Hufsky, [1998] 1 S.C.R. 621; 84 N.R. 365, refd to. [para. 96]. R. v. Chehil (M.S.), [2013] 3 S.C.R. 220; 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 2013 SCC 49, refd to. [para. 112]. Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 142]. Scalera v. Lloyd's of London, [2000] 1 S.C.R. 551; 253 N.R. 1; 135 B.C.A.C. 161; 221 W.A.C. 161; 2000 SCC 24, refd to. [para. 142]. Collins v. Willock, [1984] 1 W.L.R (Eng. Div. Ct.), refd to. [para. 142]. Stewart v. Stonehouse, [1926] 2 D.L.R. 683 (Sask. C.A.), refd to. [para. 142]. Malette v. Shulman (1990), 37 O.A.C. 281; 72 O.R.(2d) 417 (C.A.), refd to. [para. 143]. Hudson v. Brantford Police Services Board (2001), 150 O.A.C. 87; 204 D.L.R.(4th) 645 (C.A.), refd to. [para. 148].

5 Tymkin v. Ewatski et al. (2014), 299 Man.R.(2d) 294; 590 W.A.C. 294; 2014 MBCA 4, leave to appeal refused [2014] S.C.C.A. No. 75, refd to. [para. 149]. Statutes Noticed: Canadian Charter of Rights and Freedoms, 1982, sect. 2(b) [para. 3]. Authors and Works Noticed: Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007) (Looseleaf), p [para. 53]. Jochelson, Richard, Ancillary Issues with Oakes: The Development of the Waterfield Test and the Problem of Fundamental Constitutional Theory ( ), 43:3 Ottawa L. Rev. 355, generally [para. 51]. Counsel: Kiel Ardal and Murray Klippenstein, for the appellant; Kevin A. McGivney and Damian Hornich, for the respondents; Christine Mainville and Samuel Walker, for the intervener, the Canadian Civil Liberties Association. This apeal was heard on November 21, 2014, before Rouleau, van Rensburg and Pardu, JJ.A., of the Ontario Court of Appeal. The decision of the court was delivered by Rouleau, J.A, and was released on March 30, Editor: Elizabeth M.A. Turgeon Appeal allowed. Civil Rights - Topic 792 Liberty - Particular rights - Common law right to liberty (incl. right to travel unimpeded down a public highway) - During the 2010 G20 summit in Toronto, the applicant and his friends went downtown to demonstrate in support of animal rights - While walking down a public street, they were stopped by police officers, who told them if they wanted to proceed any further, they would have to submit to a search of their bags - The applicant refused - The police would not let him proceed - The applicant maintained his refusal to submit to a search and eventually abandoned his plans to demonstrate and returned home - He alleged that the police officers violated his rights - The Ontario Court of Appeal held that the police conduct in this case was a prima facie infringement of two liberties: the freedom of expression under the Charter and the common law right to travel unimpeded down a public highway - The police conduct could not be justified under the ancillary common law police powers (i.e., under the Waterfield test) - Since the court concluded that the police did not have the power to target apparent demonstrators and require that they submit to a search in order to continue down a public street, it followed that the interference with the applicant's common law liberty and s. 2(b) Charter rights was not prescribed by law - As a result, s. 1 of the Charter had no application and could not be used to justify the breaches - See paragraphs 55 to 139.

6 Civil Rights - Topic Freedom of speech or expression - Limitations on - Protesting - During the 2010 G20 summit in Toronto, the applicant and his friends went downtown to demonstrate in support of animal rights - While walking down a public street, they were stopped by police officers, who told them if they wanted to proceed any further, they would have to submit to a search of their bags - The applicant refused - The police would not let him proceed - The applicant maintained his refusal to submit to a search and eventually abandoned his plans to demonstrate and returned home - He alleged that the police officers violated his rights - The Ontario Court of Appeal held that the police conduct in this case was a prima facie infringement of two liberties: the freedom of expression under the Charter and the common law right to travel unimpeded down a public highway - The police conduct could not be justified under the ancillary common law police powers (i.e., under the Waterfield test) - Since the court concluded that the police did not have the power to target apparent demonstrators and require that they submit to a search in order to continue down a public street, it followed that the interference with the applicant's common law liberty and s. 2(b) Charter rights was not prescribed by law - As a result, s. 1 of the Charter had no application and could not be used to justify the breaches - See paragraphs 55 to 139. Civil Rights - Topic 1863 Freedom of speech or expression - Denial of - During the 2010 G20 summit in Toronto, the applicant and his friends went downtown to demonstrate in support of animal rights - While walking down a public street, they were stopped by police officers, who told them if they wanted to proceed any further, they would have to submit to a search of their bags - The applicant refused - The police would not let him proceed - The applicant maintained his refusal to submit to a search and eventually abandoned his plans to demonstrate and returned home - He alleged that the police officers violated his rights - The Ontario Court of Appeal held that the police conduct in this case was a prima facie infringement of two liberties: the freedom of expression under the Charter and the common law right to travel unimpeded down a public highway - The police conduct could not be justified under the ancillary common law police powers (i.e., under the Waterfield test) - Since the court concluded that the police did not have the power to target apparent demonstrators and require that they submit to a search in order to continue down a public street, it followed that the interference with the applicant's common law liberty and s. 2(b) Charter rights was not prescribed by law - As a result, s. 1 of the Charter had no application and could not be used to justify the breaches - See paragraphs 55 to 139. Civil Rights - Topic 8348 Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - During the 2010 G20 summit in Toronto, the applicant and his friends went downtown to demonstrate in support of animal rights - While walking down a public street, they were stopped by police officers, who told them if they wanted to proceed any further, they would have to submit to a search of their bags - The applicant refused - The police would not let him proceed - The applicant maintained his refusal to submit to a search and eventually abandoned his plans to demonstrate and returned home - He alleged that the police officers violated his rights - The Ontario Court of Appeal held that the police conduct

7 in this case was a prima facie infringement of two liberties: the freedom of expression under the Charter and the common law right to travel unimpeded down a public highway - The police conduct could not be justified under the ancillary common law police powers (i.e., under the Waterfield test) - Since the court concluded that the police did not have the power to target apparent demonstrators and require that they submit to a search in order to continue down a public street, it followed that the interference with the applicant's common law liberty and s. 2(b) Charter rights was not prescribed by law - As a result, s. 1 of the Charter had no application and could not be used to justify the breaches - See paragraphs 55 to 139. Police - Topic 2204 Duties - General duties - Common law duties - During the 2010 G20 summit in Toronto, the applicant and his friends went downtown to demonstrate in support of animal rights - While walking down a public street, they were stopped by police officers, who told them if they wanted to proceed any further, they would have to submit to a search of their bags - The applicant refused - The police would not let him proceed - The applicant maintained his refusal to submit to a search and eventually abandoned his plans to demonstrate and returned home - He alleged that the police officers violated his rights - The Ontario Court of Appeal held that the police conduct in this case was a prima facie infringement of two liberties: the freedom of expression under the Charter and the common law right to travel unimpeded down a public highway - The police conduct could not be justified under the ancillary common law police powers (i.e., under the Waterfield test) - Since the court concluded that the police did not have the power to target apparent demonstrators and require that they submit to a search in order to continue down a public street, it followed that the interference with the applicant's common law liberty and s. 2(b) Charter rights was not prescribed by law - As a result, s. 1 of the Charter had no application and could not be used to justify the breaches - See paragraphs 55 to 139. Police - Topic 3024 Powers - Common law - Scope of - During the 2010 G20 summit in Toronto, the applicant and his friends went downtown to demonstrate in support of animal rights - While walking down a public street, they were stopped by police officers, who told them if they wanted to proceed any further, they would have to submit to a search of their bags - The applicant refused - The police would not let him proceed - The applicant maintained his refusal to submit to a search and eventually abandoned his plans to demonstrate and returned home - He alleged that the police officers violated his rights - The Ontario Court of Appeal held that the police conduct in this case was a prima facie infringement of two liberties: the freedom of expression under the Charter and the common law right to travel unimpeded down a public highway - The police conduct could not be justified under the ancillary common law police powers (i.e., under the Waterfield test) - Since the court concluded that the police did not have the power to target apparent demonstrators and require that they submit to a search in order to continue down a public street, it followed that the interference with the applicant's common law liberty and s. 2(b) Charter rights was not prescribed by law - As a result, s. 1 of the Charter had no application and could not be used to justify the breaches - See paragraphs 55 to 139.

8 Police - Topic 3263 Powers - Crowd control - Demonstrations - During the 2010 G20 summit in Toronto, the applicant and his friends went downtown to demonstrate in support of animal rights - While walking down a public street, they were stopped by police officers, who told them if they wanted to proceed any further, they would have to submit to a search of their bags - The applicant refused - The police would not let him proceed - The applicant maintained his refusal to submit to a search and eventually abandoned his plans to demonstrate and returned home - He alleged that the police officers violated his rights - The Ontario Court of Appeal held that the police conduct in this case was a prima facie infringement of two liberties: the freedom of expression under the Charter and the common law right to travel unimpeded down a public highway - The police conduct could not be justified under the ancillary common law police powers (i.e., under the Waterfield test) - Since the court concluded that the police did not have the power to target apparent demonstrators and require that they submit to a search in order to continue down a public street, it followed that the interference with the applicant's common law liberty and s. 2(b) Charter rights was not prescribed by law - As a result, s. 1 of the Charter had no application and could not be used to justify the breaches - See paragraphs 55 to 139. Police - Topic 5149 Actions against police - For assault and battery - Defences - Justification of force - During the 2010 G20 summit in Toronto, the applicant and his friends went downtown to demonstrate in support of animal rights - While walking down a public street, they were stopped by police officers, who told them if they wanted to proceed any further, they would have to submit to a search of their bags - The applicant refused - A police officer grabbed and pushed the applicant, who eventually walked away - The Ontario Court of Appeal held that the officer's conduct constituted battery - This was the kind of unnecessary manhandling that would offend the dignity of a person and serve to intimidate - The officer could not rely on s. 25(1) of the Criminal Code to justify his conduct, as he did not possess statutory or common law authority for this actions - See paragraphs 140 to 152. Torts - Topic 3191 Trespass - Assault and battery - Battery - What constitutes - During the 2010 G20 summit in Toronto, the applicant and his friends went downtown to demonstrate in support of animal rights - While walking down a public street, they were stopped by police officers, who told them if they wanted to proceed any further, they would have to submit to a search of their bags - The applicant refused - A police officer grabbed and pushed the applicant, who eventually walked away - The Ontario Court of Appeal held that the officer's conduct constituted battery - This was the kind of unnecessary manhandling that would offend the dignity of a person and serve to intimidate - The officer could not rely on s. 25(1) of the Criminal Code to justify his conduct, as he did not possess statutory or common law authority for this actions - See paragraphs 140 to 152.