The Ontario Superior Court of Justice recently dismissed an application brought against the Toronto and York Region Police Services Boards and an individual officer arising out of police enforcement during the G20 Summit. The Applicant sought a declaration that his Charter rights were violated along with other relief flowing from an interaction he had with officers in downtown Toronto during the Summit.

On Sunday June 27, 2010, the Applicant and some friends, while looking for a demonstration, were walking south on University Avenue towards the security perimeter surrounding the Summit site. The Applicant was dressed in black clothing and wore dark sunglasses. Some members of the group had placards and pamphlets. Many of them, including the Applicant, carried backpacks.

Once the group reached the intersection of University Avenue and King Street, several officers asked the group to consent to a brief search of their bags before being allowed to proceed further toward the security perimeter. All members of the group consented to the search with the exception of the Applicant. A terse exchange of words between the applicant and one of the officers followed. The officer also put his arm around the Applicant during this exchange. Eventually, the Applicant left the area proceeding away from the security perimeter.

The Applicant claimed that by preventing him from moving toward the security perimeter, the Respondents violated his section 7 right to liberty and section 2 rights of freedom of expression and association under the Charter of Rights and Freedoms. The Applicant also claimed that the physical contact that took place during the interaction with the police amounted to battery.

Justice Meyers dismissed the application in its entirety. He found that while the officers’ decision to stop individuals and request that they consent to a search of their bags might have been difficult to understand on “an ordinary downtown street”, the officers’ conduct would have to be assessed in light of the broader context of the widespread violence and vandalism that had taken place the previous day during the G20 Summit.

The Applicant opted to seek a declaration under section 7 of the Charter presumably on the basis that the liberty right under that section was broader than the section 9 right to be free from arbitrary detention. However, bearing in mind case law from the Supreme Court of Canada, including R v. Grant, the Respondents argued the issues on the application were more appropriately addressed under section 9. Justice Meyers agreed that the liberty interest at issue was the same as articulated in Grant, but found that in any event, the officers’ conduct would be measured against the scope of police powers at common law.

The Court noted that the police have statutory and common law duties to preserve the peace and to prevent crime. In light of the previous day’s violence and vandalism near the security perimeter and elsewhere throughout the downtown area, police had reasonable concerns that renewed efforts would be made to disrupt the Summit on the final day. Second, by focusing only on those who appeared be engaging in protest and were carrying bags towards the security perimeter, the Court held that the officers’ approach was sufficiently tailored to address security concerns and resulted in the “minimum intrusion necessary and under the circumstances”.

In sum, the Court held that “the police intrusion in this case was measured, reasonable, warranted and amounted to a typical and minimal inconvenience of the same type that we put up with on a daily basis in other circumstances where authorities have far less basis for concern”.

By finding that the officers acted within the scope of their statutory duties and at common law, the Court held there was no infringement of the Applicant’s rights under section 2 of the Charter. Moreover, Justice Meyers held that the Applicant had not made out the tort of battery as the physical contact that took place was de minimus, and in any event would have been within the scope of force officers are justified in using under section 25 of the Criminal Code.

This case provides a useful touchstone for the scope of police authority in extraordinary situations. This decision also highlights the need to consider the context when assessing an officer’s response to a given set of circumstances and underscores that a certain degree latitude may be afforded officers in the legitimate performance of their duties.

Other Author

Damian Hornich

Expertise

Insurance and Tort Liability
Municipal Liability