Ontario's highest court has declared that police violated a would be protestor's rights by stopping him and requiring he submit to a search before proceeding.
In Figueiras v. Toronto (Police Services Board), 2015 ONCA 208, the applicant, carrying a backpack, and some friends went downtown to demonstrate in support of animal rights during the second day of the 2010 G20 Summit. Protests had become violent the previous day.
A group of several police officers stopped Figueiras and his friends as they walked about one city block north of a security fence set up to enclose the summit site. The officers told them that if they wanted to cross the street and go any further, they would have to submit to a search of their bags.
Figueiras' companions bags were searched but he refused, saying he had nothing to hide and regarded the request as a violation of his civil rights. At one point, the officer said, "Either we look through it, or you can go. What's it going to be?" When the applicant stated "I don't consent to a search," the officer stepped forward, wrapped his arm around Figueiras' shoulder, gripped him firmly by the shirt, pulled him in so they were face-to-face, and said "You don't get a choice."
The officer then pushed Figueiras away and said, "Get moving." Other comments made by officers included, "There's no civil rights here in this area. How many times do you got to be told that?" and "This ain't Canada right now." Figueiras eventually gave up his plans to demonstrate and went home.
Figueiras applied for declarations in the Ontario Superior Court of Justice that the police officers had violated his rights to freedom of expression, peaceful assembly and liberty under subsections 2(b) and (c) and 7 of the Charter and that the officer grabbing him had committed the tort of battery.
Although it was agreed the officers had no statutory authority to demand the applicant consent to a search, the judge nevertheless dismissed the application. He found the police conduct in targeting demonstrators walking down the public street and requiring a search of belongings to proceed was authorized as an ancillary police power.
The police conduct in question fell within the general scope of the police duty to preserve the peace and their power to cordon off the area to protect the foreign dignitaries. As for their conduct in fulfilling these duties, the judge found it was reasonably necessary.
Tailoring the searches to only suspected demonstrators rendered the police intervention minimally intrusive and not an abuse of authority, he said, analogizing them to those carried out at courthouses and airports.
Finally, the alleged battery was de minimis (trifling) at worst and, in any event, was justified under s. 25 of the Criminal Code, which permits police to use "as much force as is necessary" in the course of their authorized duties when acting on reasonable grounds.
Figueiras appealed the dismissal of his application to Ontario's top court, maintaining that police violated his Charter rights to liberty, freedom of expression and peaceful assembly.
Ancillary powers doctrine
The Ontario Court of Appeal first noted that the common law imposes police officers with broad duties, such as preserving the peace, preventing crime and protecting life and property, as well as powers ancillary to those duties. However, those powers are limited.
Police action must be reasonably necessary in all of the circumstances to carry out the duty. In determining whether police conduct interfering with a person's liberty falls within a common law ancillary power, the courts utilized what is known as the two-part Waterfield test:
Does the police conduct in question fall within the general scope of any duty imposed on the officer by statute or common law?
If so, in the circumstances, did the execution of the police conduct in question involve a justifiable use of the powers associated with the engaged statutory or common law duty? The competing interest of the police duty and the liberty interests of the individual must be balanced.
The court framed the police power exercised as "the power of individual police officers to target demonstrators and, where no crime is being investigated or believed to be in progress, but with the intention of preventing crime, to require that they submit to a search if they wish to proceed on foot down a public street."
The liberty interests at stake were identified as "the freedom of expression under the Charter and the common law right to travel unimpeded down a public highway."
The parties agreed that the officers' conduct fell within the scope of the police duty to preserve the peace and prevent damage to property or persons. However, the court disagreed with the application judge that the police conduct interfering with Figueiras' liberty was necessary for officers to carry out their duty in keeping the peace. First, the power police used was not effective.
"Effectiveness in the context of police powers is not measured by whether a risk does or does not in fact materialize," said Justice Rouleau, speaking for the court. "Rather, the effectiveness of a given power is determined by considering whether, objectively, the measure serves to materially reduce the risk of a breach of the peace."
The police team only targeted those who appeared to be protestors, stopping only 70 to 100 of the thousands of people downtown that day. Furthermore, any would-be troublemakers turned back could have taken a different route to get to the security fence.
Second, the warrantless weapon searches of only those appearing to be demonstrators were not rationally connected to their purpose of keeping the peace:
-It was unclear whether previous day's violence at the summit was initiated by demonstrators or others who had infiltrated and mixed with groups of demonstrators. -The previous day's violence was not limited to the area near where the officers were but occurred throughout the downtown core. -The previous day's violence did not involve using weapons that might be secreted in a backpack. Rather, uprooted newspaper boxes, street signs, sandwich boards and bricks pried loose from a paved boulevard were used.
Nor were the stops analogous to searches at courthouses. Unlike these searches, courthouse searches are statutorily authorized, require everyone entering submit, are publicized in advance, do not occur on a public street and do not target identifiable groups.
Rouleau also found the application judge erred in the Waterfield balancing exercise. For example, he equated minimal impairment on Figueiras' rights by only considering the amount of people targeted by police (only apparent demonstrators) rather than minimizing the impact on those targeted:
The fact is that for a demonstrator such as Mr. Figueiras, the impairment of his rights was in no way lessened because the officers had determined to interfere with only the rights of people "like him." The number of people who are the target of the intrusion is reduced, but the intrusion felt by each target is neither minimized nor reduced.
The officers not only stopped and questioned would-be protesters, they also insisted that these would-be protesters submit to a search if they wished to proceed, regardless of the answers they gave in response to the officers' questions. Additionally, it is arguable that by targeting demonstrators and making it known that only demonstrators were being stopped and searched as a condition of passage, those stopped might justifiably feel an even greater sense of state interference, since they knew they were the only ones being targeted.
The decision to target demonstrators in no way lessens the impairment of Mr. Figueiras's rights [para. 24].
As a result, 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."
The interference with Figueiras' liberty was not prescribed by law and therefore s. 1 of the Charter could not be used to justify the breaches.
As for the police officer reaching around Figueiras and pulling him in, this was more than "de minimis" touching, like tapping a person on the shoulder to get their attention. The tort of battery – intentionally applying unlawful force to the body of another – had been made out.
The contact "was the kind of unnecessary manhandling that, in my view, would offend the dignity of a person and serve to intimidate that person," said Rouleau. Since the officer had no statutory or common law authority for his action, s. 25(1) of the Criminal Code could not protect the officer in using force and shield him from civil liability.
Figueiras' appeal was allowed and the court declared that police violated his common law right to travel unimpeded on a public highway and his Charter right to freedom of expression. It also declared that the tort of battery had been committed against him.