Case: Figueiras v. Toronto (Police Services Board), 2015 ONCA 208
Keywords: Waterfield test, common law police powers, ancillary powers, G20 Summit, freedom of expression, battery
Synopsis: Toronto, June 26, 2010: some riots occurred at the scene of the G20 Summit. A day later, Paul Figueiras and some friends went downtown to demonstrate in support of animal rights. As they walked along University Avenue (just north of King Street), the group was confronted by police officers. The officers instructed Mr. Figueiras and company that if they wished to proceed any further, they would have to submit to a search of their bags.
Mr. Figueiras refused, indicating that he regarded the officers’ request as an inappropriate intrusion and violation of his civil rights. In reply, one of the officers told him, “There’s no civil rights here in this area. How many times do you got to be told that?” The officer also told him, “This ain’t Canada right now.” Despite stern warnings from the officers (who regarded the presence of a lawyer’s telephone number on Mr. Figueiras’ arm as problematic), Mr. Figueiras maintained his refusal to submit to a search. After being told by the officer, “You don’t get a choice”, Mr. Figueiras abandoned his plans to demonstrate and returned home – but not before Sgt. Charlebois grabbed and pushed him away.
Mr. Figueiras applied to the Ontario Superior Court of Justice for a declaration that the police officers had violated his rights to freedom of expression, peaceful assembly, and liberty under ss. 2(b), 2(c), and 7 of the Charter. He also sought a declaration that Sgt. Charlebois had committed the tort of battery.
On the application, it was determined that the police officers’ conduct was authorized by Waterfield, which sets out the test for ancillary police powers. The Superior Court of Justice found that the alleged battery fell below the de minimis non curat lex range. If not, the Court was satisfied Sgt. Charlebois’ conduct could be saved by s. 25 of the Criminal Code.
The Ontario Court of Appeal did not agree: Rouleau J.A. overturned the lower court decision, granted Mr. Figueiras declaratory relief, and awarded costs in the amount of $5,000.00. Police conduct violated both Mr. Figueiras’ right to travel unimpeded on a public highway (sidewalk is considered public highway under the common law) and his right to freedom of expression under the Charter. In the final analysis, the Court of Appeal found no need to examine ss. 2(c) and 7 of the Charter.
By way of guidance for future police operations, the Court stated that, had the police authorities determined effective exclusion zones were necessary and rational steps taken to create and enforce them (as in Knowlton where the police cordoned off areas in front of a hotel entrance to protect Premier Kosygin of the USSR during his 1971 visit to Edmonton), the result would have been different.
Importance: With summer in full swing, and numerous public events underway (the Pan-American Games in Toronto, Bluesfest in Ottawa to name a few), Figueiras serves as an interesting opportunity to reflect on contemporary Canadian law enforcement practice. In many situations the authority for police action is not derived from any statute; and so the responsibility falls to jurists and lawyers alike to write clear boundaries into the common law. The principle of the rule of law requires that any interaction between the state and citizen are to be governed by law – rough dialogue between protestors and police officers is no exception.
The rule of law lies at the bedrock of Canadian legal traditions. Consequently, ‘the exercise of all public power must find its ultimate source in a legal rule’.
The conduct of police officers falls within this category, such that an officer only acts lawfully if they, “…act in the exercise of authority which is either conferred by statute or derived as a matter of common law from their duties”.
Some police powers are derived from statute – for example the duty to preserve peace stems, in part, from s. 42(1)(a) of the Police Services Act and the Criminal Code. Additional police powers flow from the common law ‘ancillary powers doctrine’.
The ‘ancillary powers doctrine’ draws attention to a fundamental distinction: there is a difference between police duties and police powers. In Simpson, Doherty J.A. explained that, “The law imposes broad general duties on the police but it provides them with only limited powers to perform those duties”. In other words, while it is the duty of police officers to preserve peace and prevent crime, and these duties are broad in scope, the powers that may be lawfully deployed in the execution of those duties are not co-extensive – rather they are narrowed by competing social values. This narrowing exercise is performed in accordance with the Waterfield test.
Referring to the Court’s ‘custodial role’, Rouleau J.A. explains that, in certain situations (as the Supreme Court did with investigative detentions in Mann), a police power will be recognized and legal frameworks imposed to limit its exercise, while in others, the Court may decide to reject a purported power altogether.
The Waterfield Test and Preliminary Concerns:
Stage one: does the action in question fall within the general scope of a police duty imposed by statute or recognized at common law?
Stage two: is the police action reasonably necessary for the carrying out of the particular duty in light of all the circumstances?
- The importance of the duty to the public good;
- The extent to which it is necessary to interfere with liberty to perform the duty; and
- The degree of interference with liberty.
Although in Figueiras the parties agreed Sgt. Charlebois’ conduct passed stage one of the Waterfield test, it was still necessary for Rouleau J.A. to both set out the police power and to define the liberty interests in question.
Unlike the regulation of public access to courthouses and airports, in the present case, Rouleau J.A. found no statutory basis for the police power exercised by Sgt. Charlebois and his team. While it is true that, at common law, the police have the power to limit access to certain areas, this power is not unlimited – rather its use must be confined to the ‘proper circumstances’ including fires, floods, car accidents, and crime scenes.
Rouleau J.A. defined the police power exercised by Sgt. Charlebois 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”.
Turning next to the liberty issue at stake, Rouleau J.A. found two infringements: freedom of expression under the Charter and the common law right to travel unimpeded down a public highway.
- Importance of the Duty to the Public Good:
The Ontario Court of Appeal took care to contextualize the decision, finding that the previous days’ events triggered police duties to keep the peace, and prevent property damage or personal injury.
- The extent to which it is necessary to interfere with liberty
a) Was the exercise of power necessary?
For Rouleau J.A., where the interference with individual liberty is not rationally connected to the duty being performed (preventing breaches of the peace, property damage, and the risk of personal injury) or is otherwise not an effective means to perform that duty, necessity will not be established.
b) Rational Connection
Citing Doherty J.A. in Brown, the Court of Appeal noted that the ancillary powers doctrine does not authorize the police to exercise power on ‘the mere possibility of some unspecified breach at some unknown point in time’. Here, the conduct of Sgt. Charlebois was not rationally connected to the duty being performed because the conclusion that persons such as Mr. Figueiras were responsible for the previous days’ violence was vague and speculative. Searching each individual protester was not “temporally, geographically and logistically responsive to the circumstances known by the police” (the ‘black bloc’ protesters had not used weapons concealed by back pack).
With respect to effectiveness, the Court found that “sporadic stops by one group of officers of only those persons who appeared to be demonstrators would have virtually no impact”. Objectively, the measures taken by Sgt. Charlebois and his team did not serve to materially reduce the risk that a breach of peace would develop – anyone turned away could have simply taken alternate routes to the security fence.
- Degree of interference with liberty and balancing
The Court of Appeal considered the cumulative impact on all of Mr. Figueiras’ liberty interests – the liberty to walk down a public street and the right to freedom of expression taken together. Unlike the situation in Clayton, where the police were involved in the investigation of an ongoing crime, here Sgt. Charlebois searched everyone – regardless of whether there were particularized grounds to do so. The blanket application of the search requirement could not be described as having caused ‘minimal impairment’. To the contrary, the Court of Appeal found that interference with the rights of would-be protestors created a greater sense of state interference. In particular, Rouleau J.A. took issue with the language used by Sgt. Charlebois: “both an incorrect statement of the law and an improper description of the role of the police. In my view, the officers’ remarks further undermine the reasonableness of their conduct, and aggravate the harm to Mr. Figueiras’s liberty.”
In contrast with the application judge, Rouleau J.A. found that Brown could not be used to legitimize police conduct in the present case. In Brown, Doherty J.A. highlighted the following six factors, which undermined the basis for a finding that the police had acted pursuant to their ancillary common law powers:
(1) Any apprehended harm was not imminent;
(2) There was no specific identifiable harm which the detentions sought to prevent. The police had a general concern that the situation could get out of hand unless it was made clear to the appellants, their friends and associates that the police were in control;
(3) The police concern that some harm could occur rested not on what those detained had done, but rather on what others who shared a similar lifestyle with those who were detained had done at other places and at other times;
(4) The liberty interfered with was not a qualified liberty like the right to drive, but rather the fundamental right to move about in the community;
(5) The interference with individual liberty resulting from the police conduct was substantial in terms of the number of persons detained, the number of times individuals were detained and the length of the detentions; and
(6) [T]he detentions could not be said to be necessary to the maintenance of the public peace. A large police presence without detention would have served that purpose. In fact, it is arguable that the confrontational nature of the detentions served to put the public peace at risk.
Rouleau J.A., applied the same six factors. Taken together, they demonstrate that the actions taken by Sgt. Charlebois were not reasonably necessary in the circumstance – police conduct did not pass the Waterfield test and as such, was not authorized by law. The Court issued a declaration to the effect that Mr. Figueiras’ rights were violated.
The Court of Appeal found that Sgt. Charlebois committed the tort of battery. The Court’s conclusion on the Waterfield test meant that the Sgt. Charlebois could not rely on s.25 of the Criminal Code (there was no common law authority for his actions). Rouleau J.A. found that grabbing and pushing Mr. Figueiras was not necessary to demand that he submit to a search of his backpack; the physical contact was non-trivial and offensive.
Figueiras serves as a cautionary tale. The Court of Appeal took a long look at a confrontation and challenged the rationale beneath. Police services face an unenviable task in circumstances such as the 2010 G20 summit. In such a situation, the public’s expectation of law enforcement is not always clear. Here Rouleau J.A. has offered some guidance: come with an effective, rational plan as in Knowlton. While it is true that Canadians demand to live in a safe and secure country, they do not make that request in exchange for personal freedom – it is not necessary for an officer to manhandle protestors and certainly unacceptable for an officer to express the view (when confronted) that civil rights have been suspended as a means to re-establish control. In times of fear or uncertainty, calmer heads must prevail.
Counsel for the Applicant (Appellant) Paul Figueiras: Kiel Ardal and Murray Klippenstein (Klippensteins, Toronto)
Counsel for the intervener (Appellant) Canadian Civil Liberties Association: Christine Mainville and Samuel Walker (Henein Hutchison LLP, Toronto)
Counsel for the Respondents (Respondents): Kevin McGivney and Damian Hornich (Borden Ladner Gervais LLP, Toronto)