Case: Stewart v. Toronto (Police Services Board), 2020 ONCA 255 (CanLII)

Keywords: G20 Protest; torts; police powers; Trespass to Property Act, R.S.O. 1990, c. T.21; Charter damages

Synopsis:

During the June 2010 Toronto G20 summit, members of the Toronto Police Services (“TPS”) interact with protestors demonstrating on public property. The context of these interactions includes prior G20 policing challenges, peaceful protests intertwined with protestors allegedly intent on violence and property destruction.

The Appellant, Mr. Stewart, alleges police breached his rights under the Charter by imposing conditions of entry, detaining him, and by searching his backpack when he tried to enter a public park. He seeks damages and declaratory relief.

The Trial Judge determines the police had the power to impose such conditions as per the ancillary powers doctrine and as agents of the City of Toronto in respect of the Trespass to Property Act, R.S.O. 1990, c. T.21 (the “TPA”). She dismissed Mr. Stewart’s action for damages and declaratory relief.

The Court of Appeal allows Mr. Stewart’s appeal, concluding the police did not have the power to require him to submit to a bag search as a condition of entering a public park to join the protest. The Court of Appeal awards damages in the amount of $500 pursuant to s. 24(1) of the Charter.

Importance:

In Figueiras v. Toronto (Police Services Board), 2015 ONCA 208, the Court of Appeal found police did not have the power, under the ancillary powers doctrine, to target demonstrators and/or require they submit to a search of their bags before being allowed to travel towards a public protest on public streets.

This appeal addressed a related issue: whether the police, acting as agents of the City of Toronto under the TPA, had that power (i.e. to require persons trying to enter a public park to submit to a search of their bags as a condition of entry). Since Figueiras, the Supreme Court of Canada released another significant decision on police powers: Fleming v. Ontario, 2019 SCC 45. In that decision, the Court carefully examined the requirement in the ancillary powers doctrine that police action be reasonably necessary for the fulfillment of the police duty at issue. (See para. 47 in Fleming). The Court of Appeal herein reviewed and applied these concepts. (See para. 6).

The Court provided a lengthy analysis as to whether the police had any legal authority justifying their conduct at paras. 68-90. The Court of Appeal then determined the City had not enacted a bag search condition of entry at the time the Appellant sought to enter the public park, and further, that the City’s “TPA Letter” did not delegate to police officers the authority to create and impose such conditions of entry. (See paras. 108-110).

Citing Figueiras, at para. 41 and Kosoian v. Société de transport de Montréal, 2019 SCC 59 at paras. 6 and 38, the Court of Appeal determined that the condition of entry imposed by the police lacked legal foundation, and was, therefore, unlawful. As a consequence of this finding, the Court of Appeal determined the Trial Judge erred by concluding the police had been authorized to place conditions on the Appellant’s entry. (See paras. 109, 110).

Following a further detailed analysis on the Charter implications of this finding (paras. 111-118), the Court of Appeal determined that police actions resulted in a violation of the Appellant’s rights:

Mr. Stewart has established that by restricting his entry to Allan Gardens under the Condition of Entry, detaining him, searching his backpack, and seizing his swimming goggles, the police violated his rights guaranteed by ss. 2(b), 8, and 9 of the Charter. The City, as the owner/occupier of parks, including Allan Gardens, had not enacted a by-law that authorized the imposition of bag searches as a condition of entry into its parks, nor had it utilized the process under the City of Toronto Act, 2006 to appropriately delegate to another decision-maker, such as the police, the power to impose such a condition of entry. Consequently, the trial judge erred in dismissing Mr. Stewart’s action: at paras. 93-94. Accordingly, I would set aside para. 1 of her Judgment dated July 13, 2018. (See para. 119).

Next, the Court of Appeal turned to damages and remedy. With respect to damages for breach of the Appellant’s Charter rights, the Court of Appeal set out the four-step framework from Vancouver (City) v. Ward, 2010 SCC 27:

  • Proof of a Charter breach: Establishing whether a Charter right has been breached;
  • Functional justification of damages: Showing why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation for the personal loss caused by a breach, vindication of the Charter right, and/or deterrence of future breaches;
  • Countervailing factors: Considering any demonstration by the state that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust; and
  • Quantum: Assessing the quantum of damages. (See para. 121).

At para. 124, the Court of Appeal noted that “[a]bsent exceptional circumstances, non-pecuniary compensation is fixed at a fairly modest conventional rate, subject to variation for the degree of suffering in the particular case”. In this case, after “[c]onsidering all the factors”, the Court of Appeal concluded that the vindication and deterrence functions of Charter damages in this case could be served by “a modest award of damages”. (See para. 149).

Finally, with respect to the Appellant’s requested declaratory relief, the Court determined there was “no need” for a broad declaration beyond “the legal characterization of the officers’ conduct as it affected Mr. Stewart’s Charter rights”. (See para. 151).

And very last, costs. Mr. Stewart asked for $48K (partial indemnity), gets $20K (inclusive of taxes and disbursements). Trial costs below to be discussed by the parties given “the appeal was allowed”. (See paras. 155-6).

It remains to be seen whether the Supreme Court of Canada will hear arguments on the appropriateness of the damages quantum awarded in this case. The law of Charter damages remains a relatively novel tool in the juridical arsenal. Is further appellate guidance warranted here?

Counsel for the appellant: Davin Charney and Christopher Rapson (Charney Law, Toronto)

Counsel for the respondent: Kevin McGivney and Jonathan Thoburn (Borden Ladner Gervais LLP, Toronto)

Counsel for the intervenor Canadian Civil Liberties Association: Winston Gee and Sarah Whitmore (Tory’s LLP, Toronto)

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