COURT OF APPEAL FOR ONTARIO

CITATION: Figueiras v. Toronto (Police Services Board), 2015
    ONCA 208

DATE: 20150330

DOCKET: C58771

Rouleau, van Rensburg and Pardu JJ.A.

BETWEEN

Paul Figueiras

Applicant (Appellant)

and

Toronto
    Police Services Board, Regional Municipality

of York Police Services
    Board, and Mark Charlebois

Respondents (Respondents)

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

Heard: November 21, 2014

On appeal from the judgment of Justice Frederick L. Myers
    of the Superior Court of Justice, dated April 4, 2014, with reasons reported at
    2014 ONSC 2142.

Rouleau J.A.:

Overview

[1]

This is an appeal about the proper scope of common law police powers,
    and in particular, whether police acted within the scope of their common law
    powers when, during the 2010 G20 summit in Toronto, they targeted demonstrators
    walking down a public street and required that they submit to a search of their
    belongings if they wished to proceed. This appeal is not about how the police
    conducted themselves generally in the course of that summit. Rather, it deals
    with the tactics used by a particular group of police officers in a particular
    section of the downtown core.

[2]

On Sunday, June 27, 2010, the second day of the summit, Paul Figueiras
    and some friends went downtown to demonstrate in support of animal rights. They
    were walking down University Avenue just north of King Street when they were
    stopped by a group of police officers. The officers told them that if they
    wished to proceed any further, they would have to submit to a search of their
    bags. Mr. Figueiras refused. He explained that while he had nothing to hide, he
    regarded the officers request as a violation of his civil rights. One of the
    officers told him, Theres no civil rights here in this area. How many times
    do you got to be told that? The officer also told him, This aint Canada
    right now. Mr. Figueiras maintained his refusal to submit to a search. Eventually
    he abandoned his plans to demonstrate and returned home.

[3]

Mr. Figueiras subsequently applied 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
Canadian Charter of Rights
    and Freedoms
. He also sought a declaration that one of the officers, Sgt.
    Mark Charlebois, had committed the tort of battery by grabbing and pushing him.

[4]

Mr. Figueirass application was dismissed. The application judge held
    that the officers conduct was authorized under the test for ancillary police
    powers set out in
R. v. Waterfield
, [1963] 2 All E.R. 659 (C.C.A.),
    and the Canadian jurisprudence that has followed it. He further held that the
    alleged battery was
de minimis
at worst and in any event was justified
    under s. 25 of the
Criminal Code
, R.S.C. 1985, c. C-46. That section permits
    a peace officer to use as much force as is necessary in the course of his or
    her law enforcement duties, provided that he or she acts on reasonable grounds
    and that the actions taken are authorized by law.

[5]

Mr. Figueiras appeals both aspects of the application judges decision.
    For the reasons that follow, I would allow the appeal.

Facts

(1)

Mr. Figueirass interaction with police

[6]

On June 26-27, 2010, world leaders from the G20 group of countries
    gathered in Toronto for an economic summit. The summit was held at the Metro
    Toronto Convention Centre on Front Street, at the south end of the citys
    downtown core.

[7]

The G20 summit drew a large number of people demonstrating in support of
    various causes. Regrettably, those demonstrations were not all peaceful. On the
    afternoon of June 26, looting, violence, and vandalism occurred over a broad
    area of downtown Toronto, including along King Street, Bay Street, Yonge
    Street, and College Street, and around Queens Park. Some of the demonstrators
    engaged in black bloc tactics, in which persons bent on violent activity
    would wear balaclavas, ski masks, goggles, and bandanas to conceal their
    identities. After committing unlawful acts, they would fade into a crowd of
    peaceful protesters and change into nondescript clothing.

[8]

Later on the first day of the summit, police arrested large groups of protesters
en masse
at various locations in downtown Toronto, in a practice known
    as kettling. Many of those arrested were held overnight in a makeshift
    detention centre before being released without charge. Suffice it to say, the
    situation was tense for all involved.

[9]

At approximately 3:00 p.m. on the following day, Mr. Figueiras and some
    friends were walking southbound along University Avenue toward King Street
    West. The intersection of King and University was one city block north of the security
    fence that had been erected to enclose the summit site.

[10]

Mr.
    Figueiras and his group had met earlier in the day, intending to join a
    demonstration at Queens Park. They planned to demonstrate in favour of animal
    rights. Having found no demonstrations at Queens Park, Mr. Figueiras and his
    friends decided to move to the general vicinity of the security fence to see if
    there was a demonstration they could join there. One of Mr. Figueirass friends
    was carrying a placard that read It is animal blood that fuels the machine of
    profit. Another carried a megaphone. A third had pamphlets advocating
    veganism.

[11]

Mr.
    Figueiras was wearing blue jeans and a black t-shirt with a red, white, and
    black design that read Animal liberation, human liberation, as well as a
    black cap and reflective aviator sunglasses. He was carrying a backpack. Mr.
    Figueirass friends were similarly casually dressed in shorts, t-shirts, and baseball
    caps. Several were also carrying bags.

[12]

As
    the group walked toward the intersection at King Street, a group of officers
    stopped them. The officers told them that if they wanted to cross the street going
    south, they would have to submit to a search of their bags.

[13]

The
    interaction that followed was recorded on two separate videos taken by friends
    of Mr. Figueiras. The videos were later uploaded to YouTube, where they have
    been viewed more than 100,000 times. Both the application judge and the panel
    of this court have watched the videos, the authenticity of which is not
    disputed.

[14]

The
    videos show the officers first searching the bags of Mr. Figueirass friends. Sgt.
    Charlebois then demanded to search Mr. Figueirass bag, saying: Either we look
    through it, or you can go. Whats it going to be? Mr. Figueiras replied, I
    dont consent to a search. Sgt. Charlebois, who is approximately a foot taller
    than Mr. Figueiras, then stepped forward, wrapped his arm around Mr. Figueirass
    shoulder, and gripped him firmly by the shirt. Pulling Mr. Figueiras toward him
    so they were face-to-face, Sgt. Charlebois said, You dont get a choice. Sgt.
    Charlebois then pushed Mr. Figueiras away and said, Get moving. This
    interaction forms the basis of Mr. Figueirass battery claim.

[15]

After
    pushing Mr. Figueiras away, Sgt. Charlebois repeatedly told him to get moving
    if he would not consent to a search of his bag. Mr. Figueiras asked why a
    search was necessary. Another officer explained that the search was for
    everyones safety. Sgt. Charlebois gestured for the group to head back north
    and responded, This is our area. Away you go.

[16]

Noting
    that Sgt. Charleboiss uniform read York Regional Police, Mr. Figueiras
    stated, to laughter from his friends, This is actually more our area. The
    following exchange then occurred:

Sgt. Charlebois: Not anymore. Not anymore. Have you missed the
    point? How old are you?

Mr. Figueiras: Old enough to know better.

Sgt. Charlebois: Yeah, but not smart enough to listen when
    youre told to do something. You havent opened up your bag, so take off.

[17]

By
    this point, Sgt. Charlebois had taken two steps toward Mr. Figueiras to close
    the gap between them. Mr. Figueiras was now standing near the edge of a
    stairway leading down to the subway. He began to say, In Canada, thats
    something, but Sgt. Charlebois cut him off: This aint Canada right now.
    Take off. Mr. Figueirass friends can be heard laughing sardonically. This
    aint Canada right now? one of them asked off-camera. Sgt. Charlebois shook his
    head and replied, No. No. Another officer said, Youre in G20 land now.
    Sgt. Charlebois agreed: Thats right.

[18]

Next,
    Sgt. Charlebois again told Mr. Figueiras to open his bag or get going. A
    friend pointed out that Mr. Figueiras was in danger of falling down the stairs
    to the subway, so he moved to his left into the middle of the sidewalk. Sgt.
    Charlebois followed and stood directly next to him. Sgt. Charlebois reminded
    Mr. Figueiras that his friends had not objected to having their bags searched. Mr.
    Figueiras shrugged and said, I just dont like to have my civil rights
    violated. Sgt. Charlebois responded: Theres no civil rights here in this
    area. How many times you gotta be told that? Mr. Figueiras said again, But
    this is Canada. Another officer who had come up next to him said, Yeah, and
    theres unlawful assemblies going on all around us and guess what  if you want
    to participate in them here, then you gotta participate in all the procedures.

[19]

At
    that point, Sgt. Charlebois lifted up the sleeve of Mr. Figueirass t-shirt and
    noticed a phone number written on his arm. He noted that that was a sign of
    the people  causing trouble. Sgt. Charlebois said: Youve got a lawyers
    number on your arm, alright? So either we look in the bag, or you get stepping,
    buddy.

[20]

At
    that point, Mr. Figueiras backed away and retreated north on University Avenue
    with his friends. The officers followed close behind them for approximately
    half a block before the videos end. In his affidavit on the application, Mr.
    Figueiras explained that he went home after this incident, fearing he would be
    arrested if he stayed downtown.

(2)

Sgt. Charleboiss evidence

[21]

In
    his affidavit, Sgt. Charlebois stated that he and 50 to 100 other officers
    attended a briefing early in the morning of June 27 that lasted between ten and
    fifteen minutes. They were briefed on the previous days events and were told
    to be vigilant given the vandalism and violence that had occurred. Sgt.
    Charlebois testified that there were heightened concerns due to the previous
    days events. At the conclusion of the briefing, the officers were dispatched
    to their assigned areas. Sgt. Charlebois and his team of five officers were
    assigned to the King and University area. Their instructions were to patrol the
    street and the underground pathway linking various buildings in that area. They
    were to ensure that no one entered the network of underground pathways.

[22]

Sgt.
    Charlebois decided that whenever he and his team were outside patrolling the
    streets in his assigned area, they would stop anyone who looked like a
    demonstrator and demand that they submit to a search of their belongings if
    they wished to cross King Street and continue walking south. In his
    cross-examination, Sgt. Charlebois explained: [A]nybody that looked like they
    were involved in the protests were asked to show that they had no weapons
    before they proceeded further [south].

[23]

There
    was no suggestion in the record that the other teams deployed to patrol other
    streets in the downtown core were stopping people  whether or not they looked
    like demonstrators  and requiring them to submit to a weapons search of their
    belongings should they wish to get close to the summit area. Sgt. Charlebois
    appears to have adopted this strategy on his own initiative and without any
    instructions from above. His team was the only one implementing this strategy.
    On cross-examination, he agreed that no one had instructed him to adopt this
    strategy, but explained: That would be like telling me how to put my clothes
    on. Alright?

[24]

Sgt.
    Charlebois stated that over the course of the day, his team may have stopped between
    70 and 100 people: about 50 before Mr. Figueiras was stopped and 20 to 50 after
    that. Because Sgt. Charlebois and the officers were patrolling a large area, as
    well as the underground pathway system, demonstrators who did not happen to be
    walking within the area patrolled by Sgt. Charleboiss group, or who did not
    happen to encounter the officers, could proceed uninhibited to the fence enclosing
    the perimeter of the summit site. Similarly, nothing prevented a demonstrator
    who was initially turned back by Sgt. Charleboiss team from approaching the
    security fence via another route.

[25]

The
    videos taken by Mr. Figueirass friends show that throughout the approximately
    seven minutes that Mr. Figueiras was talking to the officers, dozens of people
    passed by unimpeded around them. Cars passed through the intersection of King
    and University in an east-west direction, and pedestrians and people on
    bicycles passed through in all directions, including south on University past
    King Street, without being stopped by police. Near the end of one of the videos,
    a young woman wearing a backpack walked right through Sgt. Charleboiss team
    and continued to the south (i.e. toward the security fence) without being
    stopped.

(3)

The application

[26]

Mr.
    Figueiras applied to the Superior Court of Justice for declarations that the
    respondent police services boards and Sgt. Charlebois had violated his rights
    under ss. 2(b), 2(c), and 7 of the
Charter
, and that these violations
    could not be justified under s. 1. He also sought a declaration that Sgt.
    Charlebois had committed the tort of battery by grabbing and pushing him.

The decision below

[27]

Before
    the application judge, the parties agreed that the officers had no statutory
    authority, whether under the
Criminal Code
or otherwise, to demand
    that Mr. Figueiras consent to a search of his bag as a precondition to walking
    down a public street in the direction of his choosing. The question was
    therefore whether the officers actions were authorized under the common law
    ancillary powers doctrine. Counsel on both sides agreed that if they were, Mr. Figueirass
Charter
rights were not breached.

[28]

As
    Watt J.A. recently summarized in
R. v. Peterkin
, 2015 ONCA 8, at paras.
    37-38, where an officers conduct has led to a
prima facie
interference
    with an individuals liberty or property, the court applies a two-part test to
    determine whether the impugned conduct falls within the officers common law ancillary
    powers. The test, originally articulated by the English Court of Criminal
    Appeal in
Waterfield
, asks:

(1) Does the police conduct in question fall within the general
    scope of any duty imposed on the officer by statute or common law?

(2) If so, in the circumstances of this case, 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?

See also
R. v. Mann
, 2004 SCC 52, [2004] 3
    S.C.R. 59, at paras. 24-26;
R. v. MacDonald
, 2014 SCC 3, [2014] 1
    S.C.R. 37, at paras. 33-40.

[29]

Here,
    the parties agreed that the officers conduct met the first part of the
Waterfield
test  they were acting in furtherance of the recognized police duty to
    preserve the peace. Only the second stage of the
Waterfield
test was
    in issue.

[30]

The
    application judge accepted at the outset of his analysis that the officers requests
    to search Mr. Figueirass bag were not necessarily politely made at all
    times. He explained, at para. 12:

There is no denying the words used by the police officers as
    quoted in paragraph 4 of Mr. Figueirass affidavit above [i.e. This is our
    area; Mr. Figueiras was not smart enough to listen; This aint Canada right
    now; Were in G20 land; and There is no civil rights here in this area].
    Those and others plainly audible on the video recording were not appropriate
    words. They do not represent either a correct statement of the law or the
    proper description of the role of the police that day. However, viewed in
    context, it is clear that Detective Charlebois was not willing to have a debate
    with Mr. Figueiras about the finer points of constitutional law and simply
    wished him to move on. In any event, the issues in this proceeding do not turn
    on the words used by the officers but upon their conduct.

[31]

After
    reviewing
R. v. Clayton
, 2007 SCC 32, [2007] 2 S.C.R. 725, and
Brown
    v. Durham Regional Police Force
(1998), 43 O.R. (3d) 223 (C.A.), the
    application judge concluded that the officers conduct was justified and met
    the second stage of the
Waterfield
test. The application judge was of
    the view that the officers could properly conclude that there was imminent  apprehended
    harm [of] specifically identifiable breaches of the peace, rioting, property
    damage, looting, and efforts to unlawfully disrupt the G20 summit based on the
    previous days events (at para. 21). As a result, preventing demonstrators who
    refused to submit to a search of their bags from reaching King Street and
    proceeding south was a minimal intrusion on the right to move about freely.

[32]

In
    addition to relying on the officers duty to preserve the peace, the
    application judge relied on
R. v. Knowlton
, [1974] S.C.R. 443, to
    conclude that the police had the power to cordon off areas in order to protect
    foreign dignitaries from harm. As Sgt. Charlebois stated in his affidavit, the
    police were concerned that efforts would be made to disrupt the summit meeting.
    The intersection of University and King was close to the security fence and to
    where some of the unlawful acts had occurred on the previous day. In the
    application judges view, therefore, the police would have been well within
    their authority to require every person seeking to continue south to open his
    or her bag. The fact that the police were searching only suspected demonstrators
    did not render the police conduct an abuse of authority. On the contrary, he
    held that this tailoring rendered the interventions minimally intrusive. As a
    result, the police did not exceed their authority or act arbitrarily.

[33]

The
    application judge analogized the searches carried out here to those carried out
    of persons seeking to enter courthouses and airports. As in the case of
    courthouses and airports, there was a clear need for security in the area of
    King and University. Preventing a person who refused to consent to a weapons search
    from getting closer to the summit site was, therefore, a reasonable exercise of
    police powers at common law.

[34]

As
    to Mr. Figueirass claim that his ss. 2(b) and 2(c) rights had been violated,
    the application judge held that, having found the police conduct to be lawful,
    there could be no violation of these rights.

[35]

The
    application judge also held that, had he found a breach of the
Charter
,
    he would have upheld the police conduct under s. 1 as a reasonable limit on Mr.
    Figueirass
Charter
rights. In his view, protecting the peace was a
    pressing and substantial objective, and conducting a minimally intrusive search
    was rationally connected to that objective. Minimal infringements of this type are,
    he explained, routinely accepted throughout our society in the complete
    absence of any imminent threat or any reasonable grounds of suspicion as
    existed in this case (at para. 30).

[36]

Finally,
    the application judge held that Sgt. Charlebois had not committed the tort of
    battery because his touching of Mr. Figueiras was
de minimis
, and in
    any event, Sgt. Charlebois was immune from liability pursuant to s. 25(1) of
    the
Criminal Code
.

Issues

[37]

Mr.
    Figueiras maintains that the
Charter
rights at issue in this appeal
    are his right to liberty under s. 7, as well as his rights under ss. 2(b) and
    2(c), namely freedom of expression and freedom of peaceful assembly. The
    respondents, for their part, argue that the relevant
Charter
right is
    the s. 9 right not to be arbitrarily detained.

[38]

The
    essence of Mr. Figueirass complaint is that Sgt. Charlebois and the other officers
    unlawfully stopped him from travelling down a public street and prevented him from
    carrying on his peaceful demonstration at a location nearer to the summit site.
    This course of police conduct engaged Mr. Figueirass common law right to move
    unimpeded on a public highway and his s. 2(b) right of freedom of expression.
    As I will explain, I do not consider it necessary to deal with the alleged
    violations of Mr. Figueirass ss. 2(c) and 7 rights. I also do not agree with
    the respondents position that the focus of the
Charter
analysis is necessarily
    that conducted under s. 9.

[39]

The
    central issue on appeal is, therefore, whether the application judge erred in
    his application of the
Waterfield
test and in his conclusion that the
    police had the common law power to restrict Mr. Figueirass movements and right
    to protest as they did here.

[40]

A
    secondary issue is whether the application judge erred by holding that Sgt. Charlebois
    had not committed battery.

Analysis

(1)

Common law police powers and
Waterfield

[41]

Rule
    of law is a fundamental principle of the Canadian constitution:
Re Manitoba
    Language Rights
, [1985] 1 S.C.R. 721. One crucial aspect of the rule of
    law is the principle that the exercise of all public power must find its
    ultimate source in a legal rule:
Reference re Remuneration of Provincial
    Court Judges
, [1997] 3 S.C.R. 3, at para. 10. As a result, police
    officers  only act 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:
Dedman v. The Queen
, [1985] 2 S.C.R. 2, at p. 28.

[42]

Police
    powers arise both from statute (e.g.
Police Services Act
, R.S.O. 1990,
    c. P.15;
Criminal Code
) and from the common law itself. In the latter
    case, this is referred to as the ancillary powers doctrine, reflecting the
    fact that police
powers
are ancillary to police
duties
.

[43]

Police
    officers are given broad duties to preserve the peace and prevent crime. The
    powers conferred on them to execute those duties, however, are not
    correspondingly broad. As Doherty J.A. explained in
R. v. Simpson
(1993), 12 O.R. (3d) 182, at p. 194:

The law imposes broad general duties on the police but it
    provides them with only limited powers to perform those duties. Police duties
    and their authority to act in the performance of those duties are not
    co-extensive. Police conduct is not rendered lawful merely because it assisted
    in the performance of the duties assigned to the police. Where police conduct
    interferes with the liberty or freedom of the individual, that conduct will be
    lawful only if it is authorized by law.

[44]

Doherty
    J.A. later reinforced this point in
Brown
, where he noted that [t]he
    common law ancillary power doctrine has never equated the scope of the police
    duties with the brea[dth] of the police powers to interfere with individual
    liberty in the performance of those duties (at p. 250).

[45]

Brown
also stands for the proposition that it will be more difficult for police to
    justify the existence and exercise of a power on the basis of preventive
    policing compared to when the police investigate a past or ongoing crime (
Brown
,
    at pp. 249-51).

[46]

Courts
    play an important role in regulating the exercise of preventive policing due to
    the low-visibility nature of preventative stops and their potential for abuse.
    As the Supreme Court explained in
Mann
, at para. 18: [T]he
    unregulated use of investigative detentions in policing, their uncertain legal
    status, and the potential for abuse inherent in such low-visibility exercises
    of discretionary power are all pressing reasons why the Court must exercise its
    custodial role. When courts exercise their custodial role, this will sometimes
    involve recognizing a police power and imposing a legal framework on its
    exercise, as occurred in
Mann
. But it may result in the wholesale
    rejection of a purported police power, as occurred in
Brown,
and as I
    propose to do here.

[47]

The
Waterfield
analysis is contextual, and one of the most important
    elements of context is the degree to which the police can link an individual
    whose rights are affected by police conduct to an actual or anticipated crime.

[48]

The
Waterfield
test involves a careful balancing of competing interests.
    On one side of the scale is the states interest in effective policing,
    including keeping the peace and crime prevention. On the other side is a
    consideration of the liberty interests of citizens, such as Mr. Figueiras,
    affected by the power that police exercise (or purport to exercise).

[49]

Waterfield
was imported into the Canadian jurisprudence in the pre-
Charter
case of
Dedman
. After the
Charter
s adoption, the Supreme
    Court effectively integrated the analysis of the impact on
Charter
rights into the
Waterfield
analysis. As the concurring minority in
Clayton
explained, the reference to liberty in the
Waterfield
test is a
    reference to all of a citizens civil liberties, which in a post-
Charter
era mean both common law liberties, such as those at stake in
Dedman
and
Waterfield
itself, as well as constitutional rights and freedoms,

such as those protected by the
Charter
(
Clayton
, at
    para. 59).

[50]

Over
    time, the Supreme Court has modified the
Waterfield
test to emphasize
    the importance of
Charter
-protected rights. For example, the
Waterfield
test was summarized in
Mann
, at para. 26, as follows:

At the first stage of the
Waterfield
test, police
    powers are recognized as deriving from the nature and scope of police duties,
    including, at common law, the preservation of the peace, the prevention of
    crime, and the protection of life and property (
Dedman
,
supra
,
    at p. 32). The second stage of the test requires a balance between the competing
    interests of the police duty and of the liberty interests at stake. This aspect
    of the test requires a consideration of

whether an invasion of individual rights is necessary in order
    for the peace officers to perform their duty, and whether such invasion is
    reasonable in light of the public purposes served by effective control of
    criminal acts on the one hand and on the other respect for the liberty and
    fundamental dignity of individuals. (
Cloutier
,
supra
, at pp.
    181-82)

The reasonable necessity or justification of the police conduct
    in the specific circumstances is highlighted at this stage. Specifically, in
Dedman
,
supra
, at p. 35, Le Dain J. provided that the necessity and reasonableness
    for the interference with liberty was to be assessed with regard to the nature
    of the liberty interfered with and the importance of the public purpose served.

[51]

The
    Supreme Court continues to apply the
Waterfield
analysis to define the
    limits of common law police powers. It has done so in accordance with
Charter
values, and in some cases has expressly integrated the
Waterfield
test
    into existing
Charter
frameworks, such as the
R. v. Collins
,
    [1987] 1 S.C.R. 265, analysis for the reasonableness of searches: see
MacDonald
.
    Accordingly, some commentators have argued that the Supreme Court has imported into
    the application of the
Waterfield
test an analysis akin to
R. v.

Oakes
, [1986] 1 S.C.R. 103  (see e.g. Richard Jochelson, Ancillary
    Issues with
Oakes
: The Development of the
Waterfield
Test and
    the Problem of Fundamental Constitutional Theory (2012-2013) 43:3 Ottawa L.
    Rev. 355).

[52]

The
    potential interplay between
Waterfield
and
Oakes
is
    particularly important given the liberties at stake in this case. The existing
Waterfield
jurisprudence deals predominantly, if not exclusively, with rights under ss. 8,
    9, and 10 of the
Charter
, which have internal limits built into the rights
    they guarantee (i.e. s. 8 guarantees the right to be secure against
unreasonable
search and seizure; s. 9 guarantees the right not to be
arbitrarily
detained
    or imprisoned). The Supreme Court has held that a detention that is found to be
    lawful at common law is, necessarily, not arbitrary under s. 9 (
Clayton
,
    at para. 20). Similarly, a search conducted incidentally to a lawful arrest or detention
    will not be found to infringe s. 8 if the search is carried out in a reasonable
    manner and reasonable grounds for the search exist (
Mann
;
R. v.
    Caslake
, [1998] 1 S.C.R. 51).
As a
    result, when police act in accordance with their common law ancillary powers,
    the internal limits of these sections are respected, and there is no
Charter
breach that must be justified by s. 1.

[53]

By
    contrast, s. 2(b) guarantees an unqualified right to freedom of expression,
    without internal limits, the infringement of which falls to be justified under
    s. 1: Peter W. Hogg,
Constitutional Law of Canada
, 5th ed., loose-leaf
    (Toronto: Carswell, 2007), at p. 43-6. Thus, to the extent that the police
    conduct in this case infringed Mr. Figueirass expressive rights, it is not
    immediately apparent that that conduct should be analyzed under
Waterfield
rather than under s. 1 (and, in particular, under the prescribed by law
    branch of the
Oakes
test).

[54]

In
    my view, nothing turns on the approach taken. Whichever approach is used here,
    the outcome of the appeal depends on whether the officers were validly exercising
    a common law police power. In any case, as I explained above, the parties
    agreed before the application judge that if the impugned conduct passed muster
    under
Waterfield
, there was no breach of Mr. Figueirass
Charter
rights.
    In light of that position, I will follow the
Waterfield
analysis  as
    the application judge did  to decide this appeal.

(2)

Threshold issues

[55]

Before
    undertaking the
Waterfield
analysis, I will address two threshold
    issues: (a) defining the police power at issue, and (b) identifying the liberty
    interests at stake.

(a)

Defining
    the police power

[56]

Defining
    what police power was being exercised in the present case is not
    straightforward. Various types of powers present themselves as possible
    candidates.

[57]

At
    first glance, Sgt. Charlebois and his team were exercising a police power to
    control access to a defined area. There are a variety of circumstances where such
    a police power has been recognized in the case law.

[58]

In
    some instances, statutes provide the police with the power to control access to
    an area. For example, there are statutes that regulate the publics access to
    buildings such as courthouses (in Ontario, the
Public Works Protection Act
,
    R.S.O. 1990, c. P.55) and airports (see the
Aeronautics Act
, R.S.C.
    1985, c. A-2, and associated regulations). These statutes typically require
    individuals to consent to a search before access to a building will be granted.
    In Manitoba, it was held that absent statutory authority, police were not
    authorized to carry out searches of those seeking to enter courthouses (
R.
    v. Gillespie
(1999), 142 Man. R. (2d) 96 (C.A.)). However, both this court
    and the Manitoba Court of Appeal have held that searches conducted at
    courthouses were
Charter
-compliant, provided that the power was
    granted to police by statute (
R. v. Campanella
(2005), 75 O.R. (3d)
    342 (C.A.);
R. v. Lindsay
, 2004 MBCA 147, 187 Man. R. (2d) 236).

[59]

There
    is no comparable statute here. Accordingly, the police must rely on their common
    law powers. Examples of the common law police power to control access to an
    area include establishing a perimeter around a police officer who is executing
    an arrest (
R. v. Wutzke
, 2005 ABPC 89, at paras. 60-66), establishing
    a perimeter around a police officer who is questioning a suspect or a witness (
R.
    v. Dubien
, [2000] Q.J. No. 250, at paras. 14-26 (C.M.)), establishing a
    perimeter around a crime scene to preserve evidence (
R. v. Edwards
, 2004
    ABPC 14, 25 Alta. L.R. (4th) 165, at paras. 4-6, 24-48, 66), and establishing a
    perimeter around a hazardous area to preserve public safety (
R. c. Rousseau
,
    [1982] C.S. 461, at pp. 461-62, 463-64 (Qc.)). It has also been recognized that
    the police can establish a security perimeter around a potential target of
    violent crime in order to ensure the targets protection (
Knowlton
, at
    pp. 447-48).

[60]

As
    the case law demonstrates, even in the absence of statutory authority, the
    police must be taken to have the power to limit access to certain areas, even
    when those areas are normally open to the public. However, this is not a
    general power; it is confined to proper circumstances, such as fires, floods, car
    crash sites, crime scenes, and the like.

[61]

However,
    the power exercised by Sgt. Charlebois and his team in this case was not merely
    a power to control access to an area; rather, it was a power to compel those
    entering an area to submit to a search, and to exclude those who refused. It was
    also a power that was applied selectively, targeting only demonstrators. This
    power was not provided by any statute or regulation. It was also significantly
    different from any of the situations recognized under common law and described
    in previously reported cases.

[62]

I
    would frame the power exercised in this case as follows: 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.

(b)

Identifying the liberty interests
    at stake

[63]

As
    noted earlier, the parties disagree about which liberties (in the sense of
    common law civil liberties or
Charter
rights) are implicated here. As
    a result, even though Mr. Figueiras had requested declaratory relief based on
    his ss. 2(b), 2(c), and 7
Charter
rights, the bulk of the application judges
    reasons focussed on s. 9. In my view, the unusual situation presented in this
    case makes the task of identifying the
Charter
issues less
    straightforward than it appears from the application judges reasons.

[64]

For
    example, one could argue that the s. 8 right to be free from unreasonable
    search is at play. After all, it was the polices desire to search Mr.
    Figueiras that led them to deny him access to the perimeter zone in the first
    place. However, the case law establishes that the operative moment for assessing
    a s. 8 violation is the moment at which the search is actually carried out (
Clayton
,
    at para. 48;
Peterkin
, at para. 62). I agree with the intervener the
    Canadian Civil Liberties Association that in this case, because there was no
    search, that moment was never reached.

[65]

Similarly,
    the s. 9 right not to be arbitrarily detained may well not apply here. On one
    hand, there could arguably have been a detention at some point during the
    interaction between police and Mr. Figueiras, but on the other hand, Mr.
    Figueiras was free to walk away from the officers, albeit not in the direction
    he had intended (See
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at
    paras. 20-21). Indeed, Mr. Figueiras himself argued that he was not detained
    and that his s. 9 rights were not engaged.

[66]

In
    my view, the police conduct in this case was a
prima facie
infringement
    of two liberties: freedom of expression under the
Charter
and the
    common law right to travel unimpeded down a public highway. I will address each
    in turn.

(i)

Charter
s.
    2(b) freedom of expression

[67]

Mr.
    Figueiras and his friends were demonstrating in favour of animal rights when
    they were stopped by Sgt. Charlebois and his team. It is undisputed that Mr.
    Figueiras and his friends intended to join with other demonstrators who may
    have gathered along the perimeter of the G20 summit site. Not only was Mr.
    Figueiras prevented from carrying on his demonstration as intended, but he also
    felt sufficiently intimidated by the officers conduct that he abandoned his
    demonstration altogether.

[68]

The
    test for a violation of s. 2(b) is the three-step test first adopted by the
    Supreme Court in
Irwin Toy Ltd. v. Quebec (Attorney General)
, [1989] 1
    S.C.R. 927, at p. 978, and restated in
Montréal (City) v. 2952-1366 Québec
    Inc.
, 2005 SCC 62, [2005] 3 S.C.R. 141, at paras. 56, 82:

(1)

The plaintiff is engaged in expressive activity;

(2)

Nothing about the 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.

[69]

The
    first step of the test is satisfied here because demonstrating is a
    well-established expressive activity. Indeed, this court has held that the
    right to protest government action lies at the very core of the guarantee of
    freedom of expression:
Ontario Teachers Federation v. Ontario (Attorney
    General)
(2000), 49 O.R. (3d) 257, at para. 34.

[70]

It
    is clear that Mr. Figueiras was engaged in expressive activity at the time he
    was stopped. Mr. Figueiras and his friends were wearing t-shirts bearing animal
    rights slogans and symbols. Two of Mr. Figueirass friends carried a megaphone
    and a large placard, respectively. Another handed a pamphlet to one of the
    officers and explained its contents.

[71]

The
    second step of the test is satisfied because nothing about Mr. Figueirass
    conduct would remove his intended expressive activity from the scope of s. 2(b)
    protection: see
2952-1366 Québec Inc.
, at paras. 62-81. Neither the
    method nor the location of Mr. Figueirass intended activity conflicts with the
    values protected by s. 2(b) (i.e. self-fulfilment, democratic discourse, and
    truth finding):
Canadian Broadcasting Corp. v. Canada (Attorney General)
,
    2011 SCC 2, [2011] 1 S.C.R. 19, at para. 37. In particular, public streets are
    clearly areas of public, as opposed to private, concourse, where expression of
    many varieties has long been accepted:
2952-1366 Québec Inc.
, at
    para. 81. Demonstrating around the G20 site, including the area adjacent to the
    security fence, was a perfectly lawful  and indeed reasonably expected  activity.

[72]

In
    the third step of the test, there are two branches under which freedom of
    expression could be violated: either the intent branch or the effects
    branch. Courts should first consider the intent or purpose of the government
    activity. If the intent was to restrict freedom of expression, there is no need
    to go on and consider the effects branch of the test:
Irwin Toy
, at p.
    972, citing
R. v. Big M Drug Mart Ltd.
, [1985] 1 S.C.R. 295, at pp. 331-32,
    334.

[73]

In
    the intent branch of the third step, if the government has aimed to control
    attempts to convey a meaning either by directly restricting the content of
    expression or by restricting a form of expression tied to content, its purpose
    trenches upon the guarantee (
Irwin Toy
, at p. 976).

[74]

In
    the effects branch of the third step, freedom of expression will be violated
    if the government imposes a limitation or precondition that must be complied
    with in order to exercise freedom of expression:
Canadian Broadcasting
    Corp.
, at para. 54.

[75]

The
    third step is satisfied here because Sgt. Charlebois admitted during
    cross-examination that his intent was to stop anybody that looked like they
    were involved in the protests [or]  looked like they were there for the
    purpose of protesting and demand that they either consent to a search or leave
    the area. When asked how he identified demonstrators, Sgt. Charlebois explained
    that he looked for people carrying placards or pamphlets. The intention
    motivating the police conduct was therefore to stop everyone who appeared to be
    exercising their freedom of expression, and to impose an onerous condition upon
    them.

[76]

In
    his affidavit, Sgt. Charlebois claimed that he did not intend to violate
    freedom of expression. This claim is of little weight given the admissions I
    have just reviewed. Moreover, his after-the-fact denial of any intent to
    interfere with freedom of expression is difficult to reconcile with his
    contemporaneous statements that [t]his aint Canada right now and that [t]heres
    no civil rights in this area. Such statements are far more probative indicators
    of Sgt. Charleboiss intentions than after-the-fact denials contained in an
    affidavit prepared by counsel.

[77]

In
    any case, stopping protesters and requiring that they submit to a search as a
    condition to being able to carry on their protest as they walk down a public
    street has the effect of restricting freedom of expression. This conduct thus
    constitutes a
prima facie
infringement of Mr. Figueirass freedom of
    expression under both branches of the
Irwin Toy
test. As I will explain
    later in my reasons, where the search imposed is not authorized by statute or
    under the common law, a violation of the right will be made out.

[78]

Having
    found a s. 2(b) violation, there is no need to address Mr. Figueirass s. 2(c)
    argument. In my view, issues related to Mr. Figueirass freedom of assembly are
    subsumed by the s. 2(b) analysis, as was the case in
British Columbia Teachers
    Federation v. British Columbia Public School Employers Association Assn.
,
    2009 BCCA 39, 306 D.L.R. (4th) 144, at para. 39, leave to appeal to S.C.C. refused,
    [2009] S.C.C.A. No. 160, [2009] S.C.C.A. No. 161.

(ii)

Common law liberty

[79]

Quite
    apart from s. 7 of the
Charter
, everyone has a common law right to
    liberty. This is apparent from the Supreme Courts decision in
Dedman
.
Dedman
was a pre-
Charter
case concerning roadside sobriety
    checks conducted at random as part of a RIDE program. Although the majority and
    minority differed over whether the deprivation of liberty was reasonable or not,
    they both held that these random stops infringed the liberty of those stopped.
    The references to liberty were to the common law right to liberty, since the
Charter
was not in force at the time of the impugned stops. The
Dedman
majority stated, at p. 35, that the right to circulate in a motor vehicle on
    the public highway was a liberty for the purpose of the
Waterfield
test. The majority went on to note, at p. 35, that this liberty to drive on a
    highway is not a fundamental liberty
like the ordinary right of movement
    of the individual
 (emphasis added). Thus the majority recognized the
    fundamental common law liberty of individuals to circulate freely along public
    roadways, particularly on foot.

[80]

In
    fact,
Dedman
s emphasis on the civil liberty to move unimpeded on
    public highways is part of a long common law tradition. The right to move
    freely on public highways (often called the right to pass and repass in older
    cases) has been upheld many times by appellate courts, including the Supreme
    Court, Britains House of Lords, and this court. See e.g.
Vancouver (City)
    v. Burchill
, [1932] S.C.R. 620, at pp. 624, 626;
Director of Public
    Prosecutions v. Jones
, [1999] UKHL 5, [1999] 2 A.C. 240, at p. 257, per
    Irvine L.C.;
Hydro-Electric Power Commission v. Grey (County)
(1924),
    55 O.R. 339, at p. 344 (C.A.).

[81]

When
    Mr. Figueiras was stopped by the police, he was walking peacefully along a
    public highway, since at common law, a highway includes the sidewalk of any
    public street. The police stop clearly resulted in an infringement of his
    common law liberty, namely his right to pass and repass unhindered along a
    public highway. Mr. Figueiras was prevented from reaching King Street and
    beyond. This infringement of Mr. Figueirass right is to be weighed in the
Waterfield
analysis.

[82]

Because
    I have found a
prima facie
infringement of the common law right to
    liberty and given my conclusion on the
Waterfield
analysis, I need not
    deal with Mr. Figueirass allegation that preventing him from walking down a
    public street infringed his s. 7 rights. As the Alberta Court of Appeal held in
R. v. S.A.
, 2014 ABCA 191, 575 A.R. 230, at paras. 222-25, leave to
    appeal to S.C.C. refused, [2014] S.C.C.A. No. 373, courts should avoid
    constitutionalizing disputes if those disputes can be decided on the basis of common
    law principles.

(3)

Application of the
Waterfield
test

[83]

I
    turn now to the application of the
Waterfield
test to the facts of
    this case. For convenience, I will again set out the two stages of the test.

[84]

In
    the first stage, the court must ask whether the action falls within the
    general scope of a police duty imposed by statute or recognized at common law
    (
MacDonald
, at para. 35).

[85]

In
    the second stage, the court must strike a balance between the competing
    interests of the police duty and of the liberty [or other] interests at stake
    (
Mann
, at para. 26). Put another way, is the police action reasonably
    necessary for the carrying out of the particular duty in light of all the
    circumstances (
MacDonald
, at para. 36)?

[86]

In
MacDonald
, at para. 37, the Supreme Court explained that the factors
    to be weighed in the second stage include:

(1)

The importance of the duty to the public good;

(2)

The extent to which it is necessary to interfere with liberty to perform
    the duty; and

(3)

The degree of interference with liberty.

[87]

As
    I have explained, the parties agree that the officers conduct in this case
    passes the first step of
Waterfield
. Sgt. Charleboiss actions fell
    within the scope of the police duty to preserve the peace and prevent damage to
    property or persons. The controversy lies in the application of step two.

(a)

The importance of the performance
    of the duty to the public good

[88]

Keeping
    the peace and preventing property damage or personal injury are clearly important
    duties. The June 27, 2010, deployment of 50 to 100 officers tasked to keep the
    peace demonstrates the seriousness of the perceived threat that day. If a riot
    were to occur, the events of the previous day suggested that significant
    property damage and, potentially, personal injury would follow.

(b)

The extent to which it is necessary to interfere with liberty to perform
    the duty

[89]

The
    application judge found that, because on the previous day there had been
    breaches of the peace, rioting, property damage, looting, and efforts to
    unlawfully disrupt the G20 summit, police believed that similar unlawful acts
    were imminent on June 27, 2010. The previous days unlawfulness occurred in
    areas where demonstrations were being held, and, in some cases, the
    perpetrators of the unlawfulness may have been demonstrators, or may have
    received the aid of demonstrators to hide amongst them using black bloc
    tactics. Consequently, Sgt. Charlebois decided to target only those persons who
    appeared to be demonstrators and demand that they submit to a search as a precondition
    of continuing down University Avenue. This, in the application judges view,
    constituted the minimum intrusion that was reasonably necessary in the
    circumstances.

[90]

As
    I explained earlier, the application judge analogized Sgt. Charleboiss searches
    to the permissible searches conducted of those entering a courthouse or
    boarding an airplane. The application judge did not view Sgt. Charleboiss decision
    to stop only demonstrators as being problematic, as it constituted only a
    minimal intrusion. He could not see the logic in finding that stopping less
    people was an excess of authority when detaining more people would have been
    permissible (at para. 25). He did not think that in exercising his discretion
    to tailor his intrusions to those most rationally connected with the objective
    of his activity, Detective Charlebois can be said to have behaved arbitrarily
    or exceeded his authority at common law (at para. 25).

[91]

In
    my view, the application judge erred in his analysis of this factor. Having found
    that unlawful acts similar to those committed the previous day were imminent
    and that police had a duty to protect against their commission, the application
    judge did not adequately assess whether the police power exercised here and the
    resulting interference with Mr. Figueirass liberty was
necessary
for
    the performance of the duty. He also erred in analogizing Sgt. Charleboiss selective
    searches to searches conducted at the entrances to courthouses and airports. I
    will discuss these errors in more detail below.

(i)

Was the exercise of the power necessary?

[92]

Where,
    in carrying out his or her duties, a police officer interferes with an
    individuals liberty, it must be shown that the interference is necessary to
    the performance of the duty:
Dedman
, at p. 35.

[93]

In
    other words, where the power being exercised is in furtherance of the police
    duty to keep the peace, it must be rationally connected to the risk sought to
    be managed (that is, the risk that the peace will be breached), and it must be
    an effective means of materially reducing the likelihood of that risk occurring.
    If the interference with individual rights bears no rational connection to the
    duty being performed or is not effective in furthering the police duty, then
    surely it is not a necessary interference.

[94]

In
Clayton
, both the majority and the minority found that the impugned police
    conduct  stopping all cars leaving a parking lot immediately after a witness
    reported seeing several men with guns in the parking lot  was an effective and
    rational way to respond to the circumstances. It was therefore a justifiable
    use of police powers. Indeed, the minority highlighted, at para. 99, that [w]hile
    the effectiveness itself of police action does not confer legitimacy, the
absence
of likely effectiveness would argue strongly against a valid blockade
    (emphasis in original).

[95]

Similarly,
    in
R. v. Godoy
, [1999] 1 S.C.R. 311, the Supreme Court recognized that
    police officers possess a common law power of entry into private homes to investigate
    disconnected 911 calls. The recognition of such a power was justified because forcible
    entry was the only effective means of enforcing the 911 system; any lesser
    power would have been ineffective in accomplishing the police duty of
    protecting life.

[96]

Effectiveness
    also played a key role in several
Charter
decisions concerning the
    justification of powers granted to police by statute. In
R. v. Ladouceur
,
    [1990] 1 S.C.R. 1257, a case concerning random police stops of motorists to
    check licences, insurance, mechanical fitness of cars, and drivers sobriety,
    the Supreme Court, in this case applying the
Oakes
test, focused on
    effectiveness. When applying the
Oakes
test, the Court concluded that,
    although random stops interfered with the rights of drivers, they provided the
    only effective means of taking unauthorized drivers off the road. A similar
    result was reached a decade later in
R. v. Hufsky
, [1998] 1 S.C.R.
    621.

[97]

In
    the present case, the application judge found that there was an imminent
    threat of a repeat of the previous days violence and that it was the duty of
    the police deployed that day to prevent it. While I accept that finding for the
    purpose of this appeal, I note that the application judges definition of
    imminent would appear to be more generous than the one this court adopted in
Brown
.
    Although there was a legitimate concern that the previous days breaches of the
    peace would be repeated, there were no indications that any breach of the peace
    was ongoing or imminent in the area of King and University.

[98]

In
Brown
, this court held that while the
Highway Traffic Act
,
    R.S.O. 1990, c. H.8, empowered police to conduct preventive stops of vehicles on
    a road leading to a biker gangs rural property, those same stops were not
    authorized under the
Waterfield
ancillary powers doctrine. Writing for
    the court, Doherty J.A. explained, at p. 249:

Two features of the common law power to arrest or detain to
    prevent an apprehended breach of the peace merit emphasis.
The apprehended
    breach must be imminent and the risk that the breach will occur must be
    substantial. The mere possibility of some unspecified breach at some unknown
    point in time will not suffice.
These features of the power to arrest or
    detain to avoid a breach of the peace place that power on the same footing as
    the statutory power to arrest in anticipation of the commission of an indictable
    offence. That is not to say that the two powers are co-extensive. Many
    indictable offences do not involve a breach of the peace and, as indicated
    above, conduct resulting in an apprehended breach of the peace need not involve
    the commission of any offence.
Both powers are, however, rooted in the
    recognition that intervention is needed to avoid the harm which is likely to
    flow in the immediate future if no intervention is made. To properly invoke
    either power, the police officer must have reasonable grounds for believing
    that the anticipated conduct, be it a breach of the peace or the commission of
    an indictable offence, will likely occur if the person is not detained
.
    [Emphasis added.]

[99]

Similarly,
    in
Mann
, at para. 40, the Supreme Court cautioned that a search incidental
    to an investigative detention cannot be justified on the basis of a vague or
    non-existent concern for safety, nor can the search be premised upon hunches or
    mere intuition.

[100]

Even assuming that
    Sgt. Charlebois and his team faced an imminent risk of a repeat of the
    previous days lawlessness, in my view the application judge erred in
    concluding that the power they exercised vis-à-vis Mr. Figueiras was necessary
    to respond to the risk of a breach of the peace. I say this for two reasons: the
    power was not effective, and it was not rationally connected to the purpose. I
    will address each in turn.

Effectiveness

[101]

Effectiveness in
    the context of police powers is not measured by whether a risk does or does not
    in fact materialize. 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.

[102]

Sgt. Charleboiss
    team was only one of many patrolling the downtown. The briefing that was given
    to the 50 to 100 officers deployed to secure the downtown that day did not
    include a directive or even a suggestion that would-be demonstrators should be
    targeted and searched for weapons, nor had Sgt. Charleboiss superiors decided
    that demonstrators should be prevented from gathering in any specific area. The
    authorities in charge obviously did not consider mandatory searches at the
    corner of University and King as necessary to manage the risk that the second
    day of the G20 summit would mirror the chaos of the first. The officers instructions
    were simply to ensure that no one entered the underground pathway and to be
    vigilant when patrolling outside on the streets.

[103]

Given that the
    concern for violence applied to the entire downtown core, encompassing Queens Park
    to the north, Spadina Avenue to the west and Yonge Street to the east, sporadic
    stops by one group of officers of only those persons who appeared to be demonstrators
    would have virtually no impact. Sgt. Charleboiss evidence was that his team stopped
    only 70 to 100 people out of the thousands who were in the downtown core that
    day. Further, anyone whom Sgt. Charleboiss team turned back could simply have taken
    an alternate route south to the security fence. Therefore, even to the extent
    that the concern related to the area near the fence surrounding the G20 site, any
    would-be troublemakers could easily have reached the area by another route.

Rational connection

[104]

Sgt. Charleboiss
    team decided to conduct a weapons search of only those people who appeared to
    be demonstrators. All others went by unimpeded. While it was apparent that
    demonstrations had turned violent the previous day, it was not clear that the
    violence was initiated by demonstrators as opposed to people who infiltrated
    and mixed into the groups of demonstrators. Sgt. Charleboiss conclusion that
    persons such as Mr. Figueiras who were clearly demonstrators were at fault for
    the previous days violence was largely speculative.

[105]

Additionally, the
    lawlessness of the previous day was not limited to the area south of King
    Street. It occurred throughout large portions of the downtown. As Sgt.
    Charlebois explained, black bloc tactics had in fact been used on Yonge and
    College Streets, well east and north of the intersection of King and University.
    Turning back protesters who did not submit to a search from the intersection of
    King and University bore no rational connection to the imminent threat of a
    repeat of the previous days lawlessness in the entire downtown core of Toronto.

[106]

Finally, I note
    that the lawlessness that occurred on June 26 did not involve the use of
    weapons such as might be secreted in a backpack. Sgt. Charlebois filed a video
    as an exhibit to his affidavit to demonstrate the type of conduct that took
    place on June 26 and that the police were aiming to prevent on June 27. The
    video shows people using uprooted newspaper boxes, street signs, sandwich
    boards, and even bricks pried loose from a paved boulevard to smash shop
    windows. The destruction was wanton, senseless, and utterly disheartening. But there
    is nothing in the record to indicate it would have been prevented by random weapon
    searches of demonstrators bags at the corner of University and King, or
    indeed, anywhere else. The respondents own evidence showed that those engaged
    in violence acquired improvised weapons on the spot, rather than carrying them
    to the scene in backpacks.

[107]

Thus, unlike the
    police conduct in
Clayton
, the police conduct at issue here was
not
temporally, geographically and logistically responsive to the circumstances
    known by the police when it was set up (
Clayton
, at para. 41).

(ii)

The stops are not analogous to searches at courthouses and airport

[108]

The application
    judge also erred by analogizing what Sgt. Charlebois was doing to searches
    carried out of all persons entering buildings such as the courthouse in
    Toronto. I say this for several reasons.

[109]

First, and most
    significantly, searches carried out in Ontario courthouses are provided for by
    statute. They are not expressions of a common law police power. This court
    upheld the validity of these searches on a statutory basis, and that holding
    cannot be mechanically applied to a common law police powers analysis (
Campanella
).
    Indeed, the Manitoba Court of Appeal found that courthouse searches were
    illegal when carried out without statutory authority (
Gillespie
).

[110]

Second, such
    searches are effective in achieving the objectives sought ensuring that
    members of the public do not bring weapons or other contraband into courthouses
     because the search is required of everyone entering the premises, other than
    those having a special exemption (typically, lawyers and court staff).

[111]

Third, the
    public is told, in advance, of the requirement of and reasons for the search.
    In addition, equipment is provided and a space is allocated to aid in making
    the search the least intrusive possible; it is not, as here, conducted on a
    public street.

[112]

Fourth, these
    are general searches that do not target identifiable groups. Searches that
    target only specific groups raise different considerations. In
Brown
,
    this court held that stops that target an identifiable group must be carefully
    scrutinized (at para. 41). Similarly, in
R. v. Chehil
, 2013 SCC 49,
    [2013] 3 S.C.R. 220, the Supreme Court held, at para. 40, that profile
    characteristics are not a substitute for objective facts that raise a
    reasonable suspicion of criminal activity. Profile characteristics must be
    approached with caution precisely because they risk undermining a careful
    individualized assessment of the totality of the circumstances. As explained
    earlier, the basis for targeting would-be demonstrators, as a group, is weak
    and does not, in my view, rise to the level of reasonable suspicion.

[113]

The stop and the
    subsequent demand that Mr. Figueiras and his friends submit to a search flowed
    from Sgt. Charleboiss generalised suspicions of demonstrators as a group, not
    as a result of an individualized objective assessment of who Mr. Figueiras and
    his friends were or what they said and did in response to his questioning (see
Chehil
,
    at paras. 39-43).

(c)

The degree of interference with liberty

[114]

As noted
    earlier, the parties disagreed over which liberty interests were involved in
    this case. The application judge seems to have accepted the respondents position
    that the only relevant liberty interest was Mr. Figueirass s. 9 right not to
    be arbitrarily detained. At para. 15 of his reasons, he stated: It seems to me
    that the only liberty interest at play in this application is Mr. Figueirass
    right to move about freely without arbitrary detention.

[115]

Later in his
    reasons, the application judge referred to Mr. Figueirass submission that the
    relevant right is the right to travel freely on public streets. However, the
    only clear finding made by the application judge as to which
Charter
or
    other liberty interests were affected is the finding set out above respecting Mr.
    Figueirass s. 9 right not to be arbitrarily detained. There was no real analysis
    of Mr. Figueirass other
Charter
rights or common law liberties.

[116]

As a result, it
    is difficult to discern from the reasons what liberty interests the application
    judge considered in the balancing exercise he carried out as required by
Waterfield
.
    He simply concluded his analysis as follows, at para. 26:

Refusing to allow someone to get close to the G20 summit who
    did not wish to show that he did not have weapons in his knapsack, in the
    circumstances that existed on June 27, 2010, was a reasonable exercise of
    police powers authorized under section 42 of the
Police Services Act
,
    at common law and it meets the standards applicable to
Charter
scrutiny set out in
Clayton
and the other Supreme Court of Canada
    jurisprudence.

[117]

What is clear,
    however, is that this conclusion was reached without any consideration of the
    interference with Mr. Figueirass other
Charter
rights, including
    freedom of expression. The fact that these rights were not taken into account
    in the application judges
Waterfield
analysis is apparent from para.
    28 of his reasons. This paragraph followed the conclusion quoted above.

[118]

At para. 28, the
    application judge rejected Mr. Figueirass argument that his ss. 2(b) and 2(c)
    rights were violated simply on the basis that [h]aving already found that the
    conduct of Detective Charlebois was lawful, this argument must fail too. The
    application judge erred by failing to consider the interference with all of the
Charter
rights impacted by the police conduct, and by failing to
    squarely address Mr. Figueirass common law liberty rights in his
Waterfield
analysis.

[119]

When considering
    the extent of police interference with an individuals liberty, the court must have
    regard to the cumulative impact on all of the individuals liberty interests.
    In other words, the court must not carry out a separate
Waterfield
analysis for each of the liberties or
Charter
interests that is
    affected. The overall impact of the police conduct on all of the claimants
    civil liberties must be considered in the balancing exercise. Both Mr. Figueirass
    common law liberty to proceed unhindered down a public street and his s. 2(b)
    right to freedom of expression were interfered with in this case. Both rights
    must be weighed in the balance, together.

(d)

The balancing exercise

[120]

In
Brown
,
    Doherty J.A. framed the principles that inform the final balancing required
    under
Waterfield
in a preventive policing context, at p. 251:

The balance struck between common law police powers and
    individual liberties puts a premium on individual freedom and makes crime
    prevention and peacekeeping more difficult for the police. The efficacy of
    laws controlling the relationship between the police and the individual is not,
    however, measured only from the perspective of crime control and public safety.
    We want to be safe, but we need to be free.

[121]

As I explained
    above, the application judge committed several errors both in his analysis as
    to whether the officers actions were necessary to carry out their duty, and in
    his assessment of the rights that the officers actions interfered with.

[122]

In my view, the
    application judge also erred in how he approached the balancing exercise, in
    two ways.

[123]

First, the
    application judge misinterpreted the concept of minimal impairment. He found
    that, by targeting only apparent demonstrators, the officers had tailored
    their activities to the minimum intrusions reasonably necessary in the
    circumstances (at para. 25). In effect, he equated minimal impairment with
    minimizing the number of people affected, but did not consider whether the
    impact on those targeted by the police conduct could be minimized.

[124]

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. Figueirass rights.

[125]

Second, the
    application judge explicitly gave no weight to the words the officers used in
    exercising their powers and instead focused only on their conduct. In my view,
    the two cannot be so easily separated.

[126]

Sgt. Charlebois
    justified his demand to search Mr. Figueirass bag by explaining, This aint
    Canada right now and Theres no civil rights here in this area. This was, as
    the application judge found, 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. Figueirass liberty.

[127]

Finally, the
    application judges reliance on
Clayton
was to a large extent misplaced,
    and he erred in his application of
Brown
to the present case.
Clayton
involved the investigation of a serious ongoing crime, and was not a preventive
    policing case; that alone is a compelling reason to distinguish it from the facts
    before us. But
Clayton
also involved a more carefully tailored police
    response than was employed here. The officers in
Clayton
did not
    search everyone who was stopped by their checkpoint. Instead, they conducted a
    brief investigative detention by asking motorists a few questions, and only if
    the behaviour of those stopped gave rise to further suspicion did they initiate
    a search. Here, Sgt. Charleboiss team searched everyone they stopped,
    regardless whether there were particularized grounds to justify a search.

[128]

As to
Brown
,
    the application judge found that it was distinguishable, since he found that
    five of the six factors that Doherty J.A. relied on in that case were not
    present on the facts before him. In
Brown
, at p. 250, 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.

[129]

The application
    judge found, at para. 21, that the facts before him addressed five of the six
    concerns enunciated in
Brown
(the application judges reasons do not
    address the fourth factor, namely the importance of the liberties interfered
    with):

At para. 77 of the
Brown
decision the Court of Appeal
    noted six factual deficits in the justification tendered by the police. At
    least five of the facts that did not exist in the
Brown
case do exist
    in this case. [Factor 1] Here, the apprehended harm was imminent. [Factor 2] The
    apprehended harm was specifically identifiable breaches of the peace, rioting,
    property damage, looting, and efforts to unlawfully disrupt the G20 summit near
    the security fence in the downtown financial core of Toronto. [Factor 3]
    The police concern was not based on amorphous lifestyle similarities of members
    of a biker gang, but on similar acts committed just the day before in the same
    places which were clearly threatened again. [Factor 5] The denial of
    access to those with a closed bag to within a block of the perimeter of the G20
    summit site was a minimal intrusion on the applicants right to move about
    freely. [Factor 6] Finally, alternative measures,
i.e
. a large police
    presence, had not succeeded the day before in preserving the peace. In my view,
    the criteria listed by the Court of Appeal in
Brown
are met in this
    case and therefore support the conclusion that was not available on the facts
    in that case.

[130]

In effect, the application
    judge found that the facts before him were a mirror-image reversal of those in
Brown
.
    I disagree. Many of the concerns raised in
Brown
are also present
    here.

[131]

Granted, some
    concerns are satisfied on these facts. First, for the purposes of this appeal,
    I accept that it was open to the application judge to find that the risk of
    harm was imminent. Second, I agree that the police sought to prevent a
    specific and identifiable harm, namely a repetition of the previous days
    disorder and violence. The events of the previous day provided police with
    sufficient specificity. However, with the exception of these two factors, the
    remaining problematic factors that were highlighted in
Brown
remain
    unaddressed here.

[132]

With respect to
    the third factor, the police did not have a particularized concern that could
    justify stopping Mr. Figueiras and his friends. Instead, police stopped
    individuals on the basis of generalized lifestyle concerns. Targeting
    activists and demonstrators is no more precise than targeting members of a
    motorcycle club. In fact, demonstrators are arguably a much broader and more
    amorphous group than the members of a particular motorcycle club.

[133]

Turning to the
    fourth factor, the liberty interests at stake here include both foundational common
    law civil liberties and fundamental constitutional freedoms. The common law
    liberty infringed here was the right to circulate freely in the community, just
    as in
Brown
. In addition, unlike in
Brown
, the police stops
    here had both the effect and the
intent
of infringing freedom of
    expression.

[134]

On the fifth
    factor, there was a substantial interference with liberty, both with respect to
    the number of interferences and their severity. A single team of police
    officers stopped between 50 and 100 people. This cannot be characterized as a
    minor or trivial number of stops. Additionally, for the reasons outlined above,
    these interferences were substantial. In terms of timing alone, the videos
    submitted by Mr. Figueiras document that the police encounters lasted more than
    seven minutes. Even after Mr. Figueiras and his friends turned back the way
    they came, the police tailed them for half a block, thereby prolonging the
    encounter.

[135]

With respect to
    the sixth factor, the police conduct here was unnecessary to keep the peace. As
    I explained earlier, the impugned police conduct was neither rationally
    connected to the performance of a police duty, nor was it effective in
    accomplishing that duty.

[136]

Finally, I would
    add that searches played a key role in the police power exercised here. By
    contrast, the police in
Brown
did not conduct systematic searches of
    those stopped.

[137]

In light of the
    above,
Brown
is an imperfect authority to support the legitimacy of
    the police conduct at issue. The application judge erred in law by relying on
    it to justify his application of the ancillary powers doctrine.

(4)

Conclusion on
Waterfield

[138]

The police power
    purportedly exercised here falls short of meeting the
Waterfield
test
    when it is weighed against the significant infringement of Mr. Figueirass liberty
    interests. The actions taken by Sgt. Charlebois and his team were not
    reasonably necessary and had little, if any, impact in reducing threats to
    public safety, imminent or otherwise. Had the authorities responsible for policing
    on June 27, 2010, determined that, based on intelligence they had gathered, effective
    exclusion zones such as were created in
Knowlton
were necessary, and
    steps were taken to create and enforce them, the result may have been
    different. This is not, however, the factual matrix we are presented with.

[139]

Since I have
    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 follows that the respondents interference with Mr. Figueirass common
    law liberty and s. 2(b)
Charter
rights was not prescribed by law. As a
    result, s. 1 of the
Charter
has no application and cannot be used to
    justify the breaches. A declaration should issue accordingly.

(5)

The tort of battery

[140]

The application
    judge described Sgt. Charleboiss touching of Mr. Figueiras as
de
    minimis
at worst (at para. 31). He also found that Sgt. Charleboiss actions
    were protected by s. 25(1) of the
Criminal Code
.

[141]

In my view, those
    findings cannot stand. First, a review of the video demonstrates that the
    contact is much more than a touching. Mr. Figueiras accurately describes the
    encounter in his affidavit:

Detective Charlebois then suddenly grabbed me by putting his
    left arm all the way around my back to the opposite shoulder and grasping my
    shirt and the shoulder strap of my backpack. He pulled me in towards him and
    leaned down so that his face was within approximately three inches of my face,
    and stated you dont get a choice. He then pushed me away and told me to get
    moving.

[142]

The tort of
    battery is committed whenever someone intentionally applies unlawful force to
    the body of another (
Norberg v. Wynrib
, [1992] 2 S.C.R. 226, at p. 246).
    There is no requirement to prove fault or negligence (
Non-Marine
    Underwriters, Lloyds of London v. Scalera
, 2000 SCC 24, [2000] 1 S.C.R.
    551, at paras. 8-10). Nor is there a requirement to prove damage or injury (
Norberg
,
    at p. 263). Relatively simple acts can constitute a battery, such as
    restraining a person by grabbing their arm (
Collins v. Willock
, [1984]
    1 W.L.R. 1172 (Eng. Div. Ct.), at p. 1180), or maliciously grabbing someones nose
    (
Stewart v. Stonehouse
, [1926] 2 D.L.R. 683 (Sask. C.A.), cited in
Scalera
,
    at para. 16).

[143]

However, not
    every act of physical contact is a battery. As the Supreme Court has put it,
    battery requires contact plus something else (
Scalera
, at para.
    16). That is, there must be something about the contact that renders that
    contact either physically harmful or offensive to a persons reasonable sense
    of dignity (
Malette v. Shulman
(1990), 72 O.R. (2d) 417 (C.A.), at p. 423).

[144]

The classic
    example of non-actionable conduct is tapping someone on the shoulder to get
    that persons attention, or the regular jostling that occurs in any crowded
    area. Something more than that is required to constitute a battery.

[145]

The contact with
    Mr. Figueiras in this case was more than just a
de minimis
 touching.
    It was the kind of unnecessary manhandling that, in my view, would offend the
    dignity of a person and serve to intimidate that person. As a result, I find
    that the elements of the tort of battery have been made out.

[146]

The sole defence
    raised to excuse officer Charleboiss conduct was s. 25(1) of the
Criminal
    Code
. This section provides a limited form of protection to police
    officers who use force while discharging their duties. It reads as follows:

25(1)
Every one who is required or authorized by law
to do anything in the administration or enforcement of the law

(b) as a peace officer or public officer,

is, if he acts on reasonable grounds, justified in doing what
    he is required or authorized to do and in using as much force as is necessary
    for that purpose. [Emphasis added.]

[147]

I have emphasized
    the opening words of s. 25(1) because they make it clear that this section cannot
    be relied on if the officer does not possess statutory or common law authority
    for his or her actions.

[148]

This is
    illustrated by this courts decision in
Hudson v. Brantford Police Services
    Board
(2001), 204 D.L.R (4th) 645. In that case, this court considered a
    civil claim brought by a plaintiff who was arrested by officers who had entered
    his home without a warrant and without any common law power of entry. In its
    decision, the court found that the officers entry was unlawful, and rejected a
    defence based on s. 25(1). At paras. 24 and 26, this court held as follows:

In effect, s. 25(1) protects the officer from civil liability
    for reasonable mistakes of fact and justifies the use of force.
It does not
    protect against reasonable mistakes of law, such as mistake as to the authority
    to commit a trespass to effect an arrest
.

Despite her findings of fact and law concerning the illegality
    of the entry and the arrest, the trial judge dismissed the claim because of her
    view that under s. 25 and at common law it is a defence if the officers are
    acting in good faith and on reasonable and probable grounds.
[T]his is too
    broad an application of s. 25(1). The issue is not whether the officers were
    acting unreasonably or in bad faith generally but whether they had
    authorization to trespass. They did not, and s. 25(1) affords them no defence
.
    [Emphasis added.]

[149]

This courts
    interpretation of s. 25(1) has been followed by the Manitoba Court of Appeal:
Tymkin
    v. Ewatski
, 2014 MBCA 4, 299 Man. R. (2d) 294, at para. 122, leave to
    appeal to S.C.C. refused, [2014] S.C.C.A. No. 75.

[150]

As I have
    concluded that Sgt. Charlebois lacked any common law police power to stop Mr.
    Figueiras and require that he submit to a search in order to proceed down
    University Avenue, he cannot rely on s. 25(1) to shield him from civil
    liability.

[151]

In any event,
    even if Sgt. Charlebois was authorized to stop Mr. Figueiras and demand that he
    submit to a search, I do not accept that the grabbing and pushing that occurred
    here were necessary to achieve this purpose.

[152]

Sgt. Charlebois
    committed the tort of battery.

Conclusion

[153]

I would allow
    the appeal. The appellant asked only for declaratory relief. Accordingly, I
    would grant a declaration that the respondents violated Mr. Figueirass common
    law right to travel unimpeded on a public highway, and that they also violated his
Charter
right to freedom of expression. I would also declare that the
    respondent Sgt. Charlebois committed the tort of battery.

[154]

I would award Mr.
    Figueiras his costs here and in the court below, each fixed in the amount of
    $5,000, inclusive of disbursements and applicable taxes.

Released: (PR) March 30, 2015
    Paul Rouleau J.A.

I
    agree K. van Rensburg J.A.

I agree G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: First Elgin Mills Developments Inc. v. Romandale
    Farms Limited, 2015 ONCA 138

DATE: 20150302

DOCKET: M44238 (C57028)

Epstein, Lauwers and
    Pardu JJ.A.

BETWEEN

First Elgin Mills Developments Inc.

Applicant (Appellant/Responding
  Party)

and

Romandale
    Farms Limited, Angela Maria Roman, Anne
    Catherine Ruth Roman, David Andrew Roman, Stephen
    George Roman, and Helen Elizabeth Roman-Barber

Respondents (Respondents/Moving
  Parties)

R. Leigh Youd and Adam J. Wygodny, for the moving
    parties

John J. Longo and Martin J. Henderson, for the responding party

COSTS ENDORSEMENT

[1]

For
    the reasons reported at 2014 ONCA 573, this court allowed the appeal by First
    Elgin Mills Developments Inc., with the costs of the appeal, and reversed the
    costs award in the court below.

[2]

The
    respondents in the appeal, led by Romandale Farms Limited, moved for a
    rehearing. The motion, which was in writing, was dismissed for reasons reported
    at 2015 ONCA 54.

[3]

As
    the successful respondent to the rehearing motion, First Elgin Mills
    Developments Inc. seeks costs on a partial indemnity basis, in the amount of
    $13,094, all inclusive. As responding party, it was obliged to file a factum, a
    brief of authorities and written submissions. It submits that a motion for a
    rehearing was improper and unnecessary. It also points out that the moving
    parties request for costs, if successful, suggested that they expected to pay
    costs if they did not succeed.

[4]

The
    moving parties argue that no costs should be awarded due to the particular
    circumstances of the motion for a rehearing.  In particular, they submit that the
    motion raised a novel issue that resulted in clarification of the law, by way
    of this courts adoption of the rehearing criteria set out in
Doman Forest
    Products Ltd. v. G.M.A.C. Commercial Credit Corp
., 2005 B.C.C.A. 111. The
    moving parties also submit that the quantum of costs requested by the
    responding party is disproportionate given that it exceeds the $10,000 in costs
    awarded on the appeal.  In the alternative to an order refusing costs, the moving
    parties suggest that the costs award on the rehearing motion should be no more
    than $3,900, on a partial indemnity basis.

[5]

We
    agree that costs should follow the event, and that a modest award is due in
    these circumstances, fixed at $4,000 all inclusive.

Gloria Epstein J.A.

P.
    Lauwers J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: G. Lipton
    Sales Ltd. v. Sivitilli, 2015 ONCA 214

DATE: 20150330

DOCKET: C58874

Sharpe, Pepall and van Rensburg JJ.A.

BETWEEN

G.
    Lipton Sales Ltd. carrying on business

under
    the firm name and style of LND Sales

Plaintiff (Appellant)

and

Piero
    Sivitilli
, Edward Sivitilli and

North
    One Investments Inc.

Defendants (Respondent)

Michael A. Handler, for the appellant

Jack F. Fitch and Jason Arcuri, for the respondent

Heard and released orally: March 25, 2015

On appeal from the order of Justice Edward Belobaba of
    the Superior Court of Justice, dated May 5, 2014.

ENDORSEMENT

[1]

We are not persuaded that the motion judge erred by granting summary
    judgment dismissing the claim against the respondent. There was no evidence
    that the respondent had any knowledge of the alleged fraud perpetrated by his
    son, or that he participated in any way in that alleged fraud. The case put against
    the respondent was entirely speculative in nature, namely that as he had
    previously been in business with his son, and that his son had used a bank
    account associated with that business in relation to the alleged fraud, that
    the respondent somehow became liable for the fraud.

[2]

We agree with the motion judge that in the circumstances of this case,
    that fell well short of raising a triable issue against the respondent.

[3]

We do not agree with the submission that the motion judge erred in his
    interpretation of the pleading. As we read the statement of claim, no case was
    pleaded in negligence against the respondent to the effect that he had failed
    to monitor the use of the account or the activities of his son, or that he was
    under any legal duty to do so vis-à-vis the appellant, absent any knowledge on
    his part of the alleged transaction at issue. Nor are we persuaded that there
    was any procedural error that could have affected the result in this case.

[4]

Accordingly, the appeal is dismissed.

[5]

Costs to the respondent fixed at $7,500, inclusive of disbursements and
    taxes.

Robert J. Sharpe J.A.

S.E. Pepall J.A.

K. van Rensburg J.A.