Ancillary Powers Examined in G20 Charter Damages ClaimStewart v. Toronto (Police Services Board), 2020 ONCA 255 (CanLII)
The Charter remains the bedrock of the Canadian constitution, even with concerns about the increased willingness of governments to derogate from those rights. Rights without a remedy may not have much meaning though, and and the enforcement provisions under the Charter itself state,
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.[emphasis added]What this means in a factual context has not been extensively analyzed by the courts. The most definitive statement on this provision can be found in the Supreme Court of Canada's decision in Vancouver (City) v. Ward, where the Court laid out a 4-part test,
In that case, Vancouver police arrested and strip searched an individual they mistakenly believed was going to throw a pie at the Prime Minister. After finding a s. 8 breach, the Court explained at the third stage how alternative remedies would analyzed, to determine whether Charter remedies would be inappropriate or unjust,
 ...The first step in the inquiry is to establish that a Charter right has been breached. The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages.
A recently Court of Appeal decision in Stewart v. Toronto (Police Services Board) applied this framework to a claim emerging from the G20 protests. The plaintiff was a Ph.D. candidate who came to Toronto to participate in the demonstrations.
 A functional approach to damages under s. 24(1) means that if other remedies adequately meet the need for compensation, vindication and/or deterrence, a further award of damages under s. 24(1) would serve no function and would not be “appropriate and just”. The Charter entered an existent remedial arena which already housed tools to correct violative state conduct. Section 24(1) operates concurrently with, and does not replace, these areas of law. Alternative remedies include private law remedies for actions for personal injury, other Charter remedies like declarations under s. 24(1), and remedies for actions covered by legislation permitting proceedings against the Crown.
 The claimant must establish basic functionality having regard to the objects of constitutional damages. The evidentiary burden then shifts to the state to show that the engaged functions can be fulfilled through other remedies. The claimant need not show that she has exhausted all other recourses. Rather, it is for the state to show that other remedies are available in the particular case that will sufficiently address the breach. For example, if the claimant has brought a concurrent action in tort, it is open to the state to argue that, should the tort claim be successful, the resulting award of damages would adequately address the Charter breach. If that were the case, an award of Charter damages would be duplicative. In addition, it is conceivable that another Charter remedy may, in a particular case, fulfill the function of Charter damages.
 The existence of a potential claim in tort does not therefore bar a claimant from obtaining damages under the Charter. Tort law and the Charter are distinct legal avenues. However, a concurrent action in tort, or other private law claim, bars s. 24(1) damages if the result would be double compensation: Simpson v. Attorney-General,  3 N.Z.L.R. 667 (C.A.), at p. 678.
The police required the inspection of bags and backpacks as basis for entry into the park where the demonstration would be held. The plaintiff did not comply with the police directions and entered the park regardless, after which the police stopped him, searched his bag, and allowed him to join the demonstrators in the park.
At trial, the judge rejected the plaintiff's claim, indicating that his Charter rights needed to be balanced with other considerations,
 Mr. Stewart could have respected the police perimeter and either given his consent to an inspection of his backpack prior to entering the park or declined to consent and left the park. However, he believed that his right of peaceful assembly was absolute and thus prevailed over the condition of entry imposed by the police. He chose to physically challenge the police perimeter and defy police authority by rushing past the police and into the park. The alleged Charter breaches relating to freedom from arbitrary detention or arrest and freedom from unreasonable search and seizure arise as a consequence of Mr. Stewart’s entry into the park, without permitting an inspection of his backpack, and the reaction of the police to his entry.In coming to this conclusion, the trial judge reviewed the specialized training that the police received for the G20 protests, and concluded they had the authority to establish a perimeter around the park under the Trespass to Property Act.
Although the plaintiff had never entered police custody, there was a limited investigative detention while the police ensured there were no weapons being brought into the park. This was justified by their common law duty and authority to maintain the safety of the public. Even if the police had the authority to act, their actions are still subject to the Charter.
The trial judge did not find a violation of the plaintiff's s. 2(b) Charter rights,
 In carrying out their duty, the police used a minimally intrusive means of controlling entry to Allan Gardens. I find that their chosen process against the background of the G20 did not result in a breach of Mr. Stewart’s freedom of expression or peaceful assembly. On the contrary, I find that the actions of the police were aimed at and intended to preserve the freedom of peaceful assembly for all users of the park on that day, including Mr. Stewart, and not to diminish it. Provided that Mr. Stewart complied with the condition of entry, he was free to enter Allan Gardens and free to express himself without the use of violence or threats of violence. Mr. Stewart was not asked to articulate how he wished to express himself at the demonstrations in Allan Gardens that day and the police did not deny him the right to participate in those demonstrations and the march that followed. The condition of entry imposed pursuant to the Trespass to Property Act, in fact, was aimed at promoting the very civic right of the public to peaceful assembly for all users of the park that day, including Mr. Stewart.  Had I concluded this point differently, I would have found that if Mr. Stewart’s freedoms protected by section 2 of the Charter were infringed, the conduct of the police was reasonable and demonstrably justified in a free and democratic society in the context of the G20.The Court of Appeal in Stewart reversed this decision, largely due to the Supreme Court of Canada's decision in Fleming v. Ontario, which was released after the trial decision. In that case, the police claimed to arrest a protester who had broken no law or committed no offence, on the basis that it was for his own protection.
The Court in Fleming analyzed the ancillary powers doctrine, by citing the Ontario Court of Appeal's decision in Figueiras v. Toronto (Police Services Board), which also involved police action during the G20. Although the application judge held the police conduct was authorized under the ancillary powers doctrine, the Court of Appeal reversed this decision.
The court provided at para 59 some examples of ancillary powers under common law, where there is no common law statute:
- police power to control access to an area include establishing a perimeter around a police officer who is executing an arrest (R. v. Wutzke at paras 60-66);
- establishing a perimeter around a police officer who is questioning a suspect or a witness (R. v. Dubien at paras. 14-26);
- establishing a perimeter around a crime scene to preserve evidence (R. v. Edwards at paras. 4-6, 24-48, 66);
- establishing a perimeter around a hazardous area to preserve public safety (R. c. Rousseau,  C.S. 461, at pp. 461-62, 463-64 (Qc.)); and,
- establishing a security perimeter around a potential target of violent crime in order to ensure the target’s protection (Knowlton at pp 447-48).
The Court of Appeal in Figueiras cited the Supreme Court of Canada in R. v. Clayton to make this point,
99 ...While 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]Because the condition of entry imposed in Stewart did not fall within the categories of common law police powers to control access to an area, the general duties of the police to preserve the peace, prevent crime, and protect life and property could not justify this measure. Instead, the police relied on the condition as a preventative measure to preserve the peace.
The Court of Appeal did not find this justified, because the protest was a lawful and peaceful one, and the police abandoned this condition regardless soon after given the number of people entering the park. They found this to be an error by the trial judge [para 59].
The problem with this conclusion is that the efforts made by the police was based on "uncontroverted evidence" that persons entering the park intended to engage in "violent demonstrations or mayhem in mind" [para 60]. The trial judge specifically found that s. 8 was not violated in this context, as the intelligence justified this police exercise of power.
The Court of Appeal also engages here in a retroactive analysis of police conduct, which even they concede involves minimal force [para 130]. The fact that the condition of entry to the park ultimately proved ineffective because police forces were overwhelmed is not proof that the measure itself was ill-advised. Effectively they accepted the plaintiff's submissions that the police actions were carried out without any real planning or forethought [para 138], despite the extensive evidence at trial of the training and briefing involved [paras 11-14]. These measures included removal of furniture, benches, tables, and other items from the park that could compromise public safety, as well as removing sticks or other items that could be used as weapons [paras 16-17].
This isn't to suggest that law enforcement's actions as a whole during the G20 were ideal, unconstitutional, or shouldn't give rise to other forms of action, especially in their use of kettling. Instead, the court here fails to give proper weight to the particular facts of the situation, where there was imminent danger from a large crowd, some of whom had weapons that they intended on using. The geographic proximity, which was specifically related to the intelligence of violence related to the protest in that particular park, and the temporal proximity, where large numbers of protesters were arriving at the park at that time, is the type of analysis that the Court in Clayton engages in [paras 99-100].
While the common law famously adapts itself to the evolution of society, the G20 protests reflect the type of novel problems that would allow for preventative measures to preserve the peace with minimal intrusions and force.
Instead, the Court of Appeal proceeded to analyze the lack of statutory authority under the Occupiers’ Liability Act, City of Toronto Act, 2006, and Trespass to Property Act, as this was a substantial portion of the trial judge's reasoning justifying the action. Because the court concluded the police did not have the authority to impose and enforce the conditions, it was not prescribed by law, and could not be justified under s. 1. Consequently, no analysis of a sufficiently important objective, or of any proportionality, was undertaken.
Applying the 4-part test in Ward, the court awarded modest damages of $500. The good faith and professionalism of law enforcement reduced the quantum, and the interference to the person as compared to Ward and Fleming was significantly less [paras 146-149].
While this case provides an important analysis of how modest Charter damages can still have a deterrent effect against overly broad police actions, how those actions are evaluated remains a concern, especially in the absence of a robust and comprehensive s. 1 analysis.