Figueiras v. Toronto (Police Services Board), 2015 ONCA 208
(1) Common law police powers and Waterfield
[41] Rule of law is a fundamental principle of the Canadian Constitution: Manitoba Language Rights (Re), 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, [1985] S.C.J. No. 36. 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 CanLII 317 (SCC), [1997] 3 S.C.R. 3, [1997] S.C.J. No. 75, 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": R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, [1985] S.C.J. No. 45, at p. 28 S.C.R.
[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), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182, [1993] O.J. No. 308 (C.A.), at p. 194 O.R.:
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 O.R.).
[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 O.R.). [page654]
[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 state's 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 citizen's 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 [page655] 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 CanLII 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15 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 CanLII 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7 (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 CanLII 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3). 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., looseleaf (Toronto: Carswell, 2007), at p. 43-6. Thus, to the extent that the police conduct in this case infringed Mr. Figueiras' expressive rights, it is not immediately apparent that that conduct should be analyzed [page656] 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. Figueiras' 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 public's 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 CanLII 4707 (MB CA), [1999] M.J. No. 562, 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), 2005 CanLII 10880 (ON CA), 75 O.R. (3d) 342, [2005] O.J. No. 1345 (C.A.); R. v. Lindsay, [2004] M.J. No. 380, 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 [page657] an arrest (R. v. Wutzke, [2005] A.J. No. 432, 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, J.E. 2000-461 (C.M.), at paras. 14-26); establishing a perimeter around a crime scene to preserve evidence (R. v. Edwards, [2004] A.J. No. 68, 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] J.Q. no 490, [1982] C.S. 461 (Sup. Ct.), at pp. 461-62, 463-64 C.S.). 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 target's protection (Knowlton, at pp. 447-48 S.C.R.).
[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 judge's reasons focused 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 judge's 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 police's [page658] 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 intervenor 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] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, at paras. 20-21). Indeed, Mr. Figueiras himself argued that he was not detained and that his s. 9 rights were not engaged.
