



COURT OF APPEAL FOR ONTARIO

CITATION: Langenfeld v. Toronto Police
    Services Board, 2019 ONCA 716

DATE: 20190912

DOCKET: C65691

Doherty, Rouleau and Brown JJ.A.

BETWEEN

Kristian Langenfeld

Applicant (Respondent)

and

Toronto Police Services Board
    and
Toronto Police Chief Mark Saunders

Respondents (
Appellant
)

Earl A. Cherniak, Cynthia B. Kuehl,
    Christopher T. Shorey and Marianne Wright, for the appellant Toronto Police
    Chief Mark Saunders

Selwyn A. Pieters, for the respondent
    Kristian Langenfeld

Fred Fischer, Lauren E. Elliott, and Ryan
    Krahn, for the respondent Toronto Police Services Board

Daniel Guttman and Ravi Amarnath, for
    the intervener Attorney General of Ontario

Heard: April 30, 2019

On appeal from the order of Justice Jill
    M. Copeland of the Superior Court of Justice, dated June 18, 2018, with reasons
    reported at 2018 ONSC 3447, 414 C.R.R. (2d) 85.

Doherty J.A.:



I



overview

[1]

In June 2017, the appellant, Toronto Police
    Chief Mark Saunders (Chief Saunders) instituted a new security protocol at
    Police Headquarters on College Street in Toronto. Anyone, with certain
    exceptions which are not relevant for present purposes, entering the building
    for any reason, was required to pass through security. The process consisted of
    wanding persons entering the building with a metal detector and visually
    examining the contents of any purses or bags in their possession. Security
    personnel examined the bags for dangerous items such as knives or other
    weapons. The security process put in place by Chief Saunders was very similar
    to security procedures used in courthouses, at large sporting events, and other
    public venues.

[2]

The respondent, Mr. Kristian Langenfeld (Mr. Langenfeld),
    a Toronto resident, has regularly attended meetings of the Toronto Police
    Services Board (TPSB) for several years. Those meetings, which must be held
    in public, except in certain specified circumstances, are held in an auditorium
    on the second floor of Police Headquarters. Prior to June 2017, persons who
    wanted to attend the meetings were not required to pass through security.

[3]

Mr. Langenfeld refused to pass through security
    at the entrance to Police Headquarters. He was consequently refused entry to
    the building and could not attend the meeting of the TPSB.

[4]

Mr. Langenfeld brought an application seeking an
    injunction, ordering Chief Saunders to discontinue the screening process. Mr. Langenfeld
    alleged that Chief Saunders had no authority to institute the screening
    process. He further maintained that the process infringed his right of freedom
    of expression under s. 2(b) of the
Charter
and violated the TPSBs
    statutory obligation to hold its meetings in public. Mr. Langenfeld argued that
    Chief Saunders had no lawful authority to subject persons who wished to attend
    the public meetings of the TPSB to warrantless searches for which there were no
    reasonable and probable grounds.

[5]

The application judge held that the security
    measures put in place by Chief Saunders, as applied to persons wishing to
    attend public meetings of the TPSB, infringed s. 2(
b
) of the
Charter
.
    She further held that the process was not prescribed by law and could not
    therefore justify any infringement of s. 2(b) under s. 1 of the
Charter
.
    She gave declaratory relief to that effect under s. 24(1) of the
Charter
.

[6]

Chief Saunders appeals, arguing that the
    screening process did not limit Mr. Langenfelds s. 2(b) right. Alternatively, he
    submits that if there is a limit on the s. 2(b) right, that limit is prescribed
    by law and is justified under s. 1 of the
Charter
.

[7]

The TPSB supports the s. 1 argument advanced by
    Chief Saunders. The Attorney General for Ontario (AG) intervenes pursuant to
    s. 109 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43
. The AG supports Chief Saunders submission
    that there is no infringement of s. 2(b) and, alternatively, that any limit on
    s. 2(b) is prescribed by law and justified under s. 1 of the
Charter
.

[8]

For the reasons that follow, I would allow
    the appeal. I would hold that the application judge correctly concluded that
    the screening procedures do limit Mr. Langenfelds s. 2(b) rights. I would
    further hold, however, that she erred in holding that the screening process is
    not prescribed by law and is not justified within the meaning of s. 1 of the
Charter
.


II



the facts

[9]

The security protocol put in place in June 2017
    at the public entrance to Police Headquarters required members of the public to
    pass through a security process manned by special constables. Those constables
    were not authorized to seize items or conduct criminal investigations, but were
    authorized to screen persons entering Police Headquarters for weapons and other
    dangerous items.  A written notice placed at the entrance to Police
    Headquarters advised persons that they would not be allowed to enter the
    building without going through security.

[10]

The application judge described the process in
    these terms, at para. 17:

The search involves wanding a persons body
    with a metal detecting wand, and physically searching any bags the person has
    with them. The searches are conducted anonymously. Members of the public are
    not required to identify themselves. There is also an amnesty box. The
    purpose of this box is that if a person has something with them that they are
    concerned will be a problem in the search, but the person still wants to enter
    the building, the person may remove the item from their person or their bag and
    place it in the amnesty box. The record is clear that if an individual puts
    something in the amnesty box prior to being searched, there will not be any
    consequences, although they will not be permitted to retrieve the item. The
    record is less clear as to what happens if an item of concern is found on an
    individual or in their bag during the search process. Although the court
    officers who conduct the screening do not have the authority to seize items or
    conduct investigations, the record discloses that at times they will request
    the assistance of police officers.

[11]

Police Headquarters is a 12-storey building in
    downtown Toronto. Hundreds of people work there and many members of the public
    routinely attend there for a myriad of reasons, including attending public
    meetings of the TPSB in the second floor auditorium. Parts of the building are
    open to the public, and parts are not.

[12]

The security protocol described above applies,
    with some minor exceptions, to all non-police personnel entering Police
    Headquarters. There are additional security protocols applicable to specific
    parts of Police Headquarters. However, once members of the public have entered
    through the main entrance, they have access to most parts of the first two
    floors of the building, including the auditorium on the second floor, without being
    subjected to any further security screening.

[13]

The TPSB is responsible for the adequate and
    effective policing of the City of Toronto. The TPSB is statutorily required to
    conduct a minimum number of meetings per year. Subject to specific statutory
    exceptions, those meetings must be open to the public:
Police Services Act
,
    R.S.O. 1990, c. P.15, ss. 27, 31, 35.

[14]

The TPSB has the statutory authority to make
    procedural rules by way of by-laws:
Police Services Act
, s. 37. One of
    those, TPSB by-law No. 161, provides that the public meetings of the TPSB shall
    take place at Police Headquarters: TPSB by-law No. 161, s. 11.2. Another
    part of the by-law sets out detailed procedures governing deputations made by
    members of the public at the meetings of the Board: TPSB by-law No. 161,
    s. 17.

[15]

The security protocol was put in place by Chief
    Saunders and not by the TPSB. I do not understand any of the statutory powers
    of the TPSB to be challenged on this application. Specifically, the court is
    not asked to decide whether the TPSB could lawfully initiate a similar
    screening protocol at the entrance to the auditorium in which its meetings are
    held.

[16]

The application focused exclusively on the
    impact of the security protocol at the entrance to the building on persons who
    wished to attend the public hearings of the TPSB. The application judge, at para.
    9, specifically declined to consider whether the security protocols at the
    entrance engaged the constitutional rights of persons entering Police
    Headquarters for other purposes.


III



the issues

A:  Does the
    security protocol limit Mr. Langenfelds right to freedom of expression?

[17]

Section 2
(b)
of the
Charter
provides:

Everyone has the following fundamental
    freedoms:

(b) freedom of thought, belief, opinion and
    expression, including freedom of the press and other media of communication.

[18]

The application judge, at paras. 47-68,
    carefully and thoroughly analyzed the application of s. 2(b) in accordance with
    the controlling case law: see
Irwin Toy Ltd. v. Que
bec (A.G.)
,
    [1989] 1 S.C.R. 927, at pp. 967-71;
Montré
al (City) v.
    2952-1366 Qué
bec Inc.
, 2005 SCC 62, [2005] 3 S.C.R. 141, at
    paras. 73-80;
Canadian Broadcasting Corp. v. Canada (Attorney General)
,
    2011 SCC 2, [2011] 1 S.C.R. 19, at paras. 32-38;
Figueiras v. Toronto (Police
    Services Board)
, 2015 ONCA 208, at paras. 68-77;
Bracken v. Fort Erie
    (Town)
, 2017 ONCA 668, at paras. 25-34;
Bracken v. Niagara Parks
    Police
, 2018 ONCA 261, at paras. 33-53.

[19]

Following the analytical path cut in the
    authorities cited above, the application judge posed three questions:

·

Did Mr. Langenfelds attendance at the TPSB
    public meeting constitute expressive conduct in that it intended to convey a
    meaning?

·

If the activity had expressive content, was the
    activity excluded from s. 2(b) by virtue of the method used to convey the
    expression or the place at which it occurred?

·

If the activity is expression, which is not
    excluded, does the security protocol, either by its purpose or in its effect, limit
    Mr. Langenfelds s. 2(b) rights?

[20]

The application judge concluded, at paras. 49-56,
    that Mr. Langenfelds attendance at a public meeting of the TPSB to listen and
    perhaps speak to the matters of public interest discussed there constituted
    expressive conduct. She further held, paras. 57-59, that there was no reason to
    exclude that expressive activity from the protection of s. 2(b). The activity
    was not violent, did not threaten violence, and occurred in a part of the
    Police Headquarters building that typically permitted public access and uses
    which were not incompatible with the individual exercise of freedom of
    expression.

[21]

I agree with the application judges analysis of
    the first two questions posed in her three-part analysis of the s. 2(b) claim.
    I do not propose to say more about them. The arguments advanced on appeal by both
    Chief Saunders and the AG focus on the third inquiry described by the
    application judge  did the security protocol, either by its purpose, or in its
    effect, limit Mr. Langenfelds s. 2(b) rights?

[22]

The application judge was satisfied that the
    security protocol was not put in place for the purpose of limiting freedom of
    expression: para. 62. While counsel for Mr. Langenfeld takes exception to that
    finding on appeal, I see no reason to disagree with it. The security protocol
    applied to all persons entering Police Headquarters, many of whom were not
    engaged in any kind of expressive activity. The protocol did not in any way target
    persons entering the building for the purposes of attending the public meeting
    of the TPSB, or pursuing some other expressive activity.

[23]

In concluding that the security protocol had the
    effect of limiting Mr. Langenfelds s. 2(b) rights, the application judge
    described the security protocol as imposing a precondition on Mr. Langenfelds
    attendance at the TPSB meeting, itself an exercise of his right to freedom of
    expression. The application judge characterized the precondition as requiring
    Mr. Langenfeld to give up aspects of his personal privacy by submitting to a
    warrantless search, unsupported by any grounds, in exchange for exercising his
    right to express himself by attending the meeting. She described this
    precondition as a burden or limit on Mr. Langenfelds exercise of his
    right to freedom of expression.

[24]

In reaching her conclusion, the application
    judge relied on this courts reasons in
Figueiras
. She said,
at para. 66:

The holding in
Figueiras
that
    imposing a search of ones person or belongings as a condition precedent to
    engaging in protected expression infringes the right to freedom of expression
    is applicable to this case.

[25]

Figueiras
, at para. 74, holds that a search of the
    person can have the effect of imposing a limit on the exercise of ones right
    to freedom of expression that will, subject to s. 1, infringe s. 2(b) of the
Charter
.
    Chief Saunders and the AG argue that the application judge erred in applying
Figueiras
to this case. They submit that
Figueiras
is distinguishable because, unlike this
    case, it involved the exercise of police powers on a public street, causing an
    interruption in the marchers ongoing exercise of their right of freedom of
    expression. Counsel for Chief Saunders also points out that in
Figueiras
the court held that the police acted with the purpose of interrupting the
    marchers exercise of their right of freedom of expression:
Figueiras
,
    at paras. 75-77.

[26]

The distinctions drawn between this case
    and
Figueiras
by Chief Saunders
    and the AG all exist. However, they do not make the ratio of
Figueiras
inapplicable to this case. In deciding whether state
    conduct has the effect of limiting freedom of expression, it does not matter
    whether the state conduct is described as an exercise of police power, or an
    exercise of some other category of state power. Similarly, in deciding whether
    the conduct limits freedom of expression, I see no reason to distinguish
    between state conduct that interrupts ongoing freedom of expression and state
    conduct that interferes with the exercise of that right in some other way. Finally,
    as long as the place at which the expressive activity occurred is compatible
    with the exercise of freedom of expression, it is irrelevant for the purposes
    of determining whether the right has been limited by state conduct, that the
    place is a public street or a public part of a government building. Those kinds
    of distinctions may become important in the s. 1 analysis.

[27]

Lastly, the
    fact that the police conduct in
Figueiras
was done for the purpose of limiting
    freedom of expression in no way diminishes from the courts finding that it also
    had the effect of limiting freedom of expression by imposing a precondition on
    the exercise of that expression. That precondition  submission to a search 
    was much like the precondition imposed here.

[28]

Like the application judge, I think the
    holding in
Figueiras
had direct
    application to the s. 2(b) analysis in this case. The security protocol imposed
    a condition precedent to the exercise of Mr. Langenfelds freedom of
    expression. To exercise that freedom, the security protocol required him to
    compromise his right to privacy and security of the person. The marchers in
Figueiras
were faced with a similar choice, either submit to
    the search and carry on with the expressive conduct, or refuse to be searched
    and stop the expressive conduct.

[29]

I accept that
    not every precondition to the exercise of freedom of expression will
    necessarily limit the exercise of that right. Trivial or insubstantial preconditions
    to the exercise of freedom of expression, or for that matter the exercise of
    other fundamental freedoms, do not amount to
prima
    facie
infringements,
    so as to require s. 1 justification: see
R. v.
    Jones
, [1986] 2
    S.C.R. 284, at p. 314;
Cunningham v.
    Canada
, [1993] 2
    S.C.R. 143, at p. 151.

[30]

Some preconditions to the exercise of the rights
    contained in s. 2
(b)
may be so
    trivial and insubstantial as to not merit constitutional recognition. Other
    preconditions will be virtually prohibitive of the exercise of the right. It is
    a matter of degree. Given the fundamental importance of freedom of expression
    in our democracy, and the availability of the justificatory power of s. 1 of
    the
Charter
, I would set the bar at which preconditions of the
    exercise of s. 2
(b)
become
    limitations on the exercise of that right at a low mark. That approach gives s.
    2
(b)
a broad and purposive
    meaning, and puts the onus on the government to justify preconditions to the
    exercise of that right: see
Montré
al (City)
, at para. 79.
    Clearly, the more minor the impediment, the easier it will be for the state to
    justify the limit on the right.

[31]

In my view, a precondition to the exercise of
    ones right to freedom of expression can be described as trivial or
    insubstantial only if it has a truly minimal impact on the exercise of that
    right. For example, a requirement that persons wishing to attend a meeting of
    the TPSB enter through a designated entrance at Police Headquarters and
    assemble in a specified area at least 15 minutes before the scheduled
    commencement of the meeting would be the kind of logistical precondition that
    would not be viewed as a limit on s. 2
(b)
.

[32]

The precondition imposed on Mr. Langenfelds
    exercise of his right to freedom of expression was not trivial or
    insubstantial. It required him to submit to a search of his person and personal
    belongings as a precondition to exercising his right to express himself by
    attending the meeting. While the security search was not as intrusive as many
    searches, it remained a very real interference with personal privacy and personal
    security. Simply because such searches have become common in todays world does
    not mean that their impact on personal privacy and security has become trivial
    or insignificant.

[33]

In oral argument, counsel for Chief Saunders
    submitted that because the limitation on the right in s. 2(b) was the effect
    of, rather than the purpose of, the security protocol, Mr. Langenfeld was
    obliged to demonstrate that the security protocol imposed a substantial
    interference on his right to freedom of expression. Counsel relied primarily
    on
Baier v. Alberta
, 2007 SCC 31, [2007] 2 S.C.R. 673.

[34]

In
Baier
, three teachers challenged
    provincial legislation which prohibited teachers from seeking election as
    school trustees anywhere in the province while employed by a school board.
    Teachers could run for election as trustees only by taking a leave of absence
    and resigning if elected.

[35]

The majority in
Baier
accepted that
    seeking election as a trustee was expressive conduct within the meaning of s. 2(b)
    of the
Charter
: at para. 33. The court further characterized the
    teachers claim as asserting a positive right to legislation which would permit
    teachers to seek election as school trustees, at least in certain
    circumstances:
Baier
, at paras. 35-36.

[36]

The majority distinguished between a s. 2(b)
    claim alleging that legislation imposed a limit on freedom of expression and a
    claim that the legislature was obliged to enact legislation to facilitate or
    promote freedom of expression. In respect of the latter category, described as
    a positive rights claim, the court said, at para. 30:

In cases
where a government
    defending a Charter challenge alleges, or the Charter claimant concedes, that a
    positive rights claim is being made under s. 2(b), a court must proceed in the
    following way
.  First it must consider whether the activity for which
    the claimant seeks s. 2(b) protection is a form of expression.  If so, then
    second, the court must determine if the claimant claims a positive entitlement
    to government action, or simply the right to be free from government
    interference. If it is a positive rights claim, then third, the three
Dunmore
factors must be considered.  As indicated above, these three factors are (1)
    that the claim is grounded in a fundamental freedom of expression rather than
    in access to a particular statutory regime; (2)
that the
    claimant has demonstrated that exclusion from a statutory regime has the effect
    of a substantial interference with s. 2(b) freedom of expression
, or has
    the purpose of infringing freedom of expression under s. 2(b); and (3) that the
    government is responsible for the inability to exercise the fundamental
    freedom. If the claimant cannot satisfy these criteria then the s. 2(b) claim
    will fail. [Emphasis added.]

[37]

As the above passage makes clear, the
    substantial interference criterion applies only in respect of a positive
    rights claim. It has no application if the freedom of expression claim asserts
    a right to be free from government interference with ones right to freedom of
    expression.

[38]

Mr. Langenfeld makes no positive rights claim.
    He does not argue that Chief Saunders is obliged to provide him with the
    opportunity to attend the meetings of the TPSB. Indeed, he has that right under
    the
Police Services Act
. Mr. Langenfeld argues that the security
    protocol interferes with, or limits, his right to freedom of expression. The
    substantial interference criterion from
Baier
has no application
    here.

[39]

I would add that any attempt to incorporate the
    substantial interference requirement into s. 2(b) claims based on alleged
    government interference with freedom of expression would have negative consequences.
    If one were to hold that the effect of government action would be said to limit
    freedom of expression only if it caused substantial interference with that
    right, a broad range of potential government action that interfered with
    freedom of expression, but not substantially, would be placed beyond
Charter
review. The government would not be called to justify that interference with
    freedom of expression under s. 1 of the
Charter
.

[40]

In addition to the arguments outlined
    above,
Chief Saunders and the AG made four
    additional submissions in support of the claim that the security protocol did
    not limit Mr. Langenfelds right to freedom of expression. First, Chief
    Saunders submitted that the application judge wrongly concluded that the security
    protocol violated Mr. Langenfelds right to be free from unreasonable search
    under s. 8 of the
Charter
,
    and that the s. 8 breach constituted a breach of s. 2
(b)
. Chief Saunders contends that Mr. Langenfeld did not
    allege a breach of s. 8 in his application and that, in any event, compliance
    or non-compliance with s. 8 was not determinative of the s. 2
(b)
claim.

[41]

The
application judge did describe the security protocol and its impact
    on Mr. Langenfeld in terms that one normally associates with a s. 8 claim. She
    was, however, aware that no s. 8 claim had been made: paras. 67-69. As I read
    her reasons, she focused on the impact of the security protocol on Mr. Langenfelds
    exercise of his right to attend the public meeting of the TPSB. She found that
    to exercise that right, he had to sacrifice his personal privacy and security
    of the person by submitting to a screening process that was not based either on
    a warrant or on reasonable and probable grounds. While it is fair to say that
    the application judges reasons suggest she viewed the screening process as an
    unconstitutional search, I think it is equally clear that she based her finding
    of a breach of s. 2(b) on her determination that the security protocol imposed
    a limit on Mr. Langenfelds ability to express himself by attending the meeting
    of the TPSB.

[42]

Counsel for Chief Saunders also submitted that
    preconditions to the exercise of freedom of expression can only be said to
    limit that right if they affect the expressive content of the activity: see
Canadian
    Broadcasting Corp.
, at paras. 50-52. Counsel contends that
    expressive content is limited only if the precondition to the exercise of the
    right relates to the content, time, manner or place of expression.

[43]

I do not agree that a precondition to the
    exercise of the s. 2(b) right can be said to limit that right only if it
    applies to the content, time, manner or place of the expression. A precondition
    that effectively dissuades individuals from engaging in expressive activity in
    which they would otherwise have engaged is surely as much a limit on freedom of
    expression as is one that limits the content, time, place or manner of
    expression. Once again,
Figueiras
is instructive. The marchers were told they could not continue to engage in their
    expressive activity, that is, marching down a public street, unless they first submitted
    to a search. That precondition did not impose a limit on freedom of expression
    tied to content, time, place or manner of expression. Instead, it placed a
    condition precedent on the continued exercise of the right that required
    individuals to submit to a search. Nonetheless, this court held that the search
    requirement did limit the freedom of expression of the marchers. Similarly, Mr.
    Langenfeld could not express himself by attending the meeting of the TPSB
    without first yielding other personal rights and submitting to the security
    protocol and the personal intrusions that protocol involved.

[44]

The final two
    submissions made by Chief Saunders and the AG can be considered together. Both parties
    argue that the availability to Mr. Langenfeld of other ways of participating in
    the meeting of the TPSB effectively eliminated any limitation on his s. 2(b)
    right that might otherwise be imposed by the security protocol. Mr. Langenfeld
    did have options. He could make submissions in writing and he could watch the TPSB
    proceedings on YouTube.

[45]

The
    availability of other means of expressing ones self, other than actual
    attendance at the meeting, is irrelevant to whether limitations on attendance
    at the meeting constitute a limit on freedom of expression. Attending the
    meeting in person is one means of expression. Written deputations are another. A
    limit on the former does not disappear because the latter exists. The
    availability of alternative ways of watching the proceedings of the TPSB, or of
    making representations to that body, are relevant only at the s. 1 stage of the
    analysis.

[46]

The other
    argument put forward by Chief Saunders and the AG is also properly considered
    at the s. 1 stage of the analysis. According to this argument, the screening
    process, by enhancing the overall safety of the building in which the TPSB
    meetings occur, facilitates the ability of persons to attend and freely
    participate in those meetings. Chief Saunders and the AG submit that the
    screening protocol results in a net gain for the right to freedom of expression
    when that right is considered from the collective vantage point of all persons
    who wish to attend the meetings.

[47]

Mr. Langenfelds
    right to freedom of expression is a personal right. If his exercise of that
    right is limited by the security protocol, that limitation is not erased by a
    determination that, from a collective point of view, the right to freedom of
    expression is encouraged. Those kinds of calculations must be made in the
    context of a s. 1 analysis.

[48]

Like the
    application judge, I would hold that the security protocol is a
prima facie
infringement of s. 2
(b)
of the
Charter
.
    Its ultimate constitutionality depends on the s. 1 analysis.

B:  Is the limit on section 2(
b
)
    justified under section 1 of the
Charter
?

[49]

Section 1 reads:

The
Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set
    out in it subject only to such reasonable limits prescribed by law as can be
    demonstrably justified in a free and democratic society.

[50]

The application judge correctly observed that
    the s. 1 analysis begins with the identification of the source of the
    limitation on the constitutional right. That limitation must be prescribed by
    law. Only limitations prescribed by law can potentially justify limits on
Charter
rights. Those limits are constitutionally acceptable only if reasonable and demonstrably
    justified. As Professor Hogg observes in
Constitutional Law of Canada
,
    5th ed. (Toronto: Thomson Reuters, 2016) (loose-leaf revision 2018-1), at para.
    38.8(b):

The requirements of reasonableness and
    demonstrable justification are cumulative, not alternative. Although both must
    be satisfied, there does not seem to be much point in treating each separately.
    Indeed, the requirement of reasonableness may be redundant, because a limit
    that is demonstrably justified must surely be reasonable. The courts have not
    attempted to distinguish between the two requirements, but have assumed that
    the language of reasonableness and demonstrable justification articulates a
    single standard to be applied to all laws limiting
Charter
rights.

(i)

Is the security protocol prescribed by law?

(a)

The application judges analysis

[51]

Chief Saunders submitted that as the Chief of
    Police he was responsible, under the
Occupiers Liability Act
, R.S.O.
    1990, c. O.2 (
OLA
), and the
Occupational Health and Safety Act
,
    R.S.O. 1990, c. O.1, for the safety and wellbeing of persons working in,
    or attending at, Police Headquarters. He argued that to perform the obligations
    placed on him under those statutes, he had the lawful authority at common law to
    take reasonable steps to ensure the safety of persons working in or attending
    at Police Headquarters. Those steps could include imposing preconditions to
    entry into the building. Chief Saunders submitted that the security protocol
    fell within the range of reasonable safety measures and was therefore
    prescribed by law.

[52]

The application judge accepted that private
    occupiers could, at common law, impose preconditions to entry in response to
    their obligation under the
Occupiers Liability Act
to protect the safety of persons on the property: para.
    112
. She also accepted that government actors who were occupiers
    had the same power, at least in respect of property to which members of the
    public did not have a right of access: paras. 113-14. The application judge
    found, however, that Chief Saunders common law powers
qua
occupier
    did not extend to the imposition of warrantless searches performed without
    reasonable grounds on persons who were seeking entry to Police Headquarters for
    the purposes of attending a public meeting of the TPSB: paras. 115, 145.

[53]

In concluding that Chief Saunders powers did not
    extend to the imposition of the screening process on persons wishing to enter
    Police Headquarters to attend a TPSB meeting, the application judge relied
    primarily on the repeal of the
Public Works Protection Act
, R.S.O.
    1990, c. P.55 (
PWPA
). That
Ac
t
    had given police officers and guards, appointed for the purposes of
    administering the
PWPA
,
the power to require anyone entering a public work to identify themselves by
    name and address, and to state their purpose for entering the public work.
    The
Act
further authorized the
    search of any person seeking entry and the search of any vehicle under the
    control of that person. Anyone who refused to comply with any of these
    requirements could be arrested without warrant and charged with an offence:
PWPA
,
    ss. 3, 5. The phrase public work was broadly defined to include any
    provincial and any municipal public building:
PWPA
, s. 1. The
    definition would include Police Headquarters.

[54]

The
PWPA
was repealed in 2015 and
    replaced with legislation that granted powers to search persons entering only
    certain government facilities, namely, courthouses and power-generating plants.
    As the detailed references to the legislative history found in the reasons of
    the application judge make plain, the
PWPA
was repealed largely because
    the broad powers granted by s. 3 of the
PWPA
were viewed as
    inappropriate and unnecessary when applied to all the buildings encompassed by
    the phrase public work. A report authored by former Chief Justice Roy
    McMurtry had also identified the problems associated with the exercise of the broad
    police powers in the
PWPA
during
    the G20 Summit in Toronto in the summer of 2010
.

[55]

There is no doubt that s. 3 of the
PWPA
authorized the kind of screening process that Chief Saunders instituted at
    Police Headquarters. In fact, it authorized a significantly more intrusive search
    process which also included the power to arrest and charge persons who did not
    comply with the process. The application judge reasoned that since the
PWPA
had been repealed and replaced by legislation which
    did not apply to Police Headquarters, the legislature had intended that the
    search powers available to Chief Saunders under the
PWPA
should no longer be applicable to buildings like
    Police Headquarters. She said, at para. 143:

In this case, given the legislative history,
    in particular, the repeal of the
Public Works Protection Act
which contained express provisions for searches upon
    entering provincial or municipal buildings, the legislative debates around the
    repeal of the
Public Works Protection Act
and its replacement with much narrower legislation,
    I am not persuaded as a matter of statutory interpretation, that either the
Occupiers
    Liability Act
or the
Occupational
    Health and Safety Act
give the Chief
    of Police legal authority to conduct searches of individuals who wish to attend
    TPSB public meetings. Thus, I find that the limit on freedom of expression
    imposed by the Chief of Police in making individuals submit to a warrantless
    search, in the absence of reasonable and probable grounds, as a condition
    precedent to attending a TPSB meeting is not prescribed by law.

(b)

My analysis

[56]

My analysis focuses on Chief Saunders common
    law powers as an occupier of Police Headquarters, and the duties imposed on
    Chief Saunders as an occupier by the
OLA
. I will proceed in three
    steps. First, I will consider whether, apart from the repeal of the
PWPA
,
    Chief Saunders common law powers as an occupier authorized him to impose the
    security protocol as a precondition to Mr. Langenfeld entering Police Headquarters.
    Second, I will consider whether Chief Saunders common law powers
qua
occupier can be said to be prescribed by law. Third, I will examine the
    effect, if any, of the repeal of the
PWPA
on Chief Saunders common law powers as the occupier of Police
    Headquarters
.

[57]

Chief Saunders was the occupier of Police
    Headquarters with responsibility for, and control over, the conditions of the
    building and any activities in the building:
Police Services Act
, ss.
    31(4), s. 41(1);
OLA
, ss. 1(b), 3(1), 10(1). As the occupier, Chief
    Saunders was statutorily required under s. 3(1) of the
OLA
to take
    such care, as in all of the circumstances was reasonable, to ensure that
    persons entering or using the property were reasonably safe while on the
    premises.

[58]

The
OLA
does not contain provisions that authorize the occupier to take steps
    necessary to comply with the duty imposed on the occupier by that
Act
. Occupiers of property, however, have powers at
    common law. Those powers extend to excluding persons from the property,
    removing persons from the property, and imposing terms and conditions on
    persons while they are on the property:
Committee for the
    Commonwealth of Canada v. Canada
,
    [1991] 1 S.C.R. 139, at pp. 244-45, per McLachlin J.;
Weisfeld
    v. Canada
(1994), 116 D.L.R. (4th)
    232, at para. 56 (F.C.A.);
Bracken v. Fort Erie (Town)
, at paras. 69-73.

[59]

The common law
    authority of an occupier in respect of the property must extend to taking the
    steps necessary to comply with the statutory duty imposed on the occupier by s.
    3(1) of the
OLA
. It cannot be that the occupier has a
    duty to take reasonable steps to protect persons on the property, but no power
    to take those steps. Those steps may include the imposition of
preconditions to entry, such as a security screening, if the
    precondition is reasonable and connected to maintaining the safety of persons
    on the property: see
Nakochee v. Linklater
, [1993] O.J. No. 979, at
    para. 18 (Ct J (Gen. Div.)).

[60]

The application judge did not consider the
    common law powers of Chief Saunders as an occupier of Police Headquarters. She
    restricted her consideration to the relevant statutory provisions. As explained
    above, those provisions address the duties rather than the powers of occupiers.
    The application judge, at para. 112, did allude to the common law powers of
    occupiers of private property and acknowledged that those powers could extend
    to searches prior to entries. In my view, an occupier of public property, who
    is also subject to the duties of the
OLA
,
has the same powers.

[61]

Chief Saunders common law authority to control
    access to Police Headquarters to ensure the safety of persons in the building
    flows not from any police power, but from his status as an occupier. In
    imposing a precondition to entry for safety purposes, Chief Saunders is
    performing the duty imposed on him as an occupier under s. 3(1) of the
OLA
.
    That same obligation and the same common law power applies to all occupiers who
    are subject to the
OLA
. Chief Saunders status as a government actor
    is irrelevant to the nature and scope of his common law powers as an occupier
    of Police Headquarters. His status as a government actor, however, becomes
    constitutionally significant if, in the exercise of those common law powers, he
    limits the constitutional rights of persons seeking entry to Police
    Headquarters.

[62]

The application judge further held, at paras.
    143-45, that any power Chief Saunders had as an occupier to impose
    preconditions to entry did not extend to preconditions that had the effect of
    limiting the freedom of expression of persons seeking entry to Police
    Headquarters. With respect, this analysis confuses the requirement that state
    conduct be prescribed by law with the further requirement that the state
    conduct, even if prescribed by law, impose only reasonable and demonstrably
    justifiable limits on constitutional rights. In deciding whether state action
    is prescribed by law for the purposes of s. 1, one does not take into account
    the impact of that action on a claimed
Charter
right.

[63]

As set out above, Chief Saunders common law
    powers as an occupier extend to taking steps necessary to fulfil his obligation
    under s. 3(1) of the
OLA
. If reasonable measures to preserve safety
    include security screening of those entering the building, that measure, to be
    effective, must apply to all entrants, regardless of their purpose in seeking
    entry. The purpose for entering the building, while irrelevant to the scope of
    Chief Saunders common law power to protect the safety of persons who are in
    the building becomes important when deciding whether, in exercising those
    common law powers, Chief Saunders has limited the constitutional rights of
    persons seeking entry to Police Headquarters.

[64]

My conclusion that Chief Saunders common law
    powers as an occupier can extend to requiring persons to pass through security
    screening before entering the building does not necessarily mean that that
    common law power is prescribed by law. Common law powers can provide the
    basis for the finding that state action is prescribed by law:
R. v. Swain
,
    [1991] 1 S.C.R. 933, at p. 968;
Greater Vancouver Transportation Authority
    v. Canadian Federation of Students
, 2009 SCC 31, [2009] 2 S.C.R. 295, at
    para. 52;
Bracken v. Fort Erie (Town)
, at para. 65. However, not every
    common law power will necessarily meet that requirement. In
Bracken v. Fort
    Erie (Town)
, at para. 65, a case involving the exercise of an occupiers
    common law powers, Miller J.A. explained:

Section 1 establishes that limits to
Charter
rights must be reasonable and must be prescribed by law. In the context of
    government action, such as expelling a person from government owned property
    and issuing a trespass notice, this means that the action must be grounded in
    law. That is, the action must have been an exercise of a sufficiently defined
    legal power, guided by legal norms. A law need not be a statute to satisfy
    the prescribed by law requirement. Law in this context includes regulations
    and the common law, and it is sufficient that the limit simply result by
    necessary implication from either the terms or the operating requirements of
    the law. [Citations omitted.]

[65]

To constitute a limit prescribed by law, the scope
    of the common law authority relied upon must not be so vague as to make it
    difficult, if not impossible, to know what can or cannot be done under that
    authority:
Greater Vancouver
, at paras. 52-55.

[66]

The common law powers of an occupier, at least
    as they apply in the context of an occupiers performing of the duties imposed
    by s. 3(1) of the
OLA
,
are the antithesis of an arbitrary power. The powers must be exercised
    reasonably, having regard to the specific circumstances and any measures taken
    must be motivated by legitimate concerns about the safety of persons in the
    building.

[67]

Nor, in my view, does the manner in which Chief
    Saunders exercised that authority in this case raise any vagueness concerns.
    Chief Saunders exercised his authority in a transparent manner which gave
    anyone seeking access to Police Headquarters advance notice of the screening
    process and its application to all members of the public seeking to enter the
    building. Nothing in the affidavits or cross-examinations filed on the
    application suggest any uncertainty as to what the security protocol required.

[68]

I am satisfied that, if the institution of the
    security protocol was a reasonable measure, having regard to Chief Saunders
    duty to protect the safety of persons in Police Headquarters, it was an
    exercise of his common law powers as an occupier and was prescribed by law.

[69]

The question of the reasonableness of the
    screening process arises, not only in considering the scope of Chief Saunders
    common law powers as an occupier, but also in respect of the determination of
    whether the resulting limit on Mr. Langenfelds s. 2(b) rights is justified
    under s. 1. I will address the reasonableness of the screening process in the
    course of the rest of my s. 1 analysis. For present purposes, it is sufficient
    to indicate that this record provides cogent evidence that the imposition of
    the screening protocol was a reasonable measure taken in furtherance of Chief
    Saunders obligation to take such measures to protect the safety of persons in
    Police Headquarters.

[70]

I come now to the effect of the repeal of the
PWPA
on the scope of Chief Saunders common law powers as an occupier of Police
    Headquarters. With respect to the application judges contrary conclusion, I
    think the repeal had no effect on the scope of that power.

[71]

The
PWPA
never purported to address the common law powers of
    occupiers. Instead, the legislation granted sweeping search and arrest powers
    to the authorities in respect of persons entering any place that fell within
    the broad definition of the phrase public work. Those broad powers existed
    without regard to any specific circumstances or any specific concerns about
    safety within the building. The legislation was animated by public security
    concerns in the broadest sense and reflected the wartime temper of the times in
    which the
PWPA
was
    enacted.

[72]

The repeal of the
PWPA
removed the broad police powers granted by that
Act
, as applied to all buildings that constituted
    public works. Nothing in the language of the repealing statute, either
    expressly or by implication, supports the contention that, in addition to
    removing the extraordinary police powers granted by the
PWPA
, the legislature, by repealing that
Act
, also intended to circumscribe the common law powers
    available to occupiers of property that had formerly fallen under the
    definition of public work in the
PWPA
. It does not follow, either as a matter of statutory
    interpretation or logic, that the legislature, by eliminating certain specified
    extraordinary police powers, intended also to preclude occupiers of buildings
    that happened to constitute public works from taking steps that all other
    occupiers could take in order to fulfil their statutory obligation under s.
    3(1) of the
OLA
.

[73]

I do not accept the submission that,
    because the security protocol implemented by Chief Saunders would have been
    justified under the very broad powers of the
PWPA
before it was repealed, it follows that after repeal
    there is no authority for the implementation of the security protocol. That
    reasoning assumes that the
PWPA
and only the
PWPA
authorized an occupier to implement a measure such as the security
    protocol. That is not the case. As outlined above, the common law powers of the
    occupier, apart entirely from the extraordinary powers under the
PWPA
, could, in some circumstances, justify a
    precondition to entry, such as the security protocol, to protect the safety of
    persons in the building.

[74]

In summary, I would hold that the security
    protocol was an exercise of Chief Saunders common law powers as an occupier of
    Police Headquarters. The protocol was prescribed by law and the repeal of the
PWPA
did not affect the scope of Chief Saunders common
    law powers as an occupier.

(ii)

Is the security protocol a reasonable limit on
    Mr. Langenfelds right to freedom of expression?

[75]

The application judge, having determined that
    Chief Saunders had no legal authority to introduce the security protocol, did
    not go on and decide whether the protocol constituted a reasonable limit on Mr.
    Langenfelds right to freedom of expression. The record assembled by the
    parties permits this court to complete the s. 1 analysis.

[76]

Professor Hogg, in
Constitutional Law of
    Canada
, at para. 38.8, identifies the four criteria that must be satisfied
    before a claim limiting a constitutional right will pass s. 1 scrutiny. They
    are:

·

the objective of the law must be sufficiently
    important to justify limiting a
Charter
right [a pressing goal];

·

the law must be rationally connected to the
    objective of the law [a rational connection];

·

the law must impair the constitutional right no
    more than is necessary to accomplish the objective [minimum impairment]; and

·

the law must not have a disproportionately
    severe effect on the constitutional rights of the persons affected by it
    [proportionality].

[77]

The first criterion addresses the objective of
    the law that limits the right. The other three criteria examine the means used
    to achieve the objective and, broadly speaking, balance the societal interest
    served by the law against the limits imposed by the law on the individuals
    constitutional rights. That balance requires the state to show that the limit
    is reasonable and demonstrably justified in a free and democratic society:
R.
    v. Oakes
, [1986] 1 S.C.R. 103, at pp. 138-39.

(a)

Pressing goal

[78]

The security protocol was implemented to protect
    the safety of members of the public who attend at Police Headquarters and the
    safety of persons working in the building. Sadly, this court can take judicial
    notice that, in todays world, places like Police Headquarters in Toronto are
    attractive targets for terrorists and other criminal extremists. The harm
    caused by those individuals can be catastrophic. The record on the application
    also refers to many recent incidents at Police Headquarters, including a credible
    bomb threat, that give credence to public safety concerns in the building.

[79]

Protecting the physical safety of persons using
    or working in Police Headquarters is an important objective. Similarly
    protecting the safety of persons attending meetings of the TPSB so they can
    take part in those meetings and express their views on matters of public
    importance, is a matter of public importance. Protecting the public and the
    police employees in the building promotes the values of a free and democratic
    society. Their safety is a pressing and substantial objective: Hogg, at para.
    38.9(b).

(b)

The rational connection

[80]

The rational connection between the screening
    protocol and the safety of persons in Police Headquarters is self-evident: see
RJR-MacDonald
    v. Canada
, [1995] 3 S.C.R. 199, at paras. 155-56. There was also evidence
    that since its implementation, the screening process had been effective in
    keeping at least some dangerous individuals and items out of the building.

(c)

Minimum impairment

[81]

The minimal impairment requirement, often the
    determining factor in the s. 1 analysis, is also established on this record.
    The screening process is tailored to its objective. It does not prevent, or
    even meaningfully delay, anyone from entering the building and exercising their
    right to freedom of expression by attending the meetings of the TPSB. It does
    not require individuals to identify themselves or provide any information to
    the authorities. The process is limited to a non-intrusive investigation for
    potentially dangerous objects. While the process negatively impacts on personal
    privacy, the impact is relatively minor. There is nothing in the manner in
    which the protocol is implemented that could be described as discriminatory,
    belittling, or aimed at discouraging persons from entering Police Headquarters
    for whatever purpose they may have. The security protocol is no more than
    persons could reasonably expect to encounter when entering a building like
    Police Headquarters in a city like Toronto in 2019.

[82]

Nor, in my view, does the minimum impairment
    requirement dictate that the security protocol be tailored so as to not apply
    to persons seeking entry to the building for the purpose of attending the
    meeting of the TPSB. The safety risk to which the protocol responds is in no
    way connected to the purpose for entry. A security protocol at the entrance of
    a building which allows persons to declare themselves immune from the protocol
    by specifying a certain purpose for entering the building, surely, has little,
    if any, value as a safety measure: see
R. v. Campanella
(2005)
, 75 O.R. (3d) 342, 195 C.C.C. (3d)
    353 , at para. 19 (C.A.).

[83]

Also, from a practical perspective, a security
    protocol at the entrance that exempted persons from the protocol so they could
    attend the TPSB meeting would, in all likelihood, impose even more restrictions
    on the rights of those persons than does the security protocol. Presumably,
    persons who avoided the security protocol by declaring an intention to attend
    the meeting on the second floor would have to be detained for the purpose of
    being escorted to the meeting. They would also be required to remain in the
    meeting room throughout, and would once again be detained while being escorted
    out of the building after the meeting. Those individuals would also be required
    to declare to the authorities the reason for attending at Police Headquarters,
    something they are not required to do under the present protocol.

[84]

In my view, a security protocol tailored to
    exempt individuals purporting to enter Police Headquarters to go to a meeting
    of the TPSB would not provide effective security for the building and would in
    all likelihood impose more significant limit on the rights of persons attending
    those meetings than does the existing security protocol.

[85]

The ability to view the TPSB proceedings on
    YouTube and to make deputations in writing also mitigates the limit on freedom
    of expression imposed by the screening protocol to some extent.

(d)

Proportionality

[86]

Proportionality, the fourth criterion in the s.
    1 analysis, looks to the severity of the limitation of the constitutional right
    on one hand, and the importance of the objective of the law that limits the
    right on the other hand. The proportionality inquiry assumes that there will be
    situations in which the impugned law meets the first three criteria, but fails
    the fourth because of its disproportionately severe effect on the
    constitutional rights of those affected by it. I would think this would be a
    relatively rare situation: see Hogg, at para. 38.12.

[87]

In my view, the protection of the safety of all
    persons entering Police Headquarters or working in Police Headquarters is an
    important objective. The protection of persons wishing to attend the meetings
    of the TPSB, a form of freedom of expression, also promotes the value
    underlying freedom of expression. Balanced against that important objective is
    a relatively minor limit of Mr. Langenfelds s. 2(b) right.

[88]

I would hold that Chief Saunders has met his
    onus of demonstrating that the security protocol initiated by him is a
    reasonable limit on Mr. Langenfelds right to freedom of expression that is
    demonstrably justified in a free and democratic society.


IV



conclusion

[89]

I would allow the appeal, set aside the order
    below, and substitute an order dismissing the application brought by Mr. Langenfeld.

[90]

I would make no order as to costs.

Released: DD SEP 12 2019

Doherty J.A.

I agree Paul Rouleau J.A.

I agree D.M. Brown J.A.




