



COURT OF APPEAL FOR ONTARIO

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

DATE: 20200416

DOCKET: C65779

Brown, Huscroft and Trotter
    JJ.A.

BETWEEN

Luke Stewart

Appellant (Plaintiff)

and

The Toronto Police Services Board

Respondent (Defendant)

Davin Charney and Christopher Rapson,
    for the appellant

Kevin McGivney and Jonathan Thoburn,
    for the respondent

Winston Gee and Sarah Whitmore, for the
    intervenor Canadian Civil Liberties Association

Heard: December 17, 2019

On appeal from the judgment of Justice Bernadette
    Dietrich of the Superior Court of Justice, dated July 13, 2018, with reasons
    reported at 2018 ONSC 2785.

Brown J.A.
:

I.

OVERVIEW

[1]

This appeal, like that
    in
Figueiras v. Toronto (Police Services Board)
, 2015 ONCA 208, 124 O.R.
    (3d) 641, concerns the interaction during the June 2010 Toronto G20 summit
    between members of the Toronto Police Services (TPS) and protestors who were
    demonstrating on public property. Prior to 2010, the protests accompanying G20
    summits had presented significant policing challenges, with large peaceful
    protests intertwined with protestors who were intent on violence and the
    destruction of property.

[2]

In
Figueiras
,
    this court held that the police did not have the power, under the common law ancillary
    powers doctrine, to target apparent demonstrators and require that they submit
    to a search of their bags and backpacks in order to continue down a public
    street toward a protest.

[3]

This appeal raises the
    issue of whether the police, acting as agents of the City of Toronto (the
    City) under the
Trespass to Property Act
, R.S.O. 1990, c. T.21 (the 
TPA
),
    had the power to require persons trying to enter a public park to join a
    protest to submit to a search of their bags and backpacks as a condition of
    entry into the park, Allan Gardens, which was serving as an assembly point for
    protestors before they departed on a march along Torontos public streets.

[4]

The appellant, Mr. Luke
    Stewart, alleges that the police acted tortiously and breached certain of his
    rights under the
Canadian Charter of Rights and Freedoms
when they
    imposed such a condition of entry and subsequently detained him and searched
    his backpack when he tried to enter the park without submitting to a bag
    search.

[5]

The trial judge held that
    the police had the power to impose such a condition of entry, both under the
    common law police ancillary powers doctrine and as agents of the City in
    respect of the
TPA
. As a result, she dismissed Mr. Stewarts action for
    damages and declaratory relief.

[6]

Although the trial
    judge held that the police had the power to impose the condition of entry under
    the ancillary powers doctrine, she did not have the benefit of the decision of
    the Supreme Court of Canada in
Fleming v. Ontario
, 2019 SCC 45, 437 D.L.R.
    (4th) 220. That decision reviewed in detail the requirement in the ancillary
    powers doctrine that the police action be reasonably necessary for the
    fulfillment of the police duty at issue: at para. 47.

[7]

On this appeal, the TPS took the position that
    in light of the decision in
Fleming
, it was not relying on the
    ancillary powers doctrine as a source of legal authority for the imposition of
    the condition of entry into Allan Gardens. Instead, the TPS relies on a
    combination of the common law powers of a property occupier and powers under
    the
TPA
that it contends the City delegated to it.

[8]

For the reasons set out
    below, I would allow Mr. Stewarts appeal. I conclude that in these
    circumstances the police did not have the power, as agents of the City for purposes
    of administering the
TPA
, to require Mr. Stewart to submit to a bag
    search as a condition of entering Allan Gardens to join the protest. I would
    award Mr. Stewart damages in the amount of $500 pursuant to s. 24(1) of the
Charter
.


II.

THE EVIDENCE REGARDING THE POLICE CONDUCT AT
    ISSUE

The June 2010 Toronto G20 summit

[9]

In June 2010, Toronto hosted the G20 summit, an
    international forum attended by the leaders of the 20 largest economies in the
    world. Various groups organized a week-long series of public events, protests,
    and demonstrations that were held in parallel with the official G20 meetings.
    Prior to the event, police forces in Toronto and the surrounding Greater
    Toronto Area received specialized training on how to control large crowds and
    demonstrations.

Police preparation for the June 25 protest
    rally at Allan Gardens

[10]

A public rally was scheduled to be held on
    Friday, June 25, 2010 at around 2:30 p.m. in Allan Gardens, a public municipal
    park located in downtown Toronto. A protest parade through some Toronto streets
    would follow the rally.

[11]

On the day before the rally, steps were taken to
    remove furniture from the park, including benches, tables, and other items that
    could compromise safety in a large crowd.

[12]

At trial, four members of the TPS testified
    about the events at Allan Gardens on June 25. Three of the officers were
    directly involved in the encounter with Mr. Stewart that afternoon: Sergeant
    Nancy McLean and two members of her platoon, Constables David Hinchcliffe and
    Christopher Hoeller. The fourth officer, Staff Sergeant Grant Burningham, was
    in charge of police operations at Allan Gardens that day.

[13]

The officers day started with a parade, or
    briefing, conducted by S/Sgt. Burningham for the members of various the police
    forces assigned to patrol Allan Gardens. The trial judge summarized the
    information the officers received before and at that parade, at paras. 12-14 of
    her reasons:

Each of the police officers who testified
    confirmed that he or she was aware of events relating to the G20 that had taken
    place in other cities and other countries in which the G20 had been held in the
    past. They appreciated that a high level of violence and destruction of
    property was common at G20 events. The evidence was uncontroverted that the G20
    was a unique event in Toronto. It brought with it unprecedented peacekeeping
    and security challenges over the course of the weekend of June 26-27, 2010. It
    was also made clear that the Toronto police had never undertaken a security
    challenge of this magnitude.

On the morning of Friday, June 25, 2010, the
    police had a parading session. Individual officers were briefed and given
    certain intelligence that had been gathered. At this session, police officers
    were provided with copies of a magazine entitled The Peak  G20 Special
    Issue, which was entered into evidence. Earlier in the week, the police had
    discovered a copy of The Peak in a car they had stopped. Among other articles
    in the magazine was an article on Advanced Street Fighting, which included
    information on Breaking Police Lines, Security Fencing, and Throwing
    Projectiles. Sgt. Burningham testified that the police officers were cautioned
    that some of the expected protesters may have studied the magazine and readied
    themselves to use the recommended tactics against the police.

The police officers who testified stated that
    they had been told to expect protesters arriving by bus from Kitchener and from
    Montreal. They also testified that they were advised to be prepared for the use
    of Black Bloc tactics by some of these protesters. The evidence before the
    court is that Black Bloc refers to groups of protesters who wear black
    clothing, scarves, sunglasses, ski masks or other face-concealing items to conceal
    their identity, making it difficult to distinguish between participants. Photos
    taken on June 25, 2010 and entered into evidence show that there were indeed
    protesters in Allan Gardens on that day utilizing Black Bloc tactics. Mr.
    Stewart and the police officers who testified each confirmed the presence of
    Black Bloc protesters.

[14]

Upon their arrival at Allan Gardens, the
    officers were first tasked with inspecting the park to locate sticks and other
    items that could be used as weapons at the demonstration that might have been
    cached in the park the night before. S/Sgt. Burningham directed the
    approximately 80 officers under his command to then place themselves in
    clusters around the perimeter of Allan Gardens. He told them to initiate
    contact with anyone trying to bring a knapsack or other container into the park
    that could contain weapons or items that could injure members of the public or
    police officers. The officers were to ask anyone with a knapsack or container
    to allow the police to inspect it and to make entry into Allan Gardens
    conditional upon a person agreeing to a search of the knapsack or container.

[15]

Cst. Hoeller testified that if a person was not
    carrying anything in which they could conceal items, access to the park was
    granted right away without a search or any discussion.

[16]

S/Sgt. Burningham described the perimeter formed
    by the police as very porous as there were not enough officers to create a
    complete ring around Allan Gardens. He placed groups of officers at all points
    of the compass about every hundred yards. The officers, mostly members of bike
    patrols, set themselves up in groups of three or four at the paths that serve
    as entrances into the park. As a person tried to enter Allan Gardens, an
    officer would initiate contact with those carrying a backpack or other
    container and ask them to submit their bags to a search.

[17]

One witness, Mr. Murray Douglas Bush, described
    the police formation for most of the time as involving clumps or groupings of
    three or four or five police officers. Another, Lisa Walter, a reporter who
    filmed most of the encounter between Mr. Stewart and the police, characterized
    the police presence as clusters of officers stationed every few metres around
    the park with the police approaching and stopping anyone who was entering the
    park with bags or large objects like sticks.

[18]

The trial judge summarized the evidence
    regarding why the police wanted to search the bags of those entering Allan
    Gardens at para. 17 of her reasons:

With the objective of interdicting weapons and
    would-be weapons, the police asked individuals entering Allan Gardens to allow
    their bags and belongings to be screened as a condition of entry. The evidence
    shows that the bags and belongings screened included knapsacks, purses,
    strollers, and wheelchairs. The screening function involved a search to the
    extent that members of the police looked into the bags and belongings. The
    police officers testified that they were instructed to look for weapons, things
    that could be used as weapons at a protest (e.g., flagpoles, sticks) and items
    that could be used to defeat police tactics such as goggles, bandanas and
    vinegar. Sgt. McLean testified that a bandana soaked in vinegar and used by a
    protester to cover his or her face would allow the protester to defeat the effects
    of tear gas. When prohibited items were found, they were taken by the police.
    Constable Hoeller testified that some would-be entrants to Allan Gardens
    elected not to consent to a search and left the park. An inference can be drawn
    that they may have had weapons or other prohibited items concealed in their
    bags, but the police perimeter served as a deterrent to bringing those items
    into Allan Gardens.

The police interaction with Mr. Stewart

[19]

At paras. 19-24 of her reasons, the trial judge comprehensively
    summarized the evidence regarding Mr. Stewarts encounter with the police at
    Allan Gardens:

Mr. Stewarts evidence is that when he
    approached Allan Gardens at the northwest corner, he observed that police
    officers were looking into the bags of people seeking to enter. He decided to
    enter at a more [easterly] point in an effort to avoid this search. When he
    attempted to enter Allan Gardens, Mr. Stewart was confronted by three police
    officers, including Constable Hinchcliffe and Constable Hoeller, each of whom
    testified that they had asked Mr. Stewart to let them look at the contents of
    his backpack as a condition of entry to the park. Mr. Stewart objected. He
    wanted freedom of access to Allan Gardens and was adamant that the police had
    no right to interfere with his freedom of assembly. He refused to consent to
    any police officer looking into his backpack.

The exchange between the police officers and
    Mr. Stewart was recorded on video by a reporter, Lisa [Walter], who testified
    in this action. The video evidence was reviewed by the court several times. The
    video shows that during Mr. Stewarts interaction with the police, the officers
    remain calm throughout. The police attempt to answer Mr. Stewarts questions of
    them. He specifically asks for the authority on which they were relying to
    search his backpack. When told by Constable Hinchcliffe that the police derive
    their authority from the
Trespass to Property Act
, Mr. Stewart is
    dismissive of this response and continues to shout at the police and attract a
    crowd, including the press. Mr. Stewarts persistent refusal to co-operate
    leads the police officers to call upon Sgt. McLean in a bid to de-escalate the
    situation and to allow Mr. Stewart to speak to a more senior officer. Mr.
    Stewart is not persuaded by anything that Sgt. McLean tells him. He proclaims
    to the police officers present that in order to search his backpack they are
    going to have to detain him. He then forces his way past the police officers,
    into the park, causing them to react.

Under cross-examination, Mr. Stewart agreed
    that he was, prior to breaching the perimeter, free to leave Allan Gardens. If,
    however, he wished to enter the park, his backpack would need to be inspected.
    Upon breaching the perimeter by pushing past the police, Mr. Stewart had
    breached the condition of entry and become a trespasser. Police officers
    stopped him so that they could remove his backpack and inspect it for weapons,
    would-be weapons and items that could be used to defeat police tactics. The
    video shows that the entire incident involving stopping Mr. Stewart and
    inspecting his backpack lasted less than three minutes. During this time, Mr.
    Stewart was momentarily restrained, under his protest, long enough to allow the
    officers to remove his backpack from his back and examine its contents. At this
    point, Mr. Stewart was being denied further entry into Allan Gardens until the
    condition of entry was enforced.

The police took Mr. Stewarts swimming goggles
    from his backpack. The officers involved testified that they did so out of a
    concern that the goggles could be used to defeat police tactics, such as the
    use of tear gas. Mr. Stewart objected vociferously to the officers taking his
    goggles, proclaiming that, having done so, he would not be able to protect
    himself from the chemical weapons that he said the police would use on him.
    The officers testified that the goggles were not taken with any intention to
    keep them.

The video shows Sgt. McLean asking Mr. Stewart
    for his name so that a receipt could be prepared and his goggles returned to
    him at a later time. Mr. Stewart refused to give his name and made his way into
    Allan Gardens. He testified that he had no further involvement with the police
    that day and he was free to meet his friends in the park and to participate in
    the demonstrations and the march.

Lisa [Walter], who shot the video, testified
    that, with the exception of very little time at the beginning of Mr. Stewarts
    encounter with the police, the video captures the entire interaction between
    him and the police. The video demonstrates that each police officer who dealt
    with Mr. Stewart was calm and polite, but firm. They repeatedly told him that a
    search of his backpack was a condition of entry to Allan Gardens on that day.
    The video also shows that, in carrying out their duties, the police officers
    acted in accordance with the instructions they were given. First, they formed a
    perimeter around the park and then they asked for permission to look into the
    bags and belongings of all persons entering the park, including Mr. Stewart.

[20]

Cst. Hinchcliffe testified that Mr. Stewart was
    asked to submit to an inspection only because he was carrying a backpack; he
    was not profiled for any other reason.

[21]

Sgt. McLean testified that until the point when
    Mr. Stewart tried to enter the park without submitting to a bag search, he was
    free to go, but not into the park. According to Sgt. McLean, Mr. Stewart became
    a trespasser when he tried to walk past the police into the park. Cst. Hinchcliffe
    testified that the police detained Mr. Stewart at that time pursuant to the
TPA
because he had refused to comply with the condition imposed by the police
    prohibiting entry to the park unless a person allowed a bag search. Cst.
    Hoeller stated that Mr. Stewart was under arrest in my mind. Both Csts.
    Hinchcliffe and Hoeller testified that when Mr. Stewart was detained, the
    police had the authority to search his backpack at that point under the common
    law power to conduct a search incident to an arrest.

[22]

At some point after the interaction between Mr.
    Stewart and the police, S/Sgt. Burningham directed the officers in Allan
    Gardens to disregard searches for the time being, unless its painfully
    evident. He testified that given the size of the crowd, the police could not
    stop everybody coming into the park: [P]eople were blowing by [the officers].
    They werent talking to them. When they, when they did stop and talk to people,
    they were surrounded by groups of people. S/Sgt. Burningham ultimately decided
    to back off the searches due to safety concerns.

The police understanding of their authority
    to condition entry to the park on a bag search

[23]

The police witnesses identified the
TPA
as the source of their authority to restrict entry to Allan Gardens to those
    who allowed a bag search. The officers stated they knew that each year the City
    provided the TPS with a letter authorizing the police to act as agents of the
    City for purposes of the
TPA
.

[24]

The letter that covered the period of the G20
    was one dated March 16, 2010  about three months before the G20 summit  from
    the Citys General Manager, Parks, Forestry and Recreation to the TPS Chief of
    Police (the City TPA Letter). It stated:

Re: Trespass to Property Act for all Parks and
    Community Centres

I would like to advise that, with respect to
    the Trespass to Property Act, the Toronto Police Services is authorized to act
    as agents of the City of Toronto for purposes of administering the Act and to
    take appropriate action, including removing people in contravention of the Act.
    The authority being extended to your Department is intended to be directed only
    against trespassers.

It is understood that this authority may be
    revoked at any time upon written notice being received by the appropriate
    police inspector or other designated police contact at the relevant division.

[25]

Sgt. McLean, who was in direct command of the
    officers who interacted with Mr. Stewart, explained her understanding of the polices
    authority to search the bags of those wishing to enter Allan Gardens:

Our concerns on that day ultimately was for
    the safety, the safety of the public, the safety of the people attending, the
    safety of the officers, and based on the information we had received, it was
    reasonable for us to request a search of bags, knapsacks, whatever someone may
    have in their possession that they would be able to conceal things  So 
    pursuant to the
Trespass to Property Act
, as a result, were there as
    the agents for the city, were there to provide a safe environment for the
    demonstrators, and as a result we were con screening and conducting searches.

[26]

Cst. Hinchcliffe testified about his
    understanding of the authority to condition entry to the park upon a bag search:

I know that at the park, Im an agent acting
    for the
Trespass to Property Act
, and I have to ensure everyones
    safety in that park. I have to ensure that acts or illegal things dont take
    place in the park, and its my job not only to enforce but a large part of my
    job, even more so than the enforcement pieces, is actually to prevent things
    from happening or potentially happening where we believe the likelihood is
    great



On the conditions that were set out, the
Trespass
    to Property Act
, because were responsible to keep everybody safe.

III.

The CLAIM AND DEFENCE

Mr. Stewarts claim

[27]

In his Amended Statement of Claim, Mr. Stewart
    advances two types of claims against the TPS.

[28]

First, he asserts tort claims against the
    officers with whom he interacted as well as against their superiors. As against
    the officers, he claims they unlawfully detained him, searched his backpack
    without his consent, and unlawfully seized his swimming goggles, thereby
    committing assault and battery, false imprisonment, false arrest, negligence,
    misfeasance in public office, and trespass against his property. As against the
    officers superiors, Mr. Stewart alleges that their plan to form a perimeter
    around Allan Gardens and restrict entry only to those who consented to bag
    searches was unlawful, they knew the plan was unlawful, and acted with malice
    and in bad faith. For those actions of the officers superiors, Mr. Stewart seeks
    damages for misfeasance in public office and negligence.

[29]

Mr. Stewarts second group of claims are
Charter
-based,
    arising from the same conduct upon which the tort claims rest. He pleads that:
    (i) the officers prevented him from attending the protest, thereby interfering
    with his right to freedom of expression contrary to s. 2(b) of the
Charter
;
    (ii) arbitrarily detained him contrary to ss. 7 and 9 of the
Charter
;
    and (iii) violated s. 8 of the
Charter
by unlawfully searching his
    backpack and seizing his swimming googles.

[30]

In his Amended Statement of Claim, Mr. Stewart
    sought damages of $100,000. In his factum, he submitted that $50,000 would be
    an appropriate award. At the hearing of his appeal, Mr. Stewart further reduced
    his damages claim to $20,000. In addition, Mr. Stewart seeks declaratory
    relief, which I will describe in the remedies section of these reasons.

The TPS defence

[31]

In its Amended Statement of Defence, the TPS
    denies that its officers engaged in any tortious conduct or violated Mr.
    Stewarts
Charter
rights. TPS pleads that on June 25, 2010 its members
    were engaged in the lawful performance of their duties in Allan Gardens,
    including acting as authorized agents of the City for the purposes of the
TPA
.
    TPS officers were engaged in fulfilling their statutory and common law duties,
    including preserving the peace and protecting the safety and property of
    persons. The examination of backpacks was necessary to protect the safety of
    those persons within the park in the circumstances as they existed on that
    day.


IV.

THE TRIAL JUDGES REASONS

[32]

The trial judge dismissed Mr. Stewarts action. She
    held that the police had the authority to establish a perimeter around Allan
    Gardens and to impose a bag search condition of entry on two bases: (i) the
TPA
;
    and (ii) the common law police ancillary power to take reasonable measures to
    maintain the safety of the public and the protection of property: at para. 26.
    Later in these reasons, I will consider in more detail the trial judges analysis
    of the
TPA
as a source of authority to impose the condition of entry.

[33]

The trial judge found that the police have a
    common law duty and authority to take reasonable measures in maintaining the
    safety of the public and the protection of property: at para. 43. In the unique
    circumstances of the G20 and its well-known history of chaos, property damage,
    personal injury and even death, the police were permitted to impose a limited
    search or inspection for weapons, items that could be improvised into weapons
    and items useful in defeating police tactics, where an individual declined to
    consent to the search and insisted on entering the park in defiance of police
    authority: at para. 45.

[34]

The trial judge held that when Mr. Stewart
    breached the condition of entry and attempted to enter Allan Gardens without
    allowing a search of his backpack, the police then had reasonable and probable
    grounds to believe that he was a trespasser who might be attempting to bring
    weapons into the park: at para. 37. When the police physically restrained Mr.
    Stewart from entering the park, they acted in a way that was reasonably
    necessary for carrying out their duty. Mr. Stewart was momentarily detained
    so the police could satisfy themselves that he was not bringing weapons,
    would-be weapons or items used to defeat police tactics into the park, which
    could pose a danger to the public or to the police: at paras. 38 and 42.

[35]

In her reasons, the trial judge focused on Mr.
    Stewarts
Charter
claims. She concluded that the TPS did not violate
    Mr. Stewarts rights under ss. 2, 8 or 9 of the
Charter
.
    Alternatively, she held that any such infringement, limited to the
    interdiction of weapons, would-be weapons and items useful in defeating police
    tactics, was reasonable and demonstrably justifiable in the context of the
    G20: at para. 56.

[36]

The trial judge held that the police did not
    violate Mr. Stewarts s. 2(b) freedom of expression. As the TPS now concedes
    that finding was in error, there is no need to review in detail the trial
    judges reasoning on that issue.

[37]

The trial judge also held that the police did
    not violate Mr. Stewarts s. 8
Charter
right. She reasoned, at para.
    84:

By breaching the condition of entry and
    attempting to force his way past the police and into the park, Mr. Stewart
    committed a trespass and placed himself in investigative detention. The police
    may investigatively detain someone for trespassing contrary to the
Trespass
    to Property Act
:
R. v. Amofi
, 2011 ONCA 368 and
R. v.
    Peterkin
, 2013 ONSC 165. The search for weapons and would-be weapons was
    done incident to the investigative detention and in the interest of safety for
    all users of the park and the police on June 25, 2010.

[38]

The trial judge continued by holding that s. 9
    of the
Charter
was not engaged because Mr. Stewart was not arbitrarily
    detained but subject to an investigative detention for a period of less than three
    minutes: at para. 80.

[39]

Finally, the trial judge held that in the
    context of the G20 and Mr. Stewarts attempt to rush through the police
    perimeter, an inspection of Mr. Stewarts backpack was a reasonable exercise of
    police common law powers in pursuit of their duty to ensure the safety of the
    public in the face of a perceived threat: at para. 85. Finally, by forcing his
    way into the park knowing of the condition of entry, Mr. Stewart implicitly
    consented to the search, knowing it was a condition of entry: at para. 86.

[40]

The trial judge dismissed Mr. Stewarts action
    and ordered him to pay costs of $25,000 to the TPS.


V.

THE ISSUES ON APPEAL AND POSITIONS OF THE
    PARTIES

[41]

The overarching issue on this appeal is whether
    the TPS acted lawfully in imposing, as a condition of entry into Allan Gardens
    on June 25, 2010, the requirement that a person submit to a search of any bag, backpack,
    or other thing in which weapons could be concealed. For the sake of brevity, I
    shall hereafter refer to that police-imposed condition as the Condition of
    Entry.

A.      Two issues that are no longer in dispute or in
    play on the appeal

[42]

The issues on this appeal are narrower than
    those placed before the trial judge.

(1)

Mr. Stewarts claim that the police infringed
    his
Charter
s. 2(b) freedom of expression

[43]

Before the trial judge, the TPS took the
    position that the police-imposed Condition of Entry did not infringe Mr.
    Stewarts freedom of expression guaranteed by s. 2(b) of the
Charter
.
    The trial judge accepted that submission.

[44]

Before this court, the TPS acknowledged that in
    its effect the Condition of Entry infringed Mr. Stewarts s. 2(b) freedom of
    expression. That was an appropriate concession for the TPS to make.

[45]

The trial judge clearly erred in finding that
    the Condition of Entry did not infringe Mr. Stewarts freedom of expression.
    Mr. Stewart met the criteria in
Irwin Toy Ltd. v. Quebec (Attorney-General)
[1989] 1 S.C.R. 927, at pp. 978-979, 58 D.L.R. (4th) 577 (S.C.C.) at 613-614, as
    modified in
Montreal (City) v. 2952-1366 Qué
bec Inc
., 2005
    SCC 62, [2005] 3 S.C.R. 141, at paras. 56-62, 74 and 82, to establish an
    infringement of his freedom of expression, namely that his activity involved expressive
    conduct, the method or location of his expressive conduct did not remove its s.
    2(b) protection, and the purpose or effect of the government action was to
    restrict his freedom of expression.

[46]

First, Mr. Stewart sought to enter Allan Gardens
    in order to participate in a public protest  quintessential expressive
    activity.

[47]

Second, Mr. Stewarts expressive conduct in
    seeking to enter Allan Gardens did not run afoul of either internal limitation placed
    by the jurisprudence on the scope of the s. 2(b) freedom of expression:
Bracken
    v. Fort Erie (Town
), 2017 ONCA 668, 137 O.R. (3d) 161, at paras. 28-33.

[48]

Mr. Stewart was not engaged in acts of physical
    violence or threats of violence:
Bracken
, at paras. 28-31. At the time
    Mr. Stewart approached the park, the protest was a peaceful one. Indeed, it
    remained peaceful throughout the time the protestors stayed in the park before
    departing on their street march.

[49]

Nor was Allan Gardens a location that was
    incompatible with expression: see the jurisprudence summarized in
Bracken
,
    at paras. 32-33. To the contrary, our civil liberties tradition recognizes that
    public parks, such as Allan Gardens, are civic spaces naturally compatible with
    the public expression of views, whether the content of those views support or
    dissent from the popular sentiments of the day:
Montréal (City)
, at
    para. 61;
Committee for the Commonwealth of Canada v. Canada
, [1991] 1
    S.C.R. 139, per McLachlin J., at p. 230.

[50]

Third, the Condition of Entry required Mr.
    Stewart to submit to a search of his personal belongings as a precondition to
    exercising his right to express himself by attending the protest in the park,
    thereby having the effect of placing a limit on his freedom of expression:
Figueiras
,
    at para. 77;
Langenfeld v. Toronto Police Services Board
, 2019 ONCA
    716, 148 O.R. (3d) 471, at paras. 28-32, leave to appeal refused, 2020
    CarswellOnt 4590. As stated by this court in
Langenfeld
, at para. 43:
    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.

[51]

Finally, it is clear that the type of expression
    in which Mr. Stewart sought to engage promoted the recognized purposes of constitutionally
    protected expression: enabling democratic discourse, facilitating truth-seeking,
    and contributing to personal fulfillment:
Montréal (City)
, at para.
    83;
Bracken
, at para. 34.

[52]

Accordingly, the police conduct clearly
    infringed Mr. Stewarts freedom of expression protected by s. 2(b) of the
Charter
.
    With respect, the trial judge erred in finding otherwise.

(2)

The common law police ancillary powers doctrine

[53]

The trial judge held that the police had the
    authority under the common law police ancillary powers doctrine to impose a bag
    search condition of entry on those who wished to enter Allan Gardens to join
    the protest.

[54]

On appeal, the TPS, in its written and oral
    submissions, no longer relies on the ancillary powers doctrine as authority for
    the police-imposed Condition of Entry. Again, that was an appropriate
    concession for the TPS to make.

[55]

First, the Condition of Entry the police imposed
    did not fall within the limited category of cases involving a common law police
    power to control access to an area, such as establishing a perimeter around: a
    police officer who is executing an arrest; a police officer who is questioning
    a suspect or a witness; a crime scene to preserve evidence; a hazardous area to
    preserve public safety; or a potential target of violent crime in order to
    ensure the targets protection:
Figueiras
, at para. 59.

[56]

Second, the concession by TPS acknowledges the impact
    of the most recent articulation of the scope of the common law police ancillary
    powers doctrine by the Supreme Court in
Fleming
. In that case, the Supreme
    Court re-iterated, at para. 55, that the ancillary powers doctrine is designed
    to balance intrusions on an individuals liberty with the ability of the police
    to do what is reasonably necessary in order to perform their duties. Those
    general duties include preserving the peace, preventing crime, and protecting
    life and property:
Flemin
g, at para. 69.
Fleming
cautions that
    courts should tread lightly when considering proposed common law police
    powers: at para. 41.

[57]

A key element of the second step of the
    ancillary powers doctrine analysis  whether the police action involves a
    justifiable exercise of police powers associated with a statutory or common law
    duty  is the necessity of the interference with individual liberty for the
    performance of the duty: at paras. 46-47. The analysis must proceed with
    rigour and the bar to establish a police power is high where the power
    asserted is preventative in nature and has an impact on law-abiding
    individuals: at para. 76.

[58]

As a result, for an intrusion on liberty to be
    justified, the common law rule is that it must be reasonably necessary. As
    stated in
Fleming
at para. 98: If the police can reasonably attain
    the same result by taking an action that intrudes less on liberty, a more
    intrusive measure will not be reasonably necessary no matter how effective it
    may be. An intrusion upon liberty should be a measure of last resort, not a
    first option. Further, police powers that involve interference with liberty
    will not be justified if they are ineffective at preventing breaches of the
    peace:
Fleming
, at para. 99.

[59]

In the present case, the police imposed the
    Condition of Entry as a preventative measure to preserve the peace. While
    proactive, preventative policing measures can fall within the ancillary powers
    doctrine, where they intrude upon individual liberty courts must be very
    cautious about authorizing them merely because an unlawful or disruptive act
    could occur in the future:
Fleming
, at para. 83. Two aspects of the factual
    record in particular support the TPS concession that the conditions were not
    present on June 25, 2010 to justify the imposition of the Condition of Entry
    under the police ancillary powers doctrine. First, when Mr. Stewart sought to
    enter Allan Gardens, the protest was a lawful, peaceful one. Second, shortly
    after the police interaction with Mr. Stewart, the Condition of Entry was
    cancelled because it proved ineffective given the number of people trying to
    enter the park.  In those circumstances, the police did not have the authority
    under the common law police ancillary powers doctrine to impose a bag search
    condition of entry on those who wished to enter Allan Gardens to join the
    protest. With respect, the trial judge erred in finding otherwise.

B.      The remaining issues on appeal

[60]

Three issues therefore remain for consideration and
    determination on this appeal.

First issue: The legal authority for the
    police conduct

[61]

There is no dispute that: (i) the police-imposed
    Condition of Entry infringed Mr. Stewarts freedom of expression guaranteed by s.
    2(b) of the
Charter
; (ii) he was detained briefly; (iii) his bag was searched;
    and (iv) his swimming goggles were seized. To survive
Charte
r
    scrutiny, those actions by the police must find some authority or justification
    in the law: (i) the infringement of Mr. Stewarts s. 2(b) freedom of expression
    can be justified by demonstrating that the Condition of Entry was a reasonable
    limit prescribed by law:
Charter
, s. 1; (ii) for his detention to be
    non-arbitrary and compliant with s. 9, it must be authorized by a law that is
    itself non-arbitrary:
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 533, at
    para. 56; and (iii) for the search of his backpack and the seizure of his
    swimming goggles to be reasonable and compliant with s. 8, they must be authorized
    by law:
R. v. Collins
(1987), 38 D.L.R. (4th) 508 (S.C.C.) at 521.

[62]

Accordingly, the first issue on this appeal
    concerns the legal authority of the police to impose the Condition of Entry into
    Allan Gardens.

[63]

The TPS submits that the City TPA Letter
    delegated two powers to the police: (i) the Citys enforcement powers under the
TPA
; and (ii) the Citys common law power as the owner/occupier of
    Allan Gardens to impose conditions of entry to the park. Vested with those
    delegated powers, the TPS submits that it had the lawful authority to impose
    the Condition of Entry in the unique circumstances of the G20 protest at Allan
    Gardens on June 25, 2010. Because the Condition of Entry was lawful, Mr.
    Stewarts refusal to submit to a bag search, as well as his effort to walk unsearched
    into the park, breached the lawful Condition of Entry, thereby making him a
    trespasser. The police were then authorized to arrest or detain Mr. Stewart pursuant
    to the warrantless arrest power contained in s. 9 of the
TPA
and to
    conduct a search of his bag incident to that arrest.

[64]

By contrast, Mr. Stewart argues that the City
    TPA Letter did not delegate to the police any power to impose the Condition of Entry.
    If this court agrees that no such power was delegated, then Mr. Stewart submits
    that the police demand to search his backpack, his subsequent brief detention,
    the actual search of his backpack, and the seizure of his swimming goggles were
    all performed without lawful authority and the analysis should stop at that
    point.

The second issue: The
Charter
analysis in the event legal authority existed for the police conduc
t

[65]

If, however, this court finds that the City TPA Letter

provided the police with the lawful authority to impose the Condition of Entry,
    then that restriction on his freedom of expression, his detention, the bag search,
    and the seizure of the swimming goggles, must still pass scrutiny under the various
    tests contained in the
Charter
and its jurisprudence.

The third issue: The appropriate remedy for
    any violations of Mr. Stewarts
Charter
rights

[66]

If the TPS conduct violated Mr. Stewarts
Charter
rights and freedoms, then the final issue is the appropriate remedy to grant
    Mr. Stewart for the violation of his
Charter
rights and freedoms.

[67]

I shall deal with these three issues in that
    order.

VI.

FIRST ISSUE: THE LEGAL AUTHORITY FOR THE POLICE
    CONDUCT

A.      Overview

[68]

As mentioned, the TPS takes the position that
    its members, acting as agents of the City under the City TPA Letter, were
    authorized by the common law powers the City possessed as an occupier and the
    powers under the
TPA
to impose and enforce the Condition of Entry. Mr.
    Stewart argues that the police officers lacked any such authority.

[69]

To determine this issue, I will: first examine
    the duties and powers, statutory and common law, of the City as the owner and occupier
    of Allan Gardens; then consider the powers available to the City under the
TPA
;

and, finally, ascertain the scope of the powers delegated by the City to
    the TPS and its officers by the City TPA Letter.

B.      The Citys duties and powers as the owner and
    occupier of public parks

[70]

According to the TPS, the placement of officers
    in clusters around the perimeter of Allan Gardens on June 25, 2010 and the
    imposition of the Condition of Entry were done in order to ensure the safety of
    the public attending the public park for a protest. I therefore will examine
    the relationship between the duties of a property owner/occupier and its powers
    in the context of conduct that seeks to ensure the safety of those who enter
    onto its property.

The duty of an occupier

[71]

The provisions of the
Occupiers Liability
    Act
, R.S.O. 1990, c. O.2  (the 
OLA
) were enacted to replace
    many of the common law rules for the purpose of determining the occupiers
    liability in law in respect of dangers to persons entering on the premises or
    the property brought on the premises by those persons: s. 2. The intention of
    the
OLA
was to replace, refine, and harmonize the common law duty of
    care owed by occupiers of premises to visitors on those premises:
Waldick
    v. Malcolm
, [1991] 2 S.C.R. 456, at p. 475, 83 D.L.R. (4th) 114 (S.C.C.),
    at p. 127. The
OLA
promotes and, where circumstances warrant, requires
    positive action on the part of occupiers to make their premises reasonably
    safe:
Waldick
, at p. 477.

[72]

To that end, s. 3(1) of the
OLA
imposes
    a basic duty on the occupier of premises to take such care as in all the
    circumstances of the case is reasonable to see that persons entering on the
    premises, and the property brought on the premises by those persons, are
    reasonably safe while on the premises. While the duty is framed quite
    generally and does not change with the circumstances, the factors relevant to
    an assessment of what constitutes reasonable care will necessarily be very
    specific to each fact situation:
Waldick
, at p. 472.

[73]

The provisions of the
OLA
impose duties
    and obligations on occupiers; they do not grant occupiers any powers.
    Nevertheless, the jurisprudence recognizes that in order to discharge their
    duties of care under the
OLA
, occupiers of premises must have the powers
    necessary to ensure that persons are reasonably safe while on the occupiers
    premises. In
Langenfeld
, at paras. 58-59, this court observed that
    while the
OLA
does not contain provisions that empower the occupier to
    take the steps necessary to comply with the duties imposed by the Act, occupiers
    of property have powers at common law. Those common law powers have long
    included the ability of an owner/occupier to limit access to its property, as
    described in the next section.

A property owners common law powers

[74]

As recognized by the case law, the common law
    powers of property owners/occupiers include the powers to exclude persons from
    the property, remove persons from the property, and impose terms and conditions
    on persons while they are on the property:
Commonwealth
, at pp.
    244-45;
Weisfeld v. Canada
(1994), 116 D.L.R. (4th) 232 (F.C.A.), at
    p. 251;
Bracken
, at paras. 69-73.

[75]

One case has recognized a common law power of an
    occupier to require those entering its property to submit to a bag search. In
Nakochee
    v. Linklater
, 1993 CarswellOnt 5678 (Ont. Ct. J. (Gen. Div.)), the court
    concluded that a policy formulated by the Band Council of a reserve to
    authorize baggage searches of those entering the remote reserve by airplane was
    an exercise of the Band Councils right and responsibility on behalf of the
    Band as occupier of the reserve lands. The court stated, at para. 19:

An owner or occupier of land has a common law
    right to impose conditions precedent to entry upon the land. This right is
    premised, upon the occupier's obligation to ensure the safety of all who are
    upon the land. Such conditions must be reasonable under the circumstances, and
    may include a search, provided that it is conducted reasonably, in good faith
    and with a minimum of intrusion. It would also seem that the person entering
    upon the land must have prior knowledge of the search as a precondition to
    entry, and must have the option of not entering upon the land in order to avoid
    the search.

[76]

Two points need to be made regarding the
    exercise of such common law powers of exclusion or restriction by the owner or
    occupier of government property.

[77]

First, while the common law entitles the Crown
    to withdraw permission from an invitee to be present on its property, the
    exercise of that power is subject always to the
Charter
:
Commonwealth
,
    at p. 245.

[78]

Second, in
Langenfeld
this court held
    that the common law powers of an occupier, at least as they apply in the
    context of an occupier performing the duties imposed by s. 3(1) of the
OLA
,
    are the antithesis of an arbitrary power and are sufficiently precise to be a
    limit prescribed by law for purposes of
Charter
s. 1. 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 on the property:
Langenfeld
, at para. 66.

Powers under
The City of Toronto Act,
    2006

[79]

Although the City enjoys the common law powers
    of an owner/occupier in respect of City-owned property, it is also subject to a
    statutory regime that governs how it can deal with its property.

[80]

The City owns Allan Gardens and is authorized to
    pass by-laws respecting such a public asset:
City of Toronto Act, 2006
,
    S.O. 2006, c. 11, Sched. A, s. 8(2)4. By-laws may regulate or prohibit in respect
    of a matter: s. 8(3). Pursuant to its by-law making power the City enacted the
City
    of Toronto Municipal Code
, which contains, in Chapter 608, a by-law
    respecting Parks (the Parks By-law): City of Toronto,
Toronto Municipal
    Code
, By-law No. 608,
Parks
, (30 September 2004);
Batty v.
    Toronto (City)
, 2011 ONSC 6862, 108 O.R. (3d) 571, at para. 58.

[81]

For the most part, the Parks By-law, as it read
    at the time of the G20 summit in 2010, regulated the activities persons could
    carry on in City parks. However, it imposed a few restrictions regarding entry
    into parks. Specifically, the Parks By-law stated that:

·

while in a park, no person shall enter into
    areas posted to prohibit or restrict admission of the public: §608-2;

·

no person shall use, enter or gather in a park
    between the hours of 12:01 a.m. and 5:30 a.m. unless authorized by permit:
    §608-9.B;

·

no person shall hold an organized gathering for
    more than 25 persons unless authorized by permit: §608-11.A; and

·

the Commissioner of Parks was authorized to
    close off for such temporary period as the Commissioner deemed appropriate a
    park or any part of it to relieve or prevent overcrowding or traffic
    congestion, or in the interests of public safety, or as may otherwise be
    authorized by Council: §608-51.

[82]

The Parks By-law did not contain a provision imposing
    a restriction on entry remotely similar to the Condition of Entry imposed by
    the TPS officers on June 25, 2010 at Allan Gardens.

[83]

The Parks By-law authorized a provincial
    offences officer, which includes a police officer, to enforce its provisions:
    §608-53.C;
Provincial Offences Act
, R.S.O. 1990, c. P.33, s. 1(1). A
    police officer who believed that a person was contravening or had contravened
    the Parks By-law could ask the person to leave the park: §608-53.B(3). If the
    person failed to do so, the permission and licence of the person to remain in
    that park is revoked: §608-53.D.

[84]

However, in this case the TPS does not take the
    position that in imposing the Condition of Entry its officers were acting to
    enforce the provisions of the Parks By-law. The officers agreed that they were
    not provided with any information at the parade about City By-laws. Sgt. McLean
    testified that she was not aware of Mr. Stewart breaching any City by-law on
    June 25, 2010. Cst. Hinchcliffe did not recall any specific direction from the
    City to police officers regarding Allan Gardens during the G20. Nor was any
    direction given by the Commissioner of Parks, pursuant to Parks By-law
§
608-51, to close Allan Gardens for a
    temporary period.

C.      Powers created by
The
    Trespass to Property Act

[85]

Central to the TPS position that its officers
    imposition of the Condition of Entry was lawful is its view of the relationship
    between the
TPA
and the common law powers of the owner/occupier of
    property, which it succinctly summarized at para. 60 of its factum:

As authorized agent of the City, for the
    purposes of administering the
TPA
, and therefore in the position of
    the City as occupier, the TPS was entitled by the occupiers common law power
    to impose a precondition to entry, such as a security screening, if the
    precondition is reasonable and connected to maintaining the safety of persons
    on the property.

[86]

As I will explain, this position misconceives
    the relationship amongst the common law powers of an occupier to restrict entry
    to its property, the
TPA
, and the City TPA Letter.

[87]

The product of a 1980 reform of long-standing
    petty trespass legislation, the
TPA
was intended by the government to
    provide a relatively quick, cheap and intelligible remedy for trespass: Ontario,
    Ministry of the Attorney General,
Discussion Paper on Occupiers Liability
    and Trespass to Property
, (May 1979), at p. 13. In
R. v. Asante-Mensah
,
    2003 SCC 38, [2003] 2 S.C.R. 3, at para. 32, the Supreme Court described the
    key remedies made available to occupiers by the
TPA
:

[T]he
Trespass to Property Act
, 1980,
    S.O. 1980, c. 15, provides owners or agents of the owners with a number of
    options. Under the current law, s. 2 makes trespass a provincial offence
    subject to a fine of up to $2,000. Occupiers may direct persons to leave a
    property (s. 2(1)(b)), and give notice that further activity or entry onto the
    property is prohibited either absolutely (s. 3) or within limits (s. 4). More
    intrusively, as already discussed, occupiers or their agents (and police
    officers) are empowered to arrest without warrant if on reasonable grounds they
    believe the individual is trespassing (s. 9). The inconvenience and indignity
    of being arrested may sometimes be seen as more of a punishment than the amount
    of the fine ultimately levied. It is equally, on that account, more of a
    deterrent.

[88]

Although the
TPA
provides owners/occupiers
    with a suite of enforcement powers against those who should not be on a
    property or carrying on a particular activity on the property, it does not confer
    on an owner/occupier or its agent any legal power to create restrictions on access
    to its property. Those powers find their source either in the common law powers
    of owners/occupiers or, in some cases, statutes respecting a specific
    owner/occupier or class of owner/occupier. What the
TPA
does provide is
    a set of statutory remedies to which an owner/occupier, such as the City, can
    resort in order to enforce its common law or statutory powers to restrict
    access. However, the
TPA
is not, in itself, a source for the power of
    an owner/occupier to establish restrictions on or conditions for access to a
    property.

[89]

This point was made clearly in
Bracken
.
    In that case, the Town of Fort Erie issued a notice under the
TPA
to
    Mr. Bracken to stop his protests outside of the Town Hall. The Town took the
    position that it had the authority to issue the trespass notice under s. 229 of
    the
Municipal Act, 2001
, S.O. 2001, c. 25, which gave its Chief
    Administrative Officer the authority for exercising general control and
    management of the affairs of the municipality, and the
Occupational Health
    and Safety Act
, R.S.O. 1990, c. O.1, s. 25(2)(h), which requires an
    employer to take every precaution reasonable in the circumstances for the
    protection of a worker:
Bracken
, at para. 68. This court did not
    accept those statutory provisions as sources of authority for the trespass
    notice: at para. 69.

[90]

This court then went on to consider, and reject,
    the
TPA
as a discrete source of a power to restrict entry onto
    municipal property, stating at paras. 70-72:

Neither does the
    authority to exclude others from property come from the
Trespass to Property Act
, R.S.O. 1990, c. T.21, which does not set out
    the preconditions for its use. The authority to invoke the Act must come from
    other legal sources, such as the right to exclude others that is inherent in
    the status of an occupier in the common law of property. That is, the Act does
    not create any substantive property rights, but functions as an enforcement
    mechanism for rights that come from other sources
: see
Batty v. Toronto (City)
, 2011 ONSC 6862, 108 O.R.
    (3d) 571, at paras. 81-82;
R. v. S.A.
, 2014 ABCA 191, 312 C.C.C. (3d)
    383, at para. 277-278.

In
Commonwealth
, McLachlin J. noted
    that under the common law, the Crown as property owner is entitled to withdraw
    permission from an invitee to be present on its property, subject always to the
Charter
. At common law, an occupier of a property has the power to
    expel others, and has the power to invoke the remedies supplied by the
Trespass
    to Property Act
. In my view, the authority to revoke Mr. Brackens licence
    to be present on the premises and issue the trespass notice, and thus the law
    that is the source of the limit on Mr. Brackens rights, is the common law.

The
Trespass to Property Act
has also long been used by government as a
    mechanism to exercise this common law power to exclude persons from public
    property
: see, for example,
Batty; Smiley v.
    Ottawa (City)
, 2012 ONCJ 479, 100 M.P.L.R. (4th) 306;
R. v. Semple
,
    2004 ONCJ 55, 119 C.R.R. (2d) 295;
Gammie v. Town of South Bruce Peninsula
,
    2014 ONSC 6209, 322 C.R.R. (2d) 22. Unlike other municipalities, the Town has
    no by-law regulating its use of trespass notices, or even a trespass policy. I
    observe that the risk of arbitrary action is higher in the absence of a
    well-crafted by-law, and there are greater opportunities for uncertainty as to
    what sorts of actions will be permitted.
[Emphasis added.]

D.      Application to the facts of this case

[91]

The TPS contends that the trial judge properly
    concluded that a combination of the City TPA Letter, the Citys duty as an occupier
    under the
OLA
, the Citys common law powers as an occupier, and the
    provisions of the
TPA
provided the officers with the authority to
    impose the Condition of Entry into Allan Gardens on June 25, 2010. TPS put the
    argument in the following terms at para. 58 of its factum:

The common law as it applies to occupiers
    allows an occupier, or an agent of occupier, to place a condition on entry upon
    premises. The
TPA
creates a mechanism to enforce that condition. As
    per the [City TPA] Letter, the General Manager of City Parks designated the TPS
    as agents of the City for purposes of enforcing the
TPA
in the [Allan
    Gardens] Park. The Trial Judge found that pursuant to the [City TPA] Letter,
    the police were given the authority to act as agent of the City of Toronto for
    the purposes of administering the
Trespass to Property Act
and thus
had
    all the authority of an occupier
on June 25, 2010. [Emphasis in
    original.]

[92]

To repeat, the City TPA Letter stated:

Re: Trespass to Property Act for all Parks and
    Community Centres

I would like to advise that, with respect to
    the Trespass to Property Act, the Toronto Police Services is authorized
to act as agents of the City of Toronto for purposes of
    administering the Act and to take appropriate action, including removing people
    in contravention of the Act.
The authority being extended to your
    Department is intended to be directed only against trespassers.

It is understood that this authority may be
    revoked at any time upon written notice being received by the appropriate
    police inspector or other designated police contact at the relevant division. [Emphasis
    Added]

[93]

The City provided this letter to the TPS as part
    of its normal course of operations; it was not issued to deal specifically with
    events anticipated to accompany the G20 summit.

[94]

In finding that the TPS had the authority to
    impose the Condition of Entry into Allan Gardens on June 25, 2010, the trial
    judge reasoned as follows, at paras. 27-31:

·

The City, as the owner and occupier of Allan
    Gardens, has an affirmative duty under the
OLA
to ensure the safety of
    the park for all users.

·

The
OLA
and
TPA
share the same
    definition of the term occupier as including (a) a person who is in physical
    possession of premises, or (b) a person who has responsibility for and control
    over the condition of premises or the activities there carried on, or control
    over persons allowed to enter the premises, despite the fact that there is more
    than one occupier of the same premises:
OLA
, s. 1;
TPA
, s.
    1(1).

·

The
TPA
provides owners or agents of
    owners with a number of options, including directing a person to leave a
    property.

·

The City TPA Letter gave the police the
    authority to act as agent of the City for the purpose of administering the [
TPA
]
and thus had all the authority of an occupier on June 25,
    2010
(emphasis added): at para. 30.

·

Subsection 3(1) of the
TPA
allows the
    occupier to place a prohibition on a persons entry to the premises by notice and
    the [
TPA
] provides that any person breaching such a prohibition is
    considered a trespasser: at para. 31.

·

Consequently, the police had the authority to
    place a prohibition on a persons entry into Allan Gardens on June 25, 2010 and
    the police exercised this authority by asking all persons entering the park on
    that day to allow the police to inspect their bags and belongings: at para.
    31.

[95]

Assessing the trial judges reasoning first
    requires determining the appropriate approach to take for interpreting the City
    TPA Letter. The jurisprudence consistently takes a rigorous approach when
    interpreting the sources of legal authority relied upon by government to encroach
    upon the liberty of the subject. For example, statutes that encroach on the
    liberty of the subject are to be construed, where ambiguous, in favour of
    upholding such liberty:
Asante-Mensah
, at para. 41. More recently, in
Fleming,
at para. 5, the Supreme Court emphasized that [t]he courts of this country, as
    custodians of the common law, must act cautiously when asked to use it to
    authorize actions that interfere with individual liberty. A similar rigour should
    inform the interpretation of the scope of powers delegated by the City TPA
    Letter.

[96]

Here, the trial judge properly interpreted the
    City TPA Letter as authorizing the TPS to act as the Citys agents to
administer
the
TPA
; the City TPA Letter clearly
    states that the TPS was authorized to act as agents of the City of Toronto for
    purposes of administering the Act and to take appropriate action including
    removing people in contravention of the Act. However, the trial judge erred in
    holding that: (i) as such agents the TPS officers had the authority under s.
    3(1) of the
TPA
to place a prohibition on a persons entry to the
    premises by notice; and (ii) the shared definition of occupier in the
OLA
and
TPA
somehow vested in the TPS all the common law powers of the
    City as owner/occupier to restrict access to its parks.

[97]

The trial judge misconstrued the powers granted
    by the
TPA
to occupiers, or their agents, in two respects.

[98]

First, the trial judge erred in her
    interpretation of
TPA
s. 3(1). Subsection 3(1) of the
TPA
states:
    Entry on premises may be prohibited by notice to that effect
[1]
As held in
Bracken
,
    the enforcement powers contained in the
TPA
do not set out the
    preconditions for their use: at para. 70. Instead, the authority to impose a
    restriction of entry to premises must come from some legal source other than
    the
TPA
, such as a statutory or common law power to exclude or
    restrict access to property: at para. 70. Subsection 3(1) of the
TPA
merely
    provides the means by which to enforce a prohibition or restriction on entry
    sourced elsewhere, and
TPA
s. 5(1) describes the forms of notice, oral
    or written, that may be given to enforce such a prohibition or restriction.

[99]

Second, the fact that the
OLA
and
TPA
share a common definition of occupier does not operate to somehow transfer an
    owner/occupiers common law powers to restrict access to property into the
TPA
.
    The
OLA
does not vest in an occupier the statutory power to prohibit
    or restrict entry to premises. The
OLA
imposes duties on occupiers; it
    does not create powers for occupiers. As
Langenfeld
states at para.
    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 the property, however, have powers at common law.

[100]

Moreover, the shared definition of occupier in the
OLA
and
TPA
does not assist in answering the key question: Did the City
    TPA Letter delegate to the police the Citys common law or statutory (by-law)
    powers to create and impose restrictions on entry to public parks?

[101]

The City TPA Letter did not grant the TPS any of the Citys common
    law or statutory powers to impose conditions of entry into parks. No such
    language of delegation appears in the text of the letter. Instead, by its
    terms, the letter delegated remedial powers possessed by the City under the
TPA
to enforce prohibitions or restrictions on entry already adopted or imposed by
    the City in the exercise of its statutory or common law powers to prohibit or
    limit access to the parks it owns or occupies. The letter did not give the TPS
    the authority to fix what conduct amounted to an act of trespass in the City
    parks; the authority to do so remained with the City and was not delegated by
    the letter.

[102]

At the time, the City had not enacted a bag search condition of
    entry for any of its parks, either through exercising its statutory power to
    enact by-laws regarding its parks or through exercising its common law power as
    owner/occupier to restrict access to parks.

[103]

In terms of the Citys statutory authority to impose prohibitions or
    restrictions on entry to parks, the Parks By-law did not establish a
    restriction on entry of the kind imposed by the TPS officers in their Condition
    of Entry. This is a key distinction between the facts in the present case and
    those in
Batty
. In
Batty
, the City used its enforcement
    powers under the Parks By-law to issue a trespass notice under the
TPA
to protestors camped out in a City park. The notice called upon the protestors
    to refrain from conduct that breached two provisions of the Parks By-law:
Batty
,

at paras. 59 and 81-82.

[104]

Further, the enforcement section of the Parks By-law contemplates
    that police officers will enforce restrictions created by the City elsewhere in
    the Parks By-law, not create new restrictions. The Parks By-law authorizes
    police officers to: (i) inform a person about the provisions of the Parks By-law
    and request compliance with them; and (ii) order a person to stop contravening
    the Parks By-law or leave the park:
§
608-53.A and
§
608-53.B.
    Where a person fails to comply with such orders, the Parks By-law states that
    the permission and licence of the person to remain in that park is revoked:
§
608-53.D. In other words, at that point the
    person becomes a trespasser and a police officer may enforce the Parks By-law
    using the remedies set out in the
TPA
.

[105]

In terms of the Citys common law power to impose prohibitions or
    restrictions on entry to parks, as conceded by the TPS in oral argument, at the
    time of the G20 in June 2010, the City had not created or imposed a restriction
    on entry to its parks of the kind imposed on June 25, 2010 by TPS officers at
    Allan Gardens.

[106]

Further, there was no evidence from the TPS officers that prior to
    or on June 25, 2010, the City had asked the TPS to enforce a restriction on
    entry created by the City exercising its common law powers or purported to
    delegate to the officers the Citys common law powers to do so.

[107]

Moreover, the
City of Toronto Act, 2006
addresses in some
    detail the circumstances in which the City can delegate its powers under ss. 7
    and 8 of that Act.
[2]
Although the scope of those restrictions on delegation did not receive
    extensive argument on this appeal, suffice it to say that the delegation of a
    legislative power to an individual who is an agent of the City requires the
    approval of City Council and must be limited to powers of a minor nature: ss.
    21(1) and (4).
[3]
No such approval by City Council was given in the present case. The creation
    and imposition of the Condition of Entry was done at the direction of S/Sgt.
    Burningham, who thought, incorrectly, that the City TPA Letter enabled him to
    do so.

E.      Conclusion

[108]

At the time Mr. Stewart tried to enter Allan Gardens on June 25,
    2010, the City had not enacted a bag search condition of entry to that park,
    either in the exercise of its statutory power to enact by-laws regarding its
    parks or in the exercise of any common law power as owner/occupier to restrict
    access to parks. Further, the City TPA Letter did not delegate to TPS officers
    the authority to create and impose such a Condition of Entry; it delegated only
    the authority to administer the
TPA
by enforcing existing prohibitions
    or restrictions on entry.

[109]

Given that the Citys authorization of the TPS to act as agents of
    the City of Toronto for purposes of administering the [
TPA
] and to
    take appropriate action, including removing people in contravention of the [
TPA
]
    did not vest in the TPS the authority to create and impose the Condition of
    Entry on those seeking to enter Allan Gardens on June 25, 2010, the Condition
    of Entry imposed by the police that day lacked any legal foundation. Lacking a
    source in a legal rule, the police-imposed Condition of Entry was unlawful: see
    the cases cited in
Figueiras
, at para.
41;
Kosoian
    v. Société de transport de Montréal
, 2019 SCC 59, 440 D.L.R. (4th) 78, at
    paras.
6 and 38.

[110]

The trial judge therefore erred when she concluded that the
    combination of the
OLA
, the
TPA
, and the City TPA Letter
    authorized the police to place a prohibition on a persons entry into Allan
    Gardens on June 25, 2010: at para. 31.

VII.

SECOND ISSUE: WAS THE POLICE INTERFERENCE WITH
    MR. STEWARTS
CHARTER
RIGHTS JUSTIFied?

The infringement of Mr. Stewarts freedom of
    expression

[111]

The TPS concedes that its officers imposition of the Condition of
    Entry infringed Mr. Stewarts freedom of expression guaranteed by s. 2(b) of
    the
Charter
. Because I have concluded that the police did not have the
    authority to impose and enforce the Condition of Entry, it follows that their
    interference with Mr. Stewarts s. 2(b)
Charter
freedom was not
    prescribed by law. As a result, the infringement of Mr. Stewarts s. 2(b)
    freedom cannot be justified under s. 1 of the
Charter
.

The detention of Mr. Stewart and the search
    of his backpack

[112]

Nor did the police detention of Mr. Stewart, their search of his backpack,
    or the seizure of his swimming goggles comply with ss. 8 and 9 of the
Charter
.

[113]

The TPS contend that s. 9 of the
TPA
authorized the
    officers to detain Mr. Stewart once he tried to enter Allan Gardens contrary to
    the Condition of Entry. Subsection 9(1) of the
TPA
states:

9(1) A police officer, or the occupier of
    premises, or a person authorized by the occupier may arrest without warrant any
    person he or she believes on reasonable and probable grounds to be on the
    premises in contravention of section 2.

[114]

Subsection 2(1) of the TPA states, in part, that:

Every person who is not acting under a right
    or authority conferred by law and who, (a) without the express permission of
    the occupier, the proof of which rests on the defendant, (i) enters on premises
    when entry is prohibited under this Act  is guilty of an offence and on
    conviction is liable to a fine of not more than $10,000.

[115]

While the police officers certainly believed subjectively that they
    had reasonable and probable grounds to arrest or detain Mr. Stewart when he
    tried to enter the park without making his backpack available for a search, those
    grounds cannot be justified from an objective point of view:
R. v. Storrey
,
    [1990] 1 S.C.R. 241, at pp. 250-251. No objective grounds existed to believe
    that Mr. Stewart was a trespasser because no lawful basis existed for the
    Condition of Entry that the police were purporting to enforce. Accordingly, the
    arrest power in s. 9 of the
TPA
was not available to the police in the
    circumstances.

[116]

Nor was this a case where the TPS officers were investigating the commission
    of an offence under the
TPA
that might provide the legal basis for an
    investigative detention and search incident to investigative detention:
R.
    v. Amofa
, 2011 ONCA 368, 282 O.A.C. 114, at paras. 15-17;
R. v.
    Peterkin
, 2015 ONCA 8, 328 O.A.C. 321, at para. 56. The evidence of the
    police officers was clear that the imposition of the Condition of Entry was not
    related to the investigation of any specific offence.

[117]

I conclude that the police arbitrarily detained Mr. Stewart when he
    attempted to cross the police line into the park without submitting to a search
    of his backpack, thereby violating his right under s. 9 of the
Charte
r.

[118]

Finally, the police sought to justify their search of Mr. Stewarts backpack
    and seizure of his swimming goggles as a search incident to an arrest. However,
    because the police detention or arrest of Mr. Stewart was not lawful, the
    search of his backpack and seizure of the swimming goggles cannot be justified:
R. v. Stillman
(1997), 144 D.L.R. (4th) 193, at p. 210;
Kosoian
,
    at para. 100. Consequently, the police violated Mr. Stewarts right under s. 8
    of the
Charter
to be secure against unreasonable search or seizure.

Summary

[119]

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

VIII.

THIRD ISSUE: REMEDY

A.      Overview

[120]

In his Amended Statement of Claim, Mr. Stewart advances causes of
    action seeking damages resulting from the tortious conduct of the police, as
    well as damages under s. 24(1) of the
Charter
. His notice of appeal
    also asks for judgment based on his tort claims: trespass to his property,
    assault, battery, false imprisonment and false arrest. However, on appeal Mr.
    Stewart did not advance or develop his claims sounding in tort. Instead, he focused
    his argument on his claim for
Charter
damages, submitting that an
    award of
Charter
damages would overlap with any tort damages:
Vancouver
    (City) v. Ward
, 2010 SCC 27, [2010] 2 S.C.R. 28, at paras. 22 and 36. Given
    Mr. Stewarts position, I see no need to deal with his claims in tort. As a
    result, I will limit my consideration of his damages claim to that under s.
    24(1) of the
Charter
. In addition to an award of damages, Mr. Stewart
    seeks declarations that the conduct of the police was unlawful.

B.      The general principles regarding
Charter
damages

[121]

In
Ward
, the Supreme Court, at para. 4, set out the
    four-step framework for considering claims for damages for the breach of
Charte
r
    rights:

1)
Proof of a
Charter
breach
: Establishing
    whether a
Charter
right has been breached;

2)
Functional justification of
    damages
: Showing why damages are a just and appropriate remedy, having
    regard to whether they would fulfill one or more of the related functions of
    compensation for the personal loss caused by a breach, vindication of the
Charter
right, and/or deterrence of future breaches;

3)
Countervailing factors
: Considering
    any demonstration by the state that countervailing factors defeat the
    functional considerations that support a damage award and render damages
    inappropriate or unjust;
[4]
and

4)
Quantum
: Assessing the
    quantum of damages.

[122]

As Mr. Stewart has established breaches of his
Charter
rights, the damages analysis must first consider whether awarding damages to
    Mr. Stewart would be a just and appropriate remedy having regard to whether damages
    would fulfill one or more of the related functions: (i) compensation, which
    focuses on the claimants personal loss, whether physical, psychological,
    pecuniary or involving intangible interests; (ii) vindication, which focuses on
    the harm the infringement causes society and emphasizes the importance and
    gravity of the breach; and (iii) deterring state agents from committing future
Charter
breaches:
Ward
, at paras. 27-29 and 31.

[123]

Even if a claimant establishes that
Charter
damages are
    functionally justified, the state may establish that other considerations
    render s. 24(1) damages inappropriate or unjust. Such countervailing
    considerations include the existence of alternative remedies and concerns for
    good governance:
Ward
, at para. 33.

[124]

The quantum of damages awarded must be appropriate and just:
Ward
,
    at para. 46. Any claim for compensatory damages must be supported by evidence
    of the loss suffered: at para. 48. Absent exceptional circumstances,
    non-pecuniary compensation is fixed at a fairly modest conventional rate,
    subject to variation for the degree of suffering in the particular case: at
    para. 50. When considering quantum in respect of the objectives of vindication
    and deterrence, making the appropriate determinations is an exercise in
    rationality and proportionality, taking into account the seriousness of the
    breach, its impact on the claimant, and the seriousness of the state
    misconduct: at paras. 51-52.

C.      The position of the parties regarding
Charter
damages

[125]

Mr. Stewart submits that he is entitled to compensatory damages
    because: (i) his schooling was delayed; (ii) his reputation was negatively
    impacted as were his relationships with family and friends; and (iii) he feared
    for his safety as a result of abusive and threatening comments left on the
    YouTube page to which Ms. Walter posted her video of the incident.

[126]

Mr. Stewart also submits that a damage award should contain a
    deterrence component. Although the police may have been motivated by public
    safety, Mr. Stewart argues that their actions at Allan Gardens were flawed,
    carried out without any real planning or forethought, and were overly broad,
    impacting a great number of peaceful protestors like him.

[127]

TPS argues that Mr. Stewart has put forward no evidence to
    substantiate his claim of delayed schooling or damage to his reputation. Mr.
    Stewart was not prejudiced by Ms. Walters video. Instead, he embraced it by
    including a link to the video in an online article he wrote five days after the
    incident and playing the video at the press conference that announced the
    launch of his lawsuit. Finally, given the trial judges finding that the
    officers did not act maliciously or exhibit bad faith in their execution of the
    search, the objectives of deterrence and vindication could be achieved without
    the need for a substantial damages award.

D.      Analysis

[128]

As the trial judge did not making any finding regarding the amount
    of damages, I must conduct a damages assessment. I conclude that Mr. Stewart is
    entitled to an award of damages, but one that is quite modest in amount. My
    reasoning is as follows.

Compensatory function

[129]

Mr. Stewart adduced little evidence to
    demonstrate that the conduct of the police caused him personal loss, whether
    physical, psychological, pecuniary or affecting his intangible interests.

[130]

In examination-in-chief, Mr. Stewart stated that
    he was not claiming that he was physically hurt by the altercation or had been
    diagnosed with any psychological injury. The Walter video shows that the police
    used minimal force to detain Mr. Stewart. After the police released Mr.
    Stewart, he gave a media interview, continued into the park, joined the
    protest, and then participated in the subsequent street demonstration.

[131]

Mr. Stewart testified that he found the police
    conduct highly troubling and he suffered distress. He explained that his
    distress arose because I feel like Ive been illegally searched and indeed my
    swimming goggles have been illegally taken from me, all of which seemed
    entirely unfair and unjust.

[132]

Mr. Stewart stated that the incident affected
    his reputation, especially because it had been videotaped, with the video
    posted on the internet by Ms. Walter. The incident led to some disagreements
    with family and friends, including some tough conversations. Some friends
    told him that what he did was wrong; he should have listened to the police. He
    formed the impression that some family members did not take him seriously
    because he was a protestor. As well, some of the comments posted on YouTube
    concerning the video of the incident were highly critical of Mr. Stewart. At
    the same time, some comments were quite supportive.

[133]

I see no harm caused to Mr. Stewart by those
    tough conversations or YouTube comments. In his factum, Mr. Stewart describes
    himself as an activist and an academic with an interest in social justice.
    Tough conversations and strong comments inevitably accompany such activities.

[134]

More significantly, while pointing to the posted
    Walter video as a source of concern about his reputation, Mr. Stewart made use
    of it for his own purposes. He acknowledged that in a June 30, 2010 article
    that he posted to the Toronto Media Co-op website, he included a link to the
    Walter video. In addition, he played the video at the press conference he held
    when he started his lawsuit.

[135]

Although Mr. Stewart testified that the incident
    caused him to finish his PhD eight months later than he had planned or intended,
    his evidence strongly suggests that he chose to put initiating this lawsuit
    ahead of his studies. Moreover, Mr. Stewart did not file any documentary
    evidence about his studies and expected date of completion of studies at the
    University of Waterloo.

[136]

Further, although Mr. Stewart testified that he
    was concerned about what future employers might think when they saw the video
    of the incident, he did not file any evidence that the incident or the video had
    prejudiced any employment opportunities. His first job after graduating was
    teaching at the University of Nice from 2014 to 2015. He was then unemployed
    for a period of time, although he did not explain the reason for his lack of
    employment. Thereafter, he found a teaching position at the University of Lyon
    in France where he was employed at the time of the trial. Mr. Stewart did not
    lead any evidence that the incident caused a delay in his employment or his
    unemployment after 2015.

[137]

In summary, Mr. Stewart has not established any personal loss. As a
    result, there is no basis for awarding compensatory damages.

Vindication and deterrence functions and
    countervailing factors

[138]

Mr. Stewart submits that although the police may have been motivated
    by public safety, their actions at Allan Gardens were flawed, carried out
    without any real planning or forethought, and were overly broad, impacting a
    great number of peaceful protestors like him. This supports an award related to
    the vindication or deterrence functions of
Charter
damages.

[139]

I accept this submission in principle. The freedom to engage in the
    peaceful public expression of political views is central to our conception of a
    free and democratic society. Freedom of expression requires zealous protection.
    The police infringed Mr. Stewarts freedom of expression without lawful
    justification and violated his rights to be free from unreasonable search and
    seizure, as well as from arbitrary detention. It does not follow, however, that
    a large award of damages is required. As I will explain, in all of the
    circumstances of this case, a modest award of damages would be just and
    appropriate to affirm the constitutional value of freedom of expression,
    together with s. 8 and 9
Charter
rights, and serve the deterrence
    function of
Charter
damages.

The quantum of damages

[140]

An award of damages under
Charter
s. 24(1) must be
    appropriate and just, fair to both the claimant and the state:
Ward
,
    at para. 53.

[141]

Mr. Stewart has not made out a case for compensatory damages as he
    has not demonstrated that he suffered personal loss. His interaction with the
    TPS officers lasted approximately 10 minutes, including a three-minute
    detention, and, after being released, Mr. Stewart gave a media interview and continued
    on his way to the protest. His injury was not serious.

[142]

Although he has established a case for damages to functionally serve
    the vindication and deterrence objectives of
Charter
damages, there
    are several factors that work to limit the quantum of such damages.

[143]

By 2010, G20 summits inevitably had attracted violent protests, as
    conceded by Mr. Stewart. The TPS knew that and tried to put in place at Allan
    Gardens a system that balanced the right of individuals to protest with the
    safety of all who participated in the protest or who might feel the effects of
    the protest. In this case, the system they chose was to impose the Condition of
    Entry. Although the condition proved ineffective, as numbers ultimately
    overwhelmed the ability to the police to deal with those entering the park, and
    while the condition was based on an incorrect understanding by the police of
    the legal effect of the City TPA Letter, I agree with the trial judges finding
    that on June 25, 2010 the police acted in good faith to protect the safety of
    all users of Allan Gardens: at para. 91.

[144]

The Condition of Entry was not designed to turn protestors away from
    Allan Gardens, but to ensure that those who entered were not carrying objects
    that could be used as weapons or used to defeat police crowd control tactics.
    Indeed, once searched, Mr. Stewart continued into the park and joined the protest.

[145]

As well, on June 25, 2010, the police acted in a calm and
    professional manner at Allan Gardens. The Walter video fully supported the
    following two findings made by the trial judge: The video demonstrates that
    each police officer who dealt with Mr. Stewart was calm and polite, but firm;
    and, The police were trying to de-escalate the situation while Mr. Stewart was
    trying to escalate the situation: at paras. 24 and 48.

[146]

The good faith and professionalism of the TPS officers go a long way
    to reducing the appropriate quantum of damages linked to the vindication and deterrence
    functions of
Charter
damages.

[147]

Moreover, the facts of this case differ considerably from those in
Ward
and
Fleming
by an order of magnitude. In
Ward
, the plaintiff
    was mistakenly identified and arrested, wrongfully strip-searched, his car
    impounded, and he was held for several hours. In
Fleming
, the
    plaintiff was not only precluded from attending a peaceful protest, he was also
    arrested, thrown to the ground  causing him serious injury  handcuffed, held
    in a police van, moved to a jail cell, and released after two and a half hours.
    In both cases, awards of $5,000 in
Charter
damages were made and
    upheld on appeal.

[148]

By contrast, in the present case Mr. Stewarts interaction with the
    police lasted only a few minutes, he was restrained but suffered no physical
    injury, and he was then allowed to proceed to the protest. His person was not
    searched. His knapsack was, and the police seized a pair of swimming goggles,
    which Mr. Stewart could have recovered had he given the police his name for a
    property receipt as requested.

[149]

Considering all the factors, I conclude that the vindication and
    deterrence functions of
Charter
damages can be served by a modest
    award of damages. I would award Mr. Stewart damages in the amount of $500.

The claim for a declaration

[150]

In his factum, Mr. Stewart sought two declarations: (i) that S/Sgt.
    Burningham did not have the lawful authority to direct subordinate officers to
    surround Allan Gardens on June 25, 2010 and search people as a condition of
    entry and to seize items found pursuant to these searches; and (ii) the
    conduct of police officers under the command of S/Sgt. Burningham acted
    contrary to the law including ss. 2, 8, and 9 of the
Charter
when they
    surrounded Allan Gardens on June 25, 2010 and searched people as a condition of
    entry and seized items found pursuant to these searches.

[151]

Both declarations ask the court to go beyond the legal
    characterization of the officers conduct as it affected Mr. Stewarts
Charter
rights to grant a remedy in favour of a larger, indeterminate class of
    persons.

[152]

I see no need to grant such broad declarations. Mr. Stewart brought
    this action in his personal capacity seeking damages for the conduct of the
    police towards him. In the course of assessing his
Charter
claims, I have
    held that the police did not have a lawful basis to impose the Condition of
    Entry, found violations of Mr. Stewarts
Charter
rights, and awarded
    him
Charter
damages. That is sufficient to dispose of Mr. Stewarts
    personal claim. No broader declarations are required.


IX.

DISPOSITION AND COSTS

[153]

For the reasons set out above, I would allow the appeal, set aside
    para. 1 of the trial judges Judgment, allow Mr. Stewarts claim, and grant him
Charter
damages in the amount of $500.

[154]

It follows that I also would set aside the award of costs made by
    the trial judge against Mr. Stewart in para. 2 of the Judgment.

[155]

As to the costs of the appeal, Mr. Stewart seeks partial indemnity
    costs of $48,000. The TPS submits costs in the amount of $17,500 would be fair.
    Having reviewed Mr. Stewarts bill of costs, I conclude that an award of costs for
    the appeal in the amount of $20,000, inclusive of disbursements and applicable
    taxes, would be just and reasonable and would order the TPS to pay such costs
    to Mr. Stewart.

[156]

The parties could not agree on the disposition of the costs below in
    the event the appeal was allowed. They may make written submissions on that
    issue. Mr. Stewart may file cost submissions of up to 10 pages in length on or
    before May 15, 2020. The TPS may file responding submissions of similar length
    by June 12, 2020. Mr. Stewart may file reply submissions of up to 5 pages in
    length by June 24, 2020.

Released: DB  APR 16 2020

David Brown J.A.

I agree. Grant Huscroft J.A.

I agree. Gary Trotter J.A.





[1]

Section 3(1) of the
TPA
states:

3(1) Entry
    on premises may be prohibited by notice to that effect and entry is prohibited
    without any notice on premises,

(a) that
    is a garden, field or other land that is under cultivation, including a lawn,
    orchard, vineyard and premises on which trees have been planted and have not
    attained an average height of more than two metres and woodlots on land used
    primarily for agricultural purposes; or

(b) that
    is enclosed in a manner that indicates the occupiers intention to keep persons
    off the premises or to keep animals on the premises.



[2]
Section 7 states: The City has the capacity, rights, powers and privileges of
    a natural person for the purpose of exercising its authority under this or any
    other Act. Subsection 8(2) contains the Citys general by-law making power.



[3]
Subsection
    20(1) states: Without limiting sections 7 and 8, those sections authorize the
    City to delegate its powers and duties under this or any other Act to a person
    or body subject to the restrictions set out in this Part.

Subsections
    21(1) and (4) state:

(1) Sections 7 and 8 do not authorize the City to delegate
    legislative and quasi-judicial powers under any Act except those listed in
    subsection (2) and the legislative and quasi-judicial powers under the listed
    Acts may be delegated only to,

(a) one or more members of city council or a council committee;

(b) a body having at least two members of whom at least 50 per cent
    are,

(i) members of city council,

(ii) individuals appointed by city council,

(iii) a combination of individuals described in subclauses (i) and
    (ii); or

(c) an individual who is an officer, employee or agent of the City.

(4)
No delegation of a legislative power shall be made to an
    individual described in clause (1)(c) unless, in the opinion of city council,
    the power being delegated is of a minor nature
and, in determining whether
    or not a power is of a minor nature, city council, in addition to any other
    factors council wishes to consider, shall have regard to the number of people,
    the size of geographic area and the time period affected by an exercise of the
    power. [Emphasis added.]



[4]
The
    Supreme Court commented further on the third step of the
Ward
analysis
    in
Henry v. British Columbia (Attorney General)
, 2015 SCC 24, [2015] 2
    S.C.R. 214, at para. 38, stating: [I]f a declaration of a
Charter
breach would adequately achieve the objectives that would otherwise be served
    by a damages award, then granting damages as well as a declaration would be
    superfluous, and therefore inappropriate and unjust in the circumstances.


