March 30, 2015
Figueiras v Toronto (Police Services Board) 2015 ONCA 0208
In this appeal the Court examined the proper scope of common law police powers, and, in particular, whether police acted within the scope of their common law powers when, during the 2010 G20 summit in Toronto, they targeted demonstrators walking down a public street and required that they submit to a search of their belongings if they wished to proceed.
Mr. Figueiras was stopped as he walked with friends down University Avenue. He and his friends were heading downtown to demonstrate in support of animal rights when a group of police officers stopped them and said that if they wished to proceed further they would have to submit to a search of their bags. Figueiras refused and said that he regarded the request as a violation of his civil rights.
Figueiras subsequently applied for a declaration that the police officers had violated his rights to freedom of expression, peaceful assembly, and liberty under ss. 2(b), 2(c) and 7 of the Charter. He also sought a declaration that one of the officers had committed the tort of battery by grabbing and pushing him.
In the lower court his application was dismissed. The application judge held that the officers’ conduct was authorized under the test for ancillary police powers set out in R. v. Waterfield,  2 All E.R. 659 (C.C.A.) and the Canadian jurisprudence that has followed it. He further held that the alleged battery was de minimis at worst and in any event was justified under s. 25 of the Criminal Code.
After applying the two-part test, originally set out in Waterfield, the Court concludes at para 138:
The police power purportedly exercised here falls short of meeting the Waterfield test when it is weighed against the significant infringement of Mr. Figueiras’s liberty interests. The actions taken by Sgt. Charlebois and his team were not reasonably necessary and had little, if any, impact in reducing threats to public safety, imminent or otherwise.
In conclusion, the Court goes on to state:
Since I have concluded that the police did not have the power to target apparent demonstrators and require that they submit to a search in order to continue down a public street, it follows that the respondents’ interference with Mr. Figueiras’s common law liberty and s. 2(b) Charter rights was not prescribed by law.