In the recent decision of Langenfeld v. Toronto Police Services Board, 2019 ONCA 716, the Ontario Court of Appeal set aside an earlier ruling that mandatory security checks for members of the public entering the Toronto Police headquarters were unconstitutional. While upholding the application judge’s finding that these checks infringed section 2(b) of the Charter, the court held that they were saved by section 1, taking the opportunity to clarify an occupier’s authority at common law in Ontario.

Background 

The applicant was a regular attendee of monthly Toronto Police Services Board (TPSB) meetings, which must generally be open to the public as per TPSB by-laws. In June 2017, Toronto Police Chief Mark Saunders, acting as occupier of Toronto Police headquarters, initiated a new security protocol by which all visitors to the building were required to pass through a screening by special constables. The applicant objected to this measure and sought an injunction against it.

In the decision below, reported at 2018 ONSC 3447, the court granted declaratory relief, finding that the new measures infringed attendees’ Charter right to freedom of expression, and could not be justified under section 1 because they were not prescribed by law.

The Threshold Charter Issue

Section 2(b) of the Charter provides:

Everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

The Court of Appeal agreed with the court below in finding that the new security protocol limited the applicant’s section 2(b) Charter rights. In doing so, the court confirmed that imposing a condition precedent on expression, such as security screening, constitutes a prima facie infringement on the right to freedom of expression.

The court also held that the availability of alternate methods of making the applicant’s voice heard without undergoing a security check, such as making written submissions or observing the meeting on YouTube, would properly inform the section 1 analysis, not the threshold question of whether a Charter infringement existed.

The Section 1 Analysis

Section 1 of the Charter states as follows:

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

The court below had found that Chief Saunders’ new security measures were not prescribed by law, and therefore failed the very first precondition of the section 1 analysis. This finding was reversed by the Court of Appeal.

The Court of Appeal viewed the 2015 repeal of the Public Works Protection Act (Act) — a statute that had granted police a broad swathe of security powers with respect to “public works,” including police headquartersm — differently than the court below. While accepting that the Act could have served to anchor Chief Saunders’ security measures had it not been repealed, and that the Occupiers’ Liability Act did not expressly grant similar powers, the Court of Appeal held that in any event the chief possessed these powers at common law.

The starting point for the court’s analysis was s. 3(1) of the Occupiers’ Liability Act, which enjoins occupiers to ensure that persons entering or using the property are “reasonably safe within the premises.” Given that the security screening was a bona fide safety measure, this link to Chief Saunders’ duties as an occupier was sufficient to ground the screening in law. Though common law powers can be exercised in a vague or arbitrary manner that may not be “prescribed by law” for section 1 purposes, that was not a concern on the facts of this case.

Returning to the “four criteria that must be satisfied before a claim limiting a constitutional right will pass section 1 scrutiny,” the court easily found that the security screening served a pressing safety goal and was rationally connected to that goal. Because the screening did not extend to requiring attendees to identify themselves or submit to anything beyond a short, non-intrusive investigation to identify any dangerous items, it was deemed minimally impairing of freedom of expression. Finally, ensuring the safety of individuals visiting and working at police headquarters was held to be proportional to the limitation of the applicant’s section 2(b) rights.

Comment

The court’s decision provides some certainty to public authorities who may see fit to restrict access to their premises for security reasons, and clarifies that common law occupiers’ powers can be a legitimate means of achieving this objective.