Impulsive Judgment?: An Alternative View of the "Secret" G20 Policing Law

 

Last weekend, both violent and peaceful political protestors gathered on the streets of Toronto to voice concerns surrounding the G20 World Leader’s Summit.  Smashed windows, police cars ablaze and billiard balls thrown at riot squads were all occurrences at the Summit … all within 5 metres of the security fence.  Demonstrators avoided this area after they learned of a newly-enacted temporary law, a regulation supporting the Public Works Protection Act (“Act”).  Protestor Dave Vasey heard of the Act too late, as he was arrested on Thursday, June 24 outside of the fence and now plans to challenge the constitutionality of the Act, citing infringements of his rights under the Canadian Charter of Rights and Freedoms.  Many civil liberties associations, citizens and media outlets have jumped on the bandwagon, voicing outrage over this controversial legislation.

The Public Works Protection Act, R.S.O. 1990, is an Ontario statute which was created to protection public structures in the province.  The Act gives peace officers specific powers in s. 3.  Peace officers:

(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and address, to identify himself or herself and to state the purpose for which he or she desires to enter the public work, in writing or otherwise;

(b) may search, without warrant, any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger; and

(c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering.

Public works, as defined by the Act, are government institutions such as buildings, bridges, railways, waterworks, and public utilities.  Already in effect for years, the Act itself will continue to govern after the G20 has concluded.  The controversy that now surrounds the Act stems from a temporary regulation that was enacted, effective only for the G20 weekend.

Controversy surrounding the law's "secretive" nature

Upon learning of the law, critics voiced discontent with the delayed public release of the new regulation, only filed on June 14, one week before it came into effect.  While the regulation was posted online, it will only be printed in the Ontario Gazette for the public on July 3, 2010 - after the regulation has expired.

Critics argue the law goes too far, especially considering it never was debated in the legislature. Vasey's lawyer Howard Morton stated, "It’s just unbelievable you would have this kind of abuse of power where the Cabinet can create this offence without having it debated in the Legislature."  However, the Act (which was debated in the legislature) clearly allows the power to be exercised.  A strong cause for concern is the lack of communication about the regulation to the public.  By the time organizations such as the Canadian Civil Liberties Association were informed, it was too late for mass distribution of the information to G20 protesters.

The Lieutenant Governor in Council has the power to define areas (by using regulations) that constitute approaches to public works in s. 6(b) of the Act.  The new "secret law" comes from a temporary regulation.

Ontario Regulation 233/10 to the Act temporarily added a new "public work" - the protected area around the G20 Summit. It also defines in Schedule 2 "The area, within the area described in Schedule 1, that is within five metres of a line drawn as follows..."  Finally, the regulation outlines its temporary nature, stating that the law was only in force until Monday, June 28. Penalties for violating the law include a $500 fine and up to two months in jail.

Post-publication update:  In an article published June 30, the Ontario government and Chief of Police Bill Blair state the regulation never applied to the outside of the fence, but only the inside.  I question this assertion, since the entirety of the contents within the fence were protected (without the 5 metre area).  Plus, Chief of Police Bill Blair has previously commented on the 5 metre perimeter, clearly agreeing with its existence.  On the other hand, the regulation states, "The area..that is within five metres of a line drawn as follows..."  "Within" can be defined as "on the inside."  However, this continues to raise questions as to why the government would bother protecting the inside of the security zone twice in the same regulation.  I do not have a clear answer, but there's one thing that's certain - something's fishy.

Were Charter rights violated?

Morton has suggested that Vasey’s Charter challenge will involve the alleged infringement of s. 2(b) and 2(c), freedom of communication and peaceful assembly, respectively.

Section 2(b) and 2(c) of the Charter read:

2. Everyone has the following fundamental freedoms:

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

(c) freedom of peaceful association

For constitutional purposes, the scope of expression that is protected under s. 2(b) was defined by the SCC in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 as any activity that conveys meaning.  In RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 2 S.C.R. 199 the guarantee was expanded to include silence (or the right to not say anything).  Requiring citizens to volunteer their information, at first glance, would violate the s. 2(b) right.  So, he will first have to show that his expression is covered by s. 2(b).

With respect to s. 2(c), the police have the power to refuse a person entry to any defined public work.  During the Summit, the security zone was defined as a “public work.”  Thus, if protestors had reached the security perimeter over the weekend, officers (under s. 3(c) of the Act) could have forcibly removed anyone who came within the 5 metre zone, thereby violating the constitutionally-guaranteed freedom of association.

I predict the suit may also allege a s. 8 Charter violation against unreasonable search and seizure.  Persons have the right to be free from warrantless searches if a reasonable expectation of privacy exists.  However, in certain public places, warrantless searches are justified if there is not a reasonable expectation of privacy.

Both the s. 2(c) and s. 8 alleged violations may not be held to be infringements, since the Ontario Court of Appeal's ruling in R. v. Campanella, 75 O.R. (3d) 342 upheld the Act as constitutional.  That decision may be distinguishable, as Campanella was decided in the context of entering a courthouse, not going near a fence.

Without delving into an in-depth analysis of the jurisprudence surrounding searches, I will briefly comment on the potential there is to deviate from the Campanella decision. Some may argue that a chain-link security fence is not public place with an obvious diminished expectation of privacy.  I disagree.  A security fence erected with the purpose of protecting the world's most influential leaders and dignitaries should easily lead a reasonable person to expect diminished privacy if they are found in vicinity of the barrier.  I find it difficult to believe the average citizen would expect a high level of privacy if they are close enough to breach the infamous security fence.

If Rights are Held to Have Been Violated, Does the Act Survive a Section 1 Analysis?

Assuming that his expression is protected by s. 2b, I will analyze whether the law violates this expression.

Prescribed by Law

Little doubt will exist with respect to this stage of the analysis.  Police authority was exercised under a provincial statute.

The Act's Objective

The analysis would then proceed with the Oakes test. The first step is to determine if the Act has a "pressing and substantial" objective.  Little debate would occur at this stage, as protecting the safety of foreign leaders and dignitaries is of utmost importance.

Is There a Rational Connection?

Finding a rational connection between violating citizens' Charter rights in the pursuit of securing the G20 Summit will not be difficult. Restricting access to a security perimeter encompassing foreign leaders is clearly done in the pursuit of security.

Do Less Intrusive Means Exist?

The minimum impairment test requires the infringement on rights to be as minimally intrusive as is reasonably possible.  Finding minimal impairment is the hardest stage of an Oakes analysis.

Requiring one to disclose their name, address and purpose for being in an area is not a severe violation of one's right to remain silent.  If, for example, the Act required more information (such as age, birthday, SIN number) then I might agree the impairment would not be minimal. In R. v. Ladouceur, [1990] 1 S.C.R. 1257 the SCC held that compelling one to produce a driver’s license (which has your name and address on it) is constitutional for purposes of traffic safety.  If the highest court is willing to allow a restraint on one’s right to remain silent for traffic safety, I find it hard to believe that same court would not allow the same restraint for the purposes of potentially avoiding violence. Granted, this only applies to motor vehicles, which is why the police have also been given a discretionary power to stop and question pedestrians they suspect may commit a crime.

Further, this law does not require one to give any information to the police.  Before the Summit, Toronto Chief of Police Bill Blair explained that if pedestrians did not wish to identify themselves to police, they were free to leave the area with no consequence. Thus, pedestrians were given the opportunity to avoid any rights infringement.

With an important policy objective, asking pedestrians to identify themselves in a secured area is only a slight infringement on the right to remain silent.  Pedestrians had the choice to remain silent and leave the area if they did not wish to provide their information.

For those that may argue that the public has the right to use public property and should not be compelled to leave, I direct readers to the Foreign Missions and International Organizations Act (“FMIOA”).  This legislation allows the RCMP to prohibit access to any area for security at international summits.

On the other hand, these laws capture all citizens, not simply protesters. Therefore, the Act has the effect of violating (or having the potential to violate) the rights of all Canadians, despite the fact that they may be protesting peacefully.  This is a strong point against a minimal impairment.

However, in Irwin Toy, Lamer J., Wilson J. and Dickson C.J. introduced the deference test to freedom of expression cases.  The deference test allows a court to allow a non-minimally impairing provision to survive by deferring to legislative judgment.

Since (a) pedestrians could leave the area in question without consequence, and (b) pedestrians will have a difficult time arguing they had a “right to be there” (as a result of the FMIOA), I believe it is likely a court would agree that the means employed in the Act are minimally intrusive, or would defer to the legislature’s judgment.

Proportionality

The final stage of the Oakes test requires the weighing of the salutary and deleterious effects of the legislation in question.

Similar to my reasoning under the "Prescribed by Law" heading, I see little problem with this stage of the test.  Considering the lengths we (and other countries) go to in order to protect the safety of our leader and his team, it is quite unlikely a court would find the provision of information a serious enough rights violation to restrict a temporary security measure.

The Future of Temporary Security Measures

Temporary, "secret" legislation such as the Act enraged citizens further in a time where civil liberties associations found rights violations around every corner.  It is concerning that the regulation was passed so late in the game, when the Integrated Security Unit ("ISU") was well aware of the Summit for months beforehand.  However, before the public assumes the late release in the law is perhaps tied to concerns over its constitutionality, I suggest we allow the ISU to respond to allegations before judgment is passed.