Ontario Court of Appeal Rules G20 Protester’s Rights Violated by Police

 

Ten years after Toronto hosted the G20 summit, a civil suit launched against the Toronto police has finally been resolved by the Ontario Court of Appeal. The decision—Stewart v. Toronto (Police Services Board)—represents a strong affirmation of the constitutional right to protest, especially in public spaces like parks.

The case arose out of the G20 summit held in Toronto in 2010. A group of activists had organized a public rally in Allan Gardens, a public park in downtown Toronto. Based on vague reports of potential violence by “Black Bloc” protesters, the police set up an indiscriminate perimeter around the park the day before the rally and required all those wishing to participate in the protest to submit to a search of their personal belongings. The police also seized items that they believed could be used to defeat the effects of tear gas and pepper spray, such as goggles, bandanas, and vinegar.

The police stopped the appellant, Luke Stewart, and told him they were searching all protesters under the authority of the Trespass to Property Act. Mr. Stewart refused to consent to the search, believing it to be unconstitutional. When he attempted to move past the police perimeter, he was forcibly detained. The police then searched his bag and confiscated a pair of swimming goggles.

Mr. Stewart brought a lawsuit against the police in 2011, seeking Charter damages for violation of his freedom of expression, right not to be arbitrarily detained, and right to be secure against unreasonable search or seizure. The Superior Court dismissed his claim in 2018, ruling that the police had the requisite search powers and did not infringe any of his constitutional rights.

The Canadian Civil Liberties Association (CCLA) intervened in this case at both the trial level and at the appeal, arguing for limits on the power of police to interfere with the rights of protesters.

Winston Gee headshot

Winston Gee

Winston Gee, an associate at Torys LLP and former Asper Centre Clinic student, presented the CCLA’s submissions at the hearing of the appeal.

In reasons written by Justice Brown, the Court of Appeal agreed with the CCLA that the police had no legal authority for their actions. It overturned each of the trial judge’s rulings and awarded Mr. Stewart $500 in Charter damages. The Court also affirmed the fundamental importance of free political expression, especially in public parks:

“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… 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.”

Despite the low damages award, Gee was pleased that “the Court accepted one of our central submissions at the hearing—that the Trespass to Property Act does not create any substantive property rights but is merely a mechanism to enforce existing rights that come from other sources, such as the common law.” As a result, the Act could not be used by the police to impose “conditions of entry” of their choosing. That power properly belonged to the City as the common law owner and occupier of the park—and it is subject always to the Charter.

Gee said that his work on this case “benefitted immensely from my time at the Asper Centre. That’s where I first gained experience with appellate advocacy, including by learning from leading constitutional litigators like Mary Eberts and Marlys Edwardh. I also had the opportunity to assist with the Asper Centre’s intervention in Henry v. British Columbia (Attorney General), one of the Supreme Court’s leading cases on Charter damages. That experience was particularly relevant to this case.”

Gee also thanked his colleagues at Torys for providing excellent mentorship and for giving him the opportunity to argue such an important case.

by T. Schreier, with Winston Gee (JD/MPP UTLaw 2017)

Substantive equality in sentencing: Interventions in R v Morris and R v Sharma

By Teodora Pasca

This fall, the Asper Centre is intervening in two cases before the Ontario Court of Appeal (ONCA) whose outcomes could significantly impact the province’s approach to sentencing marginalized people.

In R v Morris, the ONCA will consider the appropriate manner in which systemic factors should shape the sentencing framework for Black Canadians. Morris was convicted of possession of illegal firearms and received a sentence of 12 months, reduced from 15 months for Charter breaches. Among other factors, the sentencing judge was mindful of the social context in which Morris committed the offence with reference to reports from psychologists and social scientists with expertise on Black racism in Canada.

In R v Sharma, the Asper Centre and the Women’s Legal Education and Action Fund (LEAF) are jointly intervening on a constitutional challenge to ss. 742.1(c) and (e)(ii) of the Criminal Code, which eliminate conditional sentences for certain offences. Sharma is an Indigenous biracial woman convicted of a drug importation offence who, but for these provisions, would have been a suitable candidate for a conditional sentence.

Despite the Supreme Court’s aspirations in Gladue, Indigenous people in Canada continue to be criminalized and incarcerated at alarming rates. In particular, the overrepresentation of Indigenous women in prisons has increased substantially over the past 10 years. The criminal justice system in Canada is designed in a manner incompatible with Indigenous laws and conceptions of justice, which can be deeply alienating.

Though their historical circumstances are different, Black Canadians also experience significant systemic discrimination and bias when dealing with police, in the courts, and in corrections. Nationally, the rate of incarceration for Black Canadians is three times greater than their representation in the overall population, and the overrepresentation is even more pronounced for Black women.

Morris and Sharma illustrate how the overarching principle of substantive equality can illuminate sentencing decisions in cases involving marginalized people. Substantive equality is a constitutional imperative that requires courts to analyze the potentially discriminatory impact of laws with regard to their social, political, and legal context. Substantive equality plays a vital role in the criminal justice system, including at the sentencing stage. These cases suggest that sentencing judges should be mindful of systemic discrimination at all stages of the process and the ways in which that discrimination might have impacted the individual or their circumstances.

Since the Gladue decision came down in 1999, courts have been constitutionally mandated to consider the role that historical disadvantage, discrimination, and alienation play in cases involving Indigenous offenders. More broadly, the principle of restraint in s 718.2(e) of the Criminal Code requires courts to consider all sanctions other than imprisonment that are reasonable in the circumstances; though it is particularly vital for Indigenous people, this provision applies to all offenders in all cases.

It is settled that systemic factors such as historical disadvantage can be considered in sentencing cases involving Black Canadians. The question is how. The Crown’s position in Morris is that contextual factors should be considered only if the offender can establish a causal link between those factors and the offence. The Supreme Court in R v Ipeelee previously rejected the “causal link” requirement in the context of Indigenous sentencing. The Asper Centre argues it is unfair to ask marginalized people to demonstrate their life circumstances “caused” their crime — a burden even experts struggle to meet — and has put forward more robust guidelines for considering these factors that is informed by substantive equality principles.

In Sharma, conversely, the ONCA will consider whether eliminating conditional sentences for certain offences is incompatible with the Gladue framework. The potentially discriminatory effect of ss 742.1(c) and (e)(ii) is to deprive Indigenous people of a reasonable alternative to jail, despite the firm conclusions in Gladue and Ipeelee that alternatives to imprisonment must be prioritized. Asper and LEAF argue that the constitutionality of the provisions must be assessed in light of systemic discrimination against Indigenous people — especially Indigenous women, who are alarmingly over-represented both as offenders and as victims. Alternatives to incarceration are particularly essential when the system criminalizes acts that Indigenous women often turn to for survival, due to factors such as high levels of poverty, food insecurity, and overcrowded housing, as well as extremely high rates of physical and sexual abuse.

Collectively, Morris and Sharma acknowledge that consideration of historical and social context can be invaluable to the sentencing process for marginalized people. Requiring sentencing judges to at least turn their mind to these factors allows them to make a more informed decision about what is best for the individual and for society looking forward. While imposing a “fit” sentence is already the goal of sentencing, requiring that substantive equality shapes the analysis can make that goal a reality.

The Asper Centre’s intervener facta can be found at this linkSharma will be argued on November 20 and Morris will be argued TBD.

Teodora Pasca is a 2L JD Student at the Faculty of Law