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The Importance of Being an Occupier: A Comparison of the Ontario Court of Appeal’s Decisions in Langenfeld v. Toronto Police Services Board and Stewart v. Toronto (Police Services Board)

3 minute read

Last year, in a decision called Langenfeld v. Toronto Police Services Board[1], the Ontario Court of Appeal considered whether Toronto Police Chief Mark Saunders was able to institute a security screening process (a metal detector and examination of bags and purses) for visitors to the Toronto Police Headquarters. Lerners lawyers, Earl Cherniak, Cynthia Kuehl and Christopher Shorey, successfully represented Chief Saunders before the Court of Appeal.

Mr. Langenfeld was a Toronto resident who regularly attended meetings of the Toronto Police Services Board, which were held at Police Headquarters. He refused to pass through security and argued that the imposition of a security screening process infringed his right to freedom of expression under s. 2(b) of the Charter and was not justified under s. 1 of the Charter.

The Court of Appeal disagreed. While it accepted there was a prima facie infringement of s. 2(b), the Court held that Chief Saunders, as the occupier of Police Headquarters, had the common law power to control access to Police Headquarters to ensure the safety of persons as required under statute. The court accepted that the security screening process was a reasonable measure taken in furtherance of this obligation and was justified under s. 1 of the Charter.

The Ontario Court of Appeal was recently asked to consider the impact of Langenfeld in a different context. In Stewart v. Toronto (Police Services Board), the Toronto police imposed a security screening process (a search of bags and backpacks) for all individuals entering a public park, Allan Gardens, during the G20 summit.[2] Mr. Stewart argued that the police violated his Charter rights when they imposed this condition of entry and subsequently detained him and searched his backpack when he tried to enter the park without submitting to a search.

In Stewart, the court concluded that the police did not have the authority to institute the mandatory security screening process. The rationale for the court’s decision and the different result compared to the Langenfeld case is primarily because the police were not the occupiers of Allan Gardens in Stewart.

As the court noted, Allan Gardens is owned by the City of Toronto and therefore, it is the City that has the common law or statutory power to impose conditions of entry into parks. Although the City authorized Toronto police to act as its agents for the purpose of administering the Trespass to Property Act, the City did not delegate its statutory powers or powers as occupier to the police. The court held that the Trespass to Property Act does not create substantive property rights, but functions as an enforcement mechanism for rights that come from other sources. The police had the authority to enforce prohibitions or restrictions on entry already adopted or imposed by the City, but could not create these prohibitions or restrictions themselves.

Ultimately, the different outcomes in Langenfeld and Stewart were determined based on who was the occupier. Since the police in Stewart had no authority to impose the security screening protocol, it could not have been justified under s. 1 of the Charter. Had it been the City of Toronto who imposed a screening protocol in Stewart, the court would have engaged in a more extensive s. 1 analysis and the outcome may have been different. In any event, these two decisions demonstrate the importance of understanding who the occupier is and who has the authority to impose restrictions on entry.


[1] 2019 ONCA 716.

[2] 2020 ONCA 255.

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