On April 2, 2020, the Supreme Court of Canada dismissed an application for leave to appeal from the judgment of the Court of Appeal for Ontario in Langenfeld v Toronto Police Services Board.1 Lerners lawyers, Earl Cherniak, Cynthia Kuehl and Christopher Shorey, represented the Toronto Police Chief Mark Saunders in the appeal before the Court of Appeal for Ontario, and responded to the application for leave to appeal to the Supreme Court of Canada. The Toronto Police Services Board (the “TPSB”) and the Attorney General made submissions at the Court of Appeal as well.
This appeal arises from an application commenced by Kristian Langenfeld seeking an injunction ordering Chief Saunders to discontinue the newly instituted security protocol instituted at Police Headquarters on College Street in Toronto. The screening protocol at issue required anyone entering the building to pass through security. The process consisted of wanding the persons entering the building with a metal detector and visually examining the contents of any purses or bags in their possession. While going to attend a meeting at the TPSB, Mr. Langenfeld refused to pass through the new security protocol, and was refused entry into the building and thus did not attend the TPSB meeting.
The Application Judge’s Decision
In the application, Mr. Langenfeld alleged that Chief Saunders had no authority to institute the screening process, arguing that the process infringed his right of freedom of expression under s. 2(b) of the Charter and violated the TPSB’s statutory obligation to hold its meetings in public.
In her reasons, the application judge held that the security measures put in place by Chief Saunders, as applied to persons wishing to attend public meetings to the TPSB, infringed s. 2(b) of the Charter. She held that the process was not prescribed by law and could not therefore justify any infringement of s. 2(b) of the Charter. She granted declaratory relief to that effect under s. 24(1) of the Charter.2
The Court of Appeal’s Decision
Chief Saunders appealed the decision below on the basis that the application judge had erred in law by determining that the security screening violated s. 2(b) of the Charter and that it was not “prescribed by law” under s. 1 of the Charter. Chief Saunders argued that, as a result of these errors, the application judge failed to undertake a s. 1 reasonableness analysis which, if undertaken, would have demonstrated that any s. 2(b) violation was a reasonable limit demonstrably justified in a free and democratic society.
The Court of Appeal upheld the application judge’s decision that the security screening had the effect of limiting Mr. Langenfeld’s s. 2(b) rights. However, the court found that enacting the security screening was an exercise of Chief Saunders’ common law powers as an occupier and was therefore “prescribed by law” within the meaning of s. 1 of the Charter.3
The Court of Appeal focused its analysis on Chief Saunders’ common law powers as an occupier and his corresponding duties under the Occupiers’ Liability Act, RSO 1990, c O.2 (the “OLA”).4 The court recognized that occupiers of property, including public property, have powers at common law to fulfill their statutory duty to ensure that people are reasonably safe while on their premises.5 This statutory authority includes imposing conditions of entry, such as security screening.6
The court specifically addressed the application judge’s finding that Chief Saunders’ authority to impose conditions of entry did not extend to conditions of entry that limit Charter rights.7 It held that, “[i]n deciding whether state action is “prescribed by law” for the purposes of s. 1, one does not take into account the impact of that action on a claimed Charter right.”8
The court acknowledged that there are internal limitations to the power of an occupier at common law who is acting pursuant to a duty imposed by s. 3(1) of the OLA.9 Such power must be “exercised reasonably, having regard to the specific circumstances” and motivated by legitimate safety concerns.10 The common law does not provide carte blanche authority. The court held that the security screening was a reasonable measure, taken to protect the safety of persons at Headquarters, and therefore it fell within the ambit of powers recognized by the common law to fulfill an occupier’s duties under the OLA.11
The Court of Appeal carefully considered whether the security screening was a reasonable limit by applying the four-part framework during the balance of its s.1 analysis:
- the objective of the law must be sufficiently important to justify limiting a Charter right [a pressing goal];
- the law must be rationally connected to the objective of the law [a rational connection];
- the law must impair the constitutional right no more than is necessary to accomplish the objective [minimum impairment]; and
- the law must not have a disproportionately severe effect on the constitutional rights of the persons affected by it [proportionality].12
With reference to the extensive record of security concerns and threats at TPSB Headquarters that imposed risks to police, employees and the public, the court further held that the security screening was a reasonable limit on Mr. Langenfeld’s right to free expression noting:
- it protected members of the public and employees who attend at Headquarters, including those who attend TPSB meetings, and was a pressing and substantial objective;13
- the rational connection between the security screening and the objective was self evident;14
- the security screening minimally impaired Mr. Langenfeld’s rights;15 and
- the security screening was a proportionate limit on Mr. Langenfeld’s rights.
The Court of Appeal concluded that the security screening was a reasonable limit, demonstrably justified in a free and democratic society.16 The decision provides clarity on what measures may fall under the common law powers of an occupier and the Charter implications that may follow. This case highlights the importance of maintaining a strong evidentiary record which is essential in responding to cases raising Charter issues. In this case, the evidentiary record was important as it provided considerable basis for the findings of the court on the s.1 analysis.
1Langenfeld v Toronto Police Services Board, 2019 ONCA 716.
2Ibid at para 5.
3Ibid at para 74.
4Ibid at para 56.
5Ibid at paras 58 – 60.
6Ibid at para 59.
7Ibid at para 62.
9Ibid at para 66.
11Ibid at paras 68 - 69.
12Ibid at para 76.
13Ibid at paras 78 – 79.
14Ibid at para 80.
15Ibid at paras 81 – 85.
16Ibid at paras 86 – 87.