Cabinet secrecy opens door to legal challenge

June 28, 2010

Tracey Tyler

{{GA_Article.Images.Alttext$}}Patrolling the security fence on June 25: Police had power to arrest anyone within five metres of the fence during the G20 summit.


As crews dismantle the massive security fence from the G20 summit, questions are piling up about a secret cabinet decision giving police immense power to search and arrest anyone within five metres of the barrier.

Legal experts say a regulation authorizing the searches could be vulnerable to attack not just for potentially violating Charter protections against unreasonable search and seizure.

It could also be challenged on the grounds the public was not given adequate notice of the sweeping changes that required them to identify themselves to police officers or agree to be searched.

“I think it’s beyond question it is a major intrusion into what is ordinarily thought to be a fairly basic right to move around the city without having to justify your presence or submit to a search,” said Jonathan Dawe, a Toronto lawyer who has argued before the Supreme Court of Canada on the scope of police search powers.

Dave Vasey, a York University student who was arrested and jailed last Thursday for refusing to produce identification outside the fence, plans a Charter challenge to the provincial cabinet’s decision to quietly pass a regulation under the Public Works Protection Act that extended police powers.

The constitutionality of the legislation was upheld in a 2005 decision by the Ontario Court of Appeal.

But at that time, the court was only looking at whether police have the right to search someone entering a courthouse.

Insisting a citizen walk through a metal detector at a court building is a far cry from authorizing police to stop and search people on a sidewalk, demanding they produce identification or risk being thrown in jail, Dawe suggested Monday.

“There is something quite different about the idea of cordoning off an entire section of a city and declaring it to be off limits,” he said.

A key issue in any challenge to the regulation under the Charter’s search provisions would be whether the public could reasonably expect to walk through the downtown core within five metres of the fence without being stopped and asked for identification or to submit to a search.

One way of measuring that is to consider how surprised everyone was to find out about the regulation after Vasey’s arrest made the news last Friday, said Dawe.

Known as “Ontario regulation 233/10,” it was simply posted on a government web page known as “e-laws” without any public debate.

This Saturday — six days after the end of the summit — is when the public was to have found out about the regulation, when it gets published in the July 3 edition of the Ontario Gazette.

For something that had “such a dramatic impact on our civil liberties, it’s something that should not have occurred without a public announcement and a public debate to ensure the government is acting in a reasonable and measured way,” said Bruce Ryder, director of the Centre for Public Law and Public Policy at Osgoode Hall Law School.

Ryder said he’s surprised the province hadn’t learned, as did the federal government, from the fallout over the War Measures Act, invoked by former prime minister Pierre Trudeau’s cabinet in 1970 in response to the FLQ crisis in Quebec.

The War Measures Act was subsequently repealed and replaced by new federal emergency powers legislation, designed to deal with situations such as the recent summit, Ryder noted.

But the legislation requires a public debate in Parliament within seven days of the powers being proclaimed in force, along with a vote to confirm that the use of emergency powers is necessary, he said.

“That would have been the appropriate way to proceed in this case, when the government decided to invoke this (Public Works Protection) Act in an unprecedented way.”

Adam Dodek, a former senior policy adviser to Ontario’s attorney general and now a law professor at the University of Ottawa, said that in the usual course, it is rare for regulations to be publicized before being passed by cabinet.

The standard procedure is to publish them two weeks later.

But while that system “makes sense for . . . the 20th century,” Dodek said the public should be provided with better advance notice of proposed legislation, with an opportunity to submit online comments, following the lead of U.S. jurisdictions.

Dawe said in considering whether the new regulation was justified, much will turn on what alternatives were available to police.

If police have reasonable grounds to believe someone is about to commit a crime, the Criminal Code already gives them the power to make an “anticipatory” arrest.

Another potential avenue of legal challenge is to question whether Toronto’s streets and sidewalks could even be defined as “public works” under the legislation, and therefore places where people could be stopped and searched, Ryder said.


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