“Caught in the Act”
André Marin
Ombudsman of Ontario
December 2010Table of Contents
Executive Summary...........................................................................................................................5
Securing the Summit.....................................................................................................................14
G20 Land ............................................................................................................................................16
Over the Summit and Beyond................................................................................................28
Complaints..............................................................................................................................................32
Investigative Process.....................................................................................................................39
Strategic Use of Social Media.............................................................................................39
Extraordinary Times Call for Extraordinary Measures ........................................42
The War Ends, but Martial Law Lingers .....................................................................44
Preparing to Scale the Summit.........................................................................................45
Good Fences Make Good Neighbours ..........................................................................48
Securing the Perimeter ................................................................................................................52
A Public Work By Any Other Name is Still a Public Work............................59
The Sound of Silence................................................................................................................61
Keeping Things Under Wraps.............................................................................................63
Going South at the Summit.................................................................................................67
Tell Me No Secrets, I’ll Tell You No Lies ....................................................................73
Questionable Power ........................................................................................................................81
Don’t Fence Me In .......................................................................................................................82
Putting Square Fence Posts in Round Holes ..........................................................87
Setting Reasonable Boundaries........................................................................................89
Best Kept Secret...........................................................................................................................95
I Fought the Law and the Law Won...................................................................................98
Conclusion ........................................................................................................................................... 100
Recommendations......................................................................................................................... 102
Response .............................................................................................................................................. 102
Appendix A: YouTube Videos ............................................................................................... 105
Appendix B: Public Works Protection Act ................................................................... 111
Appendix C: Regulation 233/10......................................................................................... 117
Appendix D: Map of Public Works in G20 Security Zone............................... 121
Appendix E: Response from Ministry of Community Safety and
Correctional Services.................................................................................................................. 1255
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Executive Summary
1 Regulation 233/10, passed to enhance security during the G20 summit, should
never have been enacted. It was likely unconstitutional. The effect of Regulation
233/10, now expired, was to infringe on freedom of expression in ways that do not
seem justifiable in a free and democratic society. Specifically, the passage of the
regulation triggered the extravagant police authority found in the Public Works
Protection Act, including the power to arbitrarily arrest and detain people and to
engage in unreasonable searches and seizures. Even apart from the Charter of
Rights and Freedoms, the legality of Regulation 233/10 is doubtful. The Public
Works Protection Act under which it was proclaimed authorizes regulations to be
created to protect infrastructure, not to provide security to people during events.
Regulation 233/10 was therefore probably invalid for having exceeded the
authority of the enactment under which it was passed. These problems should have
been apparent, and given the tremendous power Regulation 233/10 conferred on
the police, sober and considered reflection should have been given to whether it
was appropriate to arm officers with such authority. This was not done. The
decision of the Ministry of Community Safety and Correctional Services to sponsor
the regulation was unreasonable.
2 Even had Regulation 233/10 been valid, the government should have handled its
passage better. Regulation 233/10 changed the rules of the game. It gave police
powers that are unfamiliar in a free and democratic society. Steps should have
been taken to ensure that the Toronto Police Service understood what they were
getting. More importantly, the passage of the regulation should have been
aggressively publicized, not disclosed only through obscure official information
channels. Perversely, by changing the rules of the game without real notice,
Regulation 233/10 acted as a trap for the responsible – those who took the time to
educate themselves about police powers before setting out to express legitimate
political dissent.
3 All of this makes for a sorry legacy. The value in hosting international summits is
that it permits the host nation to primp and pose before the eyes of the world.
Ordinarily Ontario and Canada could proudly showcase the majesty of a free and
democratic society. The legacy of the passage and administration of Regulation
233/10 is that we failed to do that well.
***6
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4 Dave Vasey, a York University master’s student, had never heard of the Public
Works Protection Act before 4 p.m. on Thursday, June 24, 2010. In fact, it may
have been the best-kept secret in Ontario’s legislative history, although it wasn’t a
secret at all. The Public Works Protection Act had sat largely dormant on Ontario’s
statute books for more than 70 years, a hoary relic of World War II and veritable
civil rights land mine waiting to be tripped. And Mr. Vasey certainly didn’t know
about Regulation 233/10 passed under that Act, to provide additional legal support
for the security perimeter constructed for the G20 summit. Like the Public Works
Protection Act, Regulation 233/10 was hidden in plain sight. It was announced not
in newspapers, public service messages, or on ministry or police websites, but in
the government’s seldom-read and little-known electronic legislative database and
then in the Ontario Gazette, a publication of interest only to civil servants, pundits
and the occasional lawyer. Soon, however, Mr. Vasey would gain up close and
personal knowledge of the Public Works Protection Act and Regulation 233/10.
5 Mr. Vasey and a friend, like many Torontonians, were simply curious about the
massive steel grey security fence that wound its way through downtown streets.
When they wandered near the fence to take a look that day, after taking part in a
peaceful march, they were stopped by police and questioned. Standing on what he
understood to be his rights, Mr. Vasey declined to provide identification. Soon
after, he found himself under arrest by authority of the Public Works Protection
Act. At least one other person was detained and charged under the Act in
connection with G20 summit security, and numerous others were questioned and
searched using the sweeping powers conferred by the Act, and activated by
Regulation 233/10. 7
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Figure 1: June 26, 2010 - Police officers behind the fence near Bay and Front streets, Toronto.
(Photo by George Tulcsik) Note: All photos in this report were taken in 2010 in Toronto.
6 While many of those stopped and questioned by police under the Public Works
Protection Act in the week leading up to and during the G20 summit were involved
in demonstrations, many others were simply Torontonians going about the
activities of their daily lives. Rob Kittredge practiced law just outside the secure
perimeter zone. When he went to take photographs of the zone one evening before
the summit meeting, police searched him, examined his photographs, and purported
to “ban” him under the Act. Nancy Ryan
1
was on her way home from grocery
shopping, outside of the security fence, when police approached her and required
that she submit her bags to a search.
7 It wasn’t that the Ministry of Community Safety and Correctional Services didn’t
mean well in promoting the use of the Act through Regulation 233/10 to assist
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1
While some individuals provided consent for our Office to use their names in this report, many wished to
remain anonymous. This person’s name has been changed for reasons of confidentiality. 8
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Toronto police in maintaining security during the summit. Typically, international
summits attract protests, and protests can turn violent and even deadly. The
world’s leaders have also been subject to terrorist threats. But the security needs
associated with protecting foreign dignitaries and the public from harm must be
weighed against constitutionally entrenched rights. Protest is a democratic right.
Ontario’s citizens were entitled to the freedom to express themselves as well as
from unreasonable search and arbitrary arrest during the G20 summit.
Unfortunately, when it came to Regulation 233/10, the Ministry got the balance
wrong.
8 Regulation 233/10’s enactment triggered the Public Works Protection Act, a statute
containing unusual, even extravagant police powers that could be – and in fact were
– used to intimidate and arrest people who had done no harm. By designating gaps
in the security perimeter as “public works” and reconfirming the authority to use
the full powers of the Act within the exterior security zone, remarkable legal
obligations were imposed on citizens seeking entry. A new landscape was created
in which people were compelled to identify themselves and explain why they
wanted to enter, sometimes even in writing, and they were required to submit to
warrantless searches. And even if they were refused entry, changed their mind and
wished to walk away, they were still required to identify themselves, answer
questions and submit to a search. Those who declined could be arrested. Those
who declined could even be prosecuted and jailed.
Figure 2: June 27 – Police search man near University Ave. and College St.
(Photo by David King)9
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9 The only way to understand why the Legislature of Ontario would create a statute
conferring police powers of this kind is to hearken to history. The Public Works
Protection Act is a war measure. It was enacted in 1939 during an emergency
session of the Legislature in the days following the declaration of war against
Germany to deal with the threat posed by saboteurs against Ontario’s infrastructure.
Guards and peace officers were given the kind of authority one might expect in a
time of war or emergency circumstance – the kind of authority that stretches, if not
transgresses, constitutional rights. Yet here, in 2010, was the province of Ontario
conferring wartime powers on police officers in peacetime. That is a decision that
should not have been taken lightly, particularly not in the era of the Canadian
Charter of Rights and Freedoms.
10 In fact, Regulation 233/10 was of doubtful constitutional validity. By creating
security zones to bar entry and by authorizing arrest, it imposed definite limits on
freedom of expression. It was therefore in prima facie violation of the Charter as a
matter of law, likely in ways that are not constitutionally justifiable. Regulation
233/10 worked to trip the powers of the Public Works Protection Act, thereby
enabling the arrest and muting of protesters and others who had done nothing
wrong. The impact of Regulation 233/10 on freedom of expression was therefore
almost certainly disproportionate. The government should have been wary of
relying on a statute of doubtful constitutional validity in preference to dealing
openly with the matter in the Legislature.
11 Even leaving the Charter aside, there is every reason to believe that the regulation
was illegal. It was also almost certainly beyond the authority of the government to
enact. The Public Works Protection Act, by its name and by its terms, was enacted
to protect public property. Nowhere does the Public Works Protection Act
authorize the government to enact a regulation to protect people rather than places.
Nowhere does it grant authority to the government to confer additional police
powers in order to protect internationally protected persons. There may be room
for a law that does so, and this Act may have been used with the best of intentions,
but it was used instrumentally and unnecessarily. The security perimeter it
provided for would have been legal without it, and the existing common law and
statutory authority of peace officers would have been ample to screen and prevent
entry to those who might pose a threat to G20 participants. Simply put, Regulation
233/10 was of dubious legality and of no utility. It was unreasonable for the
Ministry of Community Safety and Correctional Services to have promoted its
passage. 10
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12 The problems with the Ministry’s handling of Regulation 233/10 are not confined
to its passage. Both the follow-up to and the publication of the regulation were
inadequate.
13 When the regulation was passed, the Ministry of Community Safety and
Correctional Services had simply intended to restrict the Act’s application to the
area within the exterior security fence around the restricted zones housing foreign
dignitaries. However, once the sleeping giant had been awakened, it could not be
controlled. The Ministry was caught short when the Toronto Police Service
misapprehended the boundaries of the security area designated under Regulation
233/10, and used the authority of the Public Works Protection Act to arrest people
who were simply in the vicinity of the security fence. Moreover, throughout the
weekend of the G20 summit, police exercised their powers under the Act well
beyond the limits of the security perimeter, even after the misinterpretation on the
part of the Chief of the Toronto Police Service had been corrected.
Figure 3: June 27 – Police search man near University Ave. and College St.
(Photo by David King)
14 To be sure, the government of Ontario is not responsible for misunderstandings on
the part of police officials. Yet even the power that was properly conferred by
Regulation 233/10 was inordinate, and went well beyond the normal understanding
of Ontario’s citizens as to their obligations when dealing with police. The 11
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Ministry, who had sponsored the regulation, should have satisfied itself that
Toronto Police Service officers understood it and had been properly trained. This
was not done. The Ministry simply handed over to the Toronto Police Service
inordinate powers, without any efforts made to ensure those powers would not be
misunderstood.
15 More importantly, it was grossly unreasonable and unfair for the Ministry of
Community Safety and Correctional Services to let Regulation 233/10 fly under the
radar the way it did. No one knew about the regulation until after the news of Mr.
Vasey’s arrest under the Act went viral. Not the public, not the press, not the
administrators of the very city in which it was to be implemented. As our
investigation revealed, quite remarkably, not even the Integrated Security Unit
Steering Committee lead or key members of the Integrated Security Unit’s G20
Public Affairs Communications Team knew of the regulation. While municipal
authorities in Toronto did a fine job of ensuring that the public was aware of the
traffic plan for the G20, nowhere was it announced that police officers would have
extraordinary powers of compulsion and arrest. Municipal officials didn’t inform
citizens for the same reason that Mr. Vasey didn’t comply with police requests on
June 24, 2010: They simply didn’t know about it. And the Ministry of Community
Safety and Correctional Services did nothing to ensure that people would be aware
of these powers so that they could govern themselves accordingly. Apart from
insiders in the government of Ontario, only members of the Toronto Police Service
knew that the rules of the game had changed, and they were the ones holding the
deck of “go directly to jail” cards.
16 By any measure, a regulation conferring temporary police powers and imposing
unusual obligations on citizens was unexpected. What was not unexpected was
that, in the incendiary protest atmosphere of an international political event,
individuals would question and even test the limits of police authority. Prudence
alone would have required that the regulation be aggressively publicized in order to
reduce the risk of unnecessary confrontation. Yet it was not. 12
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Figure 4: June 26 - Demonstrators lie in front of police officers at King and Bay streets.
(Photo by Charles Bodi, ridemypony.com)
17 By changing the legal landscape without fanfare in this way, Regulation 233/10
operated as a trap for those who relied on their ordinary legal rights. Reasonably,
protesters were trained by advocacy groups in “know your rights” sessions and
advised through websites and brochures that they would not have to identify
themselves or submit to search unless they were otherwise arrested. In fact, the
inconspicuous Regulation 233/10 made it an offence for protesters to fail to
identify themselves when approaching the secured area. Ensuring that protesters
know their rights and the limit on those rights is something to be encouraged.
Those who attempted to do so set themselves up. They and those they counseled
were caught up in the Act’s all but invisible web.
18 Given questions about its constitutional validity and legality, Regulation 233/10
deserved to be tested in the courts – not after it expired and had served its purpose,
but before it was implemented. It is an infamous problem in protest situations that
police tactics that control protesters cannot be challenged until those tactics have
served their purpose – after it is too late. In the interests of ensuring a proper 13
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balance between civil rights and security, the Ministry of Community Safety and
Correctional Services should have ensured that anyone intent on challenging
security plans would have the opportunity to do so. The Ministry promoted the
regulation. It should have stood up and ensured that those affected by it would be
aware of it.
19 It is therefore my view that the Ministry of Community Safety and Correctional
Services promoted a regulation that was of questionable legality and that conferred
unnecessary police powers of questionable constitutionality. It was unreasonable to
have done so. Moreover, the Ministry unreasonably and unjustly failed to ensure
that the citizens of this province would be aware of the highly exceptional police
authority that had been conferred.
20 The government has announced that the Public Works Protection Act will be
reviewed in consultation with stakeholder groups. This is a step in the right
direction. I have recommended that in the context of this review, the Ministry
should take steps to revise or replace the Act. If it wants to claim the authority to
designate security areas to protect persons, it should give consideration to creating
an integrated statute that could be used not only to protect public works but that
would clearly provide direct authority for ensuring the security of persons during
public events when required. The range of police powers conferred by the Act
should also be considered, including whether it is appropriate to give police the
authority to arrest those who have already been excluded entry to secured areas,
and the authority of guards and peace officers to offer conclusive testimony,
whether right or wrong, about the location of security boundaries.
21 I have also recommended that the Ministry of Community Safety and Correctional
Services develop a protocol that would call for public information campaigns when
police powers are modified by subordinate legislation, particularly in protest
situations.
22 On November 1, 2010, the Minister confirmed on behalf of the government his
unequivocal commitment to act on my recommendations in a timely manner. I am
satisfied with the Minister’s response to my recommendations and will monitor the
Ministry’s progress in implementing them. 14
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December 2010
Securing the Summit
23 On June 19, 2008, Prime Minister Stephen Harper announced that Hunstville,
Ontario would be the venue for the 2010 G8 Summit, a gathering of eight of the
world’s most powerful leaders to discuss issues of global concern. In the fall of
2009, the Prime Minister also signalled that Canada would host the 2010 G20
Summit, a meeting to discuss financial issues of international interest, attended by
leaders from 19 countries and the European Union as well as representatives of the
International Monetary Fund and World Bank. This second event was to take place
in Toronto. After considering other sites – including Exhibition Place, the location
preferred by the City of Toronto – on February 19, 2010, the federal government
confirmed that the G20 summit would be held at the Metro Toronto Convention
Centre. The G8 was to take place from June 25 to June 26, 2010, followed by the
larger G20 summit from June 26 to June 27. The summits were co-ordinated and
organized by the Summits Management Office, a federal government agency.
24 Traditionally, these international summit meetings have served as magnets for
large-scale and at times violent protests. In 2001, a demonstrator was shot and
killed by police during a protest at the G8 in Genoa, Italy. On the second day of
the G8 meeting held in the United Kingdom in 2005, suicide bombers killed more
than 50 people on the subway and on a bus in London. Four years later, at a G20
summit held in London, a newspaper vendor died after he was struck from behind
with a police baton and knocked to the ground while police cordoned off protesters.
25 Given the high profile of these events, the history of terrorist threats upon world
leaders, and the experience with summit protests in the past, planning for security
presented a significant challenge to Canadian law enforcement officials. The job of
ensuring security for the G8 and G20 summits was assigned to the Integrated
Security Unit, which was initially established in 2008 to prepare for the G8. The
ISU was a joint security team led by the Royal Canadian Mounted Police in
partnership with the Toronto Police Service, the Ontario Provincial Police, the
Canadian Forces and the Peel Regional Police.
2
26 The RCMP had primary accountability for security at the summits. A
Memorandum of Understanding, entered into by the ISU partners, confirmed that
the RCMP was responsible for protecting international dignitaries and the
“controlled access zones,” sometimes referred to as “red zones,” where they were
to be contained. Local police services would be responsible for the areas
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
2
The North Bay Police Service was replaced by the Peel Regional Police Service, as a partner in the ISU,
when the proposed venue for the G8 meeting was shifted from North Bay to Huntsville. 15
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immediately adjacent to the “controlled access zones,” known as “interdiction
zones” or “yellow zones,” as well as for security in areas surrounding the
interdiction zones, referred to variously as surveillance, security or traffic zones.
27 For the G8 summit, the Ontario Provincial Police was the local police service with
jurisdiction. In the case of the G20 summit, the RCMP was to control an area
within an interior security fence, to be constructed around the Metro Toronto
Convention Centre, the attached Intercontinental Hotel, the Westin Hotel and the
Royal York Hotel. The RCMP was also responsible for security at the Sheraton
Hotel, where a number of dignitaries would be located. The Toronto Police Service
was to have sole responsibility for the “interdiction zone,” extending outward from
the interior security fence to an exterior security fence. It would also be
responsible for policing the surrounding areas. The Peel Regional Police Service
was to secure the area around Pearson Airport and the RCMP was responsible for
security at the airport terminal to be used by dignitaries.
28 The ISU headquarters were located in Barrie, but the RCMP also set up an office in
Toronto for the G20 summit. The Toronto and Peel Regional Police Services
maintained their own control centres at their respective stations.
29 On May 12, 2010, the Chief of the Toronto Police Service wrote to the Minister of
Community Safety and Correctional Services requesting a designation under
provincial legislation known as the Public Works Protection Act. In the letter, he
explained that one of the cornerstones of the security plan for the G20 summit
would be the establishment of a security perimeter in the area around the Metro
Toronto Convention Centre, to be staffed by Toronto Police Service officers. The
security perimeter would have gates allowing access into the security zone, which
would be controlled by the Toronto Police. Those wishing access into this zone
would be required to identify themselves, their destination and the purpose for
entering the zone. The Chief noted that there were some businesses and residences
within the security zone and that affected employees and residents would have the
opportunity to obtain a registration card ensuring them quick passage through the
security gates.
30 On June 3, 2010, regulation 233/10 was issued under the Public Works Protection
Act. The regulation had the effect of reconfirming that the public works located
within the interdiction zone were “public works” as defined by the Act, and
designating three places within the interdiction zone that were not already public
works as “public works.” Under the Public Works Protection Act, guards
appointed under the Act as well as peace officers have very board powers to require
citizens to provide identification and submit to searches in connection with public
works.16
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Figure 5: June 26 - Police officer inspects wallet of civilian.
(Photo still from YouTube video – for link, see Appendix A, No. 6)
31 In order to understand the context in which regulation 233/10 emerged as well as
its significance, it is useful to first consider some of the events leading up to and
taking place over the G20 summit weekend. While accounts as to what transpired
differ substantially, what follows is a brief reconstruction based on media reports
and information that we have obtained during our investigation.
G20 Land
32 Gatherings of world leaders like the G8 and G20 summits invite considerable
international attention. Seeking to attract notice to a range of diverse social justice
issues, various organizations had planned events to coincide with the summits in
Ontario. While some groups pursued formal channels, openly publicized their
plans, and obtained necessary permits for peaceful protests, law enforcement
officials were well aware that the events would also attract individuals intent on
pursuing more clandestine and violent methods of demonstration. Anarchist
websites began to threaten militant and confrontational action, and on May 18,
2010, a bank in Ottawa was firebombed. The group claiming responsibility for this
attack vowed that its members would be at the summit events to protest the
“exploitation of people and the environment.”
33 Toronto’s citizens watched with curiosity as construction of the massive security
fencing got underway on June 7. While initially bystanders snapped photographs
of the fence unobstructed, by the week of the summit, many reported that they were 17
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questioned when they neared the security perimeter and were required by police to
delete any images of it that they had captured on their phones or cameras.
Figure 6: June 8 - Fence under construction on Lower Simcoe St. near Bremner Blvd.
(Photo by Tomasz Bugajski)
34 Tensions in the city increased on June 22, when a Toronto man (and on June 24, his
wife) was arrested in connection with the G20 summit and charged with explosives
and weapons offences.
35 As security tightened around the city, many residents reported being stopped and
questioned by police in the downtown core. On June 24, Regulation 233/10 took
centre stage, when Dave Vasey, a York University master’s student, was arrested
for failing to show identification to police. After participating in a peaceful march,
Mr. Vasey and a friend had gone to take a closer look at the security perimeter.
They entered and left the security area without incident. However, as they walked
along the street outside of the fence, away from the entrance, they were stopped by
police, and asked to produce identification. While his friend’s press pass satisfied
police, Mr. Vasey refused to identify himself. In doing so, he followed the advice
that had been widely distributed by civil liberties and advocacy groups, which
counseled that demonstrators were not required to answer police questions or
provide proof of identity. By the next morning, news of Mr. Vasey’s arrest under
the Act was everywhere, raising questions and inciting confusion about the scope
of the “secret law” that appeared to give police new and extraordinary powers. At a
press conference on June 25, the Toronto Police Chief tried to dispel the notion that 18
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the law was a secret, and advised that the powers granted under the Public Works
Protection Act applied for a distance of five metres outside of the security fence.
Figure 7: June 27 - Passersby peer through the fence at Bay and Wellington streets.
(Photo by Karin Stonehouse)
36 While the G8 summit in Huntsville took place without major incident, there were
early signs that the G20 summit might not fare as well. During the first major
protest in Toronto in the afternoon on Friday, June 25, more than 1,000
demonstrators embarked from Allan Gardens for an undisclosed location. Police
on bicycles accompanied the protesters as they set out. Protest leaders made it
clear that the march was peaceful, but police observers noted that a group of
demonstrators outfitted in black was emerging from within the crowd. Police were
familiar with the “black bloc” tactic in which individuals embedded within a
peaceful protest will dress in black and disguise their identities as a prelude to the
commission of acts of violence and vandalism. Some 30 people dressed in black
and armed with rocks and golf balls soon broke off from this crowd and began
moving toward the Coroner’s office, where a military repatriation ceremony was in
progress. In response, riot police were dispatched.
37 Police diverted the protesters from travelling further south towards the exterior
security fence. By 6:30 p.m., the demonstrators began to return to Allan Gardens,
where many camped out awaiting the next day’s activities. Some also made their
way over to the Eastern Avenue Detention Centre, an old film studio converted to a 19
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temporary jail for summit detainees, where it was reported that a deaf man was
being held without access to a sign language interpreter, after being arrested for
failing to obey a police order to move.
38 Early on the morning of Saturday, June 26, police were already in the process of
rounding up suspected violent activists before the massive labour rally organized
for that day got underway. It was reported that up to 30,000 people joined the
labour march that afternoon. However, by around 3:45 p.m., some individuals
within the crowd once again donned black apparel and broke away from the
peaceful protest. This time, the “black bloc” militants set off on a 90-minute crime
spree, during which store windows were smashed, businesses looted and three or
four police cruisers were vandalized and set on fire. The police did not engage the
group at this point, later explaining that they chose to focus their efforts on public
safety, as opposed to containing property damage.
Figure 8: June 25 - Protesters march along College St. (Photo by Mark Kari)20
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Figure 9: June 26 - Police car in flames on Bay St. (Photo by Stephen Forbes)
39 The individuals responsible for the carnage then apparently regrouped on the south
lawn of Queen’s Park and quickly discarded their black apparel, blending back into
the crowd. Shortly after, police moved in en masse and ordered the protesters
assembled at Queen’s Park to leave. Some left immediately, but many remained,
believing that since the police had earlier advised that Queen’s Park was a
“designated speech area,” they had a right to stay. It was reported that police used
force to disperse the crowd, and there are accounts of pepper spray and rubber
bullets being deployed. A number of arrests were made at that time. 21
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December 2010
Figure 10: June 26 - Police move in on protesters gathered on the south lawn of Queen’s Park.
(Photo by Richard Lautens, Toronto Star)
40 While the Toronto Police Service was in charge of maintaining order in the city,
apart from the “red zones” controlled by the RCMP, thousands of officers from all
over the country had been deployed to assist. Back at ISU headquarters in Barrie,
commanders were awaiting word on what additional resources Toronto required in
the face of the mounting conflict downtown. The former RCMP official who was
in charge of ISU security at the time advised us that by June 24 the Toronto Police
Service representative on the ISU steering committee had left the ISU building, and
that by noon on Saturday, June 26, communications between ISU and the Toronto
Police had broken down. By 4 p.m., the Toronto Police Service had gone
completely off the ISU radar. The ISU placed multiple calls to its Toronto Police
contact, but it took 45 minutes of trying before they connected. By that point, the
situation was critical, and the ISU was asked to take over security in the
interdiction zone. While Toronto police focused on regaining control of city22
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streets, at 4:45 p.m. the ISU quickly began deploying more than 1,000 officers from
the OPP, RCMP and Peel Region to police the security perimeter. We were
advised that, in an unprecedented move, RCMP officers left the nation’s capital
“bare” as they trekked south to provide relief for Toronto.
41 The protests in Toronto continued into Saturday evening. Around 10 p.m., Toronto
riot police surrounded demonstrators at the Novotel on The Esplanade. Over the
course of a few hours, police systematically arrested all of those involved in the
protest, and by some accounts innocent bystanders as well.
42 Around 10 a.m. on Sunday, June 27, Toronto police raided a University of Toronto
gymnasium being used as a hostel for out-of-town protesters who were primarily
from Montreal, and reportedly arrested nearly 100 people. By that point, hundreds
of arrests had been made and the area around the temporary detention centre had
become a gathering point for some 200 protesters, showing solidarity for the
detainees. Some of these protesters were in turn arrested, in one case, reportedly
after being shot with rubber bullets.
Figure 11: June 27 – Natalie Gray falls with police in pursuit outside the Eastern Ave.
detention centre. (Photo submitted by Natalie Gray)23
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Figure 12: June 29 - A cell at the Eastern Ave. detention centre.
(Photo by Tim Shore, blogto.com)
43 On Sunday afternoon, a bicycle protest wound its way through the city. Later,
Toronto police, apparently acting on reports that criminals had infiltrated a group of
protestors, surrounded and contained a crowd of up to 250 in a “kettling”
maneuver, at Queen St. and Spadina Ave. around 6 p.m. Over the course of the
next few hours, protesters, journalists, casual observers and bystanders stood in the
driving rain while individuals were selectively extracted from the crowd for arrest.
The entire episode was televised and dramatically displayed on social networking
websites as it unfolded. By 9:40 p.m., the Toronto Police Chief ordered the
remaining crowd to be unconditionally released. 24
“Caught in the Act”
December 2010
Figure 13: June 27 – Protesters at Queen St. and Spadina Ave. being “kettled” by police.
(Photo by Jonas Naimark)
Figure 14: June 27 – Ground-level view of police “kettling” of protesters at Queen St. and
Spadina Ave. (Photo by Rob Kittredge)25
“Caught in the Act”
December 2010
44 Stories circulated throughout the G20 weekend of citizens being stopped and
searched at various locations in the downtown core, often simply because they were
wearing an item of black clothing. A number of people also reported that police
cited the Public Works Protection Act as authority to conduct searches and require
identification, despite the fact that they were nowhere near the security fence.
Police confiscated a large variety of objects during the summit, including items
such as umbrellas, eyewash, and goggles. The Toronto Police Chief later displayed
an impressive array of “weapons” seized from protesters at a press conference on
June 29 – although some of the collection, including a crossbow and chainsaw,
were later reported to have been unrelated to the event.
45 In the days leading up to and over the course of the G20 summit weekend, some
1,105 people were arrested; the largest mass arrest in Canadian history. Many
individuals were picked up for breach of the peace; others faced a variety of
Criminal Code offences, and at least two found themselves in violation of the
Public Works Protection Act. Of those initially detained, just under 700 were
eventually released without charge. Many of the charges against the 315 accused in
connection with the G20 summit have been stayed or withdrawn, including with
respect to nine individuals who were apparently listed in error. On October 14,
2010, another 116 charges were dropped, leaving only 99 cases before the courts in
relation to the summit. Even Mr. Vasey found, when he attended court on July 28,
that there was no record of his charge under the Public Works Protection Act. A
Toronto Police spokesperson has since stated that the charges were “lost in the
mail.”
46 After the summit ended, the Toronto Police Service continued to search for
ringleaders of the G20 riots, and made a number of high-profile arrests.
47 An estimated 20,000 security personnel were involved with security for the two
summits, including private security guards contracted by the federal government.
The staggering cost for hosting the events was estimated at more than $1 billion.
The nearly 10 kilometers of security fencing around downtown Toronto alone cost
an estimated $9.4 million. 26
“Caught in the Act”
December 2010
Figure 15: June 28 – CN Tower behind the fence. (Photo by Alfred Ng)
48 As far as federal organizers were concerned, the summits were a success, although
admittedly an inconvenience for Toronto. For many Ontarians, the flood of images
of Toronto over the G20 weekend, displayed in the news and live on the Internet,
was surreal and disturbing. Along with the burning police cars and scenes of
rioters smashing windows, there was the infamous video of a police officer
threatening to arrest a protester for assault if she touched him with the soap bubbles
she was blowing, and of another masked officer using a crowd control weapon to
shoot a projectile directly at a woman who was apparently standing peacefully in
front of him, knocking her to the ground. The sheer volume of arrests related to the
G20 and the manner in which these were executed was unprecedented and, for
many, alien to the traditional Canadian persona. As one eminent lawyer and
academic observed, these events “might well have happened during a
demonstration in Eastern Europe, but in the old days, but not here. It’s a complete
abuse of process. Somebody should have been watching.”
3
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
3
Interview of Julius Grey, (14 October 2010) on The National, CBC Television, Toronto.27
“Caught in the Act”
December 2010
Figure 16: June 27 - Protester blows bubbles in front of police officers shortly before she is arrested.
(Photo by Steve Russell, Toronto Star)
Figure 17: June 27 - Police fire a crowd control device at demonstrators.
(Photo by Bernard Weil, Toronto Star)28
“Caught in the Act”
December 2010
Over the Summit and Beyond
49 While the G20 summit ended late Sunday afternoon, June 27, 2010, its impact
continued to be felt long afterward.
50 By Monday, June 28, the G20 delegates had left Toronto, and the security barriers
were in the process of being dismantled. But the aftermath of the G20 saw
continued protests downtown. This time, the focus was not on gaining the attention
of world leaders, but on calling for censure and public inquiry into the conduct of
law enforcement officials in connection with the summit. Police were criticized for
failing to intervene as “black bloc” activists damaged, destroyed and absconded
with millions of dollars worth of property, for the tactics they deployed to contain
protesters after that rampage, for their use of force and massive arrests that took
place throughout the weekend, and for the poor conditions at the temporary jail.
Figure 18:June 28 - Protesters march to Queen’s Park to call for public inquiry.
(Photo by George Tulcsik)
51 By June 29, when the Chief of the Toronto Police Service held his post-summit
press conference, it was also clear that there had never been a “five-metre rule,”
applying to the area around the security fence, leading many to charge that the
public had been deliberately misled. A number of MPPs also denounced the fact 29
“Caught in the Act”
December 2010
that sweeping police powers appeared to have been conferred by way of a technical
regulation, without notice, consultation or debate.
52 There are mixed reviews on how the government, including its police agents, did
with respect to the G20 summit. While Toronto city council unanimously voted to
commend the outstanding work of its police chief and his officers during the
summit, and an Angus Reid poll disclosed that 73% of Torontonians and 66% of
Canadians believed that the treatment of protesters was justified, there have been
repeated calls by advocates as well as politicians for a full inquiry into the
surrounding events. While the federal government initially displayed no appetite
for a G20 post-mortem, two parliamentary Standing Committees are currently
holding hearings to consider costs and tactics relating to the summits. The
Commission for Public Complaints Against the RCMP has commenced an
investigation relating to RCMP conduct during the summits. A number of discrete
reviews relating to the events surrounding the G20 summit have also been launched
at the municipal and provincial levels.
Figure 19: July 17 - Sign calling for G20 inquiry at civil liberties event.
(Photo by Jackman Chiu)
53 On June 29, the Toronto Police Service advised that its Summit Management After
Action Review Team (SMAART) would study, review and report on all aspects of 30
“Caught in the Act”
December 2010
summit policing in Toronto. On July 6, the Toronto Police Services Board
announced that it would establish an independent civilian review focusing on
matters of governance in relation to the G20 summit, and on September 23, the
Board appointed retired Ontario Court of Appeal justice, Hon. John W. Morden, to
conduct this inquiry.
54 On July 22, the Office of the Independent Police Review Director, after receiving
275 public complaints, announced that it would review systemic issues relating to
allegations of unlawful searches, arrests and improper detention against police
during the G20 summit.
4
Figure 20: June 26 - Police search man’s backpack on King St. West.
(Photo by George Tulcsik)
55 The province’s Special Investigations Unit also investigated six incidents in which
protesters were injured by police during G20-related protests on June 26. In late
November, the SIU director announced that no charges would be laid against any
officers. Although he found excessive force had been used in two cases, the SIU
was unable to identify the officers involved.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
4
By October 5, the OIPRD had received more than 320 complaints. Interview of Gerry McNeilly (OIPRD
Director) by Paul Jay (5 October 2010) on The Real News, The Real News Network,
http://www.therealnews.com . 31
“Caught in the Act”
December 2010
56 In addition, on September 22, the province announced that former Ontario chief
justice and attorney general, Hon. Roy McMurtry, would lead a review of the
Public Works Protection Act, scheduled for completion next spring.
57 On October 5, NDP leader Andrea Horwath – and on October 19, MPP Peter
Kormos – introduced private member’s bills calling for an inquiry to examine all
aspects of government and law enforcement decision-making relating to the G20
summit.
5
58 Civilian organizations have also responded to the events of the G20 weekend. The
Canadian Civil Liberties Association (CCLA) prepared a preliminary report of
observations during the summit, titled A Breach of the Peace, and a citizens’ group
announced that it would conduct a “people’s inquiry” called “Don’t Wear Black” to
allow Toronto residents and visitors to tell their G20 stories. The CCLA and the
National Union of Public and General Employees also co-hosted public hearings in
November to examine police activity during the summit. Two class action lawsuits
have been launched – one seeking $45 million in damages for those wrongfully
arrested, detained, imprisoned or held by police during the G20 summit; the other
claiming $115 million for those detained and arrested and business owners whose
properties were vandalized. A third lawsuit has been filed by a woman alleging
that she was shot twice by police using rubber bullets. She is seeking $1 million in
damages for assault, battery, unlawful arrest and detention, malicious prosecution
and the violation of a number of Charter rights and freedoms. In November, a
Montreal-based community organizer, arrested during the summit, commenced a
constitutional challenge to his bail conditions.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
5
Bill 111, An Act to require a public inquiry into government action and spending in connection with the
G20 Summit, 2
nd
Session, 39
th
Leg., Ontario, (1
st
Reading:5 October 2010). Bill 121, An Act to require a
public inquiry into government action and spending in connection with the G20 Summit, 2
nd
Session, 39
th
Leg., Ontario, (1
st
Reading:19 October 2010, 2
nd
Reading: lost on division, 4 November 2010).32
“Caught in the Act”
December 2010
Figure 21: July 10 - Civil liberties “day of action,” Queen’s Park. (Photo by Sarah Gould)
59 In the days following the G20 weekend, my Office received a constant stream of
complaints and submissions related to the summit from a diverse range of
individuals and groups, including concerned York University professors, the
Ryerson University Anti-Racism Coalition, and a member of provincial parliament.
Many of the complaints that we received were from people who were directly
affected by the events over the G20 weekend. One of the common complaint
themes surrounded the lack of transparency, communication and clarity around
Regulation 233/10. On July 8, 2010, I notified the Ministry of Community Safety
and Correctional Services that I would be investigating its involvement in the
origin and development of Regulation 233/10 under the Public Works Protection
Act, and its subsequent communication on that regulation with stakeholders.
Complaints
60 My Office received a multitude of complaints relating to a variety of issues
concerning the G20 summit, including complaints about:
• the process used by the Ontario government to pass Regulation 233/10 under
the Public Works Protection Act, including the absence of public debate,
transparency and consultation;33
“Caught in the Act”
December 2010
• the lack of notice to the public about the regulation and its effects on the
general public;
• the lack of clarification by government and police around the regulation and
the powers sought to be conferred by that regulation, after its existence came
to light;
• the conduct of police officers during the period June 24-27 in the exercise of
their powers under the regulation, including concerns about wrongful arrests
and Charter violations;
• the alleged wrongful arrests of demonstrators at government-designated
speech sites, including Queen’s Park North;
• the treatment of detainees held at the Eastern Avenue Detention Centre,
including allegations of human rights violations;
• bail conditions, including bail amounts and time between arrest and bail
hearings, and between bail hearings and release, for those detained during the
G20 weekend;
• the absence of a complaint mechanism for issues related to the G20, including
in relation to the regulation and police conduct.
61 In total, we received 167 complaints, including more than 100 complaints,
information submissions and expressions of support from members of the public,
MPPs and various civil liberties organizations and groups, which were received
after we publicly announced our investigation.
62 A number of the complainants who approached our Office gave dramatic first-hand
accounts of their experiences with police over the G20 weekend. John Pruyn, a 57-
year old Revenue Canada employee from Thorold, Ontario, had come to Toronto to
participate in Saturday’s labour march and rally. Mr. Pruyn is an amputee and
walks with the assistance of walking sticks. After participating in the march down
University Ave., he returned to the designated speech area at Queen’s Park with his
daughter, and sat down to rest. A few minutes later, police arrived, yelling
“Move!” He told us his daughter and two young men sitting next to him jumped up
and tried to pull him to his feet, but he lost his balance and fell. Mr. Pruyn’s
daughter asked police to wait while she helped him up, explaining that he was an
amputee. Suddenly he was face down on the ground with officers piled on top of
him. When he was later unable to obey police commands to walk without the aid 34
“Caught in the Act”
December 2010
of his walking sticks, an officer grabbed his artificial leg and “yanked it off.” He
recalled the officer shoving the leg at him and telling him to put it back on. When
he explained that he was unable to do so, he was dragged backwards to the paddy
wagon. He claimed he was kicked several times, and heard officers say he was
resisting arrest and in possession of a weapon. He was searched and detained for
several hours before he was released without charge. He told us police still have
his glasses, walking sticks and $33 he had in his pocket when he was detained.
Figure 22: June 26 - Police officer holds John Pruyn’s prosthetic leg (far right) during his arrest at
Queen’s Park protest. (Photo by Gerry Broome, AP)
63 Many of those who contacted us said they had been stopped, asked for
identification and searched in connection with the G20 summit. Some of the
searches occurred within the “interdiction zone,” others within five metres of it,
and still others well beyond the security perimeter. Complainants generally
expressed confusion regarding the origins and scope of Regulation 233/10 under
the Public Works Protection Act, and the exceptional powers it apparently
conferred on police.
64 During the week leading up to the summit, Rob Kittredge, a lawyer and hobby
photographer who worked just outside of the secure area, was taking photographs
within the security zone one evening after work. According to Mr. Kittredge, two
police officers approached him and asked what he was doing. He politely declined 35
“Caught in the Act”
December 2010
to provide identification, believing that he was within his rights to do so. The
officers told him that under the Public Works Protection Act they could search him
without a warrant and demand that he show identification. He answered that
perhaps the best way to end the situation would be for them to use their authority to
take his wallet out of his front left pocket and look at his identification. The
officers then proceeded to subject him to a complete search, including reviewing
the photographs on his camera, proclaiming them to be “suspicious.” After the
search, one of the officers advised him that he was “banned” under the authority of
the Act. When Mr. Kittredge asked what area he was banned from, the officer
failed to respond.
65 We spoke with Mr. Vasey, who was arrested on June 24 under the Public Works
Protection Act for failing to provide identification. Mr. Vasey was close to the
fence but not near an entry point when he was stopped. He advised us that he had
never heard of the Act before this incident. In fact, complainants consistently told
us that the first time they learned of its existence was after Mr. Vasey’s arrest was
publicized. Some even said they deliberately avoided going anywhere near the
fence after hearing of the “five-metre rule” – only to find themselves subject to
questioning and search at other locations around the city.
Figure 23: June 27 - Police search bags belonging to two men on Queen Street West.
(Photo by Timothy Neesam, CBC)
66 Some were stopped close to the fence, under the express authority of the Public
Works Protection Act. Police asked 26-year-old Aaron Adams for identification on
Friday, June 25, at the York Street underpass. He said he was told that because of
“an amendment made to the Public Works Protection Act,” and because he was 36
“Caught in the Act”
December 2010
within five metres of the security fence, he was required to either show
identification and submit to a search, or face arrest. Similarly, police stopped 36-
year-old Vladimir Cubrt as he travelled west on his bike on Wellington St. between
Bay and York streets on Saturday, June 26, around 6 p.m. He said officers told him
they had the authority under the Public Works Protection Act to search him because
he was within five metres of the security perimeter. He was warned that he could
be arrested if he failed to comply. Police detained 23-year-old Walter Stone
6
the
same day, while he was on his way home after watching a World Cup soccer
telecast with friends. He was searched and arrested on weapons charges, which
were subsequently withdrawn. His Supplementary Record of Arrest confirms that
he was searched under the Public Works Protection Act. All three men maintain
that they were not attempting to enter the secure area when they were stopped.
Figure 24: June 26 - Police search cyclist near University Ave. (Photo by Alfred Ng)
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
6
This person’s name has been changed for reasons of confidentiality.37
“Caught in the Act”
December 2010
67 According to numerous reports, police routinely searched protesters converging at
Allan Gardens, starting as early as Friday, June 25. One woman who came forward
told us that when she was there on Sunday, June 27, she overheard police
specifically advising people they were searching backpacks under the authority of
the Public Works Protection Act – despite the fact that the security zone was more
than two kilometres away and the Toronto Police Service had been aware since
Friday that Regulation 233/10 was only intended to apply in the area within the
perimeter fence.
68 In many instances, complainants advised us that they were not told what authority
police were acting under when they were stopped. Twenty-seven-year-old Nancy
Ryan was walking home on Sunday, June 27, after shopping at Loblaws at Queens
Quay. She claims police asked to search her grocery bags when she was about 200
metres away from the security fence. She was allowed to pass only after showing
identification. That same day, 60-year-old David King, a photojournalist and
college instructor, was searched by police at the corner of Queen St. and Spadina
Ave., and Parkdale resident Alexander Wolfson had to ask a family member to
bring him his identification after police stopped him in his own neighborhood.
69 For the estimated 40,000 people
7
who either worked or resided in “the zone,” the
situation was no less confusing. A number of workplaces within the interdiction
zone remained open over the G20 weekend. A man who worked in the CBC
building on Front St. over the course of the G20 weekend expressed frustration
over the information provided to those who had to work in the zone:
We didn’t understand from what they were communicating what the zone
was, what they wanted from us outside the zone, what they wanted from
us inside the zone, what the implications were if we didn’t or couldn’t
comply with what they wanted from us, particularly around the area of
identification.
70 To illustrate the uncertainty that those in the zone had to contend with, he gave the
example of a colleague who stepped outside the building for a quick cigarette
break, only to be approached by police who told her she could not leave the
building at any time without identification.
71 Unlike the Ministry of Community Safety and Correctional Services, which comes
squarely within my Office’s authority, police services are part of the MUSH
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
7
Canadian Civil Liberties Association, “Protecting Civil Liberties and Human Rights at the G-20: CCLA
Statement of Concerns”, 21 May 2010 at 3 [CCLA Statement of Concerns].38
“Caught in the Act”
December 2010
sector
8
, which operates beyond Ombudsman scrutiny. Accordingly, our Office had
to refer Mr. Pruyn and other complainants who were concerned primarily about the
conduct of police to the Ministry of the Attorney General’s Office of the
Independent Police Review Director. As courts are beyond my Office’s
jurisdiction, we were also unable to assist with complaints relating to bail
conditions. However, the Ministry of Community Safety and Correctional Services
played an important role in one of the more controversial aspects of the G20
security plan – at the request of the Chief of the Toronto Police Service, it
sponsored the adoption of a regulation relating to the erection of an impenetrable
security fence around a broad swath of downtown Toronto. The Ministry’s conduct
leading up to the issuance of Regulation 233/10, and in communicating its
significance to stakeholders, comes squarely within the Ombudsman’s investigative
mandate. Accordingly, our investigation focused on these issues.
Figure 25: June 26 - Police arrest demonstrator at Queen's Park. (Photo by Vincenzo D'alto)
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
8
MUSH refers to the broader public sector, including municipalities, universities, schools, hospitals, as
well as the police and children’s aid societies. 39
“Caught in the Act”
December 2010
Investigative Process
72 The investigation of this matter was assigned to a Special Ombudsman Response
Team (SORT), and was conducted by 7 investigators and 2 early resolution
officers. The team carried out 49 interviews with senior Ministry staff, City of
Toronto officials, senior OPP officers (including the former Assistant
Commissioner of the RCMP who was the lead on the Integrated Security Unit
steering committee), complainants and stakeholder groups. SORT staff received
excellent co-operation from both the Ministry and the Ontario Provincial Police.
Most interviews were tape-recorded and transcribed.
73 We also extended invitations to the Toronto Police Service and York Regional
Police to speak with us and share their experiences and comments in relation to the
issues that we were investigating. We asked to speak with specific police officers
who appeared to have been involved in incidents where the Public Works
Protection Act had been applied. The Toronto Police Service declined this
invitation. The York Regional Police provided us with a written response dated
October 12, 2010.
74 The team also reviewed more than 1,000 pages of documentation provided by the
Ministry. Under the Ombudsman Act, the Ministry was entitled to claim solicitorclient privilege with respect to documents relating to legal advice. A number of
documents we received were heavily redacted on this ground. However, in some
cases we found information withheld as being “irrelevant” or “non-responsive.” In
other cases, we received multiple copies of the same document redacted to different
degrees. At our request, the Ministry reviewed a number of documents to respond
to our concerns around disclosure. Further information was released as a result.
75 SORT also conducted extensive independent research, including looking at what
had occurred at previous summit meetings. As well, investigators employed oldfashioned evidence-gathering techniques such as visiting the “zone” and informally
interviewing business people, employees and residents who had been within the
boundary of the fence.
Strategic Use of Social Media
76 In addition to traditional investigative techniques, this investigation represented a
significant departure for our Office in the collection of evidence. It provided a 40
“Caught in the Act”
December 2010
unique opportunity to employ various social media, such as Facebook, YouTube,
websites, podcasts, blogs, and microblogging services such as Twitter. This proved
to be a tremendously successful approach.
77 A vast array of images bombarded television screens and social media sites during
the G20 summit and in the ensuing days, many of them gathered and circulated by
people who were directly involved in and/or witnessed the events firsthand. We
identified more than 5,000 videos relating to the G20 that were posted to social
networking websites, and these proved to be a useful and innovative investigative
tool. Social media enabled SORT investigators to tap into a wide audience, and
gain access to real-time evidence at the stroke of a key. We also received
numerous videos and some 500 photographs directly from members of the public.
Figure 26: June 25 - Reporters and civilians photograph demonstrators and police on College St.
(Photo by Mark Kari)
78 At the outset of the investigation, I used Twitter to invite people to contact our
Office with information relating to the issues under investigation. This novel form
of outreach raised awareness beyond our traditional audiences. SORT assigned
two investigators to work in close conjunction with our Communications team to
monitor G20 social media traffic and review the content of social networking sites.
These sites also proved to be an effective way to reach people of potential interest
to our investigation; most of the people we contacted through social networking
sites responded. 41
“Caught in the Act”
December 2010
79 Like Twitter, Facebook was a useful resource for us during this investigation. The
announcement of our investigation was posted on the Office’s Facebook page,
along with an invitation for the public to share their experiences and videos. We
received a large number of responses and comments as well as expressions of
support for the investigation. We received video links from the public through this
medium as well.
80 Our website has received thousands of additional visits as a result of the
announcement of the investigation. There was a significant spike in our website
traffic, with almost 2,000 visits to our site on the day of the announcement and
37,270 page views in the month of July alone.
81 From the outset of our investigation, efforts were made to ensure the preservation
of electronic evidence. In order to avoid losing access to Internet evidence that
might be updated or removed, software was installed to ensure Internet videos were
saved. Investigators spent many hours reviewing G20-related videos downloaded
from YouTube, assessing their relevance to the issues under investigation. Some
videos showed people being asked for their identification and being searched by
police in areas far from the security perimeter. Some included specific references
made by authorities to the Public Works Protection Act. For example, Charlie
Veitch of the “Love Police” from England is shown on camera being arrested
outside of the security fence on June 24 for failing to comply with an officer’s
request to identify himself. The video includes an image of his Undertaking to
Appear charge sheet, stating he was charged under the Public Works Protection Act
s.5(1).
Figure 27: June 24 - Charlie Vietch of The Love Police talking with police shortly before his arrest.
(Photo still taken from Youtube video – see Appendix A, No. 1b)42
“Caught in the Act”
December 2010
82 Descriptions and links for videos relating to the Public Works Protection Act,
identification and property search requests, witness accounts, arrests, media reports
and other images relating to the G20 summit are contained in Appendix A to this
report.
83 While many videos provided valuable evidence of events as they occurred, there
were limitations in working with this medium. People shown in the videos were
not always identifiable, nor were the locations always discernible. While the
images provided insight into the events occurring around the G20, video evidence
was not a substitute nor did it replace the need for a thorough field investigation.
Nevertheless, social media have transformed the way we conduct investigations,
and communicate with the public. We anticipate using social media as both an
outreach and an investigative tool in future SORT investigations.
Extraordinary Times Call for Extraordinary
Measures
84 During our investigation, we learned that while it is not the province’s oldest
statute, the Public Works Protection Act is certainly not new. It has been in place
for more than 70 years. At the time of its creation, parliamentarians were not
concerned with security for international dignitaries attending global summits.
They were implementing martial law in the wake of Canada’s entry into World
War II.
85 On September 10, 1939, Canada declared war against the German Reich. Nine
days later, Ontario’s Legislative Assembly convened an emergency session to
consider a series of war measures. The Public Works Protection Act, 1939 was one
of the statutes the Assembly passed during that session to enable government “to
proceed immediately with those activities incidental to War, which come within
Provincial jurisdiction.”
86 This was an exceptional time, which called for exceptional action. As the session
concluded, the Lieutenant Governor observed:
We are now engaged in a life-and-death struggle with a boastful, arrogant
enemy who would ruthlessly crush out all personal, civil, and religious
freedom. No one who has followed events of the past few years can doubt
that. He must be decisively defeated if we are to preserve all those things
we hold most dear. 43
“Caught in the Act”
December 2010
87 During wartime, a certain degree of intrusion on civil liberties is expected and no
doubt necessary to preserve order and ensure public safety. With this in mind, it is
not that surprising that the Public Works Protection Act, 1939, conferred very
broad powers to secure a large array of public property, including public
transportation, utilities, and government buildings.
88 The Act authorized various public officials, and even private entities in some cases,
to appoint guards to protect public works, which were defined by the Act as
including:
(a) any railway, canal, highway, bridge, power works including all
property used for the generation, transformation, transmission,
distribution or supply of hydraulic or electrical power, gas works,
water works, public utility or other work, owned, operated or carried
on by the Government of Ontario or by any board or commission
thereof, or by any municipal corporation, public utility commission or
by private enterprises,
(b) any provincial and any municipal public building, and
(c) any other building, place or work designated a public work by the
Lieutenant-Governor in Council.(s. 1)
89 In the case of highways, the term was further defined to include common or public
highways, as well as any streets, bridges and any other “structures thereon.”
9
90 Under the Act, guards and other peace officers were entitled to require any persons
entering or attempting to enter any public work or any approach to a public work to
furnish their name and address, identify themselves, and state the purpose they
desired to enter the public work in writing or otherwise.
10
91 They were also authorized to search without warrant anyone entering or attempting
to enter a public work, as well as vehicles they were suspected to have had charge
of or control over or had been a passenger in.
11
In addition, guards and peace
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
9
This definition was initially incorporated through reference to the definition of “highway” in The
Highway Improvement Act, R.S.O. 1927, c.54, and was later amended and set out expressly in section 1 of
the Public Works Protection Act.
10
This section now appears with minor amendments as subsection 3(a) of the Public Works Protection Act,
R.S.O. 1990, c. P.55 [Public Works Protection Act].
11
This section now appears with minor amendments as subsection 3(b) of the Public Works Protection Act.44
“Caught in the Act”
December 2010
officers were given the power to refuse entry to a public work and to use necessary
force in doing so.
12
92 Failure to comply with a request or direction of a guard or peace officer or being
found upon a public work or on an approach to a public work without lawful
authority was an offence under the Act that could lead to arrest, and a fine of $100
and/or imprisonment for two months.
13
In proceedings under the Act, the statement
under oath of an officer or employee of the body operating or having control of a
public work regarding its boundaries was also deemed to be conclusive evidence
against an accused.
14
93 The Act did not define what was meant by the term “approach to a public work,”
but it contemplated that regulations could be issued “defining the areas which
constitute approaches to public works, either generally or with regard to any
particular public work.”
15
Regulations could also be made under the Act to deal
with oversight of guards, and respecting “any matter necessary or advisable to carry
out effectively the intent and purpose of the Act.”
16
94 While there is very little recorded concerning the legislative intent behind the Act,
clearly its primary purpose was to ensure that Ontario’s infrastructure was safe
from the threat of sabotage. It might also be presumed that the expansive definition
of “public work,” which enabled guards and peace officers to require anyone
entering or on any highway or street to provide identification, and submit to search,
was also generally directed at uncovering weapons and rooting out enemies of the
state.
The War Ends, but Martial Law Lingers
95 When the war ended in 1945, and the nation returned to a peaceful existence, the
Public Works Protection Act lingered – a remnant of a world in conflict. With the
exception of some relatively minor amendments, including in 1990 when the fine
that could be levied was increased to $500, the Act has remained largely intact.
17
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
12
This section now appears with minor amendments as subsection 3(c) of the Public Works Protection Act.
13
This section now appears with minor amendments as section 5 of the Public Works Protection Act.
14
This section now appears with minor amendments as section 4 of the Public Works Protection Act.
15
This section now appears with minor amendments as subsection 6(b) of the Public Works Protection Act.
16
These sections now appear with minor amendments as subsections 6(a) and (c) of the Public Works
Protection Act.
17
A copy of the Public Works Protection Act as it appears today is attached as Appendix B to this report.45
“Caught in the Act”
December 2010
96 Yet it has been rarely used. Since 1939, the government has used the Public Works
Protection Act to appoint guards to secure a variety of government buildings,
including Queen’s Park. Another area where the Act has been employed, together
with specific provisions in the Police Services Act, is to support enhanced
courthouse security. Increased security measures were put in place in the province
following a series of violent incidents and threats against justice system
participants, including fatal shootings, occurring in Ontario courthouses, and the
authority to do so was said to be found in part in the Public Works Protection Act.
18
97 Ontario’s Public Works Protection Act is unique in Canada in terms of the breadth
of its reach and the powers it confers. While some jurisdictions have adopted
statutes to specifically address the security of courthouses, no other Canadian
statute defining “public works” contains provisions similar to those found in
Ontario’s Act.
19
98 While some law enforcement officials were doubtless familiar with this
extraordinary legislation, it was certainly not on the public radar prior to the 2010
G20 summit. If not for the events unfolding around the summit, it is quite likely
that most Ontarians would have gone about their lives without ever knowing of the
Act’s existence.
Preparing to Scale the Summit
99 In the months leading up to the G20 summit, lawyers and advocacy groups
counseled demonstrators, distributed pamphlets, held workshops, and maintained
websites providing advice on civil rights. Demonstration organizers also conferred
with ISU and Toronto Police Service officials, seeking approval for protest routes
and information on security measures that would affect the rights and freedoms of
tens of thousands of people readying for protest.
100 On May 21, 2010, the Canadian Civil Liberties Association (CCLA) issued a paper
entitled “Protecting civil liberties and human rights at the G-20: statement of
concerns.” In this paper, the CCLA observed that the proposal to cordon off large
areas of Toronto for security reasons would engage a number of Charter rights,
specifically, section 7 which guarantees individual liberty, including freedom of
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
18
R. v. Campanella, [2005] O.J. No. 1345 (Ont. C.A.) (QL) [ R. v. Campanella].
19
Alberta, Manitoba, New Brunswick, Newfoundland and Labrador, Prince Edward Island, Quebec, and
Saskatchewan all have legislation defining “public works” for certain purposes. At the federal level, the
Public Works Nuisances Regulations C.R.C. c.1365, made under the Department of Public Works and
Government Services Act, S.C. 1996, c.16, regulate conduct in relation to defined public works. 46
“Caught in the Act”
December 2010
movement, and sections 2(b), (c) and (d), which guarantee freedom of expression,
freedom of peaceful assembly and freedom of association.
101 While the CCLA acknowledged that security perimeters could be established to
protect foreign dignitaries, it was concerned about their scope. It was aware that
under the federal Foreign Missions and International Organizations Act the RCMP
had broad authority to “take appropriate measures, including controlling, limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in
the circumstances.”
20
102 It also noted that the APEC Interim Commission report
21
had endorsed a guiding
principle that a “security perimeter [may] be enlarged for non-security reasons to
the extent necessary to ensure that the participants are able to conduct their
business effectively….” However, the CCLA cautioned that the APEC report had
also warned that a fence line designed to significantly distance protesters and
maintain a “retreat-like atmosphere” could well violate the Charter.
103 The CCLA asserted that any extension of the security perimeter beyond what was
needed to ensure the safe and effective conduct of the summit would “unjustifiably
infringe individuals’ freedom of movement, expression, peaceful assembly and
association.” The CCLA was particularly concerned about the prospect of “ad hoc”
searches without reasonable and objective security grounds. It stated in its paper:
… under no circumstances should individuals be denied entry to a public
area simply because they refuse to be searched, or the government
believes they will engage in non-violent protest and dissent. To the extent
that there is evidence of specific individuals posing serious threats to the
safety of persons and property, CCLA accepts that some form of nonintrusive screening could take place. However, it is imperative that the
criteria for exclusion be publicized in advance.
104 On June 4, the CCLA wrote to both the RCMP and the Toronto Police Service to
request further information about the external security fences that had been
announced the week before. The CCLA posed a series of questions relating to
what the public could expect in relation to identification and search powers during
the summit, including the question:
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
20
Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 10.1(2).
21
Canada, Commission for Public Complaints Against the RCMP, APEC – Commission Interim Report (21
July 2001) at 3 (Commissioner: Ted Hughes, Q.C.) [APEC – Commission Interim Report].47
“Caught in the Act”
December 2010
Will individuals be given the option of leaving without being searched if
they refuse consent?
105 On June 13, the Toronto Police Chief responded to the CCLA’s inquiries with
general information about the legal authorities that would be used to ensure the
security of those participating in the summit, including the Police Services Act, the
Foreign Missions and International Organizations Act and the common law. As
for searches at the security perimeter, he said they would be based on the discretion
of the officer and the circumstances presented, and that anyone requesting access
into the security perimeter might be subject to search. He explained that the
searches would be done for security purposes to assist police in providing a safe
environment for the summit. There was no mention of the Public Works Protection
Act. Nor was the Act ever mentioned in any of the numerous meetings that the
CCLA held with Toronto Police Service officials as it prepared for the summit.
106 While the ISU’s G8-G20 website referred to the Criminal Code of Canada,
Ontario’s Highway Traffic Act, and the common law as authorities limiting Charter
rights and freedoms in a section on “Information for Demonstrators,” it made no
reference to the Public Works Protection Act. The Toronto Police Service website
as well as the City of Toronto website also contained no information about this Act.
107 Advocacy groups were vigilant in seeking to minimize interference with Charter
rights during the summit and to prepare demonstrators with necessary information
for their protection while exercising their right to protest. When they learned that
the police had purchased and planned to use long-range acoustic devices, for
instance, they took steps to mount a court challenge to mitigate risks associated
with these devices. However, these organizations had no knowledge that the
Toronto Police Service had another tool in its arsenal – the little-known, little-used
Public Works Protection Act. If they had known about the Act, they would likely
have taken similar measures to challenge its propriety.
108 In the months, weeks and days leading up to the G20 summit, unsuspecting civil
rights and advocacy groups advised protesters that unless they were under arrest,
they did not have to answer any questions or identify themselves to police while
participating in demonstrations and they did not have to allow police to search
their belongings. While this information was consistent with the widely held
understanding of the scope of Charter protections, it did not take into account the
extraordinary powers set out in the Public Works Protection Act.
109 It was as if the exceptional nature of the Act had lain dormant for decades, until
someone who thought its potential could be mobilized for G20 summit security
decided to dust off this war relic, and get creative.48
“Caught in the Act”
December 2010
Figure 28: June 26 - Police arrest demonstrator at Queen’s Park.
(Photo by Carl William Heindl; eroder.com)
110 Because much of the discussion of the Act prior to the issuance of Regulation
233/10 involved lawyers and is properly protected by solicitor-client privilege, our
understanding of what transpired is incomplete. What we were able to determine
was that in the early spring of 2010, security planners and legal counsel began to
discuss the legal framework for erection of the perimeter fence for the G20 summit.
Good Fences Make Good Neighbours
111 While the Police Services Act and related statutes such as the Criminal Code of
Canada say nothing about the power to erect and administer security perimeters,
the common law compliments these statutes by providing officers with the
authority to use “justifiable powers” in discharging their general policing
obligations, including their duties to preserve peace and prevent crimes.
22
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
22
see Police Services Act, R.S.O. 1990, c.P.15. s. 42.49
“Caught in the Act”
December 2010
Figure 29: June 28 – CBC’s Front St. building behind the fence. (Photo by Alfred Ng)
112 In the case of security for international leaders, there is authority directly on point
in the pre-Charter decision in R. v. Knowlton.
23
Knowlton involved the
establishment and administration of a security perimeter. The police had cordoned
off an area, including part of a public street, for security purposes related to the
impending visit by the premier of the U.S.S.R. Mr. Knowlton wanted to enter the
area to take pictures and he told the officers so. He was warned that he could not
enter and that if he tried he would be arrested. Mr. Knowlton questioned the
authority of the officers to prevent his entry onto public property. The police
refused to explain their lawful authority. Mr. Knowlton therefore ignored the
warning, entered, and was arrested and charged with obstructing a peace officer in
the course of his duties. He sought to defend that charge by arguing that the police
had no power to prevent his entry and therefore were not acting in the execution of
their duty when he disobeyed them.
113 The Supreme Court of Canada recognized that the police had a general policing
duty to protect the premier and were acting in the course of that duty at all times.
The question was whether it was justifiable for them to establish the perimeter in
discharging that duty. The Supreme Court of Canada held that it was:
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
23
R. v. Knowlton, [1974] R.C.S. 443 (S.C.C.).50
“Caught in the Act”
December 2010
It is notorious and of common knowledge that the official visit of the head
of state or high rank dignitary of a foreign country, friendly as either may
be, is an event that frequently engenders a real or apprehended threat to
the preservation of peace and that calls, therefore, for the adoption of
proper and reasonable security measures in and by the host country.
24
114 The court noted that it was well known to Canadian officials that the Russian
premier had been assaulted when in Ottawa and stated that “these official
authorities were not only entitled but duty bound, as peace officers, to prevent a
renewal of a like criminal assault” and that they had “a specific and binding
obligation to take proper and reasonable steps” including restricting the right of
free access of the public to public streets. The court concluded that the police
conduct in restricting public access clearly fell within the general scope of the
duties imposed upon them and that the use of police powers was not unjustifiable in
the circumstances.
115 In accordance with international law, Canada is also obligated to protect foreign
dignitaries on Canadian soil.
25
Consistent with this requirement, the federal
Foreign Missions and International Organizations Act states that the RCMP has
primary responsibility for the security of intergovernmental conferences and
provides the RCMP with relatively broad authority to carry out this security
objective.
26
116 However, as the CCLA noted in its pre-summit paper, any measures taken by local
police or the RCMP in erecting security barriers must be reasonable in reach and
design to be justifiable.
117 We were advised by former ISU members that while they were discussing use of
the Foreign Missions and International Organizations Act to establish security
perimeters for the G8 and G20 summits, lawyers at the Ministry and their federal
counterparts were having difficulty reaching agreement on the proper interpretation
of that Act. The federal Act does not confer authority on the municipal and
provincial police officers who work alongside the RCMP in administering a
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
24
Ibid. at 447.
25
These obligations arise under international instruments such as the Vienna Convention on Consular
Relations, 24 April 1963, 596 U.N.T.S. 261 (entered into force 19 March 1967), online: United Nations
Treaty Collection http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf, and the
Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons,
Including Diplomatic Agents, 14 December 1973, 1035 U.N.T.S. 167 (entered into force 20 February
1977), online: United Nations Treaty Collection
http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_4_1973.pdf.
26
Supra note 20, subsection 10.1(1).51
“Caught in the Act”
December 2010
security perimeter. This is because a federal statute cannot grant police powers on
provincial peace officers. However, this limitation appears to have been the source
of some debate amongst counsel. Under the Foreign Missions and International
Organizations Act, the federal government may enter into security arrangements
with any province in connection with international meetings taking place in
Canada.
27
An internal Ministry business case notes that the “local police forces”
had requested that the province seek an agreement under the Act. The Toronto
Police Service and the provincial Ministry appear to have believed that if an
agreement could be reached, this would enhance security for the summits and
further legitimate the erection of the perimeter security fence. Federal lawyers
apparently disagreed with the suggestion that the Act could be applied in this
manner, and expressed concern about the precedent that this would set.
118 On May 7, 2010, Ontario’s Deputy Minister of Community Safety wrote to Public
Safety Canada about entering into a security agreement. City of Toronto lawyers,
acting as counsel for the Toronto Police Service, also apparently attempted to have
the service mentioned in an order-in-council under the legislation relating
specifically to G20 security. However, the federal government declined both of
these requests. In denying the Deputy Minister’s request, federal officials noted
that an arrangement would not increase the power of provincial or municipal
officers. It was also explained that arrangements under the federal Act are intended
solely to facilitate consultation and co-operation between police forces for
integrated projects, and noted that consultation and co-operation had already been
achieved without the kind of formal arrangement contemplated by the statute.
119 It appears that the federal government’s reluctance to enter into an agreement under
the Foreign Missions and International Organizations Act provided increased
incentive for officials to look to the Public Works Protection Act. Under the
federal Act, the RCMP appeared to have clear authority to construct and control the
interior security barrier for the “red zone,” but the Toronto Police Service believed
that unless it was somehow delegated power under that legislation, it would have to
look elsewhere for incontrovertible legal support to construct and control the
exterior security fence.
120 During our investigation, one Ministry official expressed the view that reliance on
the Public Works Protection Act would have been unnecessary had the federal
government entered into an agreement with the province under the federal Act.
Based on OPP documentation, it appears that by late March the provincial Act was
seriously being discussed as an alternative.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
27
Supra note 20, subsection 10.1(4).52
“Caught in the Act”
December 2010
121 Internal OPP email communications, dated March 28, 2010, relating to “G8/G20 -
Public Works Protection Act,” indicate that the OPP was not particularly interested
in exercising authority under this arcane legislation in connection with the G8
summit. An OPP superintendent wrote to his Chief Superintendent that day,
commenting:
I am familiar with the Act. It is a wartime piece of legislation that was
revised and updated during the NDP era. We have looked at it extensively
in the context of Public Order. We have always believed we would save it
for a critical time as it would not likely stand up to a constitutional
challenge the first time it is used. Having said that, I do not believe we
require any implementation for G8. With the Foreign Missions Act and
other current legislation there is nothing required for G8 at this time.
122 Consistent with this view, when the OPP were asked by Ministry counsel whether
they wished to pursue a designation under the Public Works Protection Act for G8
security, they politely declined.
123 Ministry records indicate that it was known well before the Toronto Police Chief’s
letter was received on May 12, 2010, that the Toronto Police Service was looking
for a designation under the Public Works Protection Act. Internal Ministry
documents suggest that the approval process relating to this designation was
already being planned for by April 9.
Securing the Perimeter
124 In his May 12 letter to the Ministry requesting a designation under the Public
Works Protection Act, the Toronto Police Chief noted that various legal authorities
would be used by the Toronto Police Service and the Integrated Security Unit to
support the establishment and control of the security perimeter for the G20 summit,
including the common law, and “provided certain conditions are met, the federal
Foreign Missions and International Operations Act.” (It would appear that the
Toronto Police Service was still holding out hope at that point that some form of
agreement could be obtained under the federal Act.)
125 The Chief went on to say:
… we believe that the provisions of the Ontario Public Works Protection
Act (PWPA) would also offer legal support for the extraordinary security
measures being undertaken for this unusual event. Section 3 of the PWPA 53
“Caught in the Act”
December 2010
explicitly confers powers on police officers in respect to controlling access
to “public works” that would be extremely helpful in reinforcing the
existing legal authority for police officers to control the security perimeter.
Those powers include requiring persons entering the public work to
identify themselves and state their purpose for entering and authority to
search people and vehicles attempting to enter.
126 The Chief observed that the Act authorizes the Lieutenant Governor in Council to
designate any “building, place or work” as a public work for the purposes of the
statute and requested that this section be used to designate the area of or highways
within the intended security perimeter (as set out in an appendix to the Chief’s
letter) as a public work for the period from June 21 through the end of the summit
on June 27. He noted:
This would provide valuable additional support for the Integrated Security
Unit and the Toronto Police Service’s efforts to ensure a firm legal basis
for the exercise of the powers necessary to protect summit attendees and to
provide the high level of security required for this event.
127 The Chief went on to explain that although the control of access to the secured zone
was intended to be limited to the two days of the G20 summit, the designation for
the longer period was designed to “ensure that there is a firm legal basis for
controlling access to the perimeter, if increased security concerns require a longer
period of restricted access.”
128 We do not have full insight into the reasoning of the Toronto Police Service in
attempting to secure the designation under the Act. However, in an internal OPP
email exchange of May 17, there is an interesting reference to the motivation
behind obtaining the designation. In the email, an OPP Deputy Commissioner
advises his Superintendent:
The way their email is worded is that it will help with the authority to keep
people out of the CAZ [controlled access zone] and interdiction zone. I
thought they were only looking at it to put off any strike action.54
“Caught in the Act”
December 2010
Figure 30: June 23 - Police officers behind the fence. (Photo by Alfred Ng)
129 At the time, workers at a number of hotels in the city were threatening strike action.
In fact, at the Novotel, host to a number of G20 attendees, pickets went up on the
Thursday before the summit until it got underway.
130 On May 20, several Ministry officials met to brief the Minister concerning the
Chief’s request. Two senior OPP officials also participated by way of
teleconference. Ministry counsel took the lead at the briefing, and all the versions
that our Office received of the slide deck used for the presentation have been
redacted to varying degrees to remove “privileged” information. However, the
following “communications considerations” are set out in the briefing material:
… The ministry has been largely silent on G8/G20 and has deferred to
ISU on security matters.
A designation under the PWPA could bring the Ministry, and more
specifically the Minister to the fore in the public conversation on summits
security.
The Minister could be criticized for invoking a piece of legislation –
designed to protect the province in time of war – as a means to increase
police powers during the G20 summit.55
“Caught in the Act”
December 2010
Should there be criticism of police actions in the G20, the Minister would
be vulnerable to criticism that the use of the PWPA contributed to the
action.
Invoking the Act could lead to the perception that police do not currently
have the power to stop and search people coming into the interdiction
zone.
If the use of the PWPA is perceived to be successful from a policing point
of view, police services could begin asking the ministry to take similar
steps for future events, which could lead to the perception that the
Ministry is becoming more closely involved in public order police
operations.
RECOMMENDATION: If the decision is made to designate under the
PWPA, the communications strategy should be wholly reactive. Strong
messaging would need to be developed and the support of all ISU partners
and the federal government should be secured.
131 The briefing document also indicates that a designation would be a change from the
Ministry’s current position of general non-involvement in the G20 and that there
were no known previous instances of a designation of a public work occurring
under the Act. It also notes:
…It is possible that authority for these steps already exists under the
common law or the FMIOA. The presence or absence of a designation is
unlikely to have any affect on operational planning for the G20.
132 A number of options were also set out for the Minister. It was understood that the
Chief’s preferred option involved designating the entire interdiction zone as a
public work, including private residences and offices. It was noted that such a
broad designation might attract significant criticism. Another option would result
in only the highways within the interdiction zone being designated as public works.
A third option would see everything in the interdiction zone that was already a
public work under the Act – including highways, sidewalks, bridges and railways,
as well as a limited number of locations on the perimeter of the zone, which were
not public works – designated for the purposes of the Act. This option was seen as
satisfying the Chief’s request as well as being less likely to attract criticism. A
fourth option was to deny the designation outright. The one “con” listed to this
approach, which was not redacted from the materials we received, was that it
“would be perceived as not supporting TPS [Toronto Police Service].” 56
“Caught in the Act”
December 2010
133 The next steps outlined in the presentation included scheduling the regulation for
consideration by the Cabinet’s Legislation and Regulations Committee by May 31,
having the Minister sign off on the regulation and committee materials, and
publishing the regulation on the government e-Laws site – which, it was noted,
could occur “shortly before the TPS erects the fence.”
134 We interviewed a number of individuals who attended the May 20 briefing and
took part in earlier discussions relating to the Chief’s request. The former
Commissioner of Community Safety (currently the Deputy Minister
28
), who was in
charge of continuity of government operations during the G20 summit, explained
that during its internal discussions, the Ministry had considered the justification and
necessity for the designation as well as the impacts on the civilian population. He
observed that the G20 was seen as an “unprecedented security event from a police
perspective, from a political perspective and from an international perspective.”
The world leaders who would be attending had all received “legitimate threats to
their safety.” Canada was at war with a country with terrorist affiliations, and an
Ottawa bank had recently been fire-bombed, followed by threats of further
violence. In addition, Toronto had considerable infrastructure, was the centre of
the Canadian banking industry, was adjacent to a nuclear facility, and had the
largest population in Canada. While the Commissioner emphasized the exceptional
nature of the G20 summit and the need to ensure the safety of the dignitaries as
well as the public, he also stressed that the designation of “public works” was
viewed as more of a “backstop” to reinforce the powers already contained in the
Public Works Protection Act and existing under the common law.
135 An OPP superintendent who also represented the OPP on the ISU took part in the
Minister’s briefing. He advised us that he had promoted the need for training for
frontline officers on the Public Works Protection Act. He observed that the Act
was “an old piece of provincial legislation,” and that “unless you were in a
specialized area of policing,” officers would not be familiar with it, and in fact,
“very, very few people would know that this legislation even exists.” An internal
Ministry email commenting on the briefing later that day confirmed that the
Minister “liked” the OPP Superintendent’s suggestion of Toronto officers receiving
training on the Act to ensure that “they act appropriately.” The Commissioner of
Community Safety informed us that at some point during the discussion of the
regulation, he had spoken to the Chief about the need for officers to be familiar
with the legislation. He advised that he received assurances from the Chief in this
regard. He also obtained confirmation that the regulation would only be applied by
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
28
For ease of reference in this report, this official will be referred to as the Commissioner of Community
Safety. 57
“Caught in the Act”
December 2010
police officers, and that the Chief had no intention of appointing civilian “guards”
under the Act (the potential to appoint civilians to exercise the extraordinary
powers under the Act was apparently a point of concern for some Ministry
officials).
136 By May 21, the Minister had signed off on the third option presented at the
briefing, designating all those public works and a few other areas within the
security perimeter, as public works. This was viewed as a compromise on the
Chief’s request. By then, the Premier’s office had also been consulted and
provided conditional approval. A Ministry email recounting this discussion notes:
…[the Premier’s office] are fine with this moving forward, but wanted
assurances that if there was a public outcry or if something went south on
this, that [the Chief] would be able to publicly say that he requested this as
he felt the TPS needed this designation.
137 According to a Ministry email, the Chief had provided assurance to the
Commissioner of Community Safety that he was “prepared to publicly say that the
TPS needed the PWPA designation.”
138 The regulation went to Cabinet’s Legislation and Regulation Committee on May 31
as initially planned. The Ministry approval form prepared for the committee noted
that the public interest in the regulation was “moderate” and the key stakeholders’
interest “very high.” In the confidential briefing note prepared for the committee,
in a section entitled “Stakeholder Consultations,” it was noted that the OPP, RCMP
and Public Safety Canada were aware of the Toronto Police Service request for the
regulation. Under “contentious issues,” the concerns highlighted at the time of the
Minister’s briefing were set out. The “mitigation strategy” proposed was for the
Ministry to be “low-key and reactive” and to “ensure support of all ISU partners
and the federal government (Public Safety Canada).”
139 We received various redacted versions of speaking notes prepared for the Minister
in anticipation of his attendance at the committee. The most comprehensive
version of the notes emphasizes the need to ensure the safety of the G20 summit.
They refer to the Public Works Protection Act as having been around since World
War II, and to the fact that it “has never been invoked because we have not seen the
need to do so in the past.” The purpose of the regulation is generally described as
“simply to ensure police have clear and unquestioned authority to take whatever
steps are necessary to ensure a successful summit.” Regarding the regulation’s
impact on citizens, it is noted:58
“Caught in the Act”
December 2010
We are not taking drastic measures to curtail individuals’ rights or to give
police unlimited powers to arrest and detain people. We are simply
indicating to the public that there are good reasons for enforcing the
interdiction zone restrictions and that we support the Toronto Police
Service – and other members of the ISU – in their efforts to ensure the
success of the G20 summit.
140 In another version of the notes, it is emphasized that the regulation would not
change the security measures that the Toronto Police Service intended to take.
Figure 31: June 27 - Police search man near University Ave. and College St. (Photo by David King)
141 On June 2, the regulation was discussed and voted on at a special five-member
meeting of Cabinet. The following day, the Lieutenant Governor formally signed
off on it.
142 The Minister did not officially inform the Toronto Police Chief that the regulation
had been issued until he wrote to him on June 15, saying:
I agree that there are various sources of legal authority to support the
security perimeter. I also recognize the desirability of having additional
sources of legal authority to ensure clarity regarding the ability of the
Toronto Police Services to take the steps that it will be taking. 59
“Caught in the Act”
December 2010
143 While the regulation was intended to provide “clarity,” we found that Ministry
officials did not share a uniform understanding of what it actually accomplished.
Some were under the impression that the regulation designated the entire exterior
security fence as the “public work,” while others indicated that it was the whole
area within the fence, and still others explained that it pertained only to a few
specific places in the security perimeter which would not otherwise have been
subject to the Act. A copy of the full regulation is found at Appendix C to this
report. The regulation appears, at first glance, to present a challenge to anyone
without a formal education in land surveying. Even the Commissioner of
Community Safety acknowledged that it was an “articulation of lawyers who
deemed that these places need to be designated,” and as such it was “quite
complicated,” “confusing,” and easiest understood by reading along with a map of
the area.
A Public Work By Any Other Name is Still a Public Work
144 The first section of Regulation 233/10 does not actually purport to create any new
areas as public works. It essentially designates as public works the infrastructure
for transportation, including highways, streets, railways and bridges as well as
utility works, which were already public works under s. 1(a) of the Public Works
Protection Act, and which fell within the geographic area described in Schedule 1
to the regulation (the security perimeter). To the extent that this section merely
confirmed that the public works in the interdiction zone were public works, it
appears to have been redundant. However, the description then goes on to state
“for greater certainty this includes every sidewalk in the area.” The definition of a
public work in the Act included any part of or structure incidental to a street, but
did not specifically refer to sidewalks. While sidewalks would likely be viewed as
structures incidental to a street, this section of the regulation appears to have been
intended to leave no doubt that this was the case.
145 The second paragraph of the section provided that three places described in
Schedule 2 were also public works for the purposes of the Act. Two of these were
described as an area “within five metres of a line drawn” from various geographic
orientation points. The third description does not contain any reference to “five
metres.” A copy of a map, received from the Ministry, showing the three “public
works designated places” is attached at Appendix D.
146 The regulation provided that it was only to be in effect from June 21 through June
27, 2010. After that point, the three areas specified in section 2 would revert to
their normal status. However, anything that was a public work prior to the 60
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regulation coming into effect would presumably retain its protected position under
the Act after the regulation had expired.
147 A Ministry email dated June 25 – after the controversy concerning the regulation
had erupted – provides one of the better descriptions of what public works the
regulation was intended to designate. It refers to the public works covered by the
regulation as comprising:
1. All streets and sidewalks inside the fence, i.e., all streets and sidewalks
within the “interdiction zone.”
2. A five-metre strip inside the fence where the fence runs along two
places that are not streets or sidewalks, specifically, land near a Rogers
Centre parking lot and the land behind a building near the Rogers
Centre.
3. The “moat” between union station and Front Street.
4. In terms of 1 above, the fence runs along the centre of some streets.
The portion of the street inside the fence would be designated. The
portion outside would not.
148 A number of senior Ministry officials we interviewed said that given the limited
scope of the regulation, they did not view it as particularly intrusive or
controversial. A senior government official explained that as only three discrete
places were added as public works, representing gaps along the security perimeter,
he didn’t perceive it as significant. He proffered the opinion that had the Chief not
misinterpreted the boundaries of the public works covered by the regulation, no one
would likely have taken much issue with the regulation itself.
149 As for the identification and search powers that apply to public works, Ministry
officials suggested that similar security measures are commonly encountered these
days at airports and rock concerts.
150 While the Ministry appears to have considered that the regulation’s impact on the
public would be minimal, it recognized that the optics of using a war measures
statute to assist the Toronto Police Service with G20 summit security were not
necessarily ideal. As one Ministry official later said in an internal email on June
28:61
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December 2010
…even with hindsight, we would not have gone out proactively. We
would have been the story pre-summit: “Province enacts war measures for
TPS in advance of summit.”
The Sound of Silence
151 Consistent with the advice to the Minister at the May 20 briefing, the Ministry
adopted a reactive communications strategy. This strategy involved not
communicating any information about the regulation publicly unless the Ministry
was specifically asked about it. In justifying the Ministry’s silence around the
regulation, we were told by one Ministry official that it never pursues a proactive
strategy in the case of regulations, and that Regulation 233/10 simply followed the
standard course. However, another Ministry official contradicted this information,
telling us that at times it had announced regulations through press releases or public
statements. One official was quite candid, noting that keeping things quiet was
normal, in the circumstances, since “a mixed reaction” to the regulation was
expected.
152 The Commissioner of Community Safety told us the Ministry’s reluctance to draw
attention to the regulation was consistent with the fact that the province was not
directly involved with the G20 summit, which was a federally organized event with
the Integrated Security Unit in charge of security. He indicated that it was really up
to the ISU to decide whether or not to publicize information about the authority it
was operating under. However, from what we can surmise, the Ministry’s primary
contact both prior to and after the enactment of the regulation was the Toronto
Police Service rather than the ISU.
29
While individual OPP, RCMP and Public
Safety Canada members may have had some involvement during the Ministry’s
review of the Chief’s request, the time period between the request and the issuance
of the regulation was very short, and there is no record of there having been any
formal consultation process engaging the ISU or other parties.
153 There was some suggestion following the summit that the ISU had been the driving
force behind the request for the public works designation.
30
However, the evidence
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
29
During its review of the regulation, the Ministry did consult with the Ministry of Municipal Affairs and
Housing because a municipal police force was involved, and the Ministry of Economic Trade and
Development to determine if business would be affected, which might require that the regulation be posted
on the Ontario Regulatory Registry.
30
According to an internal OPP media summary, the Chief referred to the regulation as the ISU’s
legislation in a CFTO interview on June 30, and a Toronto Star article on July 10 reported that the ISU had 62
“Caught in the Act”
December 2010
obtained during our investigation indicates that it was indeed the Toronto Police
Service that led this initiative. While some officials involved with the ISU were
aware of the Toronto Police Chief’s request, it does not appear that the designation
request nor the regulation were general knowledge within the Unit. ISU
spokespeople did not mention the Public Works Protection Act when specifically
asked about their authority for the G20 security measures by the media in advance
of the summit,
31
and there was no reference to the Act or the regulation on the
ISU’s website. We found no Ministry records confirming that the ISU had been
provided with official notification that the regulation had passed, and email
exchanges amongst the ISU Public Affairs Communications Team (PACT) dating
from June 24 suggest that they were completely unaware of the Act or the
regulation until that day.
32
In fact, on June 29, an ISU PACT official wrote to the
Ministry, stating:
We at PACT didn’t know about the regulation until the story broke
including the RCMP. TPS kept it very tight and nobody from Ministry
told us.
154 On July 1, an OPP official wrote an email confirming that the regulation “was
clearly a TPS request.” Remarkably, when we spoke with the former RCMP
official who had led the ISU steering committee, he said he was “gobsmacked” as
he watched the Toronto Police Chief’s June 25 press conference from ISU
headquarters at Barrie – and heard about the regulation for the first time.
155 Although Regulation 233/10 affected a large segment of downtown Toronto, the
Ministry made no attempt to consult city officials about the impact of the public
works designation. Ministry records indicate that the Commissioner of Community
Safety had asked the Chief whether he had briefed City Hall. However, a May 25
Ministry email confirms that the Chief said he had not consulted Toronto council
“due to time limits.” During our investigation, city officials maintained that they
too only learned of the regulation after it was reported in the news.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
requested that the Chief ask for the designation (Robyn Doolittle, “Chain of command questioned in G20”
The Toronto Star (10 July 2010), online: The Toronto Star
http://www.thestar.com/news/gta/torontog20summit/article/834287--chain-of-command-questioned-ing20.)
31
Adam Radwanski, “A Timeline on the G20 Five-metre rule that didn’t exist” The Globe and Mail (1 July
2010), online: The Globe and Mail http://www.theglobeandmail.com/news/politics/adam-radwanski/atimeline-on-the-g20-five-metre-rule-that-didnt-exist/article1626001/.
32
For instance, around 10 p.m. that evening, one RCMP official on the team asked another member, “Have
you figured out what this Act is?”63
“Caught in the Act”
December 2010
156 Aside from Ministry and Toronto Police Service officials, it appears that only
isolated staff – predominantly lawyers from other organizations involved with G20
planning – knew about the regulation, and that this information had not filtered up
to the senior operational level of either the city or the ISU. The Ministry appears to
have taken a “hands-off” approach with respect to G20 security organizers, leaving
it to the discretion of the Toronto Police Service to notify its ISU partners and
others about the regulation.
157 At the Minister’s briefing on May 20, it was suggested that the publication of the
regulation should be timed to occur shortly before the perimeter fence was erected.
One Ministry official told us that the relevant information supporting delaying
publication was “privileged” and couldn’t be disclosed to us. However, this
recommendation to delay publication was likely related to concerns about keeping
the location of the perimeter fence confidential for security reasons. In support of
this, we found a Ministry email of June 30 confirming that a low-key approach was
taken to provide “sufficient time to finalize the exact perimeter … and allow TPS
sufficient time to communicate the applicability of regulation to incident
commanders and frontline officers.”
158 The transcript of an exchange between the Minister’s Office and the Deputy
Minister’s Office on June 7 contains this reference to the Ministry’s quiet
approach:
…Following up on [our] conversation we had earlier about the Public
Works designation. Yes, we agree, everyone was on board with drawing
out the actual release of that knowledge to the public for as long as what is
reasonable. So yeah, let’s not run out the door right away. Yes,
communicating quietly to [the Chief] so he can carry [on] with his
planning is fine. So long as we can stress as best we can that this should
be kept under wraps until we are ready for it to be known to the public,
that would be great…”
Keeping Things Under Wraps
159 Statutes are passed by the Legislative Assembly, and are considered and debated in
public view. Generally, when new policing powers are created or existing powers
are modified legislatively, it is done through this open process. Subordinate
legislation including orders-in-council and regulations is typically considered
during confidential Cabinet sessions, and then officially signed off by the
Lieutenant Governor. 64
“Caught in the Act”
December 2010
160 The Ministry had initially considered using an order-in-council to accomplish the
public works designation. If it had taken this route, the designation might never
have surfaced, since there is no requirement for these instruments to be published.
Generally, regulations are confidential until they are filed with the Registrar of
Regulations under the Legislation Act,
33
at which point they are available for public
inspection, provided someone is actually aware of their existence. Once filed,
regulations are posted on the government’s e-Laws website, and later printed in The
Ontario Gazette.
161 In the case of Regulation 233/10, although it received formal approval on June 3, it
was not filed with the Registrar until June 14. It took two more days for the
regulation to be posted to the government e-Laws site. At the last instant of June
16, the public was deemed under the Legislation Act to have knowledge of
Regulation 233/10 by virtue of its publication on e-Laws. The regulation later
appeared in the July 3 edition of The Ontario Gazette, but by then it was old news,
and had already expired.
162 While Regulation 233/10 was accessible on e-Laws by June 16, in order to find it, a
member of the public would have had to have known about the site as well as the
existence of the Public Works Protection Act, and then searched under the Act for
the regulation. Given its technical legal content, it is uncommon for members of
the general public to be knowledgeable about e-Laws, and even more rare for them
to scan it with any regularity. Even lawyers tend to resort to the site only when
they are looking for something specific.
163 While filing and publication of the regulation altered its legal character and
provided technical notice to the public, it would have been highly unusual for
anyone to have located and read the regulation before June 24, when Dave Vasey’s
arrest brought it into the public spotlight. Mr. Vasey had certainly never had
occasion to review the e-Laws site before his arrest, and would not have known to
look for the regulation if he had. As Ministry counsel said in an internal email on
June 28:
…it’s important to remember that filing the regulation itself would not
have resulted in practical notice to the public at large. Nobody is out there
reviewing e-Laws on a daily basis looking for new regulations under the
PWPA… once filed, though, it can no longer be considered confidential
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
33
Proposed regulations may be posted on the Ontario Regulatory Registry if they are considered to have
the potential of affecting businesses in the province, and it is in the public interest to publicize them before
Cabinet has provided its approval. We were advised that the Ministry determined Regulation 233/10 did
not come within this category of regulation.65
“Caught in the Act”
December 2010
in law. The effect of filing is not really notice to the public, but rather it
officially loses its status as confidential/privileged.
164 The Ministry had been closely monitoring the media and social media sites for
information on the summit. There was a notable absence in the days leading up to
the summit of any mention of the Public Works Protection Act or Regulation
233/10. In fact, on Wednesday, June 23, an article appeared
34
reporting that there
was no legislative support for security measures in the “yellow” interdiction zone.
This prompted a Ministry counsel to send an email the next day, observing: “This is
a heads-up for us to be ready from a communications point of view when the
regulation becomes public knowledge.” Another Ministry official suggested that
the Toronto Police Service might wish to refer to the Public Works Protection Act
as one of the legislative tools available to it for security. This sparked a frenetic
discussion within the Ministry about “touching base with the Toronto Police
Service” to find out about their communications strategy. Shortly thereafter, a
Ministry official contacted the ISU Public Affairs Communications Team to
facilitate a call with the Toronto Police Service concerning the Act. The ISU
representative duly contacted the Toronto Police, but in doing so, expressed that he
wasn’t familiar with the Act that the Ministry was referring to.
165 The Commissioner for Community Safety told our investigators that he had spoken
with the Chief on Thursday, June 24, to confirm what communications route the
Toronto Police intended to follow. Ministry records suggest that the call took place
around 3:50 p.m. At that point it appears that both organizations were still content
to maintain a “low-key approach” and refrain from making any public comments
about the Act or regulation.
166 At 3:54 p.m., a Ministry official alerted the Minister by email to the fact that the
Toronto Police Service had been criticized about its searches, and observed, “I’m
not sure this is what we anticipated in granting this to them. It puts us in the
limelight.” This comment proved prescient – occurring, as it did, simultaneously
with Mr. Vasey’s arrest.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
34
Adam Radwanski, “When It Comes to Summit Security, Police Answer to No One” The Globe and Mail
(23 June 2010), online: The Globe and Mail http://www.theglobeandmail.com/news/world/g8-
g20/opinion/when-it-comes-to-summit-security-police-answer-to-no-one/article1613960/ .66
“Caught in the Act”
December 2010
Figure 32: June 26 - Demonstrator arrested near the fence. (Photo by Lefteris Pitarakis, AP)
167 After the ISU Public Affairs Communications Team was alerted to the Act’s
existence, it also conferred with Toronto Police officials about communications
strategy. In an email at 4:19 p.m., a member of the team noted:
I spoke to TPS and the Chief is very… very clear that they will not be
speaking to that PWP Act nor will any of our media officers. Thus far no
calls so no “pressure.”
168 By 5 p.m. that day, the Law Union’s Movement Defence Committee had issued an
urgent warning on its website, summarizing the Act for protesters. A while later,
the Canadian Civil Liberties Association posted similar advice. The Ministry
picked up on this Internet communication, and braced for the inevitable media
calls. The first inquiry about the regulation was received around 8 p.m. that
evening from a reporter based at Queen’s Park. 67
“Caught in the Act”
December 2010
169 A couple of hours later, a member of the ISU’s Public Affairs Communications
Team predicted that the “issue” of officers using a “specially granted regulation” to
“challenge people for ID, etc.” would “gather steam,” and suggested to the Toronto
Police Service that it “would be a good idea to brief officers on the sensitivity” of
this “emerging issue.”
170 Before the night had ended, media reports were circulating about the Public Works
Protection Act and the G20 regulation. By Friday morning, the Ministry was
receiving inquiries from reporters as well as members of the public about the
“sweeping police powers” and the “secret law” operating in the security zone.
Going South at the Summit
171 In the face of media interest in the regulation, the Ministry continued to abide by its
reactive strategy, responding to reporters one at a time.
172 While some Ministry documents refer to Regulation 233/10 as giving the Toronto
Police Service “additional legal authority” to enforce security in the interdiction
zone, the Ministry downplayed the effect of the designation in its communications
with the media. The Ministry emphasized to reporters that the regulation was
passed in response to an extraordinary request by the Chief, didn’t create additional
powers for police, but simply defined property, and that the powers only applied to
those trying to cross the perimeter and enter the designated zone. The Ministry also
clarified that the regulation was not a “secret law,” but enacted in the same way as
other government regulations.
173 That Friday morning, the Ministry believed that it was on top of the media
situation, only to have things shift when the Chief held his press conference at 11
a.m. There, the Chief remarked that “the five-metre zone around the fence is for
the protection of the security barrier.” This in turn led the media to understand and
mistakenly report that the security zone extended five metres out from the
perimeter fence. 68
“Caught in the Act”
December 2010
Figure 33: June 25 - Toronto Police Chief William Blair speaks with reporters.
(Photo by Robyn Doolittle, Toronto Star)
174 The Chief’s comment caught the Ministry by surprise. The Commissioner of
Community Safety told us that the “last thing” the Ministry had wanted was for
Regulation 233/10 to be applied “beyond the fence.” He said he called the Chief to
find out what was going on. By the time they connected, the Chief was already
aware of his blunder and assured the Commissioner that he was taking steps to
ensure his officers were properly informed about the scope of the Public Works
Protection Act. The Commissioner told our investigators that he was left with the
impression after this call that the Chief would correct the misstatement publicly.
175 By Friday afternoon, some Ministry officials believed it was time to change
direction and issue a clarification of the regulation in order to set the record
straight. Communications staff drafted a press release, including the following
information:
The G20 is an unprecedented event for Toronto, and has brought unique
circumstances and challenges for the Toronto Police Service. In making
the regulation, the Ontario government responded to a request from
Toronto Police Service to designate the security zone a public work under
the Act.
The temporary regulation, which expires on June 28, only applies to
individuals wishing to enter the security zone. It does not authorize police
officers to require individuals to submit to searches on roads and
sidewalks outside the zone. 69
“Caught in the Act”
December 2010
176 The draft also contained this quote from the Minister:
This regulation is in place to ensure that the police have clear, legal
authority to undertake certain security measures to keep the community
safe and maintain public order. Authorization is limited and applies only
to those seeking to enter the security zone.
177 The Ministry was careful in drafting the release to avoid drawing attention to the
fact that the Act was “a war measures piece of legislation” and to keep it at a “high
level.” Later that day, Ministry officials began redrafting the press release as a
Minister’s Statement, and using the information in the statement to field media
inquiries. By the end of the day, the Ministry had decided to scrap the idea of
going public altogether. As one official explained it to our Office, the Ministry
believed that it had contained the situation. It had only received one media call
asking specifically about the five-metre rule, the news cycle appeared to have
finished, and the Ministry believed it had “fixed” things through its individual
media responses.
178 Friday, June 25 was also the same day that the Canadian Civil Liberties
Association and other applicants were partially successful through their court
application in obtaining restrictions on the Toronto Police Service’s use of longrange acoustic devices.
35
While buoyed by this result, the CCLA was deeply
concerned about the passage and effect of Regulation 233/10. The organization
wrote to the Minister that day seeking clarification of the Ministry’s intentions and
expressing alarm that:
… the public was not in any way put on notice that the Public Works
Protection Act would be used as legal authority to detain, question, search
and arrest individuals on public streets and sidewalks.
179 In its letter to the Minister, the CCLA noted that “the powers granted by the
legislation significantly depart from common understandings of what individuals’
constitutionally guaranteed rights are on a public street or sidewalk,” and was
highly critical of the lack of consultation and general secrecy surrounding the
passing of Regulation 233/10:
Secretly drafting and passing regulations that substantially erode
democratic rights, and then enforcing these new laws without giving the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
35
Canadian Civil Liberties Association v. Toronto (City) Police Service, [2010] O.J. No. 2715, 2010
ONSC 3525; supplemental reasons at [2010] O.J. No. 2716, 2010 ONSC 3698 (Ont. Sup. Ct.) (QL).70
“Caught in the Act”
December 2010
public or legal community any warning, circumvents democratic
accountability and puts innocent individuals at risk of criminal arrest and
conviction.
It is quite clear that the government has taken steps to significantly
decrease individuals’ legal rights on public property in a manner that is
quite divergent with common understandings of civil liberties. The failure
to cite this novel and highly controversial legal authority, or to clarify the
government’s position regarding legal limits on individuals’ constitutional
rights is unprecedented. We urge you to investigate this matter. In our
view, Torontonians have been misled.
180 While the Toronto Police Service had stressed that it did not want the ISU speaking
publicly about the Act, ISU’s communications team had also been caught off guard
by news of its existence, and were left scrambling to prepare for potential inquiries.
Recognizing the constitutional issues that this regulation posed, on Friday, June 25,
a federal government lawyer recommended that the ISU adopt media lines that
would pass the buck on questions about the constitutional validity of the regulation
to the province. Those draft questions and answers for media responses read: “Q:
Do you think use of this regulation by the TPS is constitutional? A: You may wish
to address this question to the Government of Ontario….” The federal proposal
embarrassed Ontario officials. After reviewing the draft media lines late that night,
a Ministry counsel wrote in an email, “I don’t think this kind of messaging created
by federal lawyers helps Ontario in the least.” In the end, the ISU media lines
finalized on Saturday, June 26 simply said: “Q: Do you think use of this regulation
by the TPS is constitutional? A: Those kinds of questions are ultimately settled by
the courts….”
181 There was still no public clarification by the Chief on Saturday, June 26. In
addition, despite the ongoing efforts of Ministry officials to explain the scope of the
regulation to individual journalists, the media continued to mistakenly refer to the
“five-metre rule.” The Ministry’s monitoring of social media also disclosed that
people were being stopped and searched by police under the Public Works
Protection Act well outside of the security zone. 71
“Caught in the Act”
December 2010
Figure 34: June 26 - Stack of newspapers from June 25 with headline “Sweeping police powers
demanded by Blair.” (Photo by Alfred Ng)
182 While the Chief did not make any public announcement to correct his earlier
comments about the “five-metre rule,” he did provide the Ministry with evidence
that it had been clarified for Toronto Police officers. Around 11 a.m. Saturday
morning, the Chief provided the Commissioner with a copy of an email containing
advice from the Chief’s legal counsel that the Act “does NOT extend outside the
fence,” as well as a document containing revised instructions being given to
officers with respect to the Act. The instructions summarized the Act and the
regulation and detailed where the powers under the Act could be exercised:
The PWPA and the Regulation do not confer authority on a police officer
to compel people to identify themselves, be searched and be exposed to
arrest for failing to comply other than in situations where a person is
entering or trying to enter the designated area. The area designated by
the Regulation as a public work does not extend outside the boundary of
the fence.
In general, this covers an attack on the fence line. 72
“Caught in the Act”
December 2010
183 The instructions also stated:
With respect to search provisions, as always, officers must be able to
articulate their reasons for carrying out the search such as observations or
description of circumstances that lead the officer to believe the person
may pose a threat to the public work. As in any case, the search must be
authorized by law, the law must be reasonable and the manner in which
the search is carried out is reasonable.
184 The instructions ended with a list of “reasons for utilizing the Act and obtaining a
designation for the IZ [interdiction zone] and fence.” This section referenced the
fact that police have always had authority under the Act to protect public works,
while at the same time emphasizing that the authority was only to be exercised in
the interdiction zone for the purpose of ensuring the safety and security of
individuals lawfully within the zone as well as to secure the fence. The list also
included reference to public messages about threats to “tear down the fence,” and
indicated that the intention of the regulation was not to limit peaceful protest near
the perimeter.
185 It is not clear how or when these amended instructions were transmitted to frontline
officers. Police obviously received some training on the Public Works Protection
Act prior to the summit, since the Act had been cited as a basis for searches in the
days leading up to it. The information we obtained during our investigation also
indicates that some officers continued to apply the Act well beyond the security
perimeter even after the scope of Regulation 233/10 had been clarified.
186 By the afternoon of June 26, the controversy over Regulation 233/10 and the “fivemetre rule” had taken a back seat to the furor incited by the “black bloc” rampage
and the mass arrests and detentions. It wasn’t until June 29, after the summit had
ended and the public works designation had expired, that the Chief acknowledged
that the “five-metre rule” had never existed. At that point, the story of the day was
that the police had deliberately misrepresented the boundary of the designated
public works to, in the Chief’s words, “keep the criminals out.” 73
“Caught in the Act”
December 2010
Figure 35: June 25 - Masked protesters prepare to march on Carlton St.
(Photo by David King)
187 As the aftershocks of the G20 summit weekend subsided, the Ministry turned its
attention to damage control concerning its role in enabling the unprecedented use
of the Public Works Protection Act.
Tell Me No Secrets, I’ll Tell You No Lies
188 At his June 29 press conference, the Toronto Police Chief spoke forcefully in
defence of the security action undertaken during the summit. To deflect criticism
that the legal authorities used to police the security zone had been kept secret, he
stressed that the city had taken out advertisements in several languages and
distributed more than 1 million flyers explaining the authority applying during the
summit and what citizens could expect in the security zone.
189 The next day, the Minister of Community Safety and Correctional Services wrote
to two newspapers, similarly emphasizing that information about searches in the
security zone had been widely publicized through public notices, including
advertisements in local newspapers and on the City of Toronto’s G20 website. In
the days following the summit, the government continued to refer to these
advertisements and website notices to support its position that information about
the impact of the regulation had been publicly available in advance of the summit.
During our investigation, the Commissioner of Community Safety also indicated 74
“Caught in the Act”
December 2010
that the Ministry thought the effect of the regulation had been clearly articulated
through handouts, leaflets and websites.
190 One of the primary sources for local information about the G20 summit was the
City of Toronto. City officials had indeed engaged in extensive public outreach in
advance of the Summit.
191 On May 31, 2010, the City of Toronto commenced delivery of 1 million copies of
the summer issue of the its publication Our Toronto, containing an article entitled
“What to expect during the G20 – June 26 & 27, 2010.” The article discussed the
security zones and traffic and public transportation relevant to the summit. At the
time, it was anticipated that increased security would not affect movement in the
security zone until Friday evening, and the article noted:
The Toronto Police Service hopes that members of the public will be able
to move freely throughout the fenced perimeter until the evening of
Friday, June 25.
192 The city also distributed some 10,000 flyers to residents in the affected area. These
contained general information about security for the summit and expected effects
on traffic.
193 Neither the article nor the flyers mentioned the Public Works Protection Act,
Regulation 233/10 or the possibility that citizens might be required to identify
themselves and submit to searches if they wished to enter the security zone from
June 21 through June 27. City officials told our investigators that the information
in the article and the flyers had come from or been approved by the ISU, and that
the city had been completely unaware in preparing these documents that the Chief
of Police had requested a designation under the Public Works Protection Act.
194 The city had also prepared advertisements about the G20 summit for local
newspapers in consultation with the ISU. City officials advised us that on June 13,
the Toronto Police Service contacted city communications staff and asked that the
following information be inserted into their G20 advertisements:
…based on the discretion of the officer and the circumstances presented,
anyone requesting access to the security perimeter may be subject to
search. Vehicles will be subject to an external search using a mirror to
access the undercarriage and trunks will be searched. These searches are
being done for security purposes, to assist police with providing a safe
environment for the summit.75
“Caught in the Act”
December 2010
195 Apparently, no explanation was given as to why the police felt this additional
information was necessary, and at that point, it was too late to change the
advertisement, which had already been finalized and distributed for release. The
original version of the advertisement, which did not mention searches, ran from
June 16 to June 25 in the ethnic press in 11 different languages. It also appeared in
the Toronto Star and Toronto Sun on June 16 and in Metroland community papers
on June 17.
196 A revised advertisement including the additional wording proposed by the Toronto
Police appeared for the first time on June 19 in the Toronto Star. It later ran in both
the Toronto Star and Toronto Sun on June 21, and again in the Toronto Star on
June 26 and 27. The amended version of the advertisement only appeared in
English. Similar information was posted on the City of Toronto’s website.
197 As noted previously, the ISU’s website, which contained information for
demonstrators about the G20 summit, did not refer to the Public Works Protection
Act, Regulation 233/10 or set out the police powers conferred by the Act.
However, at some point, the ISU site was updated to provide a link to the City of
Toronto’s revised advertisement. The Toronto Police Service website did not
contain any information on the Act or Regulation 233/10.
198 By the evening of Saturday, June 26, the Ministry was desperately seeking to
defend its actions in relation to Regulation 233/10 and searching for evidence that
the public had been notified about the increased security measures at the summit.
To this end, a teleconference with city officials was scheduled for the next day.
The discussion that took place on June 27 appears to have been rather heated. As
one witness described it, city officials made it clear that they had no knowledge of
Regulation 233/10 at the time the advertising was done, and that it would be
“disingenuous” to suggest that the advertisements were intended to give “any kind
of notification” about it. This version of events is supported by an email sent later
that day to the Ministry by a city official who had participated in the meeting, in
which he stated:
the City’s communications related to the G20 were designed to augment
and supplement the lead communication role of the RCMP-led ISU
communications group … the communications staff that worked on G20
… learned of the regulation when it was reported in the media. Therefore,
no link in any manner – either direct or indirect – should [be made]
between the regulations and the City’s advertisement or communications
… none of the City’s communications should be characterized as having
served as “notice” or “notification” of the regulation… we do not see how
pointing out the City’s public communications in a discussion of the Act 76
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or regulations serves the objective of explaining the existing powers in the
Act or the new regulation.
199 The revised advertisement referred to the possibility that people might be searched
when accessing the security perimeter. Given that the advertisement was received
two days before the Chief received formal confirmation that the regulation had
passed, it is impossible to take seriously any suggestion that it was intended to give
notice of Regulation 233/10 or the provisions of the Public Works Protection Act.
Aside from making no reference to the Act or regulation, the information about the
scope of the police powers under the Act is also too incomplete to serve that
purpose. There is no information about the identification requirement, nor is there
reference to the possibility that individuals could not only be turned away but
actually arrested for merely declining to provide identification or to submit to a
search. Nor is there information about the time frame during which the increased
security measures would apply.
200 In the days after the summit, Ministry communications staff continued to respond
defensively to media inquiries. In one case, an official advised a reporter –
inaccurately: “Our regulation did not give police one iota of extra power that they
did not have prior to the regulation.” In another, a government spokesperson
advised that the application of the regulation by police over the weekend was
operational in nature, and the Ministry could not interfere in operational decisions,
and also stressed that “the language of the regulation is very clear.” In contrast, the
same official acknowledged that the regulation was “confusing,” but dismissed its
significance, advising incorrectly that there had never been any arrests under the
Public Works Protection Act.
36
201 The mantra that Regulation 233/10 did not provide police with any new
powers or broad authority and that it was passed in the same manner as all
other Ontario regulations was frequently repeated by Ministry staff, and
quoted by the Premier’s office in responding to various inquiries and
complaints.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
36
The Ministry later determined that there had been two arrests under the Act.77
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December 2010
Figure 36: June 27 - Protester arrested at Queen St. and Spadina Ave.
(Photo by Rob Kittredge)
202 The Ministry also rejected any suggestion that it should reconsider the use
of the Public Works Protection Act. An internal Ministry communication
on June 29 stressed:
If pressed about calls for a legislative review… we have no plans at this
time to open up the Act…. a regulation is NOT a legislative amendment or
a public process.
203 As outrage over the events relating to the G20 summit continued, serving as fodder
for media stories and protests, the Integrated Security Unit partners also considered
how they should respond. While it appears there was some discussion amongst the 78
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December 2010
members of the ISU steering committee about holding a joint press conference to
address issues arising from the summit, the communication breakdown around
Regulation 233/10 was one of a number of issues that prevented the ISU partners
from presenting a united public front. A July 1 OPP internal email recounted a
discussion between OPP and RCMP officials concerning the proposed press
conference, in which it was agreed that it would not be a good idea to participate.
The author of the email offered a number of reasons:
TPS has made many public mistakes over the last 72 hours…
They have been caught misrepresenting the weapons they displayed at the
press conference. Not G20-related.
They have misrepresented who initiated the PWPA. Blaming the ISU
when it was clearly a TPS request.
The TPS member of the steering committee was not present during critical
periods.
If a joint press conference were to be held, the questions would be very
direct and we would either be forced to contradict TPS in front of the
media or by silence tacitly endorse what they say.
The public has largely supported police security operations for G20. What
is not supported is the actions by TPS and the inconsistencies of answers
they continue to provide…
204 While initially the Ministry maintained its self-protective stance, new
insight was achieved in the face of continuing public pressure. On July 2,
the Premier expressed regret for the confusion that the regulation had
created and acknowledged that the government should have done a better
job in clarifying it after it was mischaracterized.
37
205 By July 7, the Minister too had acknowledged that the Ministry could have been
more aggressive in getting the message out after the Chief misspoke about the
“five-metre rule.” He reflected in hindsight:
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
37 Maria Babbage, “Dalton McGuinty admits he could have done better but offers no apology for G20
confusion” The Toronto Star (2 July 2010), online: The Toronto Star
http://www.thestar.com/news/gta/torontog20summit/article/831570--dalton-mcguinty-admits-he-couldhave-done-better-but-offers-no-apology-for-g20-confusion .79
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There’s absolutely no doubt that there was that lack of clarity, and had we
put out a statement immediately, we probably would have been able to
handle this a little bit better.
38
206 In his July 29 response to the Canadian Civil Liberties Association’s June 25 letter
concerning Regulation 233/10, the Minister emphasized that the regulation was
intended to provide greater legal certainty regarding the authority of the police to
take certain measures to help with respect to the security zone. However, he
acknowledged that “in hindsight, it could have been better communicated.”
207 On September 2, the Toronto Police Chief also publicly recognized that he should
have taken steps sooner to stop the mass arrests on June 26.
39
208 As civil rights groups continued to rail against the conduct of law enforcement
officials during the summit, including the use of Regulation 233/10; as a surfeit of
complaints were filed and lawsuits were commenced; and as lawyers and
academics waded in to question the constitutionality of the Public Works
Protection Act, the Ministry reconsidered the advisability of continuing to stand
behind the ancient war measures legislation. By September 22, the Ministry
retreated from its uncompromising support for the Act. On that day, the
government announced that the Public Works Protection Act would be subject to a
review, this time in consultation with lawyers, police, civil liberties groups and
other stakeholders. The newly minted Minister of Community Safety and
Correctional Services remarked:
40
We need to make sure our laws reflect the security concerns and values of
our society today.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
38
“No more G20 Summits in Toronto: McGuinty” Canadian Press (7 July 2010), online: CBC News
http://www.cbc.ca/politics/story/2010/07/07/g20-mcguinty.html#ixzz0t61X0yvR .
39
Kate Allen “Police made mistakes in G20 tactics, Chief admits for first time” The Globe and Mail (3
September 2010), online: The Globe and Mail
http://www.theglobeandmail.com/news/national/toronto/police-made-mistakes-in-g20-tactics-chief-admitsfor-first-time/article1694815/.
40
The former Minister was transferred to the post of Minister of Municipal Affairs and Housing effective
August 18, 2010.80
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December 2010
Figure 37: July 10 -Demonstration at University Ave. and College St. (Photo by Jackman Chiu)
209 While some Ministry officials have acknowledged in retrospect that they should
have issued a statement of some kind when things “spun out of control,” it is
disturbing that they also appear to have been somewhat baffled by the “fuss” that
Regulation 233/10 generated. As the former Deputy Minister observed on June 28:
I think this has become an issue unexpectedly. Who would have thought a
70-[year]-old piece of legislation would create such a stir.
210 A review of Ministry emails rehashing events in the days after the summit suggests
that insiders were initially prepared to deflect responsibility for the Regulation
233/10 fiasco. Those emails focus much of the blame for criticism of the Ministry
on the Chief’s public relations gaffe, and on “an inattentive media” which had
failed to notice the regulation on e-Laws and continued to report inaccurately on
the “five-metre rule” even after it was clarified by the Ministry. Ministry officials
did not appear to have been prepared to shoulder any blame for promoting the use
of the Act during the summit or for the unwise consultation and communications
strategy adopted in relation to Regulation 233/10.
211 The Ministry’s more recent change of heart concerning review of the Act suggests
that sober second thought may have led to the realization that assisting the Toronto 81
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Police Service through resorting to martial law might not have been the wisest
course of action.
Questionable Power
212 It is not surprising that Ontario is the only province to have war measures
legislation remaining on the books. The powers conferred on peace officers by the
Public Works Protection Act are stunning in their compass and are worth reviewing
here. Under the Act, when a building or place qualifies as a public work, police
may require anyone attempting to enter to identify themselves and to explain why
they need entry, “in writing or otherwise.” They may also search such persons and
their vehicles without warrant and refuse permission to enter, as well as use force to
achieve this. Most significantly, those who neglect or refuse to comply with a
demand or direction made by a peace officer for information, or who neglect or
refuse to submit to a demand that they be searched, commit an offence and are
liable not only to a fine of $500 but to imprisonment of up to two months. In this
era of the Charter, these provisions appear sorely out of place. Ontarians are
ordinarily free to enter public spaces and buildings and to walk the streets.
213 Not surprisingly, after the events of June 2010, many have raised serious and valid
questions about the constitutionality of the Public Works Protection Act in
connection with public works other than prominent buildings, and specifically in
relation to the manner that it was employed at the G20 summit. Indeed, the OPP in
rejecting use of the Act during the G8 summit, opined that “it would not likely
stand up to a constitutional challenge,” and at least one federal lawyer advising the
Integrated Security Unit appeared eager to leave it to the Ministry to provide
constitutional justifications for employing it during the G20 summit.
214 I cannot ignore these concerns. There are serious questions that arise about the
legality of the regulation that are central to the reasonableness of the decision to
enact it. I appreciate that I am not a judge and that it is uncommon for the Ontario
Ombudsman to be offering conclusions about what the law requires, but in addition
to determining whether the conduct I investigate is “unreasonable, unjust or
oppressive,” I am required by the Ombudsman Act to form an opinion as to whether
that conduct appears to be “contrary to law” or whether it is “in accordance with
the provision of any Act that is or may be unreasonable, unjust, oppressive, or
improperly discriminatory.” In discharging my mandate in this investigation, I am
therefore required to offer my opinion to the Ministry and the government of
Ontario not only about the reasonableness of the measures taken, but also about
their apparent legality. 82
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December 2010
215 The place to begin is with the obvious constitutional questions. I will then explore
the more basic question of whether the statutory authority to enact this regulation
even existed.
Don’t Fence Me In
216 The Public Works Protection Act was subject to an unsuccessful Charter challenge
in the case of R. v. Campanella.
41
Ms. Campanella questioned the constitutional
validity of the search and seizure powers contained in section 3(b), specifically in
the context of a courthouse search that was conducted at the John Sopinka
Courthouse in Hamilton. Visitors to that courthouse are required to subject
themselves to a weapons search. They must pass through metal detectors and have
their bags inspected. When Ms. Campanella’s bag was searched, marijuana was
found. She argued at her drug possession trial that the search was unconstitutional
and that the discovery of the marijuana should therefore be thrown out.
217 Under Charter authority, a search is unconstitutional unless it is authorized by law.
The search of Ms. Campanella met this requirement because the John Sopinka
Courthouse is a provincial building that falls within the definition of a “public
work” under the Public Works Protection Act. As a result, “guards” and other
peace officers are authorized by law, specifically by section 3(b) of the Act, to
conduct warrantless searches of those who are attempting to enter. This finding did
not entirely resolve the issue, however. Even a legal search will be unconstitutional
if the law authorizing that search is unreasonable. This is what Ms. Campanella
focused on. She argued that it is unreasonable for the statute to permit warrantless
random searches at a courthouse door. The Ontario Court of Appeal disagreed.
The court cited the history of violence and threats experienced by justice system
participants, including in courthouses, and held that it was reasonable to counter
such threats by permitting those attempting to enter a courthouse to be searched
randomly for weapons without warrant.
218 As important as the decision in R. v Campanella is, the case does not determine the
constitutional validity of all of the provisions of the Public Works Protection Act
for all purposes. Campanella had to do solely with whether section 3(b) of the
statute contravened the constitutional right to be free from unreasonable search and
seizure. The court’s decision emphasized that the constitutional reasonableness of
searches varies with context, and the case dealt only with courthouse searches for
weapons where there was evidence-based concern for public safety, the security
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
41
R. v. Campanella, supra note 18.83
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December 2010
screening process was readily apparent, those choosing to leave rather than undergo
screening were free to do so and all those without prior security clearance were
equally required to submit to a search. More importantly, the case has nothing to
do with other kinds of constitutional challenges, such as freedom of expression
challenges.
219 What is directly at issue here is the constitutional validity of Regulation 233/10.
Regardless of the constitutional validity of the statute under which it was passed, if
the purpose or effect of Regulation 233/10 was to contravene one of the rights or
freedoms guaranteed by the Charter, it would be unconstitutional unless it can be
defended by the government of Ontario as a justifiable limitation on the relevant
Charter right or freedom.
Figure 38: June 26 - Police at the fence near King St. West and University Ave.
(Photo by George Tulcsik)
220 It is section 2(b) of the Charter, the “freedom of expression,” that was implicated
by the passage of Regulation 233/10. The concept of “freedom of expression” is
widely conceived under the Charter. Any attempt to communicate information
other than by violence is protected.
42
This aggressive constitutional freedom was
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
42
Irwin Toy Ltd. v Quebec (Attorney General), [1989] 1 S.C.R. 927 at para. 42.84
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December 2010
entrenched in the Charter to promote democracy and good governance by opening
channels of communication on matters of government policy, including through
protest. The right to protest is so important that the Supreme Court of Canada has
recognized that not only is expressive activity protected, “so too is the right to such
activity in certain public locations,”
43
including the streets of our communities.
44
Regulation 233/10 was passed to regulate protest and therefore implicated the
freedom of expression guaranteed in section 2(b) of the Charter. Did it infringe or
deny that freedom, either in its purpose or in its effect?
221 There is no fair basis for suggesting that the Ministry’s purpose in recommending
the passage of Regulation 233/10 was to infringe or deny freedom of expression.
The Ministry’s stated purpose in promoting the regulation was to assist the Toronto
Police Service in having clear and consistent authority for maintaining the security
perimeter. More fundamentally, the regulation had the laudable purpose of
protecting participants from harm either from terrorist enemies or from protesters.
As indicated, violence or the threat of violence by anyone, terrorist or protester, is
not a protected form of free speech.
45
222 Still, Regulation 233/10 did have the effect of limiting enjoyment of the
constitutional right of freedom of expression, even though the Toronto Police
Service has asserted that in requesting that the Ministry assist it in obtaining
Regulation 233/10, it had no intention of limiting peaceful protest near the security
perimeter.
223 The whole point in protecting freedom of expression is to permit messages to be
communicated. By creating a security perimeter that separated protesters from
participants, the ability of protesters to communicate directly with those they
wished to influence was infringed, if not denied. The constitutional freedom of
expression also protects the right to communicate in public places where one would
expect the constitutional protection of free speech, such as public streets.
Regulation 233/10 denied protesters access to public streets where democratic
discourse would ordinarily be expected and permitted. On the test provided for by
the Supreme Court of Canada, Regulation 233/10 therefore infringed upon freedom
of expression and would have been constitutionally invalid unless the government
of Ontario was able to demonstrate that it was a justifiable limitation on that
freedom.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
43
Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia
Component, [2009] 2 S.C.R. 295 at para. 27.
44
Montreal (City) v 2952-1366 Quebec Inc., [2005] S.C.J. No. 63 (QL).
45
Supra note 42 at para. 42.85
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December 2010
224 In order to be justifiable, Regulation 233/10 would have to have satisfied the multifaceted test established by the Supreme Court of Canada in R. v Oakes.
46
That is, it
must have been (1) prescribed by law, (2) enacted for a pressing and substantial
concern, and (3) it must pass a three-part proportionality test.
225 Standard (1), the prescribed by law test, is obviously satisfied. A regulation is, by
definition, a “law.” The limits imposed by Regulation 233/10 on freedom of
expression were therefore “prescribed by law.”
226 It is equally certain that standard (2) was met. The interests pursued by Regulation
233/10, including the security of participants at the G20 summit, were pressing and
substantial. There has been an established history of violence and threats of
violence at similar summits internationally and in Canada, making it imperative
that participants be protected.
227 The key issue is whether the security perimeter that was established and the police
powers triggered by Regulation 233/10 could pass the three-part test of
proportionality. The first part of this test is obviously satisfied. In order to meet
this requirement, the decision to erect a security perimeter for controlling access
must be a rational way of protecting the security of the participants. As
demonstrated by the R. v. Knowlton
47
decision, which used common law police
powers to permit a security perimeter to be established – and as supported by
common sense – controlling physical access to at-risk individuals is an important
means of ensuring protection. Giving police officers extensive powers of search,
detention and arrest may be controversial but it is not pointless. There is a rational
connection between the goal and the strategy.
228 The second distinct proportionality standard requires that the law in question must
be “minimally impairing.” The idea is that where it is necessary to limit a
constitutional right, the right should be limited only as far as necessary to achieve
the relevant goal, which must be pressing and substantial. The pertinent questions,
as I see them, are whether the nature of the barrier was more intrusive than it
needed to be, and whether it was necessary to give police the extensive powers
conferred by the Public Works Protection Act in order to ensure the security of
participants.
229 On the first question, the barrier was transparent, permitting protesters and
participants who were in physical proximity to it to see each other. It would be
difficult to focus on the design of the fence in arguing disproportion. It is also
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46
R. v. Oakes, [1986] 1 S.C.R. 103.
47
Supra note 23.86
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December 2010
possible that a court would defer to the judgment of security officials on the issue
of whether the security zone was larger than required. It is likely that the actual
perimeter supported by Regulation 233/10 would be found to be minimally
impairing.
Figure 39: June 8 - The fence along Lower Simcoe St. near Bremner Blvd.
(Photo by Tomasz Bugajski)
230 The second question is the problematic one. Was it really necessary to confer the
police powers created by the Public Works Protection Act, exercisable in the
protest context, in order to protect G20 participants? I have serious reservations
about this. Security could have been provided by enabling peace officers to deny
entry to individuals for security reasons and to search those who were entering for
weapons. Yet section 3(c) empowered peace officers to “refuse permission to any
person to enter a public work” and imposed no express limits on why access could
be refused. This is unlike the Federal Foreign Missions and International
Organizations Act, which empowers the RCMP to deny entry “for the purpose of
carrying out its responsibilities under subsection (1)” which is described as “to
ensure the security for the proper functioning of any intergovernmental
conference.” The powers to deny entry conferred by the Public Works Protection
Act therefore seem to go farther than required because there are no criteria limiting
the discretionary power of the peace officers. Unless a court is prepared to hold
that it is implicit in the statute that the power to exclude must be exercised solely
for security purposes, the authority contained in clause 3(c) would likely be 87
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constitutionally overbroad and incapable of supporting a justifiable limit on
freedom of expression.
231 The most significant challenge in attempting to justify Regulation 233/10 in the
face of a freedom of expression challenge, however, arises from the combined
effect of sections 3 and 5 of the Public Works Protection Act, which Regulation
233/10 triggers. Those provisions empower peace officers to arrest protesters who
refuse or neglect to answer questions when trying to enter either a “public work” or
its “approaches.” Surely it would be enough in protecting participants to empower
peace officers to prevent the entry of such persons without arresting them. It
strikes me to be a disproportionate interference with the protesters’ freedoms to
permit their arrest for failing to give good reason for entering, when simply
denying them entry would be sufficient. This would leave them free to protest
outside of the fenced area instead of languishing in a lockup. I therefore have
serious doubts about whether this essential part of the Oakes test could be met.
232 The third proportionality inquiry asks whether the overall benefits of a law
outweigh its negative effects. The question would be whether the security gains to
be made by Regulation 233/10 are valuable enough to outweigh the costs of
limiting access by protesters in the way that it did. There is no precise measure for
making that decision. It is worth noting, however, that the Ministry was of the
view that the regulation was unnecessary, as the Toronto Police would have
continued with the security perimeter pursuant to other lawful authority. It is
therefore difficult to imagine that Regulation 233/10 had the kind of value needed
to pass this constitutional threshold.
233 Ultimately, I have real reservations about the constitutional compatibility of
Regulation 233/10 with the demands of freedom of expression. The problem is not
that Regulation 233/10 supported a security perimeter. That would have been fine
had that been its only role. The problem rests in the excessive police powers that
passing the regulation triggered. Had Regulation 233/10 been challenged under the
Charter, there are serious questions about whether it would have passed
constitutional muster.
Putting Square Fence Posts in Round Holes
234 The Public Works Protection Act clearly provides for designation of “a building,
place or work” as a public work (s.1). While it does not specify that this
designation must be accomplished through regulation, the Act does confer authority
to pass regulations “respecting any matter necessary to carry out the intent and 88
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purpose of the Act.” (s.6(c)).
48
In order to be legally authorized and valid,
Regulation 233/10 had to be passed to support the “intent and purpose of the
[Public Works Protection Act.]” There is strong reason to believe it was not.
Simply put, the intent and purpose of the Public Works Protection Act is to protect
public infrastructure; Regulation 233/10 was not passed to secure places, it was
passed to protect persons, whether inside public works or not. Altogether apart
from its Charter problems, Regulation 233/10 was therefore probably illegal.
There was no authority under the Public Works Protection Act to pass it.
235 The ill fit between purposes seems clear. The historical context of the Public
Works Protection Act and the comments of the then Lieutenant Governor make it
evident that the “intent and purpose” of the Public Works Protection Act was to
guard government infrastructure from sabotage. This is equally apparent from the
terms of the statute itself. The things described expressly as “public works” in the
statute are mainly buildings or public utilities that could be destroyed. Moreover,
the statute allows for the appointment of guards to fulfill the objects of the statute;
section 2(1), which permits their appointment, is explicit that those guards are to be
appointed “for the purpose of protecting a public work.”
236 For its part, it is equally obvious that Regulation 233/10 was not passed to guard
government infrastructure from sabotage and was aimed at the security of
dignitaries. Consider the fact that three discrete strips of land were designated to be
“public works.” This was done solely to complete the barrier between outsiders
and G20 meeting participants. These three “places” had no inherent “public”
character and there was clearly no intention to protect them in their own right.
They were not susceptible to sabotage. They were included in Regulation 233/10
solely for the purpose of controlling entry to a secured area. This was done to
protect the people inside. Some of the buildings fenced in by the zone were public
works, but many were not. None of the government buildings that were inside the
perimeter were special in any way. Nor were those government buildings inside
the perimeter any more susceptible to sabotage than the public works left outside
the protected zone. Indeed, the orgy of property destruction on Saturday, June 26
suggests that public works immediately outside the zone were as at risk. Quite
clearly, Regulation 233/10 was enacted in order to assure legal authority to the
police for the erection of a security perimeter at the G20 summit to protect summit
attendees. The context of its passage shows this to be so.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
48
Other authority is provided in subsections 6(a) and (b) for passing regulations under the Act. Neither
pertain here. Subsection 6(a) refers to regulations concerning guards. Subsection 6(b) permits
“approaches” to public works to be defined; Regulation 233/10 does not define approaches to public works;
it purports to designate the public works themselves.89
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237 Even the Ministry’s stated purpose in promoting the use of the Public Works
Protection Act through Regulation 233/10 was to protect people, specifically
visiting dignitaries. The Public Works Protection Act authorized regulations to
protect buildings and places; Regulation 233/10 was passed for the unauthorized
purpose of protecting persons. The reasonable conclusion is that the regulation was
not therefore properly authorized by the legislation.
238 I need to be clear here. I am not saying that the protection of public works under
the Public Works Protection Act cannot be undertaken for the incidental or
ancillary purpose of protecting those inside the public works from injury from
misadventure. In this case, however, the impetus was not about places or
infrastructure with the incidental protection of those inside. Rather, the impetus
was the protection of individuals, with any public works that happened to be
protected in the process being incidental. Designating places as protected public
works was not an end in itself; it was a means to an entirely different end.
239 I am also mindful of the fact that in R. v. Campanella, the Ontario Court of Appeal
recognized a role for the Public Works Protection Act in securing courthouses to
prevent violence to occupants. That case did not involve a designation by
regulation and so did not raise the issue of whether a regulation advanced the
statute’s “purpose and intent.” More importantly, the issue of the purpose and
intent of the enactment was not litigated; its application was assumed without
analysis, as the sole challenge was to the reasonableness of the compulsory
searches that were occurring.
240 Accordingly, I believe that in this case, a statute intended for one purpose was used
for another, and powers conferred for one purpose were co-opted for an
unauthorized one. The regulation-making power created by the statute was
therefore exceeded. As a result, it is likely that Regulation 233/10 was ultra vires
and the designation of gaps in the security perimeter and other works within the
perimeter as public works was illegitimate.
Setting Reasonable Boundaries
241 Given therefore my view that the regulation was likely unconstitutional, the
Ministry acted unreasonably when it agreed to the Toronto Police Chief’s request
to put forward a proposal for designation under the Act. I want to be clear that I
have no basis for concluding that this was done with knowledge of these legal
problems. Legitimate reliance by the Ministry on solicitor-client privilege prevents
me from exploring the legal advice the Minister received about the lawfulness of 90
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Regulation 233/10, and so I am left in the dark about what actually occurred.
Notwithstanding this, based on my analysis of the regulation, it is my opinion that
the Ministry’s decision to recommend the passage of Regulation 233/100 was
unreasonable.
242 It should have been obvious to Ministry officials that, even leaving aside the patent
problems of constitutional reach and questions about whether Regulation 233/10
was authorized by the Act, it was stretching the Public Works Protection Act
beyond its appropriate reach to use it in this way. The legislation was manifestly
passed to protect public works, not as a security vehicle for protecting visiting
dignitaries. It is an unhealthy practice to use legislation passed for one purpose to
achieve an entirely different purpose. Doing so diminishes the integrity of statutory
authority and has the potential to arrogate powers to the government that have
never been legislatively conferred. The decision to use this exceptional war
measures legislation was, in my view, opportunistic and inappropriate. In the
absence of proper legal authority in an area of Charter danger, if it was felt
necessary to provide legislative support for the security plan, it would have been far
better for the government to pass targeted legislation openly, with the issue of what
police powers should follow being exposed to public debate.
243 The Standing Committee on Regulations and Private Bills is charged with the duty
to review all regulations enacted, with particular attention to their scope and the
method of exercise of legislative power.
49
The guidelines established for this
review stress that regulations should be in strict accordance with the statute
conferring the power, particularly concerning personal liberties, expressed in
precise and unambiguous language and should not impose a fine, imprisonment or
other penalty.
50
In recommending Regulation 233/10, the Ministry should have
realized that this regulation was on, if not over, the edge of the permissible
boundaries for the exercise of delegated legislative authority.
244 More importantly, by recommending the passage of Regulation 233/10, the
Ministry endorsed the use by peace officers of extravagant powers that they did not
require in order to provide security for G20 summit participants. It was unwise of
the Ministry to decide to encourage arming police officers with the exceptional
powers of the Public Works Protection Act in the predictably incendiary
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49
Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, s. 33.
50
Ontario, Legislative Assembly, Standing Orders of the Legislative Assembly of Ontario (Ontario: Clerk
of the Legislative Assembly, January 2009), ss. 108(13)(i) and (ii), online: Legislative Assembly of Ontario
http://www.ontla.on.ca/web/go2.jsp?Page=/house-proceedings/supportingcontent/files/standing_orders&menuitem=dandp_proceedings&locale=en .91
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atmosphere of an international summit because of insecurity about the legal
authority for the establishment of a security perimeter.
245 Not that it mitigates the problem, but there is reason to believe that Ministry
officials might not have fully appreciated the extensive police authority being
granted by the designation. They advised us that the decision to designate the
security area a “public work” was more of a “backstop,” as police already had
sufficient and similar powers and authorities under the Act and the common law.
In this context, designating three small areas of land as public works was perceived
as a minor technicality and the impact on stakeholders as “moderate.” In fact,
police did not have similar powers in common law. Under common law, they
could establish a security perimeter including over the three small areas of land
referred to in Regulation 233/10 and screen and search those who entered, but there
is no authority to arrest people who fail or refuse to answer, or who choose to walk
away rather than subject themselves to a search. Regulation 233/10 changed the
entire dynamic.
246 It is also important to recognize that some of the provisions of the Public Works
Protection Act triggered by Regulation 233/10 have questionable constitutional
validity. It was passed in the panicked atmosphere of war. Under the
circumstances, its constitutional foundation should have been carefully examined
before it was resorted to. Had this been done, it may well have been realized that
there are significant Charter problems with the statute.
247 Specifically, section 4 of the Public Works Protection Act provides that during a
prosecution:
… the statement under oath of an officer or employee of the government,
board, commission, municipal or other corporation or other person
owning, operating or having control of a public work, as to the boundaries
of the public work, is conclusive evidence thereof.
248 In other words, because of this provision no one is permitted to contradict the
testimony of an officer or employee about the boundaries of a public work, even if
that testimony is factually and demonstrably wrong. A provision like this, used in a
prosecution for any offence, is contrary to the presumption of innocence guaranteed
by section 11(d) of the Charter. Statutes that “presume” facts to be true have been
upheld in the face of Charter challenges, but only where those statutes permit the
presumed fact to be rebutted where it is inaccurate. This provision unquestionably
goes farther than it needs to and it is most unlikely that it would survive Charter
scrutiny.92
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249 More importantly, there is reason to believe that provisions of the Public Works
Protection Act provide for arbitrary arrests, contrary to the Charter. Section 9 of
the Charter makes it unconstitutional to deprive individuals of their liberty contrary
to the principles of fundamental justice,
51
and it is a principle of fundamental
justice that the liberty of individuals cannot be interfered with for no valid reason.
52
The combined effect of sections 5(1) and 3(a) of the Public Works Protection Act is
to authorize arrest and detention – and therefore the deprivation of liberty – for no
apparent, valid reason. It is important to appreciate that these provisions not only
give peace officers the sensible power to prevent the entry to public works by those
who give no justifiable reason for wanting to enter – they authorize the arrest of
those who are turned away or walk away if they fail or refuse to explain why they
wanted to enter in the first place, or if they fail or refuse to identify themselves.
Once entry has been denied, there is no need for this.
250 Arresting those who attempt to enter in spite of being told not to is justifiable in the
interests of maintaining security, but arresting those who turn away – simply
because they do not explain why they want in or who they are – serves no valid
security purpose. From what we can determine, it appears that at least two people –
Mr. Vasey and Mr. Veitch – were arrested under the Act merely for failing to
provide identification. To compound the situation, both of them maintain that they
were not approaching or attempting to enter the security perimeter at the time of
their arrests.
251 Notoriously, Regulation 233/10 was misinterpreted by the police. The Toronto
Police Chief claimed that the regulation permitted the arrest of anyone who came
within five metres of the perimeter fence, when, in fact, it was intended that the
public works designation would operate only inside the security zone. The
regulation was also the subject of considerable confusion amongst Ministry
officials. This is not surprising. The regulation itself is extremely technical and
difficult to grasp without recourse to a map. Even Ministry officials acknowledged
that it was unclear. What is clear is that the powers under the Act, as opposed to
the regulation, were applied by police to require individuals to identify themselves
and submit to search, well beyond the security zone. Although this was not what
was intended by the Ministry in promoting the regulation, by endorsing the use of
the Public Works Protection Act and thereby calling attention to it, it gave officers
a new tool in their arsenal to contain protest. Once the Ministry had taken steps to
awaken the sleeping giant, it proved difficult to contain.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
51
R. v. Grant, [2009] S.C.J. No. 32 (QL).
52
Rodriquez v. British Columbia (Attorney General) [1993] 3 S.C.R. 519 at 594.93
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Figure 40: June 26 - Riot police near Bank of Montreal’s Front St. headquarters.
(Photo by George Tulcsik)
252 The Ministry cannot be faulted for the training provided to police officers. The
police are responsible for knowing the laws that they enforce. However, the
Ministry recognized the importance of training before Regulation 233/10 was
passed, and I believe that the Ministry had some responsibility to ensure that the
intended boundaries of the regulation were clear to those who had to administer it.
This is particularly so, given the scope of the operation of the Toronto Police
Service, which was responsible not only for its own officers, but for thousands of
officers from across Canada who came to assist in maintaining peace and order
around the G20 summit. Providing security for an international summit is a
monumental policing challenge, and Toronto Police Service’s role was very
significant, given that it would be handling the lion’s share of protests in the area
outside the exterior security perimeter. These situations are tense, at times
explosive, and the possibility of violence erupting is palpable. The powers of the
Public Works Protection Act are quite breathtaking, and so is its potential for
infringement of civil liberties. Given these conditions, use of Regulation 233/10
without proper guidance as to its scope or intent was a recipe for abuse.
253 We learned that York Regional Police officers assigned to G20 summit security did
not find out about Regulation 233/10 until it was already in effect, even though 94
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some of these officers were actually responsible for fence security. Most York
officers heard about the regulation through the media. The York Regional Police
informed us that it sent about 450 officers to Toronto to assist the Toronto Police
Service with the summit. York officers were assigned to various duties. Three
teams of 41-49 officers, including supervisors, were assigned directly to the fence
line, and a fourth team was stationed in the “the PATH” (a network of underground
pathways in downtown Toronto) below the fence line. With respect to training
regarding Regulation 233/10, the York Regional Police told us:
At no time did he [the York Regional Police Inspector who acted as
liaison during the summit with the Toronto Police Service] receive any
material or information about the “fence line law” that could have been
disseminated to the participating officers.
254 Apparently, the Toronto Police Service also provided no information about
Regulation 233/10 to York officers when they checked in and attended morning
roll call sessions on June 21 and 22, 2010. It wasn’t until June 23, 2010, that some
but not all, of the York Regional Police Supervisors were briefed on the
Regulation, and began to educate other officers. Some officers received
information about the Regulation, the Act and a document entitled “Toronto Police
Service 2010 G20 Summit Interdiction Zone Access Policy and Procedure” while
“street side.” Other York officers apparently never received any information about
the Regulation, because they were not working when the information was supplied
or the information was never specifically provided to their team. The York
Regional Police told our Office:
As the summit carried on, most York officers became aware of the fence
law through the media. Some did not find out until they saw the press
conference with [the Toronto Police Chief] on Friday, June 25. It is
unknown whether or not all York officers received the information about
the fence line law, and if they did, when that notification actually took
place.
255 To their credit, once it was apparent that the police had misconstrued the intent of
the regulation, Ministry officials were quick to seek assurance that the mistake
would be corrected. It was, however, a case of too little too late. While it is
beyond my mandate to conclude that excessive force was used against protesters by
police authorities, or that the Act was misapplied, lack of training about Regulation
233/10 appears to have at least contributed, in part, to the chaos and confusion that
descended upon the city with the G20 summit. 95
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256 The Toronto Police Service was not the only stakeholder whom the Ministry should
have assured would know the full implications of the regulation. Other
stakeholders were also directly and, in some cases, detrimentally impacted by its
terms. They too should have been educated about it.
Figure 41: June 26 - Police and civilians at University Ave. and College St.
(Photo by Ronnie Yip)
Best Kept Secret
257 The Public Works Protection Act may have been one of the best kept secrets in
Ontario’s legislative history, but technically it was not a secret at all. It had
appeared in virtually the same form for decades in the Statutes of Ontario, a civil
rights landmine waiting to be tripped.
258 It wasn’t just a question of the Act not being on the public’s radar; many lawyers
weren’t aware of it either. On top of that, it was evident from records we reviewed
during this investigation, and from at least one OPP official, that a lot of police
officers in the province had never heard of it. In this context, the Ministry’s
inadequate consultation leading up to Regulation 233/10’s enactment, as well as its 96
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deliberate strategy to keep news of the regulation hidden for as long as possible, are
quite startling.
259 During this investigation, the Ministry frequently maintained that it had to defer to
the Integrated Security Unit in matters of security, including with respect to what
information was to be disclosed to the public. However, the Ministry did not
ensure that the ISU was officially consulted or notified about Regulation 233/10. It
appears to have relied on others, primarily the Toronto Police Service, to relay
information to the relevant parties, and in doing so, effectively kept the ISU
operational command out of the communication loop. The ISU steering committee
lead had no idea that the regulation had been proposed, let alone enacted, until he
learned about it along with the general public. The manner in which the Ministry
approached consultation actually left the ISU with no opportunity to assess whether
G20 summit security interests would be better served by publicizing the regulation
or by keeping its existence quiet. Since the ISU communications team didn’t know
about the regulation, the information it provided through its website, in media
interviews and discussions with demonstration groups, and to businesses and
residents in the affected area, was necessarily incomplete. It was also caught off
guard when news of Regulation 233/10’s existence went public. This situation was
not only embarrassing, it created the potential for summit security interests to be
compromised. Certainly, friction among ISU partners was not eased by the manner
in which the consultation process was carried out.
260 While at some point the Ministry thought to ask whether the City of Toronto knew
about the proposed regulation, no one seemed particularly concerned when it
became clear that it did not. The regulation would impose virtual martial law on its
streets – one would think that the city would have had a significant interest in
knowing about it. The city also had the responsibility of notifying Torontonians
about what to expect during the summit. In fact, the Ministry later – misguidedly,
in my view – attempted to rely on the city’s efforts to publicize summit security
measures to suggest that notice of the regulation had in fact been given. City
officials quite rightly pointed out that this was not the case.
261 Senior city officials advised that they didn’t know about the regulation until it
became public knowledge. Its advertisements were not intended to and did not
provide notice of the effects of Regulation 233/10. It did engage in an impressive
public awareness campaign about the summit in a variety of languages, but only a
few advertisements appearing in English contained any information about searches
close to the security perimeter, and only a few of these ran prior to Regulation
233/10 taking effect. The information contained in the ads was incomplete.
Nowhere was the public advised that it was now an arrestable offence not to
provide identification or to answer police questions about why entry was sought to 97
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a secured area. Nowhere was the public advised that the police maintained the
authority to search those who approached the security zone, even if they abandoned
their attempts to enter or were denied entry. Nowhere was it disclosed that a
special regulation had been passed to supplement police powers by obliging people
to comply with police demands and directions or to face arrest. And no mention
was ever made of the Public Works Protection Act.
262 Then there is the matter of the general public. I do not agree with the Ministry’s
assessment that the interests of stakeholders – other than its key stakeholder, which
I presume to have been the Toronto Police Service – were moderate. By supporting
the use of the Public Works Protection Act through Regulation 233/10, the Ministry
was promoting legislation that substantially limited the rights and freedoms of
those living and working in the security zone, as well as protesters and others
desiring access. As the G20 summit approached, the Ministry was busy monitoring
Internet sites. It was well aware that demonstrators were being given rights advice,
which, if followed after Regulation 233/10’s enactment, could land unsuspecting
protesters in jail. Apart from insiders in the government of Ontario, only members
of the Toronto Police Service knew the rules of the game had changed, and they
were the ones holding the deck of “go directly to jail” cards. For the Ministry to
have remained silent in these circumstances, even after Regulation 233/10 was
public and filed quietly on the government’s e-Laws site, was unconscionable.
Figure 42: June 26 - Riot police walk by a burning patrol car.
(Photo by Frank Gunn, CP)98
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December 2010
I Fought the Law and the Law Won
263 Technically, Regulation 233/10 was not “secret” legislation. It satisfied the legal
requirements for publicizing regulations. All the formalities were observed.
However, there is a distinction between complying with the minimum technical
requirements of the law and acting prudently or even fairly. There is a Charter
case that illustrates the point – R. v. Yusuf.
53
264 Mr. Yusuf, like many other members of his Somali community, smoked khat, an
African plant with narcotic properties. Khat was once used regularly by many
Somali-Canadians socially and during religious worship. Mr. Yusuf imported khat
into Canada openly, because it was legal – until May 14, 1997, when a regulation
was passed under the Controlled Drugs and Substances Act making it illegal. The
regulation was published in the Canada Gazette, but the federal government did
nothing more to publicize the change. It could have informed community groups –
groups known to assist Somali immigrants in understanding Canadian law – but it
did not bother to do so. It relied instead on routine formal publishing of the
regulation. Eight days after the regulation was passed, Mr. Yusuf went to pick up a
package of khat at the airport, unaware of the change. He was arrested and charged
with importing a controlled drug. This struck the judge as unfair, and he wouldn’t
have it. He held that where a regulation has special effect on an identifiable group
and there are channels of communication available, it is unfair to rely on
publication in official legal registries. Fundamental justice requires fair notice, and
fairness in this case required that more be done. The charge was thrown out.
265 To be sure, Yusuf is a controversial decision, for it is one of the few exceptions to
the maxim that ignorance of the law is no excuse. Yet the outcome is attractive and
reasonable. It is fanciful to think that members of the public read e-Laws or the
legal gazettes. They do not. Even lawyers don’t spend their time reading these
turgidly boring documents unless they have reason to research a specific question.
It is not surprising then that the passage of Regulation 233/10 went largely
unnoticed. Certainly the press – whose role it is to advance democracy by
reporting on matters of public importance – did not pick up on Regulation 233/10
when its passage was published. Nor was it reasonable for the Ministry to assume
that reporters would think to look up a regulation under an obscure piece of
legislation.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
53
R. v. Yusuf, [1998] O.J. No. 3975 (Ont. Prov. Ct.).99
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266 It is fair to assume that until June 24, when Mr. Vasey had the misfortune to be
unwittingly caught in the Act, most protesters were similarly blithely ignorant of
Regulation 233/10.
267 While communication breakdowns appear to have occurred between ISU partners,
which added to the confusion and lack of disclosure surrounding Regulation
233/10, I believe that the Ministry had an independent responsibility to ensure the
scope of the regulation was communicated to an unsuspecting public, not just after
the Toronto Police Chief had mistakenly characterized its scope – and the media
repeated this mistake – but as soon as it was passed; preferably while it was still
under consideration. The Premier and former minister have acknowledged that
more could have been done to ensure awareness of the actual scope of Regulation
233/10 after the misinformation was released. As some Ministry officials have
now conceded, this was not “business as usual.” Regulation 233/10 represented an
unprecedented use of a largely unknown Act conveying exceptional powers. It
therefore called for proactive public outreach to ensure that individuals were fully
informed, not a low-key reactive communications strategy.
268 The lack of adequate notice had other adverse affects. Whether or not I am right
about the authority for issuing Regulation 233/10 or its constitutional validity,
others deserved the opportunity to challenge it before it expired and became moot.
There should have been an opportunity to have it tested in court. There is a
notorious problem in vindicating civil liberties claims in protest cases. During a
protest, governments and police officers can adopt illegal strategies to limit protest,
because by the time legal action can be taken, those strategies will have played
themselves out. The protest will be over and the illegal strategy will have been
implemented. There is a whiff of this in the internal OPP email communication
where an OPP superintendent wanted to hold back on using the Public Works
Protection Act for a critical time because it would not likely stand up to
constitutional challenge after it had been used. Moreover, persons are often
arrested in contentious circumstances during protests but then not charged, so that
the legality of the arrest is not apt to be litigated. If a government is going to enact
special temporary legislation for pending protest situations that skirts the periphery
of constitutional validity, it should do everything possible to facilitate challenges to
it, including ensuring that the legislation is widely known. It is unreasonable to
rely on e-Laws services and legal gazettes.
269 Protesters and civil liberties advocates challenged the use of long-range acoustical
devices when they learned they might be deployed at the G20 summit. They
should have had a similar chance to try to stem, in advance, any damage that
Regulation 233/10 might do to the ability to enjoy the constitutional right of
freedom of expression and to protect protesters from arbitrary arrest.100
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270 The failure to publicize the authority this special regulation conferred also defeated
the reasonable expectation of members of the public. This law subverted the
ordinary order of things and created a legal obligation on individuals to give their
names and state their reason for seeking entry into a secured area and to submit to a
search, and it created an offence for failing to do so. It deprived people of the
option of abandoning their efforts at entry in order to refrain from identifying
themselves or answering or being searched. And it created unusual powers of
arrest. The failure to publicize these implications of Regulation 233/10 created a
trap for protesters who attempted to insist on their legal rights.
271 Protest situations are inherently volatile. It is critically important that police
powers be clear, to minimize the prospects of challenge by protesters who think
that police are acting illegally. Every effort should be made to reduce tension and
distrust. The risks presented by the G20 meetings for tension and distrust should
have been obvious. The Ontario government should have reduced those risks by
ensuring the effective dissemination of complete and accurate information.
272 Not unlike the Yusuf case, the unique context in which Regulation 233/10 was
passed made effective publicity entirely possible. There were known protest
organizers who could have been contacted. More importantly, this was a special
event taking place in a geographically limited area. As the City of Toronto’s
efforts to ensure efficient traffic flow demonstrate, public and community
newspapers and flyers can reach those likely to be affected. Regulation 233/10,
with all of its implications, should have been widely publicized. It was not
reasonable in the circumstances of the G20 protests to have failed to do so.
Conclusion
273 It is therefore my conclusion, pursuant to subsection 21(1) of the Ombudsman Act,
that the Ministry of Community Safety and Correctional Services promoted a
regulation that “appears to be contrary to law” and not “in accordance with the
provisions of any Act.” It was also unreasonable to support the adoption of that
regulation, given that it conferred unnecessary and constitutionally suspect police
powers in the volatile and confrontational context of inevitable public protest.
Moreover, the Ministry of Community Safety and Correction Services
unreasonably and unjustly failed, in advance of its enactment, to ensure both proper
consultation with stakeholders and that the citizens of this province were aware of
the highly exceptional police authority that had been conferred.101
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274 The government has already announced that the Public Works Protection Act will
be reviewed, with full input from stakeholders. This is a welcome step in the right
direction. I am making two specific recommendations that I believe should be
considered in the context of this review.
275 My third recommendation is intended to address the Ministry’s failure to ensure
proper communication of a regulation that effectively increased police powers.
Generally, police authority is conferred through enactment of legislation,
accompanied by the openness, transparency, and accountability inherent in the
democratic system of government. There is a real and insidious danger associated
with using subordinate legislation, passed behind closed doors, to increase police
authority, and I believe that this practice should be sedulously avoided. However, I
recognize that there may be rare, urgent and pressing circumstances that justify
using a regulation to bolster police authority. In the event that this occurs, it is
imperative that the public be properly advised. In fact, in any case where police
powers are extended, and particularly in protest situations, I believe that the public
should be fully informed. 102
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Recommendations
Accordingly, I am making the following recommendations:
Recommendation 1:
The Ministry of Community Safety and Correctional Services should take steps to
revise or replace the Public Works Protection Act. If the government wants to
claim the authority to designate security areas to protect persons, an integrated
statute should be created that could be used not only to protect public works but
also provide proper authority for ensuring the security of persons during public
events when required.
Recommendation 2:
The Ministry of Community Safety and Correctional Services should examine
whether the range of police powers conferred by the Public Works Protection Act
should be retained or imported into any revised statute, including whether it is
appropriate to give police the authority to arrest those who have already been
excluded entry to secured areas, and whether it is appropriate to authorize guards
and peace officers to offer conclusive testimony, whether right or wrong, about the
location of security boundaries.
Recommendation 3:
The Ministry of Community Safety and Correctional Services should develop a
protocol that would call for public information campaigns when police powers are
modified by subordinate legislation, particularly in protest situations.
Recommendation 4:
The Ministry of Community Safety and Correctional Services should report back to
my Office in six months’ time on the progress in implementing my
recommendations and at six-month intervals thereafter until such time as I am
satisfied that adequate steps have been taken to address them.
Response
276 The Ministry of Community Safety and Correctional Services was provided with an
opportunity to make representations concerning my preliminary findings,
conclusion and recommendations. On November 1, 2010, the Minister responded,
agreeing that the Ministry could have, and should have, handled the enactment of 103
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Regulation 233/10 better and noting that in future it would take greater care to
ensure that the Ontario public is given more adequate notice of regulation changes
of this nature.
277 The Minister also confirmed on behalf of the government his unequivocal
commitment to act on all of my recommendations in a timely manner.
278 He noted that Mr. McMurtry would be considering my report and
recommendations during his review of the provisions of the Public Works
Protection Act and offered his personal undertaking, as Minister, to clearly and
promptly communicate to the public any regulation or other changes to the Act that
may arise prior to receiving Mr. McMurtry’s advice.
279 A copy of the Minister’s response is attached at Appendix E.
280 I am satisfied with the Minister’s response to my Report and will monitor the
Ministry’s progress in implementing my recommendations.
__________________________
André Marin
Ombudsman of Ontario105
Appendix A: YouTube Videos107
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APPENDIX A
YouTube Videos
References to Public Works Protection Act
1. Videos relating to the arrest of Charlie Veitch under s. 5(1) of the Public Works
Protection Act.
(a) http://www.youtube.com/watch?v=g_mTMhn8iiM
(b) http://www.youtube.com/watch?v=rq9ruy4WeKM&feature=related
2. Videos of a man being stopped by police and asked to produce identification under the
Public Works Protection Act. He questions the legality of it, and is informed he will be
arrested if he does not comply. The incident appears to take place inside the fence.
(a) http://www.youtube.com/watch?v=8fRvFvoobhE&feature=related
(b) http://www.youtube.com/watch?v=7RUjNRikaJM
3. Video of a police officer speaking “on behalf of the service” and answering questions
on the “public works area.”
http://www.youtube.com/user/ReetReeter#p/a/u/1/KB5qaq5u1QA
4. Videos from the Toronto Police Service YouTube site prior to the G20 summit,
discussing parking, identification checks, but not the Public Works Protection Act.
(a) http://www.youtube.com/watch?v=trivRHgShiM
(b) http://www.youtube.com/watch?v=Xtj3oBlZQjU&feature=related
5. Video of the Council of Canadians measuring and questioning the “five-metre rule”
outside the security fence downtown on Wellington and John streets. The clip also shows
searches at Allan Gardens.
http://www.youtube.com/watch?v=-COwy3r66pA
Identification and property search requests
6. YouTube mini-documentary on requests for identification in downtown Toronto under
the Public Works Protection Act. The filmmaker was asked to produce identification on
Cherry Beach, 3.6 kilometres outside the security zone.
http://www.youtube.com/watch?v=UE1UZWrfMJ8&feature=related108
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7. Video of a police officer asking for identification from a person he says he saw outside
the security fence the day before. The officer states that he saw the person “looking at
[him] yesterday.”
http://www.youtube.com/watch?v=Rx5bcYtY__Y
8. Video from Monday, June 21, 2010, including commentary by a photographer who
was asked for identification and threatened with arrest on Spadina Ave. He says six
police officers surrounded and detained him, then took his identification.
http://www.youtube.com/user/CrucialMatters#p/search/3/-HO5RM9vKEc
9. Video of a group of police officers speaking with people at University Ave. and King
St., requesting to search their bags. One person refuses and is told to leave the area or be
arrested. The person questions the officers’ instructions in relation to his rights as a
Canadian citizen and is told by an officer: “This isn’t Canada right now” and “there is no
civil rights here in Ontario, how many times do you have to be told that?”
http://www.youtube.com/watch?v=RjVtsuoPlzk&feature=related
10. Video of a protester at Allan Gardens questioning police to clarify what legislation
gives them authority to search his bag and interfere with his rights to enter a public park
and participate in a peaceful protest. His goggles are confiscated.
http://www.youtube.com/watch?v=HZgjX5vHt2o&NR=1
11. Video of a man being stopped on June 27 while participating in the “Critical Mass
Cycle” event. When he questions police, he is informed that “the rules today are
changed, they are different, you need to stop, we are going to search you and search your
bags.” His bags are checked, goggles are found in his possession, and he is arrested and
sent to the detention centre.
http://www.youtube.com/watch?v=ngcPPd9_qgc
12. Video of man being searched at Carlton and Jarvis streets.
http://www.youtube.com/user/TheRealNews#p/u/14/wugz_f5jce0
13. Video of police officer conducting a backpack search, while a woman clearly states
that she does not consent to his actions.
http://www.youtube.com/watch?v=1_DBPREuWUA
14. Video of two women being searched by police at University Ave. and King St. An
officer states that he is allowed to detain people for investigative purposes pursuant to the
Criminal Code, if he has articulable cause. He indicates that investigative detention
allows him to search a person for a weapon.
http://www.youtube.com/user/guasapa#p/u/17/te03CxgpV00109
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15. Video of a search at Bloor and St. George streets.
http://www.youtube.com/watch?v=VVJyQbvMhRw&feature=related
Witness Accounts/Testimony of Arrests and Surrounding
Circumstances
16. Video of two men arrested prior to the G20 summit for failure to show identification
in the downtown area (6-minute mark).
http://www.youtube.com/user/weavingspider#p/u/26/XNNSXHT3FTA
17. Video of a woman blowing bubbles in the vicinity of police officers. An officer tells
her, “if a bubble touches me, you are going to be arrested for assault.” She is later shown
being arrested.
http://www.youtube.com/user/TheRealNews#p/u/8/PGMTm3QRwEc
18. Videos shot on College St. after police arrested a deaf man for failing to comply with
police instruction.
(a) http://www.youtube.com/user/ReetReeter#p/a/u/2/aWmpBFig4Z4
(b) http://www.youtube.com/user/TheRealNews#p/u/31/D7OA920pbv8
19. Video of man being searched in Yorkvile on June 27.
http://www.youtube.com/user/TheRealNews#p/u/17/uQYXH5gc6N0
20. Video of woman being detained and arrested at Queen’s Park:
http://www.youtube.com/user/TheRealNews#p/u/12/Yd5K-TfEeyU
21. Video of man saying, “I have no trust in the police or the system after this” and
volunteering to be arrested to get out from the police riot barrier.
http://www.youtube.com/watch?v=nIC--bUfM-E
22. Video of woman being arrested during the mass arrests outside the Novotel on the
Esplanade.
http://www.youtube.com/watch?v=rNrkxyjaPx8&feature=related
23. Video of news producer’s arrest while covering the events at Queen’s Park.
http://www.youtube.com/watch?v=AoNAb9L-fYY&feature=related110
“Caught in the Act”
December 2010
Media Reports of Community Impact
24. Real News Network video of residents relating to mass arrest in Parkdale.
http://www.youtube.com/user/TheRealNews#p/u/8/bVwXOKZh4Os
25. Video of Steve Paikin, host of TVO’s The Agenda, interviewed by Real News
Network on the mass arrests and police actions at the Novotel.
http://www.youtube.com/user/TheRealNews#p/search/3/DCWNqMV4Bgs
26. Video of man being arrested and detained during the mass arrests outside the Novotel.
(a) http://www.youtube.com/watch?v=57utIU1j8oU&feature=related
(b) http://www.youtube.com/watch?v=ZSWRNKmY6DI&feature=related
27. Firsthand account of a man who was arrested and detained at the Eastern Avenue
Detention Centre.
http://www.youtube.com/watch?v=Ntcr5E_LE7M&feature=related
Related Videos
28. Video of crowd singing O Canada before being rushed by the police in riot gear on
Queen St West.
http://www.youtube.com/watch?v=rvXSpnG7E2g
29. Video of woman hit by projectile outside the Eastern Avenue Detention centre.
http://www.youtube.com/watch?v=3QxIcMSJJNo
30. Video of protesters offering police officers copies of the Charter, which they decline.
http://www.youtube.com/user/SupportLocalScene#p/a/u/1/DgNGYIcWM0o
31. Video of protester being knocked down as mounted officers move in.
http://www.youtube.com/watch?v=5-p64RHqi38111
Appendix B: Public Works Protection ActFrançais
Public Works Protection Act
R.S.O. 1990, CHAPTER P.55
Consolidation Period: From December 31, 1990 to the e-Laws currency date.
No amendments.
Definitions
1.In this Act,
“guard” means a guard appointed under this Act; (“gardien”)
“highway” means a common or public highway or a part thereof, and includes any street,
bridge and any other structure incidental thereto and any part thereof; (“voie publique”)
“public work” includes,
(a) any railway, canal, highway, bridge, power works including all property used for the
generation, transformation, transmission, distribution or supply of hydraulic or
electrical power, gas works, water works, public utility or other work, owned,
operated or carried on by the Government of Ontario or by any board or
commission thereof, or by any municipal corporation, public utility commission or
by private enterprises,
(b) any provincial and any municipal public building, and
(c) any other building, place or work designated a public work by the Lieutenant
Governor in Council. (“ouvrage public”) R.S.O. 1990, c. P.55, s. 1.
Guards, appointment
2.(1)For the purpose of protecting a public work, guards may be appointed by,
(a) the Solicitor General;
(b) the Commissioner of the Ontario Provincial Police Force;
(c) any inspector of the Ontario Provincial Police Force;
(d) the head or deputy head of the municipal council or the chief of police of themunicipality in which the public work is located, or the person acting in the place
or stead of the head or deputy head;
(e) the chair or other person who is the head of a board, commission or other body
owning or having charge of the public work, or the person acting in the place or
stead of the chair or other person.
Powers of guard
(2)Every person appointed as a guard under this section has for the purposes of this Act
the powers of a peace officer.
Duties of guard
(3)Subject to the regulations and to any special direction of the Solicitor General or the
Commissioner of the Ontario Provincial Police Force, every guard shall obey all directions of
the person appointing him or her, any inspector of the Ontario Provincial Police Force, the
chief of police of the municipality in which is located the public work that he or she is
protecting, and the person who is in charge of the protecting of the public work.
Breach of duty of guard
(4)Every guard who,
(a) neglects or refuses to obey a direction that he or she is required to obey under
subsection (3);
(b) fails in any manner to carry out his or her duties as guard;
(c) leaves the location to which he or she is assigned as guard or ceases to act as guard
without leave of any of the persons mentioned in subsection (3); or
(d) otherwise conducts himself or herself in a manner not consistent with his or her
duties as guard,
is guilty of an offence and on conviction is liable to a fine of not more than $500 or to
imprisonment for a term of not more than two months, or to both. R.S.O. 1990, c. P.55, s. 2.
Powers of guard or peace officer
3.A guard or peace officer,
(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. R.S.O. 1990, c. P.55, s. 3.Statement under oath to be conclusive evidence
4.For the purposes of this Act, the statement under oath of an officer or employee of the
government, board, commission, municipal or other corporation or other person owning,
operating or having control of a public work, as to the boundaries of the public work is
conclusive evidence thereof. R.S.O. 1990, c. P.55, s. 4.
Refusal to obey guard, etc.
5.(1)Every person who neglects or refuses to comply with a request or direction made
under this Act by a guard or peace officer, and every person found upon a public work or any
approach thereto without lawful authority, the proof whereof lies on him or her, is guilty of an
offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a
term of not more than two months, or to both.
Arrest
(2)A guard or peace officer may arrest, without warrant, any person who neglects or
refuses to comply with a request or direction of a guard or peace officer, or who is found upon
or attempting to enter a public work without lawful authority. R.S.O. 1990, c. P.55, s. 5.
Regulations
6.The Lieutenant Governor in Council may make regulations,
(a) providing for the organization, co-ordination, supervision, discipline and control of
guards;
(b) defining the areas that constitute approaches to public works, either generally or
with regard to a particular public work;
(c) respecting any matter necessary or advisable to carry out effectively the intent and
purpose of this Act. R.S.O. 1990, c. P.55, s. 6.
____________________
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Appendix C: Regulation 233/10Français
ONTARIO REGULATION 233/10
made under the
PUBLIC WORKS PROTECTION ACT
Made: June 2, 2010
Filed: June 14, 2010
Published on e-Laws: June 16, 2010
Printed in The Ontario Gazette: July 3, 2010
DESIGNATION OF PUBLIC WORKS
Designation
1. The following are designated as public works for the purposes of the Act:
1. Everything described in clause (a) of the definition of “public work” in section 1 of the Act
that is located in the area described in Schedule 1, including, without limitation and for
greater certainty, every sidewalk in that area.
2. The places described in paragraphs 1, 2 and 3 of Schedule 2.
Revocation
2. This Regulation is revoked on June 28, 2010.
Commencement
3. This Regulation comes into force on the later of June 21, 2010 and the day it is filed.
SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows:
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West; then north to
the centre of Front Street West; then east along the centre of Front Street West to the east curb of
Windsor Street; then north along the east curb of Windsor Street to the centre of Wellington Street;
then east along the centre of Wellington Street to the centre of Bay Street; then south along the centre
of Bay Street to a point directly opposite the north wall of Union Station; then west along the exterior
of the north wall of Union Station to the centre of York Street; then south along the centre of York
Street, continuing east of the abutments under the railway overpass, and continuing south along the
centre of York Street to the centre of Bremner Boulevard; then west along the centre of Bremner
Boulevard to the east curb of Lower Simcoe Street; then south along the east curb of Lower SimcoeStreet to the north curb of Lake Shore Boulevard West; then west along the north curb of Lake Shore
Boulevard West to the south end of the walkway that is located immediately west of the John Street
Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers
Centre; then north along the west edge of that walkway to the bus parking lot of the Rogers Centre;
then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the
driveway running between the parking lot and Bremner Boulevard; then north along the west edge of
that driveway to the north curb of Bremner Boulevard; then west along the north curb of Bremner
Boulevard to the east curb of Navy Wharf Court; then north along the east curb of Navy Wharf Court
to the southwest point of the building known as 73 Navy Wharf Court; then east along the exterior of
the south wall of that building; then north along the exterior of the east wall of that building to the
curb of Blue Jays Way; then north along the east curb of Blue Jays Way to the curb at the southeast
corner of Blue Jays Way and Front Street West.
SCHEDULE 2
DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1. The area, within the area described in Schedule 1, that is within five metres of a line drawn
as follows:
Beginning at the south end of the walkway that is located immediately west of the John
Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking
lot of the Rogers Centre; then north along the west edge of that walkway to the bus parking
lot of the Rogers Centre; then west along the south edge of the bus parking lot of the
Rogers Centre to the west edge of the driveway running between the parking lot and
Bremner Boulevard; then north along the west edge of that driveway and ending at
Bremner Boulevard.
2. The area, within the area described in Schedule 1, that is within five metres of a line drawn
as follows:
Beginning at the southwest point of the building known as 73 Navy Wharf Court; then east
along the exterior of the south wall of that building; then north along the exterior of the east
wall of that building and ending at the curb of Blue Jays Way.
3. The below-grade driveway located between Union Station and Front Street West and running
between Bay Street and York Street in the City of Toronto.
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Appendix D: Map of Public Works in G20
Security ZoneNote: Legend has been
enlarged. Map is not reproduced
here at its original scale.125
