In the following paper I advance the argument that the use of the Public Works Protection Act at the G20 by police was unnecessary and inappropriate. I suggest that they had ample existing authority under statute and common law to do the job they needed to do.

From my blog: Simon Says.

Police Powers and The G20: Why the Public Works Protection Act Was Unnecessary

There has been a great deal of discussion and controversy recently over the actions of police at the G20 in Toronto in June. Much of the debate revolves around the use of the Public Works Protection Act (hereafter referred to as ‘the Act’) by police to provide security at the event.

A number of specific issues have been identified by the media, the public, and the government regarding the actions of the police in general, and specifically the use and implementation of the Act at the event. However, this paper will not address those issues. They have already received a great deal of attention and no doubt will continue to in the future.

The purpose of this paper is to advance the theory that the Public Works Protection Act was unnecessary and inappropriate for the G20. It was overbroad and arbitrary for the task at hand. Police have existing statutory and common law powers which I will argue would have sufficed and been far less intrusive on the Charter rights of the public.

A Brief history of the Public Works Protection Act

Contrary to statements made by the media, the Public Works Protection Act is not a secret, nor is it a new law. It was created in 1939, following the outbreak of World War II, and was revised to its current form in 1990. The Act is very short, but very broad and very powerful. It may not be well known to police or the public, but it is used every day to provide security at court houses, government buildings and other infrastructure points within the province.

Section 1 of the Act defines a “public work”. Of note here is subsection (c), which gives the Lieutenant Governor in Council the authority to designate other buildings or places as a public work. This is the authority under which a portion of downtown Toronto was reclassified as a public work for the G20.

Section 3 sets out the power of arrest for a peace officer or guard. Clearly these power are quite broad, perhaps understandably so, given their intended purpose to allow officers and guards to protect the infrastructure of the province. However, they are clearly unprecedented when compared to any other Federal or Provincial statute.

Section 5(2) provides the arrest authority for failing to comply and, finally, section 5(1) sets out the offence.

Adaption of the Public Works Protection Act

Ontario Regulation 233/10 was created on June 2 and filed on June 14. It was scheduled to be effective from June 21 until June 28, but was not published in the Ontario Gazette until July 3.

Schedule 1 and 2 describe “the zone” in downtown Toronto which this regulation makes into a “public work”.

Why was adapting the Public Works Protection Act to the G20 a problem?

Even acknowledging that the majority of arrests at the G20 were not under the Public Works Protection Act, there are still issues with the arbitrariness and overbroadness of arrests conducted under the act, which seems to be one of the issues people are most upset about.

Existing Authorities

As stated earlier, the aim of this paper is to suggest that police had existing statutory and common law authorities which could have been used instead of the Public Works Protection Act and would have, arguably, resulted in far less of a public outcry. It is to three of these authorities that I will now turn.

The first authority is the common law power of investigative detention. Best articulated in R. v. Mann (2004)¹, Iacobucci J., wrote for the majority of the Supreme Court that authority exists in common law for police to detain an individual if they have “articulable cause”. Articulable cause was defined by Doherty J.A. in R. v. Simpson (1993)² as “a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation”.

This authority applies only to people who police can articulate may actually be involved in a specific crime being investigated. It requires powers of observation and the need to discern and articulate an actual crime. This takes away the arbitrariness and overbroadness of the Public Works Protection Act, which seems to be what the public has a problem with. I do not think that being limited to detaining people who may be involved in a crime would have significantly hampered the ability of the police to provide security at the G20. After all, who were they there to deal with but people committing crimes?

This authority alone may not have been sufficient, but it was not the only one in the police officer’s arsenal.

The second authority is found in the statutory powers of arrest of police officers in the Criminal Code. Section 495(1) states that a peace officer may arrest without warrant “a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence”.

The inclusion of “is about to commit an indictable offence” broadens the arrest authority of the police powers to the point of making them quite appropriate for the G20. Under this authority, officers who were able to articulate that person approaching or entering a restricted zone (or a person anywhere else in the city for that matter) was about to commit an indictable offence (i.e. mischief, etc), could simply arrest them for that anticipated crime. Like investigative detention, this authority would also have required officers to have display the ability to discern and articulate a specific offence in order to arrest. But again, what need is there for police to arrest those who are not committing or about to commit a criminal offence? If officers had been able to articulate what crime (committed or anticipated) each person at the G20 was arrested for, I doubt there would have been such criticism of their actions.

Certainly it is not always easy, or even possible, to classify a person’s actions as about to lead to a specific criminal offence, and it is for that reason that I turn to the next authority.

The third in the trilogy of authorities I suggest could have usurped the need for the Public Works Protection Act is the statutory arrest authority for Breach of the Peace. Section 31 of the Criminal Code states that a peace officer can arrest “any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace”.

The wording here makes this particular authority particularly appropriate to the G20, especially when used in conjunction with the other authorities police have. “Breach of the Peace” not being clearly defined, there is significant room for discretion on the part of the officer to arrest “unruly” people who appear to be “breaching the peace” or who may be about to “breach the peace”.

This authority appears to approach the broadness of the Public Works Protection Act. A person only has to look like they are about to act in an “unruly” manner to be arrested under this authority. The majority of arrests at the G20 were, in fact, under this authority, but the big difference between this authority and the Public Works Protection Act is that Breach of the Peace still requires some ability, on the part of the officer, to articulate why he believed a breach was occurring or about to occur.

Certainly arresting on a Breach of the Peace is more difficult for police than exercising the arbitrary power to arrest under the Public Works Protection Act for simply being in the wrong place. However, it is, arguably, easier to justify the intrusion on people’s Charter rights with a Breach of the Peace arrest than through the Public Works Protection Act.

Summary

The police have extensive authority under common law and statute to stop, detain, arrest, and search people. (All three of the authorities I have cited have powers of search subject to detention or arrest.) However, these three authorities, in fact almost all police authorities, other than the Public Works Protection Act, require the use of discretion and articulation in their application. Certainly, this makes the job of the police more difficult and time consuming, but as a province and as a nation, we are not known for trading our civil liberties for convenience or efficiency in law enforcement and the maintenance of public order, nor should we be.

Based on my own experience as a police officer, I believe that the use of the authorities I have cited above, as well as all the other powers at the police officer’s disposal, would have allowed police to perform their duties adequately at the G20, without the need for the Public Works Protection Act.

The exercise of authority with discretion and articulation is far less likely to raise the ire of the public than the arbitrariness and overbroadness of the authorities contained in the Public Works Protection Act. The courts in this country have tended to rule in favour of the need for proper discretion and articulation in the exercise of police powers and have avoided lending support to blanket authorities. Arbitrary and overbroad authorities which are used to infringe on a person’s Charter rights are inconsistent with the core values and principles of fundamental justice in this country.

On these principled reasons, I would submit that the Public Works Protection Act was not appropriate for the G20.

1) R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59
2) R. v. Simpson, [1993] O.J. No. 308, 12 O.R. (3d) 182