Aug 1, 2018

Langenfeld v. TPSB, 2018 ONSC 3447 - Summary

Langenfeld v. TPSB, 2018 ONSC 3447 (CanLII)

An aficionado of the Toronto Police Services Board meetings contested the practice of mandatorily searching those who wish to attend them, and won. Here, "the search involves “wanding” a person’s body with a metal detecting wand, and physically searching any bags the person has with them" and is anonymous, with no obligation to reveal one's identity before entering (par. 17). The applicant refused to submit to the search, and as such was denied access to the meetings. He argued that it violate his freedom of expression.

It is worth noting that the applicant was self-represented. We can only command him as such, for having managed to prevail against the odds. Even though we do not know why it was that he wasn't represented by counsel, we suspect that financial barriers of access to justice might have been a strong factor. We are glad that this did not prevent him in this case from being able to make his arguments and to have the court accept them.

Justice Jill M. Copeland held that "attendance at the TPSB’s public meetings, which are public meetings of an institution of government, has expressive content" (par. 49), even the person attending does not plan on speaking (par. 53), and even if it is possible to participate remotely (par. 61). She also held "that nothing in the location or method of the applicant’s expression removes it from the protection of freedom of expression" (par. 57). Finally, she held that "the effect of the searches is to limit expression by making public access to TPSB meetings contingent on submitting to a warrantless search. Imposing a condition precedent to attending a public meeting such as undergoing a search has the effect of limiting the right to freedom of expression. In this case, the individual is required to make a choice to give up their right to privacy, in particular the right be free from a warrantless search, conducted without reasonable and probable grounds or even reasonable suspicion, or give up his or her right to freedom of expression to attend the meeting." (par. 62).

It is noteworthy that she relied, to reach her third conclusion, on Figueiras v. Toronto (Police Services Board), 2015 ONCA 208. See par. 63 and following. Though distinguishable, given the different location (in a building, versus on the street in the area of a protest), she used it to strengthen the test at the breach level, leaving the finer points to the justification level. As such, "[a] requirement to undergo a warrantless search, conducted in the absence of reasonable and probable grounds or reasonable suspicion, as a condition precedent to attending a public meeting of government is an infringement of the right to freedom of expression. I am not suggesting that such searches can never be justified on grounds of public safety and security, if there is lawful authority to conduct them, but I am satisfied that the case law is clear that such searches infringe freedom of expression." (par. 67)

(In passing, we note Justice Copeland's remarks on a possible s. 8 of the Canadian Charter of Rights and Freedoms challenge of similar situations even when the person is not searched, at par. 69 and 70.)

We will not dwell on the analysis of whether the search is "prescribed by law", under the s. 1 of the Canadian Charter justification test. Justice Copeland holds that it isn't in the case before her (par. 143). As such, she declined to decide if it was a reasonable and minimally intrusive limit. Given that it could easily be provided for in another situation, however, it would have been worth looking at the rest of the justification test. Still, an important aspect of her reasoning can be extracted, at par. 138-140: such a search cannot be qualified as being truly consented to.

The interesting question is now how that affects other security checks prior to an event that is mandated as open by law. Indeed, "where the law provides that a meeting of a government body is open to the public, the right of an individual to attend the meeting and listen to the deliberations, and if the procedures of the government body permit public participation, to make submissions, is protected by the s. 2(b) right of freedom of expression." (par. 54) For example, are mandatory security checks in court buildings, as a precondition to attending a trial open to the public, similarly an infringement of a right? Given par. 51, it seems like the argument is not without merit. It will be however necessary to see how the justification test will be applied when the future case allows for its full analysis. We tend to think that courts will be conservative and try to preserve such searches when possible.