James Morton on "Public Works Protection Act valid-#G20": A Reply

Over at Morton’s Musings blog, my colleague, James Morton in a post entitled ” Public Works Protection Act valid – #G20, refers to the 2005 decision of the Court of Appeal for Ontario in R. v Campanella 75 O.R. (3d) 342, 252 D.L.R. (4th) 490, 195 C.C.C. (3d) 353, 130 C.R.R. (2d) 259, 196 O.A.C. 188 (Ont. C.A.) which upheld the constitutionality of the The Public Works Protection Act (“PWPA“) , (see my updated post here). 
Morton concludes,

“The only thing that Cabinet changed was to define the G20 summit area as a “public work”. All the “new” police powers been in existence for decades.

There is some issue as to whether or not the G20 summit area should have been defined as a “public work” and whether or not the manner in which the regulation was passed gave fair notice to the citizenry that is, after all, presumed to know the law. (In Campanella the fact that the public area had signs posted warning of potential searches was relevant to the Court). But this issue is fairly minor compared to the claims made suggesting the law is the first step towards a Police State.”

Reasonable people will disagree on what constitutes a police state.: totalitarianism is in the eye of the baton holder. However,  I disagree that the R. v. Campanella decision is the final word on the constitutionality of the PWPA.

As Rosenberg, J.A. notes, the appellant:

“voluntarily produced her purse for manual inspection, a purse which she acknowledged would have set off the metal detector. As the Hamilton Police Service Special Constable conducting the screening opened the purse, he saw a baggie that he removed from the purse and which contained a small quantity of marihuana. The appellant was arrested and charged with possession of a controlled drug contrary to s. 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. ” (at para. 1)

In considering the scope of the constitutional guarantee against unreasonable search and seizure, Rosenberg, J.A. provides three grounds in support of the conclusion that the appellant’s s. 8 Charter right was not breached:

[22] First, courthouse searches like the one carried out in this case are not conducted for the purpose of criminal investigation. The state and the individual are not antagonists in the same way that they are in a criminal investigation. The search is not conducted for the purpose of enforcing the criminal law or investigating a criminal offence.

[23] Second, even if the person has a reasonable expectation of privacy in their personal belongings when entering a courthouse, that expectation is considerably diminished. Prominent signs warn everyone that they will be subjected to a security search and that they are not permitted to bring weapons or dangerous items into the courthouse. Regrettably, in this day and age, people expect that they will be subject to some kind of security screening when entering prominent public buildings such as courthouses or the Legislature. These buildings, which are symbols of authority, are believed to be potential targets by some individuals and groups. People reasonably expect that everyone without prior clearance will be searched on a non-discriminatory basis in a reasonable manner to ensure the safety of all persons in attendance at the building.

[24] Third, as the Crown points out, the persons being searched are also the beneficiaries of the process. Like the security clearance at airports, the search provides reassurance to all members of the public that they will be safe from attack by persons with weapons within the confines of the courthouse despite the sometimes volatile nature of the proceedings.

Courthouses are one thing; #G20 security fences are entirely another. When someone voluntarily enters a courthouse, he or she does so with the reasonable expectation that entering the building will result in having to go through a metal detector. This is commonplace and no different then going through the security checks at any airport. Conversely, when someone voluntarily walks by a 3 metre high security fence , there is no reasonable expectation of being subjected to a warrantless search by refusing to provide personal identification. This is particularly so, since there are no signs conspicuously placed to alert the public to the newly passed regulation. While the ancient legal maxim “ignorantia juris non excusat” (ignorance of the law does not excuse) is codified by section 19 of the Criminal Code (RSC 1985, c. C-46), what is worrisome to some is that the amendment to PWPA regulation (temporary as it may be) was passed as an Order-in-Council and shared with only a select few; namely, those enforcing the law.

What the R. v. Campanella decision does not address is the constitutionality of the reverse onus clause under s.5(1) of the PWPA and whether it violates the presumption of innocence protected under section 11(d) of the Canadian Charter of Rights and Freedoms. The only way that such a provision can survive Charter scrutiny is if it can be justified under section 1.

In these circumstances, I doubt that s. 5(1) of the PWPA falls within the “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Until someone mounts a constitutional challenge on that basis, the court of public opinion will have to do.

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