A little-known Ontario law called the Public Works Protection Act, R.S.O. 1990, c. P.55 received much publicity in the last few days due to the decision to designate a large swath of downtown Toronto as a “public work” (http://www.e-laws.gov.on.ca/html/source/regs/english/2010/elaws_src_regs_r10233_e.htm). It was said this was due to G20 security concerns, giving police wide powers to search people who even dared to venture near the G20 security zone.
Many were caught off-guard by this formerly little-known legislation. What does it do?
It is a short, six-section Act (http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90p55_e.htm). Its key provision is s. 3, which states that a guard appointed under the Act or a peace officer 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 addition to these identification requirements, s. 3 permits a warrantless search of “any person entering or attempting to enter a public work,” as well as any vehicle which is “suspected of having been in the charge or under the control” of any such person.
The definition of “public work” in section 1 of the Act is very broad. It includes “any railway, canal, highway, bridge, power works,” and “any provincial and any municipal public building.” It also includes “other building, place or work designated a public work.” Hence the designation of a large part of downtown Toronto as a “public work.”
If there is a refusal to comply with a direction made under the Act, that person may be subject to a fine of $500 and to a two month term of imprisonment.
What does this mean? A number of eerie scenarios arise. Technically, under the Act, if a person entered Toronto’s City Hall – a public, municipal building – police officers would have the right to search that person without a warrant. There is no requirement to prove reasonable and probable grounds to believe an offence has been committed. The police could also search that person’s car too.
Bizarrely, because a public highway is designated a public work, police technically would have the right under the statute to conduct a warrantless search of any person who entered any public highway in Ontario.
Only a few decisions have considered the Public Works Protection Act. In a 1993 decision called R. v. Nicolosi,  O.J. No. 3406, the Crown sought to justify a search of a vehicle on the basis that the Act permitted a warrantless search of a vehicle that had entered a highway. Justice J. MacDonald held “the evidence herein does not establish that any of the steps taken by police were for the purpose of protecting a public work.” Although this was probably the right conclusion, the reasoning misses the point, which is that the legislation expressly designates a highway as a “public work.” There is no additional requirement under the statute to prove that police are protecting a public work.
Most other decisions have involved Charter challenges to the Act when people entering a courthouse are searched. Not surprisingly, these challenges have failed, largely on the basis that a courthouse is like an airport where (i) searches are not conducted for the purpose of enforcing the criminal law or investigating an offence, and (ii) people expect they will be subject to some kind of security screening when entering a building like a courthouse. The leading decision on this is the Ontario Court of Appeal’s decision in R. v. Campanella, 2005 CanLII 10880 (http://www.canlii.org/en/on/onca/doc/2005/2005canlii10880/2005canlii10880.html), as discussed in comments on Slaw.
What impact does this have on the G20 designation and beyond?
Although it was initially reported that police had the power under the Public Works Protection Act to search any person within a five metre designation of the security fence that was erected in Toronto – a position from which the police have since resiled (see http://www.thestar.com/article/830030–no-extra-powers-granted-to-police-during-g20-summit-liberals) – any attempt to enforce the Act in this way would not have complied with the language of the Act or with the Charter. Section 3 of the Act only permits police to search any person “entering or attempting to enter a public work.”
It is difficult to imagine how standing five metres away from a fence – some 16 feet away – could amount to “attempting to enter a public work.”
Equally, and more seriously, it is difficult to imagine how anyone charged with enforcing Canada’s laws, particularly Toronto’s Chief of Police, could have concluded the legislation would give the right to search anyone coming within 16 feet of the fence. It is not a difficult issue. It is a simple question of statutory interpretation.
As for other instances where the Public Works Protection Act could be applied, the Court of Appeal in Campanella justified the constitutionality of courthouse searches because there were large signs to alert the public of the fact that searches were taking place. Any person could refuse a search if they left the building. Although the regulation designating large parts of Toronto as “public works” has now been repealed, the Campanella decision confirms that without appropriate safeguards, the Public Works Protection Act cannot be used to arbitrarily designate locations as “public works” to give carte blanche to police to conduct indiscriminate searches.