What Is the Public Works Protection Act Anyway?

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, [1993] 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.


  1. Thanks for this, there hasn’t been much written on the actual Act itself.

    Even if the Act is held to be constitutional, there is still considerable ambiguity around Regulation 233/10.

    Laura Blondeau, spokeswoman for Community Safety Minister Rick Bartolucci, stated,

    “What the Ontario government did do, in the same way we process all regulations, is to create a regulation to ensure all areas within the security perimeter were equally considered public lands under the Public Works Protection Act.”
    [emphasis added]

    Lorne Gunter has suggested that The Star overreacted, and the 5-meter perimeter only applied within the zone. Police Chief Bill Blair confirms that this is the manner the regulation was intended, but acknowledges communication issues did exist with officer about the application.

    Police board chair Alok Mukherje has said,

    There was an honest misinterpretation by people who were dealing with these matters in the midst of the heat of the moment.

    It was the government, the minister of community safety, that realized that there was a misinterpretation. And they drew it to the attention of the staff and they then advised the chief right away… There was no willful misinterpretation. There was no intent to mislead anybody.

    And as far as the police officers were concerned, they were advised right away, as soon as the mistake was detected.

    However, we have numerous credibly eye-witness accounts (and photos) of police officers applying the regulation as a 5-meter perimeter outside the fence. We also have statements by the Chief that suggest that a misinterpretation was deliberate, and justified by saying,

    …I was trying to keep the criminals out.

    The Regulation itself states,

    1. The area, within the area described in Schedule 1, that is within five metres of a line drawn as follows:
    [emphasis added]

    The problem is that there are two plausible interpretations for “within;” a perimeter, within which 5-meters this Regulation is effective, or 5-meters on both sides of a line that is drawn and including the entire area within.

    Now we can look at all kinds of tools of statutory construction, and most still favour the secondary reading: Ejusdem Generis, Contemporanea Expositio, Casus Omissus, and Verba Generalia Restringuntur ad habilitatem rei vel personae. The reason for this is that the simple and obvious meaning of the Regulation is that presumably the entire area is considered a public works, not just the 5-meter margin within the fence. The government would want the expanded police powers throughout the designated area. This would be strengthened if we look at the application of the Act in other circumstances; In Pari Materia. We could also cite Generalia Specialibus Non Derogant in response to any claims of Leges Posteriores Priores Contrarias Abrogant by pointing to s. 3 of the Act,

    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;
    [emphasis added]

    This only reinforces that the intended or reasonable application of the Regulation includes 5-meters out from the fence. We can also point to the Golden Rule against absurdity at this point, because the contrary meaning simply doesn’t make sense.

    We might be able to look at Expressio Unius Est Exclusio Alterius, or perhaps Noscitur a Sociis, to claim that if it was both sides of the line it would be stated, but it’s still a weak argument. The Penal Rule in favour of a defendant where ambiguity exists would certainly work; but that’s only likely to come up at a hearing, well after any application of the Regulation have already occurred.

    Special thanks on Prof. Randal Graham for bestowing on me the magical powers of statutory interpretation.

  2. Lawrence Gridin

    There were actually a few areas outside the fence that were in fact part of the public work. This is because the fence did not travel exactly along the line defined in the regulation.

    For instance, on Bay Street, the line defining the public work ran down the middle of the street. In some areas, the fence was slightly west of the middle of the street. If you stood in the space that was between the edge of the fence and the middle of the street, technically you’d be within the public work and subject to search.

    The much, much bigger problem than splitting hairs over the “5 meter rule” is that police were using O. Reg. 233/10 as a pretext to search people all over Toronto. Forget about 5 meters. People kilometers away were told that they must submit for a search or be arrested immediately. They were told that the authority for this was “Public Works Protection Act, you can look it up.”

    That’s a way bigger problem than a law legitimately used to protect a (relatively) small area surrounding an international conference.

    I am deeply troubled by the apathy of the public towards what is probably the most massive systematic violation of ss. 7, 8, 9, and 10 of the Charter that has ever occurred in Canada.

  3. Excellent article! I’m glad somebody wrote it. I agree that the Public Works Protection Act being used in the manner it was is very problematic and, in my opinion, unnecessary.

    My reasoning for this is that the police already have very broad powers of arrest under the Criminal Code. Section 495 allows them to arrest anyone who they believe, “on reasonable grounds…is about to commit an indictable offence.”

    Section 31 also entitles them to arrest for Breach of the Peace, including where a person is only about to join in or renew a breach of the peace. Between these two authorities, police had sweeping powers to arrest and search (incident to arrest) people at the G20 who were little more than unruly or about to engage in any type of unruly or illegal activity.

    Police also have a Common Law authority to subject people to Investigative Detention if they believe they are connected to criminal activity. The authority for Investigative Detention also extends to searching the person detained for weapons.

    Furthermore, police receive training in identifying and articulating the characteristics of an armed person (at both the Ontario Police College and in-service) – I know this because I used to be a police officer before going to law school – which they can use to help them identify people who should be detained for further investigation.

    Along with the explicit powers under the Criminal Code, police had sweeping powers under Common Law to deal with people at the G20. With all this authority behind them, I think police had sufficient ammunition to deal with problem people at the summit. If there was someone there who they didn’t have the authority to stop and identify, our legal system would suggest they didn’t need to. Our system clearly does not support the random stopping and identifying of people going about their daily business.

    In my mind, the only reason to enact legislation that takes away the officer’s need to articulate a reason for stopping someone, is a lack of ability on the officer’s part to articulate those reasons.

    Bands of heavily armed police officers stopping people on the streets of Toronto and asking them for identification is a little too reminiscent of the Gestpo stopping people to ask for their papers.

  4. Lawrence, I would not say the public is apathetic. Most people I know were deeply troubled by what occurred last Sunday on many fronts. The challenges are (1) articulating what the specific problems were and (2) knowing how to react so that those responsible are held accountable and this does not happen again. The natural inclination is to form groups on Facebook and hold more protests on the streets of Toronto, but are these the most effective actions?

  5. I don’t really believe there was any malice by any particular group, govt or police through this fiasco. It was well intended. But you know where the road paved with good intentions leads.

    This act itself is very offensive in its misuse and potential for misuse against the charter.

    The CCLA is appealing for petition support for it’s revision or repeal.
    I wish them well.

  6. Personally I don’t think Facebook groups and more protests will be effective.

    There will be a civilian and SIU probe of the role of police, but many are saying that is still not enough. Seems they might get it, in the form of political accountability.

    Internal pressures within the Ontario Liberal Party are asking why the measures were necessary and enacted in this manner,

    On the eve of Wednesday’s caucus and cabinet meetings, grassroots Liberal activists and MPPs were privately expressing concern over the debacle and what it says about the government’s principles and its competence.

    Members of all three opposition parties at the Federal level have signed a motion to convene the Standing Committee on Public Safety and National Security (SECU) to address the G20 measures.

    Even Amnesty International has called for an independent review.

    The G20 measures have disturbed many citizens across political lines and ideological persuasions. As I’ve said, I don’t have to agree with protesters or their cause to want them to be treated in a respectful manner that would make Canada proud.

    A video of a police search outside the 5 meter area can be found here.

  7. There are two troubling (to me) aspects of the PWPA that I have not seen mentioned.

    First, the Act specifically includes “other work, owned, operated or carried on by”…”private enterprises”. This seems a needlessly open-ended definition of a ‘public’ work. An office building, shopping mall, apartment building, parking garage, convenience store…?

    Secondly, the Act allows the person having charge of a public work to appoint guards having the powers of peace officers under the Act. The Act does not require this person to seek permission of anyone, nor does it require that anyone be notified of the designation. So the Chair of the Toronto District School Board could designate all teachers as guards; the Chair of the board operating Sherway Plaza could make all of the mall cops guards.

    These are the thoughts of one with no legal training whatsoever. I hope someone here will be able to relieve my concerns…