A man whose swim goggles were confiscated by officers following a search of his backpack on the eve of the turbulent G20 summit in Toronto almost a decade ago has been awarded $500 in damages.
In its decision, Ontario’s top court ruled police had no right to search Luke Stewart when he entered a public park. Requiring the search infringed his rights to free expression and to be free from arbitrary detention, the court found.
“The freedom to engage in the peaceful public expression of political views is central to our conception of a free and democratic society,” Justice David Brown wrote for the Appeal Court. “Freedom of expression requires zealous protection.”
As tensions mounted heading into the summit weekend in June 2010, police decided to search bags and backpacks as a condition of entry into Allan Gardens. Officers cited trespassing laws as justification, saying they were looking for weapons or items that could be used as weapons.
Three officers confronted Stewart, of Kitchener, Ont., and asked to search his bag. He refused, demanding to know their legal justification. They responded it was under trespass laws. Stewart, in the three-minute videotaped encounter, pushed past the officers, who then restrained him briefly.
They removed his backpack and, over his objections, took his swim goggles on the grounds he could used them to protect himself from police tear gas. Stewart, who refused to give his name, then proceeded into the park.
Stewart sued, claiming police had illegally detained him, searched his backpack, and confiscated his goggles. He argued they knew their actions were unjustified and in bad faith. He sought $20,000 — down from his initial claim of $100,000.
In July 2018, Superior Court of Justice Bernadette Dietrich ruled the officers did have the requisite search powers. She dismissed his action and claim for damages, prompting his appeal.
The Appeal Court noted in its ruling that the Supreme Court of Canada had clarified police powers after Dietrich’s ruling, finding the officers had no authority to target apparent protesters for searches.
“The police arbitrarily detained Mr. Stewart when he attempted to cross the police line into the park without submitting to a search of his backpack,” Brown wrote. “Mr. Stewart was not engaged in acts of physical violence or threats of violence.”
On the issue of damages, the appellate court concluded Stewart had shown no evidence of losses to justify the damages he sought. However, a “modest” award for the violation of his rights was justified, the court said.
The chaotic G20 weekend in June 2010 saw a relative few protesters —among the many peaceful demonstrators — engaged in serious vandalism. In response, officers arrested more than 1,000 people — in many cases illegally. The actions spawned numerous complaints and lawsuits over the heavy-handed police actions.
In Stewart’s case, the Appeal Court said, officers acted in good faith and professionally. Stewart could have recovered his goggles had he given officers his name for a property receipt, Brown said.
The court set aside an earlier $20,000 costs award against him and instead ordered police to pay him $20,000 for the costs of his appeal. His trial costs are yet to be determined.
Colin Perkel, The Canadian Press