A seemingly trivial interaction between police and a protester almost eight years ago during the G20 Summit in Toronto has dragged the Toronto Police Services Board in front a judge in one of the only civil cases to make its way to trial following the largest mass arrests in Canadian history.
Luke Stewart, originally from Brantford, Ontario, was on his way to a rally in a public park in the summer of 2010 when he says police illegally searched and detained him. Stewart wants $100,000 in damages for the encounter, which he says violated his constitutional rights.
The case “is an urgent test of our democracy and ability to speak freely and protest against governments,” says Michael Bryant, Executive Director of the Canadian Civil Liberties Association.
Winning a major damage award from police would set a precedent for other people to do the same, he says. That could encourage Ontario police to change their tactics, including controversial carding practices, which have been criticized for disproportionately targeting young men of colour.
'Messing with people’s constitutional right to protest'
The G20 Summit, which brings together officials from the world’s top 20 economies, resulted in the largest mass arrest in Canadian history with approximately 900 people detained over a single weekend. The indiscriminate arresting spree led to multiple legal actions between citizens and police, but most cases have been settled out of court.
Usually, the person suing the police runs out of money or can’t find a lawyer to represent them, says Bryant. “In this case, clearly the plaintiff wants to have the trial in order to show the public what happened and literally put the police on trial.”
It’s also the first G20-related case where police have invoked the Trespass to Property Act to defend their actions, says Bryant. “They’re pretending like they are mall cops just looking after the city’s property when, in fact, they are messing with people’s constitutional right to protest.”
Staff Sergeant Nancy McLean was the lead officer in Allan Gardens on the day that Stewart was searched and detained. Testifying in court on Wednesday, she said officers created a perimeter around the park and began scanning and searching everyone that came in.
She said her superiors advised her to be “vigilant” and to look for potential weapons, such as rocks, sticks, knives and fish hooks, as well as anything that “could be used to defeat police tactics,” such as gas masks and vinegar, which can help people breathe through tear gas.
Soon after, police were informed that a bombing at an Ottawa bank was connected to the G20, said McLean. “These sorts of things began to heightened our concerns for everyone.”
When Stewart arrived at Allan Gardens, he was surprised to find a row of bikes “strewn across the grass” creating a barrier and police officers demanding to search his bag before he could enter the park.
He had been advised through legal workshops that police could not search his bag unless he was detained or a criminal investigation was underway. “They were not communicating what was going on,” Stewart said in an interview with VICE News.
A video of the event shows Stewart asking police to explain their legal authority to search his bag. After about five minutes of debating his rights with police, he decides to walk past them into the park.
Stewart was detained for 12 minutes while police searched his bag. They confiscated his swimming goggles and returned the rest of his property. He was not injured, handcuffed, given a ticket for trespassing, charged with obstructing the police or formally placed under arrest or in a police car.
“It seemed like they were creating a line that once you passed it, you were going to be detained if you did not consent to a search, says Stewart. “That’s an extraordinary power that they did not have.”
The Toronto Police Services Board says officers were simply doing their jobs. “Such examination was necessary to protect the safety of those persons within the park in the circumstances as they existed on that day,” says the statement of defence.
McLean invoked the Trespass to Property Act in court as the “lawful authority” that gave her and other officers the right to search Stewart when he tried to enter Allan Gardens.
But Bryant says nothing in the act gives police the right to search and seize property.
Stewart didn’t violate any existing laws, he was just walking into a park, says Bryant. If police can stop Stewart before entering the park, “then at a protest they can just walk up to people and start going through their stuff—and that’s not the law in Canada.”
Stewart’s case could also have “huge implications” for carding and racial profiling more generally, says Bryant.
Carding allows police officers to collect personal information from people who have not been accused of a crime. An investigation into carding by the Toronto Star in 2012 showed that police disproportionately targeted young black and brown Canadians between 2008 and 2013. Ontario introduced legislation in 2016 that banned carding except in specific situations, but critics say the new law doesn’t go far enough and are calling for an outright ban.
Stewart’s case challenges the idea that police can stop somebody without evidence, says Bryant. “If you’re opposed to racial profiling, police bias and overreach of their powers, then tune into this case because that’s what’s being decided,” he says.
The trial is expected to end Tuesday, but it could take several weeks for the judge to deliver her decision.