Law professor James Morton minimises the impact of the law and suggests that the it might actually fall within Constitutional wiggle room and apparently isn't as bad as it looks.
It's probably constitutional as a small infringement on rights for legitimate goal -- the Supreme Court has ruled protection of foreign officials is a valid public goal. (It may be questionable in terms of federalism -- it's probably better as a federal law). Regardless, I suspect any charges will be withdrawn before trial (and after the Summit) so a challenge to the regulation would be moot.Well, fair enough I suppose regarding the legality. But I think he Morton misses the large problem, which Law is Cool blogger Lawrence Griden seems to get:
My only concern would be an expansion of the use of the PWPA to allow warrantless searches more widely. In theory if it works once it'll work again ... . (But I don't see it being used widely and if it was it would be struck as unconstitutional -- it only works because it's brief and for a special event).
...the Ontario cabinet quietly designated a 5-meter radius around the G20 security area as a “public work” without really telling anyone.However, I think there's more to be said. As I read it, a provincial cabinet has found a means - through Order-in-Council - of temporarily modifying that law to give police expanded powers akin to those that might provided under the federal Emergencies Act, but in complete secrecy, and time limited in such a way as to neuter any sort of organised legal challenge. All done at the request of a police chief. Without public debate.
The regulation authorizing these powers in relation to the G20 zone was filed on June 14, 2010 and went into force a week later. But to my knowledge, the government made no announcement of the regulation. Worse yet, it has not been published in the Ontario Gazette (it will only be published in July, after it is no longer in force). Since the regulation is not yet part of Ontario’s consolidated law, the only way to access the regulation is to look it up in the “source law” section of the e-Laws website here.
For all practical purposes, this is a “secret law,” because of the failure of the government to publicize it.
This law authorizes extraordinary police powers, and it significantly derogates from our ordinary civil rights. There is a real risk of people being arrested and charged when exercising the same rights to refuse to answer questions and submit to searches that apply everywhere else. In my opinion, the government should have been more forthcoming about the law to minimize that risk.
It doesnt matter if it's technically legal, it appears to demonstrate a legal loophole you could push a Mussolini through. That seems to me to big something of a big deal.
So I have some questions for the legally inclined readers:
What's to stop government and police from using the same process again in other contexts, should the police whinge that existing law like Charter Rights makes their job too damn hard and could politicians please help them out there, or politicians get it in their heads to do something that some pesky members of the public might object to?
At the tactical level, what's to stop a designated authority from declaring any bit of infrastructure a "public work" critical to security in order to provide legal cover for any old arrest or search?