It was “illegal” and “likely unconstitutional” for Premier Dalton McGuinty’s government to pass a secret regulation that police used to detain people near Toronto’s G20 summit of world leaders last summer, says Ombudsman Andre Marin.

In a scorching 125-page report entitled Caught in the Act, Marin said the measure “should never have been enacted” and “was almost certainly beyond the authority of the government to enact.”

“Responsible protesters and civil rights groups who took the trouble to educate themselves about their rights had no way of knowing they were walking into a trap – they were literally caught in the Act; the Public Works Protection Act and its pernicious regulatory offspring,” he told reporters.

Marin recommended that the little-known 1939 legislation should be revised or replaced and protocols developed so the public is made better aware when police powers are modified. He has given the government six months to make progress on this front.

As first disclosed by the Star on June 25, the Liberal cabinet – at the request of Toronto Police Chief Bill Blair—quietly designated areas within the G20 security zone a “public work” using regulation 233/10 under the Act.

“By changing the legal landscape without fanfare in this way, regulation 233/10 operated as a trap for those who relied on their ordinary legal rights,” wrote Marin in his exhaustive post-mortem, which is illustrated with 42 colour photos.

“The effect of the regulation … was to infringe on the freedom of expression in ways that do not seem justifiable in a free and democratic society,” the watchdog continued.

“It gave police powers that are unfamiliar in a free and democratic society. Steps should have been taken to ensure that the Toronto Police Service understood what they were getting.”

Marin was especially critical of the province’s ministry of community safety and correctional services, which was then run by Rick Bartolucci, who McGuinty later shuffled to run the ministry of municipal affairs and housing.

“The ministry simply handed over to the Toronto Police Service inordinate powers, without any efforts made to ensure those powers would not be misunderstood,” he wrote.

“Apart from insiders in the government of Ontario, only members of the Toronto Police Service knew that the rules of the game had changed, and they were the ones holding the deck of ‘go directly to jail’ cards.”

The temporary regulation, enacted June 2, was supposed to clear up any confusion for police officers if they had to stop someone inside the restricted area around the Metro Toronto Convention Centre where world leaders met June 26-27.

But Torontonians were left with the erroneous impression that police had been granted the power to arrest people who refused to provide identification or submit to a search within five metres of the outer perimeter.

Community Safety Minister Jim Bradley, who replaced Bartolucci in August, will formally respond to the report later Tuesday, but sources say the government is likely to embrace most of Marin’s findings.

In September, Bradley appointed former Ontario chief justice Roy McMurtry to probe the Public Works Protection Act. McMurtry is expected to report back on his findings next year.

That move came amid calls for the Second World War-era law to be modernized after the G20 fiasco.

Thousands of protesters took to city streets with small bands of vandals smashing shop windows, torching police cars, and creating mayhem in the downtown core.

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While police arrested 1,105 people and charged 278, the majority of detainees were released without being booked and most charges have since been dropped.

Along with McMurtry’s probe, retired judge John W. Morden is doing an investigation of the G20 command structure and policing model at the behest of the Toronto Police Services Board

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