Police liable for battery, unlawful arrest in Caledonia counter-protest, says SCC

Top court says police can’t arrest those acting lawfully to prevent a breach of peace

Police liable for battery, unlawful arrest in Caledonia counter-protest, says SCC
“Mr. Fleming feels that this is an important day for the rule of law, and fundamental rights and freedoms in Canada. The Supreme Court of Canada has once again protected freedom of expression and the ability of Canadians to express our views peacefully,” said Michael Bordin.

Police do not have a common law power to arrest someone acting lawfully to prevent an apprehended breach of the peace, a unanimous Supreme Court ruled today in a decision that will affect police powers in protests.

In Fleming v. Ontario, the Supreme Court found that a counter-protester’s arrest at a 2009 Six Nations blockade was unlawful.

“It’s a great day for civil liberties in Canada,” says Sean Dewart of Dewart Gleason LLP in Toronto, who acted for the intervener Canadian Civil Liberties Association in the case.

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“The court could not have spoken more clearly about the common law power to arrest for apprehended breach of the peace. The judgment was remarkable for its clarity in setting out the importance of liberty for everyone, but particularly for people who are engaged in legitimate political protest.”

Today’s decision will curtail common law arrest powers in the absence of crime and resist “the likelihood of another G20 disgrace,” Dewart says. This use of purported arrest powers “was the fig leaf that police services used” in responding to protests that attended the G20 summit in Toronto in 2010, which resulted in the largest mass arrest (of more than 1,000 individuals) in Canadian history.

“They can’t do that again.”

In May 2009 the appellant, Randolph Fleming, was carrying a Canadian flag through Caledonia, Ont., adjacent to lands occupied by Indigenous protesters of the Six Nations of the Grand River reserve. He planned to join a march and watch a Canadian flag-raising as a counter-protest to the occupation of Douglas Creek Estates. When OPP officers spotted Fleming walking alone, they approached him, he retreated onto the disputed lands, and occupiers reacted.

A police officer arrested Fleming to prevent a breach of the peace, and he was ordered to drop his flag but refused. He was overpowered, handcuffed and transported from the scene. He sued the police and claimed permanent injury. The trial judge awarded damages to Fleming; on appeal, a majority of Ontario’s Court of Appeal set aside the trial judgment and ordered a new trial restricted to determining whether excessive force was used during the arrest.

In Friday's judgment, the Supreme Court found there was no basis for intervening in the trial judge’s conclusion that the Province of Ontario and the police were liable for battery for their use of force in unlawfully arresting him, and no new trial is therefore needed on the issue of excessive force.

“The common law has long striven to defend individuals against abuses of state power,” wrote Justice Suzanne Côté in her reasons, with Chief Justice Richard Wagner and Justices Rosalie Abella, Michael Moldaver, Russell Brown, Malcolm Rowe and Sheilah Martin concurring.  

“The courts of this country, as custodians of the common law, must act cautiously when asked to use it to authorize actions that interfere with individual liberty,” Justice Côté wrote. “This is never truer than in cases like the one at bar, in which the exercise of the police power in question would restrict lawful activities of individuals.”

The decision provides clarity both for the police and for citizens, says Michael Bordin of Gowling WLG (Canada) LLP in Hamilton, Ontario, who represented the appellant in the case.

“The primary conclusion to be drawn is that no common law power to arrest a person acting lawfully exists,” Bordin wrote in an email, “especially to protect the lawful citizen from the conduct of others. Moreover, it appears that the police power to arrest to prevent a breach of the peace must be found in the Criminal Code, rather than the common law.”

The court referred to the explicit provisions of the Criminal Code “for a number of warrantless arrest powers that obviate the need for such a common law power.” In particular, these include the ability of a police officer to arrest anyone found committing a breach of the peace or who the officer believes is “about to join in or renew the breach of the peace,” and to arrest any person “who, on reasonable grounds, he believes has committed or is about to commit an indictable offence.”

Police officers already have extensive powers to arrest, without a warrant, a person they reasonably believe is about to commit an act which would amount to a breach of the peace, Justice Côté wrote; “I therefore have difficulty seeing any need for the courts to fill a legislative gap by recognizing a common law power of arrest for the purpose of preventing individuals from committing breaches of the peace themselves.”

Less intrusive methods could be employed in order to keep the peace, the court found, such as erecting a barrier between protestors and counter-protesters.

And while this case did not concern a power to arrest a person for the purpose of preventing that person from breaching the peace, “I seriously question whether a common law power of this nature would still be necessary in Canada today,” Justice Côté wrote.

In this way the ruling goes even further than the test set out in R. v. Waterfield, says Dewart, in that it “casts serious doubt on … whether you can even arrest someone who themselves is about to commit a breach of the peace.”

A spokesman for the Ministry of the Attorney General of Ontario declined a request for comment.

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