Supreme Court Of Canada Addresses Common Law Police Powers

In the recent decision of Fleming v. Ontario, 2019 SCC 45, the Supreme Court of Canada declared that there is no common law police power to arrest individuals acting lawfully to prevent an apprehended breach of the peace by someone else. Applying the ancillary powers doctrine, the Court found that this ostensible power was not reasonably necessary to fulfil valid police duties.

Background The plaintiff/appellant was a resident of Caledonia, Ontario, who in 2009 intended to join a counter-protest against First Nations protestors who were occupying a local property. As he entered the disputed premises, eight protestors began moving toward him, and he ignored instructions from Ontario Provincial Police (OPP) officers to stop and leave the scene. He was then arrested and transported to the local OPP detachment, and later sued the OPP and its officers for assault and battery, wrongful arrest, false imprisonment and damages stemming from breaches of his Charter rights.

In an unreported trial decision, the plaintiff was successful and was awarded $139,711.90 in damages, plus costs. The trial judge found that the officers had no legal authority to arrest the plaintiff, as he had not breached any law. Moreover, the facts did not disclose any imminent risk of a breach of the peace that might justify his arrest under a common law police power.

On appeal reported at 2018 ONCA 160, the majority reversed the ruling, finding that the protestors represented a real risk to the plaintiff's safety, and that given the history of violence at protests in Caledonia, the officers were justified in arresting the plaintiff to prevent a breach of the peace. The dissent found no palpable and overriding errors in the trial judge's factual analysis and agreed that there was no imminent threat of violence. The Court dismissed all of the plaintiff's claims except excessive force and ordered a new trial on that issue alone.

The Ancillary Powers Doctrine In order to determine whether an exercise of a police power is valid at common law, a court must ask:

Does the police action at issue fall within the general scope of a statutory or common law police duty? Does the action involve a justifiable exercise of police powers associated with that duty? The Supreme Court easily concluded that the first branch of the test was satisfied, as preventing breaches of the peace, which entail violence and a risk of harm, fall squarely within the core of common law police duties.

Does the...