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...