The Supreme Court Of Canada Holds That The Common Law Does Not Empower The Police To Arrest A Person Who Is Acting Lawfully

Supreme Court of Canada Case in Depth: Fleming v Ontario, 2019 SCC 45

The Supreme Court of Canada released its decision in Fleming v Ontario, on October 4, 2019. The decision was unanimous, with Côté J. writing for the Court.

The case is about common law police powers of arrest. In arresting Mr. Fleming (the Appellant), the Respondent Attorney-General of Ontario and police officers argued that they had made use of an "ancillary" common law police power authorizing the arrest of an individual who was acting lawfully in order to prevent an apprehended breach of the peace. This purported police power has been used to justify arrests in circumstances of protest, including mass arrests during the 2010 G20 protests in Toronto. However, the question of whether such a power exists and its scope had not previously come before the Supreme Court. Accordingly, this case had significant implications for the rule of law in Canada.

The Court accepted the Appellant's argument that recognizing such a common law power of arrest would substantially interfere with the liberty of law-abiding individuals and would not be reasonably necessary for the fulfilment of police duties. Further, as the Court could not conceive any circumstance in which the arrest of someone who is acting lawfully in order to prevent a breach of the peace would be reasonably justified, the Court concluded that "no such power exists at common law".

Facts and Background

The basic facts of the case were not in dispute. On May 24, 2009, Randy Fleming ("Fleming") was lawfully and peacefully exercising his common law rights and Charter freedoms, walking north on the shoulder of Argyle Street in Caledonia, Ontario. He was carrying a Canadian flag. He was walking to a long-planned 'flag rally' involving the raising of a Canadian flag and speeches. His goal was to watch the rally.

Seven Ontario Provincial Police ("OPP") officers set out to intercept Fleming as he walked. They drove at him in two vans, onto the shoulder of the road at speed, from the opposite direction. The lead van was unmarked. Carrying his Canadian flag, Fleming walked a few meters through a ditch to higher ground onto land owned by the Province of Ontario known as Douglas Creek Estates ("DCE").

Within seconds, Fleming was arrested and wrestled to the ground by the OPP officers after he refused to drop his Canadian flag. It was established at trial and not contested on appeal that: (a) Fleming had broken no laws and was acting lawfully at the time of his arrest; (b) upon being 'grounded', Fleming had complied with police commands to place his hands behind his back; and (c) Fleming's arm had been wrenched upwards while he was being handcuffed by the OPP officers after he complied, leaving him with a permanent injury.

For more than three years prior to May 24, 2009, DCE had been occupied by Indigenous persons in a longstanding dispute between the Crown and the First Nation of Six Nations of the Grand River. The flag rally was a protest aimed at OPP policing in the context of the occupation. The flag rally was to have occurred on the far side of Argyle Street from DCE. Argyle Street is a busy two-lane highway, and it was open to traffic. As a protester, Fleming's constitutionally-protected freedom of expression and liberty interests were involved, along with his common law rights to pass and repass on a public highway.

Fleming did not approach any persons on DCE or speak to them. The main entrance to DCE where 20 or so occupiers were gathered was about 100 meters away from Fleming. The day had been peaceful. There was a heavy police presence, with over 30 OPP officers on the ground—including the 7 officers involved in Fleming's arrest—plus 30 additional officers (in 'hard tac' riot-gear) available in reserve and able to be quickly deployed.

After the 7 OPP officers had driven their vans at Fleming and he had left the shoulder of the road, approximately 8-10 male and female occupiers began to approach. Several were carrying camerassome walked; some jogged...