(by John Burchill, JD LLM)
On October 25, 2018, the Supreme Court granted leave to appeal Fleming v Ontario, 2018 ONCA 160.
The decision in Fleming should clarify the common law duties of the police to prevent an apprehended breach of the peace left undecided when leave to appeal the decision in Brown v Durham Regional Police (1999), 106 CCC (3d) 302 (Ont CA) was discontinued on October 4, 2000.
At issue in Fleming was the lawfulness of the arrest of Randolph (Randy) Fleming for carrying a Canadian flag towards a protest that was seen as likely to provoke others to violence based on the police knowledge of historical frictions in the Caledonia area.
On May 24, 2009, Fleming attended an event held by protestors opposed to the occupation of Douglas Creek Estates (DCE) in Caledonia. Fleming had a Canadian flag with him and began walking north on Argyle Street. He was approached by members of the Ontario Provincial Police (OPP) who ordered him to stop. Fleming ignored the order and left the roadway, continuing to walk onto the DCE, where occupiers at DCE were becoming upset.
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