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A case comment on Fleming v Ontario - Nikolai Bola

This case is brought to the court on appeal from the trial judge’s finding in favour of the plaintiff, who found a breach of s 2 (b), 7 and 15 of the Charter, then onto the Court of Appeal of who allowed the appeal on the basis that they found the police had authority under the ancillary powers doctrine at common law to arrest Mr. Fleming for an anticipated breach of the peace. I agree with the Ontario Court of Appeals finding that the anticipated breach of the peace was a lawful arrest due to the historical nature of violence within protests and rally’s and the systemic oppression of Indigenous peoples in Canada.

Given the long history of systemic racism and violence against Indigenous people, I believe the ancillary powers given to the police officers by the common law doctrine to interfere with a person’s liberty to protect the public should have been extended in the case of Fleming v Ontario. Mr. Fleming claims a breach of s. 7, the right to Life, Liberty, and Security of the Person, s 15, Equality and s 2(b), Freedom of Expression, of his charter rights by an unlawful arrest by the Ontario Police. Mr. Fleming states that he was simply walking down the street to meet a group of people who were counter protesting a protest by the Haudenosaunee Indigenous Peoples. The Haudenosaunee were protesting the purchase of their land by the province of Ontario, and the group of counter protesters were protesting the Haudenosaunee people’s initial protest by walking along their property line with Canadian flags.

Indigenous peoples of Canada have faced unconscionable things put in place by the Canadian government. The residential school system resulted in intergenerational trauma effecting generation after generation of Indigenous peoples, causing systemic oppression and an ongoing white supremacy mentality within the general public and inside our legislatures and courtrooms. It is stated within this case that the police arrested Mr. Fleming in order to keep him safe. This is a typical example of who our systems prioritize with respect to keeping the public safe, as well as a reinforcement of the stereotypical view that it would have been someone from the Indigenous peoples side who would have initially been violent toward Mr. Fleming. This view reflected by the over populated visibility of Indigenous people within Canadian incarceration facilities. So the view taken that the police were trying to protect Mr. Fleming’s safety especifically comes at no shock. I believe the arrest of Mr. Fleming, was in reality, for the protection of the many Indigenous people protesting on the land that belongs to them, and anyone intervening that right is in fact breaching their charter rights as well as trespassing on private property.

Mr. Fleming’s breach of his s 2(b) and s 15 rights of the charter would not have been infringed if he had not entered private property that was specifically restricted. As is stated within the case, there is a history of violence within large groups of protesters and rally’s and the police have a duty to ensure the protection of the public. His s 7 breach should have been seen as reasonable and protected under s 1 as a reasonable limit demonstrably justified, because of the polices duty to protect the public against violence and disturbance of peace.

The court then puts forth a test to analyze whether the ancillary doctrine can be applied to the police in this situation. The court first determines if the conduct falls within the scope of common law or statutory police duties and second, if the conduct falls within a justifiable exercise of that police duty. The court finds that the test was not met by the police and that Mr. Fleming was not doing anything unlawful or was not going to do anything unlawful. The Supreme Court then concludes that Mr. Fleming’s arrest was not lawful and reinstates the trial judge’s findings with damages awarded to Mr. Fleming.

Fleming v Ontario 2019 SCC No 45

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