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Fleming v Ontario - Patrick Gutowski

Fleming v Ontario appears to be a victory for defenders of individual liberties against the expansion of police powers. In reality, this case follows the model of previous cases involving the ancillary powers doctrine. The court’s stewardship over police powers has created a dynamic in which new police powers are granted if an expansion would satisfy the state’s desire to secure a conviction.

Fleming was on his way to participate in a counter-protest organized as a response to protestors’ occupation of some Crown land. There had been violent clashes between both groups in the past, prompting police to develop an operational plan that involved separating the groups. The counter-protesters were told that they were not allowed onto the occupied Crown land. As Fleming stepped onto the land, some protesters started moving toward him and an officer arrested him with the aim of preventing a breach of the peace. The police handcuffed him, took him to a jail cell, and released him two and half hours later. He filed a claim against the province and police “for assault and battery, wrongful arrest, and false imprisonment, as well as aggravated or punitive damages and damages for violations of his rights under ss. 2(b), 7, 9 and 15 of the Canadian Charter of Rights and Freedoms.” Fleming won at trial, but the Ontario Court of Appeal held that the police had the common law power to arrest him in the situation. On appeal, the Supreme Court of Canada had to determine whether the police’s conduct was authorized at common law. The Waterfield Test has been adopted for this purpose. It consists of a preliminary analysis of what police power is being asserted and what liberty interests are affected. Next, a two-stage analysis is followed: 1. “Whether the police conduct at issue falls within the general scope of a statutory or common law police duty.” 2. “Whether the police action is reasonably necessary for the fulfillment of the duty.” The court will consider: a. “The importance of the performance of the duty to the public good,” b. “The necessity of the interference with individual liberty for the performance of the duty, and” c. “the extent of the interference with the individual liberty.” In Fleming, the police conduct is described very narrowly as the power to arrest someone who is acting lawfully in order to prevent an expected breach of peace by someone else. This would fall under the police duties of preserving the peace, preventing crime, and protecting life and property. It is at the second stage that the conduct is found to be unjustified. It would be extraordinary to allow police to interfere with the liberty of individuals who are engaging in lawful behaviour. The court does not rule out the possibility of recognizing preventative measures in the future. In this situation, however, there were less intrusive courses of action available to police.

Cote J briefly references the origins of the Waterfield test, and quotes Binnie J’s observation that “Waterfield is an odd godfather for common law police powers”. The test has been applied since Dedman v The Queen, in which a police power to randomly stop vehicles was recognized. Yet, it was originally used to determine if a “constable had been acting in the execution of his duties when he was assaulted”, not to delineate new common law police powers. Cote’s comments attempt to bypass the inadequacy of the doctrine.

As police technology improves and society becomes more complex, the capabilities and challenges faced by police extend beyond the powers granted to them by statute and common law. There is no doubt that effective policing requires flexibility and speed, but should it come at the cost of liberties and the oversight of societal dialogue? Historically, common law has developed slowly, with an understanding that what is not expressly disallowed is legal. The courts have kept legislatures in check, following certain principles of statutory interpretation such as “strict construction of penal legislation”, “strict construction of legislation that interferes with individual rights”, and “presumption against the retroactive application of legislation”. This has had the effect of ensuring that statutes which impose great burdens and stigma are read in favour of the individual. Curiously, the Waterfield Test has allowed the SCC to justify developing common law police powers at a fairly rapid pace. The result has been the creation of new police powers that operate retroactively; a defendant could have had no inclination that the police were authorized to engage in the impugned conduct. Cote argues that the Waterfield and Oakes tests have similarities such as the minimal impairment and proportionality assessments, and that Waterfield accounts for the limitations in qualified rights. The glaring difference between these tests, however, are the sources of the impugned laws. Oakes analyses involve the court reviewing Parliament’s restrictions on rights and balancing them against the law’s salutary effects. Waterfield, however, is entirely contained within the court. The court engages in a “monologue” which it performs at times when the police have almost invariably uncovered a crime, and the court’s analysis is not a true discussion of whether the police power’s benefits outweigh their cost to liberty on a societal level. The court weighs whether the police conduct aided in performing a duty that benefits the public good, i.e. uncovering a crime. Accordingly, a new police power was not recognized in Fleming.

The court’s deference to law enforcement has become endemic due to their position as creators of police power complicating the protection of legal rights. A year before Waterfield was used in Dedman, the Court issued what is viewed as its strongest defence of privacy rights in Hunter v Southam. Yet, when delineating the negative right created by s. 8 of the Charter, it created a threshold positive right – a reasonable expectation of privacy. I argue that this subtle distinction shifts the focus from determining whether the state’s incursion by law or police action is reasonable to whether an individual’s expectation of privacy is reasonable. Instead of compelling the state to argue that a certain increase in surveillance (possibly a new ancillary search power) is reasonable, individuals must defend their belief that their expectation of privacy is reasonable in order to extend it.

The combination of common law, the Criminal Code, and the Charter have created a mix of authorities in Canadian criminal law. The Charter era of Canadian law ushered in a dynamic in which individuals have been afforded protections against state overreach. Canada does not have a separate Constitutional Court; the final arbiter of these clashes is the SCC. Yet criminal law, the area of law most hostile to liberty, is partially created by those charged with its oversight. The Fleming decision was an important defence of individual rights, but it continues to endorse the ancillary powers doctrine and offers no indication that the court will change course.


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