Reviewing Fleming v Ontario
Updated: 5 days ago
Author: A Clark
Canada is a free and democratic society. Every Canadian is afforded protection of a number of rights and freedoms under the Canadian Charter. However, the administration of criminal justice often infringes upon these rights, particularly the right to liberty. Through both statute and common law, police are afforded the power to enforce order through lawful detention of individuals to promote the safety of Canadian society. In the Supreme Court Case Fleming v Ontario, the court discusses the conflict between police powers and the right to liberty, weighing the importance of police action over individual liberty.
In May of 2009, Randolph Fleming was walking down Argyle Street in Caledonia. He carried a Canadian flag and was intending to join a group of counter-protesters to participate in a flag rally. The police were aware of the long-standing dispute between the Crown and the First Nation of Six Nations of the Grand River. The First Nation protestors occupied a property referred to as “D.C.E.”, and had prompted the counter-protesters to rally against the occupation.
The police had developed an operational plan for future conflict between the groups, and decided that no flag rally participants would be permitted to enter D.C.E. The police spotted Fleming on the road and approached in vehicles. In response, Fleming moved off the road and across the ditch into D.C.E property. The officers began yelling at Fleming to return to the road. Meanwhile, First Nation protestors became aware of his presence on the property and began approaching him at some speed on foot. A police officer then approached Fleming, and proceeded to forcefully place him under arrest. Fleming was released two and a half hours later. Fleming seeks damages against the Province of Ontario and the arresting officers for assault and battery, wrongful arrest, false imprisonment as well as damages for violations of his rights under ss. 2(b), 7, 9 and 15 of the Canadian Charter of Rights and Freedoms.
The trial judge noted that the central question in this case was whether the officers had a legal authority to arrest Fleming. Fleming had not broken any laws prior to his arrest, and as such, the police must rely on a preventative police power to stop breaches of the peace before they arise. However, the breach must be imminent with substantial risk of it actually occurring for the arrest to be justified. The trial judge found these criteria were not met and decided in favour of Fleming.
The Ontario Court of Appeal determined that the officers did in fact have the authority to lawfully arrest Fleming. The majority of the court found a number of errors had been made in the trial judge’s analysis. The court found that a real threat to safety did exist, and thus a substantial risk of a breach to the peace occurring.
The Supreme Court of Canada clarified that the question at issue is not whether police have the power to arrest an individual to prevent same person from breaching the peace. Rather, the question must be whether the police have authority to “arrest someone who is not about to breach the peace in order to prevent an apprehended breach of the peace by other persons.”
To answer this, the court applied the Ancillary Power Doctrine, which states that “police actions that interfere with individual liberty are permitted at common law if they are ancillary to the fulfillment of recognized police duties.” These duties include preserving the peace, preventing crime, and protecting life and property. The court applied the appropriate test as set out in R v Dedman. In only to be found an authorized police power under common law, the police action must fall within the general scope of a statutory or common law police duty. Preserving peace and protecting life clearly fall within this scope.
Additionally, it must be shown that the action is a justifiable exercise of police powers associated with that duty. In essence, the police action must be reasonably necessary to preserve the peace and protect life. The court recognizes that these are extremely important duties, and that in extraordinary circumstances, it may be necessary to interfere with individual liberty in order to fulfill these duties.
However, the court takes note that arresting persons is one the greatest invasions of the right to liberty in our free and democratic society. An intrusion of such magnitude should not be considered lightly. Authorizing police to arrest individuals in order to prevent others from breaching the peace has an impact on law-abiding citizens that is difficult to justify. Police action is intended to protect innocent third-parties, not strip them of their right. Recognizing the particular police power threatens the liberty of persons who have not committed a crime, nor are suspected of having intention to do so.
The Supreme Court ultimately that the purported police power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace is not reasonably necessary to fulfill their duties. Such a power does not exist. In light of this, Fleming’s arrest was not lawful. The authorization of new police powers must be carefully weighed against the infringement they may have against the liberty of Canadians.
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