On May 24, 2009, Randy Fleming was carrying a Canadian flag on his way to a counter-protest organized in response to the occupation of Crown land by Six Nations protesters in Caledonia, Ontario. The Ontario Provincial Police planned to keep the two groups of protesters apart because of the contentious atmosphere in the community. The police arrested Fleming to prevent a breach of the peace and forcibly carried him off to a gaol cell after he refused to drop his flag. He was charged with obstructing a police officer which was later withdrawn by the Crown. He then sued for assault and battery, wrongful arrest, false imprisonment and violation of his constitutional rights. Here’s the story.

On September 22, 2016, Justice Kim Carpenter-Gunn, in the Ontario Superior Court of Justice, found in Fleming’s favour and awarded $139,711.90 in damages. She held that the officers had no legal authority to arrest him. He had not committed a crime. He had not broken any law. He was not about to commit an offence, harm anyone or breach the peace. Any apprehended breach of the peace by the Six Nations protesters was not imminent and the risk of it occurring was not substantial. The actions of the police were not authorized by any statute nor at common law under the ancillary powers doctrine.

2. Appeal

On February 16, 2018, the Ontario Court of Appeal set aside the trial judge’s order in a 2-1 majority ruling reported as Fleming v Ontario, 2018 ONCA 160. Justice Ian Nordheimer, with Justice Eleanore Cronk concurring, held that the officers had authority at common law to arrest Fleming for an anticipated breach of the peace. Justice Nordheimer specifically concluded there was a risk to Fleming’s safety when some indigenous protesters rushed toward him. The police were therefore justified in taking action for Fleming’s own good and to prevent a likely breach of the peace. A new trial was ordered solely on the issue whether the police used excessive force in arresting him.

3. Supreme Court of Canada

On October 4, 2019, the Supreme Court of Canada unanimously reversed the Ontario Court of Appeal in a 7-0 opinion reported as Fleming v Ontario, 2019 SCC 45. Writing for the court, Justice Suzanne Cote held, at paras 7-8, that a power to “arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace” does not exist at common law. Such a power is not “reasonably necessary for the fulfillment of the police duties of preserving the peace, preventing crime, and protecting life and property.” Fleming’s arrest was therefore not authorized by law.

4. Ancillary Powers Doctrine

The basis of the ancillary powers doctrine is that police actions interfering with individual liberty are permitted at common law if they are ancillary to the fulfillment of recognized police duties. Intrusions on liberty are accepted if they are reasonably necessary. The police power being asserted, and the liberty interests at stake, must first be clearly defined. The term liberty encompasses both constitutional rights and traditional civil liberties protected at common law.

When the police power and the liberty interests are defined, the analysis then proceeds in two stages. First, does the police action at issue fall within the general scope of a statutory or common law police duty? Second, does the action involve a justifiable exercise of police powers associated with that duty? (See: R v MacDonald, 2014 SCC 3, at paras 35-6; and, R v Reeves, 2018 SCC 56, at para 78)

At the second stage of the analysis, the test is whether the police action is necessary and reasonable “having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference.” Three factors are considered in the analysis: (1) the importance of the performance of the duty to the public good; (2) the necessity of the interference with individual liberty for the performance of the duty; and, (3) the extent of the interference with individual liberty. (See: Dedman v The Queen, [1985] 2 SCR 2, at p 35; and, MacDonald, supra, at para 37)

It is important to emphasize that the test for common law police powers is applied with particular stringency. In applying the strict standard, Justice Cote held, at para 88, that “a police power to arrest someone who is acting lawfully in order to prevent a breach of the peace is not reasonably necessary for the fulfillment of the relevant duties” for three reasons. First, it is difficult to overemphasize the extraordinary nature of a power to arrest law-abiding citizens. Second, the authorization of vague standards to prevent an unlawful or disruptive act in the future would sanction “profound intrusions on liberty with little social benefit.” Third, the exercise of such a police power would be evasive of review outside of a costly civil action. As Lord Brown of Eaton-Under-Heywood stated in R v Chief Constable of Gloucestershire Constabulary, [2007] 2 All ER 529, at para 124, the first duty of the police is “to protect the rights of the innocent rather than to compel the innocent to cease exercising them.”

In the majority opinion of the Ontario Court of Appeal, Justice Nordheimer criticized Justice Carpenter-Gunn’s finding at trial that the police should have instituted a “buffer zone” between Fleming and the other protesters or called for back up. “There was no need to institute a buffer zone if the matter could be addressed by removing the respondent as the source of the friction,” Justice Nordheimer wrote at para 57. “Further, there is no reason to believe that a buffer zone of six or seven officers against eight to ten rushing protesters (with others available to join that group) would have been effective or whether it would have simply resulted in a larger confrontation. Similarly, there was no reason to call for back up, and run the risk of inflaming tensions by such a show of force if, again, the matter could be addressed by removing the respondent.”

Justice Nordheimer’s conclusion that the arrest was justified because it was effective in preventing any breach of the peace is particularly disturbing, coming as it does from a Canadian jurist schooled in constitutional rights and the common law. It was deserving of a firm rebuke – and it got one. “An intrusion upon liberty should be a measure of last resort,” Justice Cote stated at para 98, “not a first option. To conclude otherwise would be generally to sanction actions that infringe the freedom of individuals significantly as long as they are effective. That is a recipe for a police state, not a free and democratic society.”

5. Conclusion

Freedom of expression in Canada, protected under s 2(b) of the Charter of Rights, is also implicated when police action prevents individuals from lawfully expressing themselves. Fleming’s participation in the counter-protest, a flag rally, therefore demanded constitutional scrutiny. Justice Carpenter-Gunn, the trial judge, specifically found that the actions of the police violated Fleming’s right to freedom of expression. And, in the Supreme Court of Canada, Justice Cote expressly stated, at para 66, that the trial judge’s finding was correct. Justice Cote went on, at para 67, to state that a purported power of arrest to prevent a breach of the peace would “directly impact on a constellation of rights that are fundamental to individual freedom” and the right to live “free from coercive interference by the state.” But that is not the whole story.

The ancillary powers doctrine has been applied in the context of Charter rights that are qualified by the language of the Charter itself – such as the right to be secure against unreasonable search or seizure under s 8, and the right not to be arbitrarily detained under s 9. The Supreme Court of Canada has held that, where police action is authorized at common law, there is no violation of these Charter rights because the internal limits of the rights are respected. The internal limits of those rights require that police conduct be authorized by law which includes the common law. However, the analysis may be different in respect of rights that are expressed in unqualified language – such as freedom of expression. It remains an open question whether the limitation of an unqualified right by common law – and therefore “prescribed by law” – can be demonstrably justified in a free and democratic society.