Fleming v Ontario : Limiting Police Powers of Preventative Arrest

Earlier in October, the Supreme Court of Canada (“SCC”) released its decision in Fleming v Ontario, 2019 SCC 45 [Fleming], in which the Court ruled on the limits of police powers to arrest individuals to prevent others from breaching the peace. Their decision is an important victory in limiting over-policing tactics, and in clarifying common law limits on police powers.

Factual Background

This case arose out of a longstanding land dispute between the Crown and the Six Nations of the Grand River (Fleming, para 9). Beginning in 2006, Indigenous protestors occupied a parcel of disputed land called the Douglas Creek Estates (DCE) and hung “Indigenous flags” on the street in front of the property, which provoked other community groups to respond in anger. At times, this culminated into “violent clashes between the two sides (Fleming, paras 9-10). Mr. Fleming was part of a counter-protest group, the Canadian Advocates for Charter Equality, which, in 2009, planned a “Flag Rally” to raise a Canadian flag across from the DCE to demonstrate opposition to the occupation of the DCE (Fleming, para 11).

On the day of the Flag Rally, Mr. Fleming was walking towards the DCE carrying a Canadian flag when police officers noticed him and drove towards him, intending to “plac[e] themselves between him and the entrance to DCE” (Fleming, paras 14-16). He moved out of the vehicles’ way, walking onto the DCE property, and was pursued by the officers (Fleming, para 16). As he stepped onto the property, a group of 8-10 protestors began walking and jogging towards him, although none were carrying weapons or threatening Mr. Fleming in any way (Fleming, para 17). The officers then arrested Mr. Fleming, pulling his arm behind his back, which he said “caus[ed] him severe pain and a lasting injury” (Fleming, para 18). He was additionally charged with obstructing the police officer who tried to arrest him—though this charge was eventually withdrawn (Fleming, para 21). In response, Mr. Fleming filed a claim against the Province of Ontario and the officers involved in his arrest, alleging “assault and battery, wrongful arrest, and false imprisonment,” as well as violations of his sections 2(b), 7, 9, and 15 Charter rights (Fleming, para 22).

Procedural History

At trial, the judge found violations of Mr. Fleming’s sections 2(b), 7, and 9 Charter rights, and accepted his claims for false arrest and unlawful imprisonment (Fleming, paras 27-28). The trial judge also found as fact that “any apprehended breach of the peace by the approaching DCE Protesters had not been imminent and that the risk of it occurring had not been substantial” (Fleming, para 25).

At the Ontario Court of Appeal (“ONCA”), however, the majority overturned the trial judge, finding that the officers “had the authority at common law to arrest Mr. Fleming for an anticipated breach of the peace” (Fleming, para 29). The majority explained that the officers “had been dealing with clashes related to the occupation of DCE for years, and they knew that minor incidents could escalate quickly with little warning” (Fleming, para 31). They disagreed with the trial judge’s finding that the protesters were not a significant risk, writing that “the trial judge’s conclusion that there had been no threatened breach of the peace could not be reconciled” with Mr. Fleming’s testimony that the protestors rushed towards him (Fleming, para 32). Consequently, the majority found that the officers had exercised their powers lawfully, and were “justified in taking action to prevent harm to Mr. Fleming and a likely breach of the peace” (Fleming, para 32).

SCC Decision

In a unanimous decision, the SCC overturned ONCA’s decision, finding that Mr. Fleming’s arrest was not authorized at common law (Fleming, para 101).

The Court phrased the question on appeal as follows:

The central issue in this case is whether the police acted lawfully in arresting Mr. Fleming on May 24, 2009. To answer this question, we must determine whether, and in what circumstances, the police have a common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace. Does the common law permit police officers to arrest individuals who have not committed any offence, who are not about to commit any offence, who have not already breached the peace and who are not about to breach the peace themselves? (Fleming, para 36)

In assessing the purported common law police power under the ancillary powers doctrine, the SCC relied on the Waterfield test (R v Waterfield, 3 All ER 659), in which courts must determine whether the police power in question is a justifiable infringement of liberty. According to this test, the Court must define the police power and liberty interests at issue, and then answer two questions:

  1. Does the police action at issue fall within the general scope of a statutory or common law police duty?
  2. Does the action involve a justifiable exercise of police powers associated with that duty? (Fleming, para 46).

In answering the second question, the Court must consider whether the police action is “reasonably necessary for the fulfillment of the duty,” considering importance of the duty to the public good, the necessity of the liberty infringement to the performance of the duty, and the extent of the liberty infringement (Fleming, para 47).

Police Power & Liberty Interests

The police power in question is the “power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace” (Fleming, para 57). The SCC clarified that this does not include the power “to arrest a person for the purpose of preventing that person from breaching the peace” (Fleming, para 60). It is only about the power to arrest individuals to prevent others from breaching the peace.

The liberty interest at issue is relatively self-evident—the capacity to arrest law-abiding individuals is an immense restriction of the liberty of those arrested without wrongdoing. As the SCC noted, “few police actions interfere with an individual’s liberty more than arrest—an action which completely restricts the person’s ability to move about in society free from state coercion” (Fleming, para 65). Further, it violates the constitutionally protected guarantee of “[f]reedom from arbitrary arrest and detention” (Fleming, para 65). As the SCC concluded, “[t]he purported power in this case would directly impact on a constellation of rights that are fundamental to individual freedom in our society” (Fleming, para 67).

Within the Scope of Police Duties?

With the relevant police power and liberty interest defined, the SCC then considered the first branch of the test—whether the police power was within the scope of general police duties. Here, they concluded that the proposed power fell within “the general scope of the duties of preserving the peace, preventing crime, and protecting life and property” (Fleming, para 69). They concluded that “[p]reventing breaches of the peace, which entail violence and a risk of harm, is plainly related to these duties,” which are considered “principal duties” of the police (Fleming, paras 70-71).

Justifiable and Necessary Exercise of Police Powers?

Although the first stage of the test was easily met, the SCC held that the purported police power could not be justified under the second branch of the test. They first highlighted the unique context of the proposed police powers, noting that “[t]he characteristics of the power, and in particular its impact on law-abiding individuals, its preventative nature and the fact that it would be evasive of review, all mean that it will be more difficult to justify as reasonably necessary compared to other common law powers” (Fleming, para 76). Particularly, the SCC took issue with the purported power because it “would expressly be exercised against someone who is not suspected of any criminal wrongdoing or even of threatening to breach the peace” (Fleming, para 77). They contended that it “would be difficult to overemphasize the extraordinary nature of this power,” and that it was the Court’s responsibility to “guard against intrusions on the liberty of persons who are neither accused nor suspected of committing any crime” (Fleming, para 78).

In applying the second stage of the ancillary powers doctrine, the SCC found that although “preserving the peace and protecting people from violence are immensely important,” the preventative power to arrest law-abiding individuals is not reasonably necessary to further this purpose (Fleming, paras 89, 92). The SCC noted that the police already have a “statutory power of arrest that can be exercised should an individual resist or obstruct an officer taking other, less intrusive measures” to diffuse a situation (Fleming, para 95). They, thus, have other methods of preventing breaches of the peace, so the purported power of arrest was not reasonably necessary. Given the significant intrusion on individual liberty it would cause, and the existence of reasonable alternatives, the SCC concluded that the purported common law police power was unnecessary.

Finally, the SCC took time to rebut the ONCA majority’s decision, which held that “Mr. Fleming’s arrest was justified under the ancillary powers doctrine because it had been effective in preventing any breach of the peace from occurring” (Fleming, para 96). The SCC first pointed to the trial judge’s finding that there was no real risk of violence by the protestors, undermining the ONCA majority’s argument (Fleming, para 97). However, they also held that “the mere fact that a police action was effective cannot be relied upon to justify its being taken if it interfered with an individual’s liberty” more than was reasonably necessary (Fleming, para 98). They explained that “[t]o 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” (Fleming, para 98).  Consequently, they held that the ONCA majority erred by relying on this argument to uphold the police power in question.

Ultimately, based on the second branch of the ancillary powers doctrine, the SCC found that the proposed police power to arrest law-abiding individuals in order to prevent others from breaching the peace was not a justifiable power at common law. As a result, Mr. Fleming’s arrest was unlawful—as was any use of force during his arrest, given that the arrest itself was unlawful.

Broader Impact

While I may personally disagree with Mr. Fleming’s intent to protest against the Indigenous occupiers of DCE, it is clear that his arrest was completely unjustified at law. Being arrested when you have not engaged in any criminal activity, and are not about to do so, is an immense and unjustified restriction on personal liberty. Fleming is an important victory for limiting overreaching police powers in an era where aggressive policing tactics are becoming increasingly normalized.

Allowing this common law police power would have had huge ramifications—especially for racialized and low-income communities that are already overpoliced and overincarcerated. It would be particularly concerning given the initial consequences Mr. Fleming faced during and after his preventative arrest—the police used significant force in arresting him, causing lasting injury, and “charged [him] with obstructing a peace officer for resisting his arrest,” which took nineteen months to be resolved in court (Fleming, paras 18, 21). Having this preventative arrest power would allow the police to routinely arrest law-abiding individuals—who might naturally resist arrest, knowing they had not broken any laws. This could lead to more criminal charges being laid, and potentially, to the use of force against law-abiding civilians in order to effect such arrests.  

Fleming is a clear victory in protecting individuals in Canada from unjustifiably aggressive preventative policing tactics. It is a relief that the SCC, unlike ONCA, recognized the danger of affirming a common law police power that would allow the arrest of individuals who had not engaged in—and were not about to engage in—any criminal activity.

Alison Imrie

Ali Imrie is a part-time JD student currently in her fourth year at Osgoode Hall Law School, and is one of the Managing Editors of TheCourt.ca. She is an aspiring refugee lawyer with a passion for constitutional law and human rights. At Osgoode, she is a Senior Executive of Fair Change Community Services, a student-run legal clinic representing street-involved clients who have received tickets under the Provincial Offences Act and fighting against the criminalization of poverty. She also founded and continues to run the Disability Collective of Osgoode, a student collective run for and by students with disabilities.

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