Breach of the Peace: ONCA Addresses Police Power to Arrest in Fleming v Ontario
Tensions can run high during political demonstrations, and police are often deployed to monitor the situation and prevent an escalating conflict. In doing so, police have a common law power to arrest individuals when they believe an arrest may prevent a breach of the peace without the requirement that police believe that the person being arrested has, or is about to, commit a crime. In Fleming v Ontario, 2018 ONCA 160, the Court of Appeal for Ontario (“ONCA” or “the Court”) considered the scope of the common law ancillary police power to make an arrest to prevent a breach of the peace in the context of political demonstrations. In its decision, the Court split on the question of whether Mr. Fleming’s arrest was lawful and to what extent the police breached his rights under s. 2(b) of the Charter when they arrested him. The case has been granted leave to appeal to the Supreme Court of Canada, and represents an opportunity for the Supreme Court to clarify the bounds of the common law power of police to arrest people to prevent breaches of the peace, especially in cases where the person being arrested is not the person who caused, or would have caused, a breach of the peace.
Background and Judicial History
Fleming v Ontario emerges from a longstanding dispute over claims of a parcel of land called the Douglas Creek Estates (“DCE”) situated near the territory of the Six Nations of the Grand River. Members of the Six Nations community believed the land was part of their territory and began occupying the land. In response, counter-protesters began hosting rallies and marches protesting the Six Nations’ assertion of jurisdiction over the DCE. Occasionally, these demonstrations escalated and became violent.
On May 24, 2009, police became aware of a rally against the occupation of the DCE. The force decided that a “buffer zone” would be needed in order to keep the opposing groups separated and to prevent any escalation of the conflict. Soon after, police spotted Mr. Fleming walking near the DCE holding a Canadian flag that he intended to raise as part of the protest.
Police ordered Mr. Fleming not to enter the DCE and he did not comply. There is a dispute between the majority and the dissenting judges about whether the police influenced Mr. Fleming to enter the DCE by driving close to him. Nevertheless, Mr. Fleming entered the DCE and occupiers immediately reacted. Some began moving toward Mr. Fleming. This action gave rise to suspicion among the attendant officers that a breach of the peace would soon ensue. Police arrested Mr. Fleming in order to prevent a breach of the peace.
Upon arrest, Ontario Provincial Police (“OPP”) officers attempted to confiscate Mr. Fleming’s flag pole. Mr. Fleming did not comply with the officers’ request and “a struggle ensued” (para 28), which led to Mr. Fleming being taken to the ground. He was handcuffed and alleges that he was injured while being arrested.
Mr. Fleming subsequently filed a civil suit against the police officers and the Province of Ontario. After an 11-day trial, the trial judge concluded that Mr. Fleming was falsely arrested, wrongfully imprisoned, and had had his s. 2(b) Charter rights violated (trial decision rendered by oral judgment, Factum of the Appellant at para 76). Mr. Fleming was awarded over $100,000 in damages. The police appealed the case to the ONCA and Mr. Fleming has been granted leave to appeal the ONCA’s decision at the Supreme Court of Canada.
The primary issue on appeal to the ONCA was whether the police had the power to arrest Mr. Fleming and if so, whether the police used excessive force during the arrest.
The majority decision at the ONCA, delivered by Justice Nordheimer, questioned the trial judge’s findings of fact in order to find that the police were justified in arresting the respondent to avoid a breach of the peace (para 32). Although Justice Nordheimer recognized that Mr. Fleming was entitled to walk down the street carrying a Canadian flag and to participate in political action, in Justice Nordheimer’s view he was not entitled to “engage in these activities if they [would be] likely to lead to a breach of the peace” (para 32). The majority disputed the fact that Mr. Fleming’s decision to enter the DCE was influenced by the conduct of the police driving close to him in their patrol car.
After rejecting the trial judge’s understanding of events and adopting an alternative understanding of the facts, Justice Nordheimer’s reasons proceeded to evaluate the claim that Mr. Fleming’s arrest was unlawful. Under the common law, police have the power to arrest people in order to prevent a “breach of the peace” when the police do not have grounds to make an arrest pursuant to the Criminal Code. A breach of the peace is defined in Brown v Durham Regional Police Force,  O.J. No. 5274 (CA) as an “act or actions which result in actual or threatened harm to someone” (para 71). Here, the ONCA held that the the police were justified in arresting Mr. Fleming and removing him from the area because they believed that there was a substantial risk that the dispute would escalate if Mr. Fleming was to remain in the DCE.
Although it is not alleged that Mr. Fleming was the individual breaching the peace, the ONCA found that the police officers were still justified in removing Mr. Fleming from the premises because the police officers’ actions were aimed at protecting the parties involved (para 53). Even though the common law power to arrest in order to prevent or address a breach of the peace is designed to allow the police to prevent violence, it did not matter for the majority that it was the DCE occupiers who were moving towards Mr. Fleming, rather than Mr. Fleming moving toward the occupiers. Instead, the majority was concerned that there was a potential breach of the peace in the mix, and this concern justified Mr. Fleming’s arrest. The majority emphasized that since this particular arrest power is discretionary, police are not required to exhaust all alternatives, especially in the case at hand where the police were concerned with an immediate threat to public safety.
On the issue of whether the police used excessive force against Mr. Fleming, Justice Nordheimer held that it was Mr. Fleming’s resistance and refusal to let go of his flag pole that led to the scuffle with police officers (para 65). Furthermore, there was not enough evidence on the record to show which officer hurt Mr. Fleming, how the injuries happened, and why Mr. Fleming might have been handled roughly enough by police to suffer the injuries that he sustained. Given the sparse evidentiary record, Justice Nordheimer held that it was impossible to establish the causality necessary for the court to award damages.
The dissenting reasons, written by Justice Huscroft, emphasized the role of appellate courts in deferring to findings of fact. Justice Huscroft took issue with the majority’s application of the “palpable and overriding error” standard in overturning the trial judge’s findings of fact the majority effectively defers to the police (para 78). According to Justice Huscroft, in this case the burden should have been on the applicants to demonstrate an error of fact or an error of mixed fact and law that was palpable and overriding. Justice Huscroft did not believe that the varying accounts of the circumstances of Mr. Fleming’s arrest were sufficiently distinct to warrant the majority to dispute the trial judge’s findings of fact.
Justice Huscroft also was less concerned with the intent of the police when they approached Mr. Fleming, and focused instead on the actual impact that the police’s position had on impeding Mr. Fleming’s ability to walk freely on the street and to participate in a political demonstration (para 90). The fact that Mr. Fleming was engaging in politically expressive activity was important for Justice Huscroft, who did not view the issue as a competition between the right of everyone involved to be safe and the right of Mr. Fleming to engage in political expression. Rather, in Justice Huscroft’s view, the key conflict was between the police officers’ common law duty to keep the peace and Mr. Fleming’s right to express himself freely. In this case, Mr. Fleming’s rights enjoyed “presumptively greater force” than the officers’ (para 97).
Ultimately, the dissent’s concern seemed to lie primarily in the fact that the parties who were possibly about to breach the peace, the DCE occupiers, were not the parties who were arrested and suffered damages as a result of the potential breach of the peace. Because Mr. Fleming should not have been the target of the arrest, the arrest was unlawful. Justice Huscroft would have dismissed the appeal, upholding the damages the trial judge awarded to Mr. Fleming.
The disagreement between the majority and dissenting opinion in this case seem to stem from different understandings of just who the police may arrest in order to prevent a breach of the peace. The majority decision allows for an expansive understanding of police discretion to make arrests when addressing or preventing a breach of the peace (a term that is itself broad and ambiguous). On the other hand, the dissent is concerned that such an expansive view of police discretion and an analysis that defers almost exclusively to the police officers’ account of events allows police to infringe an individual’s rights when those individuals are not themselves breaching, or at risk of breaching, the peace.
It seems incongruent that a person who is not him- or herself breaching or at risk of breaching the peace may be arrested in order to prevent a breach of the peace. It would seem that wherever practicable, if anyone is going to be arrested, it should be the person or people who actually pose a risk of breaching the peace. Here, neither set of reasons allege that Mr. Fleming himself was solely responsible for the breach of the peace, and outside of the context of the competing protests and longstanding conflict at the DCE, he would have been acting lawfully. Instead, both the majority and dissent highlighted that the police’s primary concern was that the occupiers approaching Mr. Fleming were going to breach the peace. Neither decision explored why it might not have been practicable to arrest (or restrain) those who the police felt would be breaching the peace.
Perhaps the majority could have taken the opportunity to set some limits on the discretion police have to use this common law power. Instead, the majority stated that it did not wish to scrutinize the tactical decisions of police officers on the scene, especially in this context where the conflicts are longstanding and ongoing. Conversely, the dissent emphasized the need to show deference to the trial judge, and highlighted that the standard of review of findings of fact made by trial judges are subject to review when there is palpable and overriding error. The dissenting judgement points out that the differences between the accounts of the police and the trial judge are rather subtle. Yet such differences become significant, possibly meeting the standard of palpable and overriding error, when they completely change the outcome of the case. In making a determination of whether there is palpable and overriding error, the majority here was concerned with the impact on the outcome, while the dissent focused on the actual differences between the two competing factual scenarios.
Justice Huscroft’s point that the amount of discretion police have is nearly unlimited in these scenarios, because it is always “possible” that removing someone from a situation will prevent the breach of the peace (para 112), is particularly salient. Although there are probably logical limitations on the amount of discretion police have, it certainly seems plausible that police might be able to arrest people who are “inconvenient” for police on the grounds that the arrest was made to prevent a breach of the peace. When considering this possibility in the context of a political demonstration, there are potentially serious consequences for the s. 2(b) Charter right to free expression.
This decision raises important issues with respect to the police power to arrest people who are not committing, nor are they about to commit, a criminal offence. If interpreted liberally, the common law power of police to arrest people to prevent a breach of the peace allows expansive discretion of police to arrest people, as the majority did in this case. When the case is heard at the Supreme Court of Canada, the Supreme Court will have an opportunity to decide on the appropriate scope of police discretion in these arrests, and perhaps articulate some meaningful some boundaries or limits. Without those boundaries, such a wide scope of discretion could lead to serious breaches of s. 2(b), among other Charter rights.