On October 4, 2019, the Supreme Court of Canada issued its decision in the case R v Fleming 2019 SCC 45.
The issue before the court is whether police have common law power to arrest someone acting lawfully in order to prevent apprehended breach of peace by others.
Randy Fleming is a resident of Caledonia, Ontario. In 2006, 2007, and 2008, Indigenous members of Six Nations of the Grand River occupied a subdivision under construction on land they claim title to. In 2009, the residents of Caledonia held a counter-protest. The rally was meant to be a protest by Caledonia residents who were angered by the presence of Indigenous flags displayed along Argyle Street in front of the disputed land.
As the protests had become violent in 2006 and 2007, police planned to keep protestors and counter-protestors apart in 2009. The counter protestors were informed that they were not allowed on the occupied property.
When the police spotted Fleming walking on the shoulder of the road running along the occupied property, they headed toward him with the intention of placing themselves between him and the entrance to the property. To avoid the police vehicles, Fleming stepped onto the occupied property, which appeared to cause a reaction in a group of protestors, some of whom began moving toward him. An officer then approached Fleming and told him he was under arrest to prevent a breach of the peace. When Fleming refused to drop the flag he was carrying, he was forced to the ground, handcuffed, placed in an offender transport unit van, moved to a jail cell and released two and a half hours later.
Fleming subsequently filed a statement of claim against the Province and the police officers who had been involved in his arrest. He claimed general damages for assault and battery, wrongful arrest and false imprisonment, as well as aggravated or punitive damages and damages for violation of his rights under ss. 2 (b), 7 , 9 and 15 of the Canadian Charter of Rights and Freedoms .
Fleming was successful at trial, but a majority of the Court of Appeal set aside the award of damages on the basis that the police had the authority at common law to arrest him (that is, according to “judge-made law,” in contrast to laws passed by Parliament). Fleming then appealed to the Supreme Court of Canada (SCC).
AT THE SUPREME COURT
In a unanimous decision, the SCC declared that police do not have the authority to arrest persons who are acting lawfully; nor can the police arrest persons for their own protection.
In writing the 7-0 decision, Justice Suzanne Côté said, “An intrusion upon liberty should be a measure of last resort, 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.”