Fleming v. Ontario

Fleming v. Ontario
Collection
Supreme Court Judgments
Date
2019-10-04
Neutral citation
2019 SCC 45
Report
[2019] 3 SCR 519
Case number
38087
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
Ontario
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Fleming v. Ontario, 2019 SCC 45, [2019] 3 S.C.R. 519
Appeal Heard: March 21, 2019 Judgment Rendered: October 4, 2019 Docket: 38087
Between:
Randolph (Randy) Fleming Appellant
and
Her Majesty The Queen in Right of the Province of Ontario, Provincial Constable Kyle Miller of the Ontario Provincial Police, Provincial Constable Rudy Bracnik of the Ontario Provincial Police, Provincial Constable Jeffrey Cudney of the Ontario Provincial Police, Provincial Constable Michael C. Courty of the Ontario Provincial Police, Provincial Constable Steven C. Lorch of the Ontario Provincial Police, Provincial Constable R. Craig Cole of the Ontario Provincial Police and Provincial Constable S. M. (Shawn) Gibbons of the Ontario Provincial Police Respondents
- and -
Attorney General of Canada, Attorney General of Quebec, Canadian Civil Liberties Association, Criminal Lawyers’ Association (Ontario), Canadian Association of Chiefs of Police, Canadian Association for Progress in Justice and Canadian Constitution Foundation Interveners
Coram: Wagner C.J. and Abella, Moldaver, Côté, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 120)
Côté J. (Wagner C.J. and Abella, Moldaver, Brown, Rowe and Martin JJ. concurring)
Fleming v. Ontario, 2019 SCC 45, [2019] 3 S.C.R. 519
Randolph (Randy) Fleming Appellant
v.
Her Majesty The Queen in Right of the Province of Ontario,
Provincial Constable Kyle Miller of the Ontario Provincial Police,
Provincial Constable Rudy Bracnik of the Ontario Provincial Police,
Provincial Constable Jeffrey Cudney of the Ontario Provincial Police,
Provincial Constable Michael C. Courty of the Ontario Provincial Police, Provincial Constable Steven C. Lorch of the Ontario Provincial Police, Provincial Constable R. Craig Cole of the Ontario Provincial Police and Provincial Constable S. M. (Shawn) Gibbons
of the Ontario Provincial Police Respondents
and
Attorney General of Canada,
Attorney General of Quebec,
Canadian Civil Liberties Association,
Criminal Lawyers’ Association (Ontario),
Canadian Association of Chiefs of Police,
Canadian Association for Progress in Justice and
Canadian Constitution Foundation Interveners
Indexed as: Fleming v. Ontario
2019 SCC 45
File No.: 38087.
2019: March 21; 2019: October 4.
Present: Wagner C.J. and Abella, Moldaver, Côté, Brown, Rowe and Martin JJ.
on appeal from the court of appeal for ontario
Police — Powers — Common law power of arrest — Breach of peace — Counter‑protestor, acting lawfully, arrested to prevent apprehended breach of peace by others — Counter‑protestor charged with obstructing police officer but charge later withdrawn — Counter‑protestor filing statement of claim against Province and police officers seeking general damages for assault and battery, wrongful arrest and false imprisonment, aggravated or punitive damages and damages for violation of various constitutional rights — Whether police have common law power to arrest someone acting lawfully in order to prevent apprehended breach of peace by others.
F was arrested while walking to a counter‑protest flag rally organized in response to Six Nations protestors’ occupation of a piece of Crown land. The police became aware of the flag rally in the months preceding it and had developed an operational plan, given the contentious atmosphere in the community which had on numerous occasions culminated in violent clashes between the two sides. The plan included keeping protestors and counter‑protestors apart, and flag rally counter‑protestors were informed that they were not allowed on the occupied property. When the police spotted F 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, F 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 F and told him he was under arrest to prevent a breach of the peace. When F 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. The Crown eventually withdrew the charge of obstructing a police officer which had been laid against F for resisting his arrest. F 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 . F 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. The Court of Appeal ordered a new trial solely on the issue of excessive force. F appeals to the Court on the issue of whether the police acted lawfully in arresting him, and on whether a new trial should have been ordered on the question of excessive force.
Held: The appeal should be allowed and the trial judge’s order restored.
F’s arrest was not authorized by law, and there is no basis for intervening in the trial judge’s conclusion that the Province and the police were liable for battery for their use of force in unlawfully arresting him. As a result, no new trial is needed on the issue of excessive force.
To determine whether a particular police action that interferes with individual liberty is authorized at common law, the ancillary powers doctrine must be applied. At the preliminary step of the analysis, the police power that is being asserted and the liberty interests that are at stake must be clearly defined. The analysis then proceeds in two stages. First, the court must ask whether the police conduct at issue falls within the general scope of a statutory or common law police duty. Second, the court must determine whether the conduct involves a justifiable exercise of police powers associated with that duty. At the second stage, the court must ask whether the police action is reasonably necessary for the fulfillment of the duty. There are three factors to be weighed in answering that question: (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. Throughout the analysis, the onus is always on the state.
The second stage of the ancillary powers doctrine must always be applied with rigour to ensure that the state has satisfied its burden of demonstrating that the interference with individual liberty is justified and necessary. The standard of justification must be commensurate with the fundamental rights at stake, and in the unique context of a purported power of arrest such as the one in the present case, that standard is especially stringent for a number of reasons. First, the purported power would enable the police to interfere with the liberty of someone acting lawfully. Such a power is extraordinary in nature and it is especially important for the court to guard against intrusions on the liberty of persons who are neither accused nor suspected of committing any crime. Second, the purported police power is preventative, and the court must be very cautious about authorizing police actions merely because an unlawful or disruptive act could occur. Vague or overly permissive standards in such situations would sanction profound intrusions on liberty with little societal benefit. Third, because the purported power of arrest would generally not result in charges, judicial oversight of its exercise would be rare. As a result, any standard outlined at the outset would have to be clear and highly protective of liberty.
In the present case, the purported police power is a power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by others. It targets individuals who are not suspected of being about to break any law or to initiate any violence themselves, in situations in which the police nonetheless believe that arresting the individuals in question will prevent a breach of the peace from occurring. The proposed power would involve substantial prima facie interference with significant liberty interests. Indeed, 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. It would have a direct impact on a constellation of rights that are fundamental to individual freedom in our society, and it would directly undermine the expectation of all individuals, in the lawful exercise of their liberty, to live their lives free from coercive interference by the state.
This purported power falls within the general scope of the police duties of preserving the peace, preventing crime and protecting life and property recognized at common law. Preventing breaches of the peace, which entail violence and a risk of harm, is plainly related to those duties.
However, the purported police power is not reasonably necessary for the fulfillment of those relevant duties. While preserving the peace and protecting people from violence are immensely important, and while there may be exceptional circumstances in which some interference with liberty is required in order to prevent a breach of the peace, an arrest cannot be justified under the ancillary powers doctrine. There is already a statutory power of arrest that can be exercised should an individual resist or obstruct an officer taking other, less intrusive measures. In addition, 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. If the police can reasonably attain the same result by taking an action that intrudes less on liberty, a more intrusive measure will not be reasonably necessary no matter how effective it may be. An intrusion upon liberty should be a measure of last resort.
As there is no common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by others, the police in this case did not have lawful authority to arrest F. The trial judge specifically found that F had not done anything unlawful before being arrested; there was no evidence before her that he had committed any offence in walking along the street, entering the occupied property or standing there with his Canadian flag. Nor was there evidence that he had himself been about to commit an indictable offence or a breach of the peace. The Province and the police have not sought to challenge that finding on appeal, nor have they cited or relied on any statutory power to arrest F. They rely entirely on a common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by other persons — a power that does not exist. In light of this conclusion, a new trial on the issue of excessive force is not necessary. As the police were not authorized at common law to arrest F, no amount of force would have been justified for the purpose of accomplishing that task.
Cases Cited
Applied: Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37; referred to: R. v. Wong, [1990] 3 S.C.R. 36; R. v. Waterfield, [1963] 3 All E.R. 659; Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council (2006), 82 O.R. (3d) 721; Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Kang‑Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531; R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725; Figueiras v. Toronto Police Services Board, 2015 ONCA 208, 124 O.R. (3d) 641; R. v. Godoy, [1999] 1 S.C.R. 311; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. (on the application of Hicks) v. Metropolitan Police Comr, [2017] UKSC 9, [2018] 1 All E.R. 374; R. (on the application of Laporte) v. Chief Constable of Gloucestershire Constabulary, [2006] UKHL 55, [2007] 2 All E.R. 529; Frey v. Fedoruk, [1950] S.C.R. 517; R. v. Penunsi, 2019 SCC 39, [2019] 3 S.C.R. 91; R. v. Knowlton, [1974] S.C.R. 443; R. v. C.E., 2009 NSCA 79, 279 N.S.R. (2d) 391; Bibby v. Chief Constable of Essex Police, [2000] EWCA Civ 113; Austin v. Metropolitan Police Comr, [2007] EWCA Civ 989, [2008] 1 All E.R. 564; O’Kelly v. Harvey (1883), 14 L.R.I. 105; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Swain, [1991] 1 S.C.R. 933.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 2(b) , 7 , 8 , 9 , 15 .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 25(1) , 31(1) , 65 , 86 , 129 , 264.1 to 269 , 270 , 430 , 495(1) (a).
Interpretation Act, R.S.C. 1985, c. I‑21, s. 34(1) (a).
Police Services Act, R.S.O. 1990, c. P.15, s. 42(1)(a).
Authors Cited
Burchill, John. “A Horse Gallops Down a Street . . . Policing and the Resilience of the Common Law” (2018), 41 Man. L.J. 161.
Ceyssens, Paul. Legal Aspects of Policing, vol. 1. Saltspring Island, B.C.: Earlscourt Legal Press, 1994 (loose‑leaf updated December 2018, release 34).
Coughlan, Steve, and Glen Luther. Detention and Arrest, 2nd ed. Toronto: Irwin Law, 2017.
Esmonde, Jackie. “The Policing of Dissent: The Use of Breach of the Peace Arrests at Political Demonstrations” (2002), 1 J.L. & Equality 246.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2018, release 1).
Jochelson, Richard. “Ancillary Issues with Oakes: The Development of the Waterfield Test and the Problem of Fundamental Constitutional Theory” (2013), 43 Ottawa L. Rev. 355.
Williams, Glanville L. “Arrest for Breach of the Peace”, [1954] Crim. L.R. 578.
APPEAL from a judgment of the Ontario Court of Appeal (Cronk, Huscroft and Nordheimer JJ.A.), 2018 ONCA 160, 140 O.R. (3d) 684, 420 D.L.R. (4th) 728, 45 C.C.L.T. (4th) 244, [2018] O.J. No. 841 (QL), 2018 CarswellOnt 2369 (WL Can.), setting aside a decision of Carpenter‑Gunn J. of the Ontario Superior Court of Justice, No. 11‑26190, dated September 22, 2016. Appeal allowed.
Michael Bordin and Jordan Diacur, for the appellant.
Judie Im, Sean Hanley, Baaba Forson and Ayah Barakat, for the respondents.
Anne M. Turley and Zoe Oxaal, for the intervener the Attorney General of Canada.
Éric Cantin and Stéphane Rochette, for the intervener the Attorney General of Quebec.
Sean Dewart, Adrienne Lei and Tim Gleason, for the intervener the Canadian Civil Liberties Association.
Louis Strezos and Michelle M. Bidduph, for the intervener the Criminal Lawyers’ Association (Ontario).
Bryant Mackey, for the intervener the Canadian Association of Chiefs of Police.
Ryan D. W. Dalziel and Kayla Strong, for the intervener the Canadian Association for Progress in Justice.
Brandon Kain and Adam Goldenberg, for the intervener the Canadian Constitution Foundation.
The judgment of the Court was delivered by
Côté J. —
I. Overview
[1] On May 24, 2009, officers of the Ontario Provincial Police (“O.P.P.”) arrested the appellant, Randolph (Randy) Fleming, in Caledonia, Ontario. He had committed no crime. He had broken no law. He was not about to commit any offence, harm anyone, or breach the peace. In essence, the O.P.P. officers claimed to have arrested Mr. Fleming for his own protection. The question before this Court is whether Mr. Fleming’s arrest was lawful.
[2] Police officers are tasked with fulfilling many important duties in Canadian society. These include preserving the peace, preventing crime, and protecting life and property. The execution of these duties sometimes necessitates interference with the liberty of individuals. However, a free and democratic society cannot tolerate interference with the rights of law-abiding people as a measure of first resort. There is a line that cannot be crossed. The rule of law draws that line. It demands that, when intruding on an individual’s freedom, the police can only act in accordance with the law.
[3] In most cases, police powers are clearly outlined in statutes enacted by legislatures. But statute law is not the only source of police powers. This Court has long held that the common law may also serve this role in certain circumstances.
[4] When our courts are asked to recognize new common law police powers, it is important to keep in mind the words of La Forest J. in R. v. Wong, [1990] 3 S.C.R. 36, that “it does not sit well for the courts, as the protectors of our fundamental rights, to widen the possibility of encroachments on these personal liberties” (p. 57).
[5] The common law has long striven to defend individuals against abuses of state power. The courts of this country, as custodians of the common law, must act cautiously when asked to use it to authorize actions that interfere with individual liberty. This is never truer than in cases like the one at bar, in which the exercise of the police power in question would restrict lawful activities of individuals. In such circumstances, the courts must apply the test for common law police powers with particular stringency so as to ensure that any powers that might result in intrusions on liberty are in fact necessary.
[6] The respondents in this case, the Province of Ontario and seven named O.P.P. officers, do not rely on any statute to justify the lawfulness of their arrest of Mr. Fleming. Instead, they argue that their actions were authorized at common law by application of the ancillary powers doctrine that was originally laid down by the United Kingdom Court of Criminal Appeal in R. v. Waterfield, [1963] 3 All E.R. 659, at pp. 660-62. They claim that, according to that doctrine, there is a common law police power to arrest an individual in Mr. Fleming’s circumstances in order to prevent an apprehended breach of the peace. In essence, the respondents propose a common law power 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. For the purposes of these reasons and for the sake of simplicity, I will refer to this power as the power to “arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace”.
[7] As I will explain, no such power exists at common law. The ancillary powers doctrine does not give the police a power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace. A drastic power such as this that involves substantial interference with the liberty of law-abiding individuals would not be reasonably necessary for the fulfillment of the police duties of preserving the peace, preventing crime, and protecting life and property. This is particularly so given that less intrusive powers are already available to the police to prevent breaches of the peace from occurring.
[8] In this case, Mr. Fleming’s arrest was not authorized by law. The O.P.P. officers had no power of arrest in the circumstances on May 24, 2009. As a result, Mr. Fleming’s arrest was unlawful, and I would allow his appeal.
II. Facts
[9] This case has its origins in a longstanding land dispute between the Crown and the First Nation of Six Nations of the Grand River. That dispute resulted, in February 2006, in the occupation by Six Nations protestors of a piece of land in Caledonia known as Douglas Creek Estates (“D.C.E.”) (I will refer to this group of protesters as the “D.C.E. Protesters”). In the course of the protest, some D.C.E. Protesters also hung Indigenous flags along Argyle Street, which runs in front of the property. In June of that year, the Crown purchased D.C.E. and permitted the D.C.E. Protesters to continue to occupy the property. The early stages of the dispute were discussed in detail by the Ontario Court of Appeal in Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council (2006), 82 O.R. (3d) 721.
[10] The occupation of D.C.E. sparked other groups in the community to organize counter-protests against the occupation and against the response of the Ontario government and the O.P.P. The contentious atmosphere in the community culminated in violent clashes between the two sides. On numerous occasions, the O.P.P., including many of the respondent officers, were called in to deal with the violence. Police lines and buffer zones were occasionally used to allow the two groups to demonstrate peacefully near one another. The violence peaked in 2006, but declined steadily after that.
[11] One counter-protest group decided to hold a “flag rally” on May 24, 2009 to protest the occupation of D.C.E., the flying of Indigenous flags along Argyle Street and the O.P.P.’s actions. The plan for the rally was that participants would march south on Argyle Street and raise a Canadian flag across the street from D.C.E.’s front entrance.
[12] The O.P.P. became aware of the flag rally in the months preceding it and developed an operational plan. The goal of the plan was to ensure public safety while allowing all groups to express themselves peacefully. The operational plan was developed in accordance with O.P.P. policies, including the Framework for Police Preparedness for Aboriginal Critical Incidents (“Aboriginal Critical Incidents Framework”). The Aboriginal Critical Incidents Framework is a policy document that provides guidance to the police for managing relationships with Indigenous peoples. It applies “before, during and after any Aboriginal related critical incident where the source of conflict may stem from assertions associated with Aboriginal or treaty rights”, such as “a demonstration in support of a land claim” (A.R., vol. V, at p. 50). In addition, the officer in charge of developing the operational plan met with members of the local Indigenous community, the city council, and the flag rally organizers.
[13] Ultimately, the O.P.P. determined that the flag rally participants and the D.C.E. Protesters should be kept apart and that no flag rally participants would be permitted to enter D.C.E. The O.P.P. thus informed the organizers of the flag rally that they would not be allowed on D.C.E. land. However, no police line or buffer zone was put in place on the day of the rally. The operational plan included two public order units, each with about 30 officers, that were to be present in Caledonia on May 24.
[14] Mr. Fleming was a resident of Caledonia who intended to participate in the flag rally in order to express his views about the contentious issues surrounding the D.C.E. occupation. On the day of the rally, Mr. Fleming began walking north along Argyle Street towards the place where it was to be held, where he planned to meet up with the rest of the participants, who were marching from the opposite direction. He was carrying a Canadian flag on a 40- to 42-inch wooden pole.
[15] As Mr. Fleming walked on the shoulder of Argyle Street, one of the O.P.P. squads — including the respondent officers — was driving north on the street in three vehicles: two minivans, one marked and one unmarked, and an offender transport unit van. The officers spotted Mr. Fleming as they drove past him, turned around and headed towards his location with the intention of placing themselves between him and the entrance to D.C.E.
[16] Mr. Fleming saw the vans as they moved to the shoulder of the road and continued to drive fast towards him. To avoid the approaching vehicles, he moved off the shoulder, walking down into a grassy ditch, up the opposite side and over a low fence onto D.C.E. property. He claimed to have crossed the fence in order to get to level ground. The officers exited their vehicles and began yelling various commands at Mr. Fleming, including “stop” and “return to the shoulder”. He did not realize that the officers were speaking to him, as he believed he was not doing anything wrong.
[17] Mr. Fleming stepping onto D.C.E. property appeared to cause a reaction in a group of D.C.E. Protesters who were at the entrance of the property, approximately 100 metres away. Eight to ten of them began moving towards his location, some walking and some jogging. None of the protesters were carrying weapons and none uttered any threats. Mr. Fleming did not say anything to them. With the protesters still ten to twenty feet away, Officer Miller approached Mr. Fleming and told him that he was under arrest.
[18] Officer Miller took Mr. Fleming by the arm and led him back across the fence, off of D.C.E. property. The officers then ordered Mr. Fleming to drop his flag. He refused. The officers then forced him to the ground, took his flag and handcuffed him. Mr. Fleming says that as he was being handcuffed, his left arm was yanked behind his back, causing him severe pain and a lasting injury.
[19] The incidents surrounding Mr. Fleming’s arrest were captured on video, though some of them are obscured on the video by a bush. This video was entered as evidence at the trial.
[20] After being arrested, Mr. Fleming was placed in an offender transport unit van and moved to a jail cell at the local O.P.P. detachment. He was eventually released approximately two and a half hours after his arrest.
[21] In relation to these events, Mr. Fleming was charged with obstructing a peace officer for resisting his arrest by Officer Miller. He appeared in court on 12 separate occasions to defend himself on this charge before it was eventually withdrawn by the Crown almost 19 months after having been laid.
[22] In March 2011, Mr. Fleming filed a statement of claim against the Province of Ontario and the seven O.P.P. 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 violations of his rights under ss. 2(b) , 7 , 9 and 15 of the Canadian Charter of Rights and Freedoms .
III. Procedural History
A. Ontario Superior Court of Justice (Carpenter-Gunn J.), 11-26190, September 22, 2016
[23] At the conclusion of the trial, Carpenter-Gunn J. found in Mr. Fleming’s favour and ordered the respondents to pay a total of $139,711.90 in general damages, special damages, tort damages and Charter damages. She also ordered the respondents to pay Mr. Fleming’s costs in an agreed-upon amount of $151,000.
[24] The trial judge found as a fact that the O.P.P. had intended “to prevent Mr. Fleming from walking up Argyle Street with a Canadian flag, and that he was arrested for walking a few feet onto [D.C.E. property] and standing there for a few seconds with a Canadian flag” (A.R., vol. I, at p. 42). She noted that a crucial question in the case was whether the officers had had legal authority to arrest Mr. Fleming. She stressed that the respondents had adduced no evidence that he had broken any laws prior to his arrest.
[25] The trial judge, relying on the Ontario Court of Appeal’s decision in Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223, accepted that the police have a common law power of arrest to prevent an apprehended breach of the peace, provided that the apprehended breach is imminent and the risk of it occurring is substantial. However, she concluded on the facts of the case at bar that the officers’ conduct had not been authorized at common law. She found that by taking the actions they did, the officers had not been “preserving the peace”. She noted that a “breach of the peace” involves violence and harm to individuals and that, since neither had occurred in this case, there had been no actual breach of the peace. She also found that any apprehended breach of the peace by the approaching D.C.E. Protesters had not been imminent and that the risk of it occurring had not been substantial. She explained that the officers’ concern over Mr. Fleming’s safety had been based not on the actual events of the day, but rather on a generalized concern rooted in past violence. The trial judge stated that there were less invasive options that could have defused the situation, such as setting up a buffer zone between Mr. Fleming and the protesters.
[26] The trial judge also criticized the O.P.P.’s use of the Aboriginal Critical Incidents Framework in developing its operational plan. In her view, the flag rally was not an “Aboriginal Critical Incident”.
[27] As a result of these findings, the trial judge concluded that Mr. Fleming’s claims for false arrest and unlawful imprisonment were made out. She also determined that the respondents were liable for battery because the force they had used could not be justified.
[28] In considering Mr. Fleming’s claims for Charter damages, the trial judge found that his rights under ss. 2(b) , 7 and 9 had been violated when the police had unlawfully arrested him and prevented him from attending a political demonstration. She also held that no breach of s. 15 had been established on the facts of the case. She ultimately awarded Mr. Fleming an additional $5,000 in Charter damages for the s. 2(b) breach.
B. Court of Appeal for Ontario (Cronk, Huscroft and Nordheimer JJ.A.), 2018 ONCA 160
[29] A majority of the Court of Appeal allowed the appeal, concluding that the O.P.P. officers had had the authority at common law to arrest Mr. Fleming for an anticipated breach of the peace. The majority set aside the trial judge’s award of damages and ordered a new trial solely on the issue of excessive force.
[30] Nordheimer J.A., writing for himself and Cronk J.A., identified a number of supposed errors in the trial judge’s analysis. In his view, the trial judge had been wrong to focus on the actions of the police as an isolated event rather than considering them in the context of ongoing disputes in Caledonia. He was also of the opinion that the Aboriginal Critical Incidents Framework was clearly relevant to the flag rally; he found it hard to understand why the trial judge had criticized the O.P.P. for using it in developing the operational plan. Nordheimer J.A. further concluded that there was no evidence to support the trial judge’s finding that the officers had prevented Mr. Fleming from walking along Argyle Street with his flag, or that they had intended to do so. In particular, he explained that “[n]othing [had] occurred” until Mr. Fleming had entered D.C.E., and that Mr. Fleming had willingly chosen to leave the shoulder of the street. As a result of these errors, Nordheimer J.A. concluded that it was necessary to determine afresh whether the arrest had been lawful.
[31] Nordheimer J.A. determined that the officers had been acting in the execution of their duty to keep the peace and protect the public. On the issue of whether the interference with Mr. Fleming’s liberty was justifiable, he emphasized that the O.P.P. had been dealing with clashes related to the occupation of D.C.E. for years, and they knew that minor incidents could escalate quickly with little warning. In this context, Mr. Fleming’s actions amounted to an unexpected event that required the police to react.
[32] Further, Nordheimer J.A., relying on Mr. Fleming’s own testimony, explained that the D.C.E. Protesters rushing towards Mr. Fleming had posed a real risk to his safety and that the trial judge’s conclusion that there had been no threatened breach of the peace could not be reconciled with this evidence. The officers had therefore been justified in taking action to prevent harm to Mr. Fleming and a likely breach of the peace. Nordheimer J.A. noted that, while other options may have been available, there was no need to resort to them if the situation could be easily addressed by removing Mr. Fleming from D.C.E. property, especially since alternative measures could have inflamed tensions.
[33] However, Nordheimer J.A. added that having lawful authority to effect an arrest does not give the police permission to use excessive force in doing so. The trial judge found that excessive force had been used, but Nordheimer J.A. explained that this finding was tainted by her erroneous conclusion that the arrest had been unlawful. He noted that the record did not make it possible to determine which officer had yanked Mr. Fleming’s left arm back, how this had been done, or why. As a result, the Court of Appeal could not decide whether excessive force had been used. Nordheimer J.A. therefore ordered a new trial on this one issue.
[34] Huscroft J.A. dissented, finding no basis to interfere with the trial judge’s conclusion that the officers had not been justified in arresting Mr. Fleming. He disagreed that any of the purported errors could in fact be characterized as palpable and overriding.
[35] Huscroft J.A. did not agree that the appellate court was entitled to substitute its own factual findings in this case for those of the trial judge. In his view, Mr. Fleming’s arrest had not been a valid first resort, even in the face of potential illegal violence, the risk of which was neither imminent nor substantial. He explained that the police power to arrest someone for an apprehended breach of the peace is exceptional, and that exercising it was not justified in this case. Huscroft J.A. would therefore have dismissed the appeal.
IV. Issues
[36] 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?
[37] A secondary issue is whether the Court of Appeal erred in ordering a new trial on the issue of excessive force.
V. Analysis
A. The Ancillary Powers Doctrine
[38] The police, in fulfilling the important duties they are tasked with in a free and democratic society, are sometimes required to interfere with the liberty of individuals. This is a fact that legislatures and courts in common law jurisdictions have long recognized. However, the rule of law requires that strict limits be placed on police powers in this regard in order to safeguard individual liberties. In Dedman v. The Queen, [1985] 2 S.C.R. 2, Dickson C.J., dissenting but not on this point, set out the foundation for the analysis on this subject:
It has always been a fundamental tenet of the rule of law in this country that the police, in carrying out their general duties as law enforcement officers of the state, have limited powers and are only entitled to interfere with the liberty or property of the citizen to the extent authorized by law. Laskin C.J. dissenting, in R. v. Biron, [1976] 2 S.C.R. 56, made the point at pp. 64-65:
Far more important, however, is the social and legal, and indeed, political, principle upon which our criminal law is based, namely, the right of an individual to be left alone, to be free of private or public restraint, save as the law provides otherwise. Only to the extent to which it so provides can a person be detained or his freedom of movement arrested.
Absent explicit or implied statutory authority, the police must be able to find authority for their actions at common law. Otherwise they act unlawfully. [pp. 10-11]
[39] When interfering with the freedom of individuals, the police must act in accordance with the law. In many cases, their powers are clearly outlined in statutes, such as the Criminal Code, R.S.C. 1985, c. C-46 . But, as this Court recognized in Dedman, statute law is not the only source of legal authority for police powers. In particular circumstances, the common law may also provide a legal basis for carefully defined powers.
[40] In this Court, the respondents do not cite or seek to rely on any statute to authorize their arrest of Mr. Fleming while he was standing on D.C.E. Rather, they rely entirely on a common law power of arrest the exercise of which, they submit, was justified in the circumstances of this case. This appeal therefore requires the Court to determine whether the common law power in question exists.
[41] Before embarking on an analysis of common law police powers, it is important to consider the appropriate role of the courts in such an exercise. Establishing and restricting police powers is something that is well within the authority of legislatures. Accordingly, the courts should tread lightly when considering proposed common law police powers.
[42] That being said, the courts cannot abdicate their role of incrementally adapting common law rules where legislative gaps exist (see R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 17; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at paras. 6, 10, 50-51, and 61). This Court has in fact relied on the ancillary powers doctrine to recognize the existence of common law powers in many circumstances in the past. As Moldaver J. explained in concurring reasons in R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, the ancillary powers doctrine has been used
to affirm many common law police powers now considered fundamental. For example, the R.I.D.E. program stops (Dedman v. The Queen, [1985] 2 S.C.R. 2), investigative detentions (R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59), searches incident to arrest (Cloutier v. Langlois, [1990] 1 S.C.R. 158), 911 home entries (R. v. Godoy, [1999] 1 S.C.R. 311), sniffer dog searches (R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456), and safety searches (R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37) were all affirmed through the Waterfield framework. [para. 77]
Referring to whether this Court should exercise its authority to recognize ancillary police powers, Binnie J. stated: “We have crossed the Rubicon” (Kang-Brown, at para. 22). Of course, the legislature always retains the power to expand, modify, restrict or abolish such common law powers, subject to constitutional limits.
[43] To determine whether a particular police action that interferes with individual liberty is authorized at common law, this Court applies the framework that was originally set out in Waterfield. This approach has often been referred to as the “Waterfield test”. I prefer to use the terminology of the “ancillary powers doctrine”. This is because, as Binnie J. observed in R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, “Waterfield is an odd godfather for common law police powers” (para. 75). At issue in Waterfield was whether a certain constable had been acting in the execution of his duties when he was assaulted; the case did not actually concern the recognition of a purported new common law police power. However, regardless of the doctrine’s origins, this Court has consistently applied the test set out by the majority in Dedman.
[44] Furthermore, the English court in Waterfield was concerned with actions related to investigating crime. But the ancillary powers doctrine has a broader reach than that: it can be applied to purported police powers — with appropriate clarifications that I will discuss below — even where no crime is alleged.
[45] The basis of the doctrine is that police actions that interfere with individual liberty are permitted at common law if they a