What is the extent that police officers can go when initiating a "protective / preventive" arrest? Can protestors who has not infringed any law, be arrested, so as to protect them and prevent the potential occurrence of a breach of peace? These questions and the general power of the police under the common law principle was answered unanimously by the Canadian Supreme Court in the recent judgment Fleming versus Ontario [2019SCC 45].
The decision in Fleming clarifies the common law duties of the police to prevent an apprehended breach of the peace. This issue was left undecided when leave to appeal the decision in Brown v. Durham Regional Police (1999), 106 CCC (3d) 302 (Ont CA) was discontinued on October 4, 2000.
Brief Facts leading to arrest:
Mr. Fleming was on his way to join a protest in Caledonia, Ontario in 2009. The protest was against the occupation of a piece of land by a First Nations group. He was carrying a Canadian flag on a wooden pole and walking down a street beside the occupied land. Police officers saw him as they drove by. There had been violence in the past, and they were planning to keep the groups apart. The officers turned their vehicles around and sped toward him, yelling. Mr. Fleming got off the road and crossed a low fence. The people occupying the land came toward him. When they were about ten or twenty feet away, the police told arrested Mr. Fleming after ordering him to drop his flag. Mr Fleming refused and the Police Officers forced him to the ground, took his flag, and handcuffed him, causing him injury. The police took him to jail but let him go a few hours later. He was charged with obstructing a police officer, which was later dropped.
In 2011, Mr. Fleming sued the Province of Ontario and the officers involved in his arrest as the officers assaulted and battered him, wrongfully arrested him, and falsely imprisoned him. He also said they violated several of his rights under the Canadian Charter of Rights and Freedoms, part of Canada's Constitution.
The contention of the Police was that the origin of their powers are from statutes (like the Criminal Code) and common law principles. The argument of the police was that, under the common law, police can limit someone's freedom (for example, arrest them) if it's reasonably necessary to carry out their duties and to prevent a "breach of the peace."
The Trial Court, (Ontario Superior Court) at the conclusion of the trial found that the arrest of Mr Fleming was not sanctioned by any statute and ordered the respondents to pay a total of CAD 139,711.90 in general damages, special damages, tort damages and Charter damages. The respondents were also ordered to pay costs to the tune of CAD 151,000/-.
Appeal to the Ontario Court of Appeals:
The Ontario Police appealed and a majority of the Ontario Court of Appeal (2018ONCA160) held that while there is, in normal circumstances, a right to participate in political action and walk along a public street carrying a Canadian flag, there is no right to engage in these activities if such actions would likely lead to a breach of the peace. The "ancillary powers" doctrine, according to the Ontario Court of Appeal, made the arrest legal, even though he was not currently committing or even suspected of committing a crime. Holding so, the Court of Appeal ordered that there should be a new trial about whether the officers used too much force.
Appeal to the Canadian Supreme Court:
Fleming appealed from the judgment of Ontario Court of Appeal to the Canadian Supreme Court and leave to appeal was obtained. The Court heard the case on 21 March 2019 and on 4 October 2019, the judgment was pronounced allowing the appeal declaring that, the Police has no common law right to arrest an individual who has not done any illegal act, allegedly for his protection.
To come to its conclusions, the Court elaborately tested "ancillary powers doctrine" to ascertain whether a particular police action that interferes with individual liberty is authorized at common law. In its reasons, the court held that "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 duty, and (3) the extent of the interference with individual liberty. Throughout the analysis, the onus is always on the state."
The Court further reasoned that "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".
After enumerating the principles of law, the Court held that, "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 fulfilment 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."
With detailed analysis of the facts involved and the principles of law the Court laid down the dictum that there is no common law power available to the police to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by others. The Supreme Court set aside Ontario Court of Appeal judgment and restored the judgment of the trial court with additional costs.
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