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ABUSE OF LEGAL PROCEDURE OR PROCESS - False arrest or imprisonment - Liability of parties

Friday, October 04, 2019 @ 3:05 PM  


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Appeal from a judgment of the Ontario Court of Appeal reversing a trial decision that grant Fleming’s action against the Province of Ontario and seven O.P.P. officers for assault and battery, wrongful arrest, and false imprisonment, as well as damages for violations of his rights under ss. 2(b), 7, 9 and 15 of the Canadian Charter of Rights and Freedoms (“Charter”). Fleming was arrested while walking to join a counter protest flag rally organized in response to occupation of a piece of Crown land by protesters representing the First Nation of Six Nations of the Grand River (“Six Nations”). The occupation had on numerous prior occasions culminated in violent clashes between the two sides. Police, aware of plans for the rally, had developed an operational plan which included keeping protestors and counter protestors apart. The flag rally counter protestors were also informed that they were not allowed on the occupied property. On the day of the protest, Fleming was observed walking along the shoulder of the road in front of the occupied property. Police moved to intercept him, with the intention of placing themselves between him and the entrance to the property. Fleming stepped onto occupied property in order to avoid the police vehicles, which caused commotion among the protesters who began to move toward him. Police then informed Fleming that he was under arrest to prevent a breach of the peace. Fleming refused to drop the flag he was carrying, and officers then forced him to the ground, handcuffed him, and transported him to a jail cell. He was released two and a half hours later. The trial judge held that the claims for false arrest and unlawful imprisonment were made out, and that the respondents were liable for battery because the force used could not be justified. She also found that his rights under ss. 2(b), 7 and 9 of the Charter were breached. 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, and ordered a new trial solely on the issue of excessive force.

HELD: Appeal allowed, trial decision restored. 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 Fleming. The trial judge found that Fleming had not done anything unlawful before being arrested, and had not 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. Pursuant to the ancillary powers doctrine, police actions that interfere with individual liberty are permitted at common law if they are ancillary to the fulfillment of recognized police duties. To determine whether the doctrine applies, the court 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, which requires consideration of three factors: (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. 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. The effect of the respondents’ position, on the facts of this case, is to claim a power to arrest individuals engaged in lawful conduct in order to prevent a breach of the peace by others. This proposed power would involve substantial prima facie interference with significant liberty interests. While the power falls within the general scope of the police duties of preserving the peace, preventing crime and protecting life and property, it is not reasonably necessary for the fulfilment of those duties. The respondents cannot rely merely on the fact that arresting Fleming was effective in order to establish that doing so was justified.

Fleming v. Ontario, [2019] S.C.J. No. 45, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, S. Côté, R. Brown, M. Rowe and S.L. Martin JJ., October 4, 2019. TLD-September302019015-SCC