FLEMING v. ONTARIO 2019 SCC 45

Police can’t arrest an individual who is acting lawfully, merely on the contemplation that it would prevent others from breaching the peace.

Mr. Fleming was along the way to a counter-protest rally which was held against the annexation of segment of land by a First Nations community in Caledonia, Ontario in 2009. He was holding the flag of Canada on a wooden pole while heading towards the occupied land. Police officers observed him and commenced towards him as there had been incidents of violence in the past and they intended to keep the groups separate. As the officers approached him, Mr. Fleming got off the road and traversed a fence. According to him, he did so to evade the speeding vehicle. The officers shouted at him, but according to him, he was unaffected by it as he did not do anything wrong.

The people who were holding the land proceeded towards him. He was informed of his arrest by the police officers, when those people were 10-20 ft. away from him. They commanded him to leave his flag, which was refused by him. Subsequently, the officers took him to the ground and handcuffed him. Mr. Fleming stated that his hand was wounded. The officers brought him to the jail but left him in a few hours. Mr. Fleming was accused of obstructing a police officer and inhibiting him from doing his duty. He moved to court numerous times against the charges, which were later discarded.

Mr. Fleming prosecuted the officers who arrested him and the Province of Ontario in 2011. He accused them of acting wrongfully, assaulting, falsely arresting and imprisoning him, and violating his multiple rights guaranteed by the Constitution of Canada (Canadian Charter of Rights and Freedom).

The Police Officers can act within the limit of statutes and common law that bestowed powers on them. The police can only limit the freedom of an individual if it is reasonably essential to discharge his duty. Police contended that they had authority to arrest Mr. Fleming pursuant to common law for preventing ‘breach of peace’. A breach of peace involves threat of violence.

The trial judge declared that Mr. Fleming should be compensated as the officers acted out of their power to arrest him and violated his rights. However, the majority at Court of Appeal had a contrary view that the officers acted within the reasonable authority as the arrest was necessary for preventing breach of peace. Although, the stated that a new trial should be carried out to determine whether the officers applied excess force.

The Supreme Court concluded that the officers acted out of authority and did not have power to arrest Mr. Fleming. The police can’t arrest an individual who had acted lawfully merely on the contemplation that it would prevent others from breaching the peace. Criminal Code had bestowed them with the powers wherein they could have handled the situation. Considering they had other options, Mr. Fleming’s arrest was declared to be unjustified by the Court.