Members of the list might be interested in today’s case in the Supreme Court of Canada on wrongful arrest.

 

Fleming v Ontario

2019 SCC 45

4 October 2019

 

The case summary describes the facts thusly:

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. Mr. Fleming got off the road and crossed a low fence. He said he did this to get away from the speeding vehicles and onto level ground. The officers were yelling. Mr. Fleming said he didn’t think they were yelling at him because he hadn’t done anything wrong.

The people occupying the land came toward him. When they were about ten or twenty feet away, the police told Mr. Fleming he was under arrest. They ordered him to drop his flag. He refused. Officers forced him to the ground, took his flag, and handcuffed him. Mr. Fleming said they injured his arm. The police took him to jail but let him go a few hours later. He was charged with obstructing a police officer (preventing a police officer from doing their job). He went to court a dozen times to fight the charge, which was later dropped.

For his part, Fleming filed a statement of claim against the 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.

Relying on the “ancillary powers doctrine” discussed in R. v. Waterfield, [1963] 3 All E.R. 659, 660-62, the police department countered that officers had the power to arrest Fleming because they feared his presence would incite others to a breach of the peace.

In a unanimous opinion today the Supreme Court rejected that argument, holding that the ancillary powers doctrine does not permit the arrest of a law-abiding citizen who has committed no offence simply to prevent a breach of the peace by another party.

The Supreme Court upheld the trial court’s award to Mr. Fleming of $139,000 in general and special damages along with $151,000 in trial court costs.  The Supreme Court then added $48,000 in costs of the appeal, for a grand total of approximately $350,000 against the Crown.

The full opinion is here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17947/index.do