R. v. Fleming, 2019 SCC 45

ANCILLARY POWERS DOCTRINE - COMMON LAW POLICE POWERS OF ARREST

Background

Fleming was arrested while walking to a flag rally in response to a Six Nations’ protest occupying a piece of Crown land. Police knew of the protest in advance, and developed a plan to separate protestors and counter-protestors. Counter-protestors were informed that they were prohibited from entering the occupied property. Fleming stepped onto the property to avoid police vehicles, an officer arrested him to prevent a breach of the peace. Fleming refused to drop the flag he was carrying. He was then forced to the ground, handcuffed and moved to a jail cell for more than two hours. Fleming filed a statement of claim against the Province of Ontario and the officers involved in his arrest, claiming damages for assault, battery, wrongful arrest and false imprisonment. He also alleged violations of his ss. 2(b), 7, 9 and 15 of the Charter. Although successful at trial, the ONCA set aside the award of damages on the ground that the police had common law power to arrest him. Fleming appeals this finding.

Issue on Appeal & Holding

Did the police have common law authority to arrest Fleming? No. Appeal allowed and trial judge’s order restored.

Analysis

Common Law Police Powers: the Test

To determine whether a particular police action is authorized at common law, the court must (1) ask whether the police conduct at issue falls within the scope of a statutory or common law police duty, and (2) 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 is reasonably necessary for the fulfillment of the duty. The court will weigh three factors in answering this question: (a) the importance of the performance of the duty to the public good, (b) the necessity of the interference with individual liberty for the performance of the duty, and (c)  the extent of the interference with individual liberty. The onus is always on the Crown.

Applying the Test

The purported police power: power to arrest an individual acting lawfully in order to prevent a breach of the peace by others. This power falls within the general scope of policy duties to preserve the peace, prevent crime, and protecting life and property. The power, however, is not reasonably necessary for fulfilling these duties. A statutory power of arrest already exists to allow police to arrest individuals who resist or obstruct an officer. The SCC notes that the mere fact that the arrest of Fleming was effective in preserving the peace does not justify with the interference of liberties. If a non-intrusive or less intrusive measure is possible, it will always be preferred over an intrusive police measure.

The SCC highlights the concerns it has with potentially recognized the purported police power. The purported police power (arrest to prevent a breach of the peace) interferes with the liberty of an individual who is (1) acting lawfully, and (2) neither accused nor suspected of committing a crime. Moreover, the purported police power is preventative. To allow a power with such vague and overly permissive standards could result in profound intrusions of personal liberty. Lastly, this arrest power would not generally result in charges and would therefore, rarely be subject to judicial oversight.