The Supreme Court of Canada Holds that the Common Law Does Not Empower the Police to Arrest a Person Who is Acting Lawfully

19 minute read
08 October 2019

Supreme Court of Canada Case in Depth: Fleming v Ontario, 2019 SCC 45

The Supreme Court of Canada released its decision in Fleming v Ontario, on October 4, 2019. The decision was unanimous, with Côté J. writing for the Court.

The case is about common law police powers of arrest. In arresting Mr. Fleming (the Appellant), the Respondent Attorney-General of Ontario and police officers argued that they had made use of an "ancillary" common law police power authorizing the arrest of an individual who was acting lawfully in order to prevent an apprehended breach of the peace. This purported police power has been used to justify arrests in circumstances of protest, including mass arrests during the 2010 G20 protests in Toronto. However, the question of whether such a power exists and its scope had not previously come before the Supreme Court. Accordingly, this case had significant implications for the rule of law in Canada.

The Court accepted the Appellant's argument that recognizing such a common law power of arrest would substantially interfere with the liberty of law-abiding individuals and would not be reasonably necessary for the fulfilment of police duties. Further, as the Court could not conceive any circumstance in which the arrest of someone who is acting lawfully in order to prevent a breach of the peace would be reasonably justified, the Court concluded that "no such power exists at common law".

Facts and Background

The basic facts of the case were not in dispute. On May 24, 2009, Randy Fleming ("Fleming") was lawfully and peacefully exercising his common law rights and Charter freedoms, walking north on the shoulder of Argyle Street in Caledonia, Ontario. He was carrying a Canadian flag. He was walking to a long-planned 'flag rally' involving the raising of a Canadian flag and speeches. His goal was to watch the rally.

Seven Ontario Provincial Police ("OPP") officers set out to intercept Fleming as he walked. They drove at him in two vans, onto the shoulder of the road at speed, from the opposite direction. The lead van was unmarked. Carrying his Canadian flag, Fleming walked a few meters through a ditch to higher ground onto land owned by the Province of Ontario known as Douglas Creek Estates ("DCE").

Within seconds, Fleming was arrested and wrestled to the ground by the OPP officers after he refused to drop his Canadian flag. It was established at trial and not contested on appeal that: (a) Fleming had broken no laws and was acting lawfully at the time of his arrest; (b) upon being 'grounded', Fleming had complied with police commands to place his hands behind his back; and (c) Fleming's arm had been wrenched upwards while he was being handcuffed by the OPP officers after he complied, leaving him with a permanent injury.

For more than three years prior to May 24, 2009, DCE had been occupied by Indigenous persons in a longstanding dispute between the Crown and the First Nation of Six Nations of the Grand River. The flag rally was a protest aimed at OPP policing in the context of the occupation. The flag rally was to have occurred on the far side of Argyle Street from DCE. Argyle Street is a busy two-lane highway, and it was open to traffic. As a protester, Fleming's constitutionally-protected freedom of expression and liberty interests were involved, along with his common law rights to pass and repass on a public highway.

Fleming did not approach any persons on DCE or speak to them. The main entrance to DCE where 20 or so occupiers were gathered was about 100 meters away from Fleming. The day had been peaceful. There was a heavy police presence, with over 30 OPP officers on the ground—including the 7 officers involved in Fleming's arrest—plus 30 additional officers (in 'hard tac' riot-gear) available in reserve and able to be quickly deployed.

After the 7 OPP officers had driven their vans at Fleming and he had left the shoulder of the road, approximately 8-10 male and female occupiers began to approach. Several were carrying cameras—some walked; some jogged. They had no weapons. They uttered no threats. They were not known to be individuals with a history of violence. The occupiers never arrived at Fleming's location. They kept their distance from him and the police. One of the OPP officers acknowledged at trial that the occupiers might have been coming over simply "to see what was going on".

The OPP officers acknowledged that options were available to them other than arresting Fleming, including: (a) establishing a 'buffer zone' between Fleming and the occupiers; (b) calling for readily-available backup; or (c) sending out an officer or two to speak to Fleming and determine his intentions instead of driving towards him in vans. Nevertheless, the OPP officers asserted that Fleming was arrested in order to prevent an apprehended breach of the peace by others, i.e. a concern that the 8-10 approaching occupiers intended to harm Fleming in some unspecified manner. Fundamentally, the respondents argued that arresting Fleming was necessary for his own protection.

Trial Decision

Fleming commenced an action against the provincial Crown and the individual OPP officers seeking damages, alleging battery, false arrest, wrongful imprisonment, infringement of common law mobility rights, and breach of Charter rights and freedoms. The trial involved eight days of testimony before the Ontario Superior Court of Justice. After extensive closing submissions, Carpenter-Gunn J. rendered an oral Ruling on September 22, 2016, in favour of Fleming.

The trial judge found that:

  1. the OPP officers were not justified in arresting Fleming;
  2. the OPP officers used excessive force and caused Fleming's injury;
  3. Fleming was falsely arrested and wrongfully imprisoned;
  4. Fleming suffered interference with his common law right to walk along public roadways; and
  5. Fleming suffered interference with his Charter rights to freedom of expression, liberty and security of the person, and freedom from arbitrary detention.

Fleming was awarded $80,000.00 in general damages, $12,986.97 in special damages, $5,000.00 in Charter damages for the s. 2(b) breach, $10,000.00 for false arrest and wrongful imprisonment, interest from the date of his arrest, and, on consent, $151,000.00 in costs.

Court of Appeal for Ontario's Decision (2018 ONCA 160)

The Respondents appealed the findings of liability only. Fleming cross-appealed with respect to the quantum and type of damages awarded.

After a hearing in November 2017, the majority of the Court of Appeal for Ontario (per Nordheimer JA; Cronk JA concurring) rendered its decision in February 2018. The trial decision was set aside and a new trial was directed on the sole issue of whether excessive force was used when Fleming was arrested and, if so, what damages follow. The cross-appeal was dismissed. Costs of $25,000.00 were awarded against Fleming.

In finding that the arrest of Fleming was justified, the majority's decision focused on the existence of a police duty to maintain the public peace and the effectiveness of police action. The majority's decision implicitly directed courts to show deference to police who "have a great deal more training and experience than do judges" and explicitly directed courts to be "very cautious about criticizing the tactical actions of the police".

Huscroft JA wrote a dissenting opinion critical of the majority's decision on a number of fronts, including the role of the courts in exercising oversight of proactive policing decisions in order to prevent abuses. As noted in the dissenting opinion of Huscroft JA, the majority's decision:

… understates the importance of both the common law liberty to proceed unimpeded along a public highway and the right to engage in political protest - the heart and soul of freedom of expression in a democracy. At the same time, it overstates the scope of the police power to arrest someone to avoid a possible breach of the peace - a breach that may never occur, and a breach that, if it were to occur, would be caused by the unlawful actions of others. The police power to arrest for a possible breach of the peace is an extraordinary power. Its exercise cannot easily be justified…

Issue at the Supreme Court of Canada

At the Supreme Court, the central issue was whether Fleming's arrest was lawful. As no other basis for the arrest was alleged, the question became, does the common law permit police officers to arrest an individual who is acting lawfully in order to prevent an apprehended breach of the peace?

A secondary issue was whether a new trial on the issue of excessive force was necessary.

These issues attracted interventions by the Attorneys General of Canada and of Quebec, as well as the Canadian Association of Chiefs of Police, Canadian Civil Liberties Association, Criminal Lawyers' Association (Ontario), Canadian Association for Progress in Justice and Canadian Constitution Foundation.

Defining the Ancillary Powers Doctrine

Police powers arise from both statute and the common law. For the most part, police powers are clearly outlined in statutes, such as the Criminal Code. Common law police powers are considered to stem from police duties that are not specifically mandated in any statute. Such powers are therefore considered "ancillary" to police duties.

The power to arrest a person in order to prevent an apprehended breach of the peace is not created or governed by any statute. If it exists, it could only derive from the common law, as an ancillary power.

Police duties and police authority to act in the performance of those duties are not co-extensive. Police conduct is not rendered lawful merely because it assists in the performance of the duties assigned to the police. Where police conduct interferes with the liberty or freedom of the individual, that conduct will be lawful only if it is authorized by law.

The two-part test to determine whether a police officer's conduct is authorized by a common law ancillary power was originally articulated by the English Court of Appeal in R v Waterfield, [1963] 3 All ER 659 (CA). The test had previously been adopted in Canada in Dedman v The Queen, [1985] 2 SCR 2, R v Mann, 2004 SCC 52, and R v MacDonald, 2014 SCC 3.

The Court in this case restated the test and indicated that it prefers to call the test the "ancillary powers doctrine" rather than the "Waterfield test" or using some other nomenclature.

The Court formulated the ancillary powers doctrine as a two-stage test with a preliminary step. In that preliminary step, the Court must clearly define the police power that is being asserted and the liberty interests that are at stake. Then, in the first stage, the Court must ask, does the police action at issue fall within the general scope of a statutory or common law police duty?

In the second stage, the Court must ask, does the action involve a justifiable exercise of police powers associated with that duty? Justification turns on whether the interference with liberty is necessary and reasonable.

The factors to be balanced at the second stage include:

  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 Court reiterated that the onus remains on the state throughout to justify the existence of the common law police power(s) being relied on.

The Court accepted that concepts such as minimal impairment and proportionality, which play a significant role in the Charter justification context, have clear parallels in the ancillary powers doctrine analysis. The Court noted that a proportionality assessment requires the three factors to be balanced at the second stage of the ancillary powers doctrine, and that the concept of reasonable necessity leads to the conclusion that if and when the police can fulfill their duty by a less intrusive action, using a more heavy-handed power is not lawful.

Applying the Ancillary Powers Doctrine

As the purported power in this case was the power of the police to arrest a person acting lawfully in order to prevent an apprehended breach of the peace, the Court delineated what constitutes a breach of the peace. "Violence lies at the core of this concept" concluded the Court, meaning either actual or threatened harm, and so "[b]ehaviour that is merely disruptive, annoying or unruly is not a breach of the peace"

The Court also clarified that, historically, the common law may have allowed for an arrest where the arrest was intended to prevent the arrested person from breaching the peace. However, the Court concluded that the Criminal Code powers of arrest have now entirely obviated the need for such a common law power of arrest such that it appears to have ceased to exist. Common law powers short of arrest may continue to exist, and the Court explicitly declined to make any finding in that regard.

Drawing a distinction between such cases and Fleming's case - in which it was not alleged that he threatened any breach of the peace himself, but rather that he supposedly faced a threat by others - the Court proceeded to apply the ancillary powers doctrine, noting that such a case had never before been addressed in any Canadian case.

In considering the preliminary step, the Court held that a common law police power to arrest a person acting lawfully to prevent a breach of the peace would substantially interfere with liberty interests, including constitutionally-protected rights and freedoms. The Court made specific reference to s. 2(b) freedom of expression, s.7 liberty and s.9 freedom from arbitrary detention, all of which were found at trial to have been infringed in Fleming's case.

At the first stage, the Court held that the purported police power of arrest did fall within the general scope of the police duties of preserving the peace, preventing crime, and protecting life and property.

In considering the standard of justification applicable at the second stage, the Court held that it is particularly stringent where the police power would impact law-abiding individuals, where the action would be preventative only, and where the interference with liberty would not normally lead to any criminal charges and so would be evasive of judicial review absent a costly civil suit. Indeed, in this case, it was only the fact that Fleming suffered a permanent injury during his arrest that made a civil suit a rational proposition.

At the second stage, the Court applied the three factors. The Court noted that the police duties in question were "immensely important" and that it is possible that in exceptional circumstances some interference with liberty lesser than arrest may be necessary to prevent a breach of the peace. But the Court also held that it did "not see how so drastic a power as arrest can be reasonably necessary" and that it "cannot conceive of circumstances in which a common law power of arrest will be required to prevent violence where there are no other means - available either at common law or in legislation - that would serve this purpose". The Court noted that if an individual fails to comply with less intrusive measures to avert a breach of the peace, for example, by resisting or wilfully obstructing the officer, there are statutory powers available to the police.

The Court also referred to the fact that it has only ever recognized a common law police power that interferes with liberty interests where there was some connection with criminal activities. That connection was lacking where the person in question was acting lawfully. The Court held that it was not reasonably necessary to recognize another common law power of arrest where persons acting lawfully were concerned. Therefore, to the extent that the majority of the Ontario Court of Appeal concluded that the arrest was justified under the ancillary powers doctrine, they were in error. The arrest did not prevent violence, as the trial judge had found on the evidence that there was no real risk of violence, and even if she had, mere effectiveness of a police action is insufficient to demonstrate that it was reasonably necessary:

An intrusion upon liberty should be a measure of last resort, not a first option. To conclude otherwise would be generally to sanction actions that infringe the freedom of individuals significantly as long as they are effective. That is a recipe for a police state, not a free and democratic society.

In sum, Fleming's arrest was unlawful because there is no common law power to arrest someone who is acting lawfully to prevent an apprehended breach of the peace. The trial decision was restored. No new trial on the issue of excessive force was necessary, as there was no authority for the arrest and accordingly no authority for the police to apply any force to Fleming at all.


This decision provides clarity for both the police and for citizens. For police, the decision clarifies what constitutes a breach of the peace and delineates the extent of their common law powers. For citizens, it provides assurance that their lawful conduct - including peaceful political protest and pursuit of their fundamental freedoms - will not result in a form of arrest that is evasive of judicial oversight. It ensures that the state cannot unreasonably interfere with constitutionally-protected, lawful political engagement or other forms of free expression. To put it simply, the state cannot use arrest as a pretext for shutting down lawful protest that the state may regard as provocative or troublesome.

It is now clear that there is no common law power to arrest someone who is not about to breach the peace in order to prevent an apprehended breach of the peace by other persons. Indeed, the Court seriously questioned whether there exists a common law power to arrest or detain a person who is about to commit a breach of the peace but left this for another case.

Although the Court expressly left open the question of justification for interference with liberties short of arrest, Justice Côté wrote "As a general rule, it will be more difficult for the state to justify invasive police powers that are preventative in nature than those that are exercised in responding to or investigating a past or ongoing crime."

Accordingly, the decision in Fleming is clear that there is no common law police power of arrest to prevent a breach of the peace. Any such arrest must be based on the Criminal Code or other statute.

Note: Jordan appeared for the Appellant, Mr. Fleming, in the Supreme Court of Canada along with lead counsel, Michael Bordin. Jeff is a partner in Gowling WLG's Supreme Court Practice Group, which acted as Ottawa Agents to the Appellant and the intervener, the Canadian Constitution Foundation.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.