Supreme Court unanimously holds that common law does not empower police to arrest someone acting lawfully

04 October 2019

Fleming v Ontario, 2019 SCC 45

On Oct. 4, 2019, the Supreme Court of Canada released its decision in Fleming v Ontario. 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.

Michael Bordin and Jordan Diacur of Gowling WLG appeared as counsel for the Appellant. D. Lynne Watt of the firm's Supreme Court Practice Group acted as the Appellant's Ottawa Agent and Matthew Estabrooks, another member of the Practice Group, acted as Ottawa Agent for the Canadian Constitution Foundation, an Intervener in these proceedings.

More details on this decision and its significance are available here.


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