Poor Mr. Fleming, a Canadian man of European descent, decided to exercise his right of freedom of expression by waving a Canadian flag with a group called "Canadian Advocates for Charter Equality" in Caledonia where a group of Indigenous Canadians were occupying Crown-owned lands only to be forcefully arrested by OPP officers in order to avoid a breach of the peace. Mr. Fleming had done no wrong known to law. The police, supposedly acting on past experience and speculation, determined that Mr. Fleming's rights of expression should be denied in the name of preserving the public peace.
Understandably, Mr. Fleming did not agree with this brand of justice and filed an action against the OPP officers and Her Majesty the Queen in Right of Ontario for unlawful arrest, excessive force(assault and battery) and violation of his rights Charter Rights. After carefully considering all of the evidence at trial the learned trial judge concluded that poor Mr. Fleming was unlawfully arrested and excessive force was used on him. She awarded Mr. Fleming $139,711.90 in damages plus costs.
The police defendants appealed to the Ontario Court of Appeal. Their argument that it was lawful for them to forcefully arrest poor Mr. Fleming even though he committed no offence in law and was merely exercising the most fundamental of legal rights in a democracy - the right of freedom of expression was well received by a majority of that court led by Nordheimer J.A. Norheimer J.A. set aside the award of damages on the basis that the learned trial judge committed "overriding and palpable error" and concluded that the police had the authority at common law to arrest poor Mr. Fleming.
Laskin C.J.Like Dissent:
When it looked like the days when we once had powerful and well-reasoned dissent judgments from our appellate courts was all over along comes Mr. Justice of Appeal Huscroft. Huscroft J.A.'s dissenting judgment takes us back to a time when another former academic named Bora Laskin penned dissents which often went on to make law thorough-out the Commonwealth. Huscroft J.A., himself a former academic writes with a soundness, clarity and honesty that brings back memories of the dissenting judgments of the late Chief Justice Laskin. The dissent is noteworthy because Huscroft J.A. takes issue with the majority on very serious and fundamental points of law. These points of law have the potential to impact the very substance of the fundamental rights which are often at stake when the rights of citizens and the state collide. The points of law that Huscroft J.A. takes issue with Nordheimer J.A. on include the following: standard of review and the role of the appellate court in reviewing findings of fact made by a trial judge - the lawfulness of the arrest and the right of political expression and when it can be denied. The soundness of the decision is best demonstrated by quoting excerpts of it directly.
[76] The primary issue raised by this appeal is whether the police were justified in arresting the respondent to avoid a possible breach of the peace. My colleague Nordheimer J.A. concludes that they were. With respect, I disagree.
[78] My colleague defers to the police in their decision to arrest Mr. Fleming, rather than to the trial judge, whose decision came following an 11-day trial. The trial judge found that Mr. Fleming's arrest was not justified in the circumstances. In my view, there is no basis for this court to interfere in her decision.
[80] The burden is on the appellants to demonstrated an error of fact or an error of mixed fact and law that is both palpable and overriding. It must be palpable, in the sense that the error is obvious or apparent without further inquiry or explanation.
(81) In my view, none of the alleged errors identified by Nordheimer J.A. rises to this high standard. As a result, it is not open to this court to substitute its view as to lawfulness of Mr. Fleming's arrest.
[89] The trial judge found that the evidence was "clear" that the police intended to prevent Mr. Fleming from walking up Argyle Street with a Canadian flag. Not only did she accept Mr. Fleming's testimony that he left the shoulder because of the police vehicles, but she noted that Inspector Skinner conceded that the O.P.P. had pre-emptively decided to limit the rights of the Flag Rally participants and that, for him, public safety "[took ]priority over other rights such as the freedom of expression and the freedom to walk down the street."
Huscroft J.A. spends a great deal of necessary time demonstrating how "My colleague characterizes things differently than the trial judge."...Mr. Fleming, he says, chose to leave the shoulder of Argyle Street for reasons that are unclear on the record....He then suggests that Mr. Fleming is the author of his own misfortune - that he might have avoided his problems by remaining at the side of Argyle Street."
[92] With respect, it is not open to this court to recharacterize the evidence in this fashion and substitute its inferences for those made by the trial judge. The trial judge made findings that were open to her on the evidence. It cannot be said that they constitute palpable and overriding error.
[99] ...Mr. Fleming was entitled to attend and participate in the Flag Rally regardless of its effect on the governments political goals at Caledonia or anywhere else, and, in particular, regardless of whether the Flag Rally was considered provocative by the government or the protesters.
[100] Political expression will often be provocative, and so considered problematic, but there is no doubt that its protection is a core purpose of freedom of expression.
Indeed, the key difference in the Huscroft J.A. dissenting reasons and that of the majority stems from the deference they accord to the findings of the trial judge. Huscroft J.A. accords her the deference called for in our law while the majority appears to go out of its way to interfere with her findings of fact.
[177] I can see no basis to interfere with these findings or the trial judge's conclusion. In my view, the deference my colleague accords to the operations decisions of the police is more properly due to the decision of the trial judge.
Supreme Court of Canada:
"As there is no common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by others, the police in this case did not have lawful authority to arrest F. The trial judge specifically found that F had not done anything unlawful before being arrested; there was no evidence before her that he had committed any offence in walking along the street, entering the occupied property or standing there with his Canadian flag. Nor was there evidence that he had himself been about to commit an indictable offence or a breach of the peace. The Province and the police have not sought to challenge that finding on appeal, nor have they cited or relied on any statutory power to arrest F. They rely entirely on a common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by other persons - a power that does not exist. In light of this conclusion, a new trial on the issue of excessive force is not necessary. As the police were not authorized at common law to arrest F, no amount of force wold have been justified for the purpose of accomplishing that task." (Case Headnote - Fleming v. Ontario 2019 SCC 45)
About the author: E.J. Guiste is an lawyer of African-Canadian descent who represents individuals like Mr. Fleming in actions and appeals involving fundamental rights against police and other state actors.
Understandably, Mr. Fleming did not agree with this brand of justice and filed an action against the OPP officers and Her Majesty the Queen in Right of Ontario for unlawful arrest, excessive force(assault and battery) and violation of his rights Charter Rights. After carefully considering all of the evidence at trial the learned trial judge concluded that poor Mr. Fleming was unlawfully arrested and excessive force was used on him. She awarded Mr. Fleming $139,711.90 in damages plus costs.
The police defendants appealed to the Ontario Court of Appeal. Their argument that it was lawful for them to forcefully arrest poor Mr. Fleming even though he committed no offence in law and was merely exercising the most fundamental of legal rights in a democracy - the right of freedom of expression was well received by a majority of that court led by Nordheimer J.A. Norheimer J.A. set aside the award of damages on the basis that the learned trial judge committed "overriding and palpable error" and concluded that the police had the authority at common law to arrest poor Mr. Fleming.
Laskin C.J.Like Dissent:
When it looked like the days when we once had powerful and well-reasoned dissent judgments from our appellate courts was all over along comes Mr. Justice of Appeal Huscroft. Huscroft J.A.'s dissenting judgment takes us back to a time when another former academic named Bora Laskin penned dissents which often went on to make law thorough-out the Commonwealth. Huscroft J.A., himself a former academic writes with a soundness, clarity and honesty that brings back memories of the dissenting judgments of the late Chief Justice Laskin. The dissent is noteworthy because Huscroft J.A. takes issue with the majority on very serious and fundamental points of law. These points of law have the potential to impact the very substance of the fundamental rights which are often at stake when the rights of citizens and the state collide. The points of law that Huscroft J.A. takes issue with Nordheimer J.A. on include the following: standard of review and the role of the appellate court in reviewing findings of fact made by a trial judge - the lawfulness of the arrest and the right of political expression and when it can be denied. The soundness of the decision is best demonstrated by quoting excerpts of it directly.
[76] The primary issue raised by this appeal is whether the police were justified in arresting the respondent to avoid a possible breach of the peace. My colleague Nordheimer J.A. concludes that they were. With respect, I disagree.
[78] My colleague defers to the police in their decision to arrest Mr. Fleming, rather than to the trial judge, whose decision came following an 11-day trial. The trial judge found that Mr. Fleming's arrest was not justified in the circumstances. In my view, there is no basis for this court to interfere in her decision.
[80] The burden is on the appellants to demonstrated an error of fact or an error of mixed fact and law that is both palpable and overriding. It must be palpable, in the sense that the error is obvious or apparent without further inquiry or explanation.
(81) In my view, none of the alleged errors identified by Nordheimer J.A. rises to this high standard. As a result, it is not open to this court to substitute its view as to lawfulness of Mr. Fleming's arrest.
[89] The trial judge found that the evidence was "clear" that the police intended to prevent Mr. Fleming from walking up Argyle Street with a Canadian flag. Not only did she accept Mr. Fleming's testimony that he left the shoulder because of the police vehicles, but she noted that Inspector Skinner conceded that the O.P.P. had pre-emptively decided to limit the rights of the Flag Rally participants and that, for him, public safety "[took ]priority over other rights such as the freedom of expression and the freedom to walk down the street."
Huscroft J.A. spends a great deal of necessary time demonstrating how "My colleague characterizes things differently than the trial judge."...Mr. Fleming, he says, chose to leave the shoulder of Argyle Street for reasons that are unclear on the record....He then suggests that Mr. Fleming is the author of his own misfortune - that he might have avoided his problems by remaining at the side of Argyle Street."
[92] With respect, it is not open to this court to recharacterize the evidence in this fashion and substitute its inferences for those made by the trial judge. The trial judge made findings that were open to her on the evidence. It cannot be said that they constitute palpable and overriding error.
[99] ...Mr. Fleming was entitled to attend and participate in the Flag Rally regardless of its effect on the governments political goals at Caledonia or anywhere else, and, in particular, regardless of whether the Flag Rally was considered provocative by the government or the protesters.
[100] Political expression will often be provocative, and so considered problematic, but there is no doubt that its protection is a core purpose of freedom of expression.
Indeed, the key difference in the Huscroft J.A. dissenting reasons and that of the majority stems from the deference they accord to the findings of the trial judge. Huscroft J.A. accords her the deference called for in our law while the majority appears to go out of its way to interfere with her findings of fact.
[177] I can see no basis to interfere with these findings or the trial judge's conclusion. In my view, the deference my colleague accords to the operations decisions of the police is more properly due to the decision of the trial judge.
Supreme Court of Canada:
"As there is no common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by others, the police in this case did not have lawful authority to arrest F. The trial judge specifically found that F had not done anything unlawful before being arrested; there was no evidence before her that he had committed any offence in walking along the street, entering the occupied property or standing there with his Canadian flag. Nor was there evidence that he had himself been about to commit an indictable offence or a breach of the peace. The Province and the police have not sought to challenge that finding on appeal, nor have they cited or relied on any statutory power to arrest F. They rely entirely on a common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by other persons - a power that does not exist. In light of this conclusion, a new trial on the issue of excessive force is not necessary. As the police were not authorized at common law to arrest F, no amount of force wold have been justified for the purpose of accomplishing that task." (Case Headnote - Fleming v. Ontario 2019 SCC 45)
About the author: E.J. Guiste is an lawyer of African-Canadian descent who represents individuals like Mr. Fleming in actions and appeals involving fundamental rights against police and other state actors.
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